Scott Horton, lawyer and legal scholar, takes note of two more insults to justice and our democracy slipping through the media today, one in Virginia, and one involving the media themselves. He compares the Bush administration's incursions on constitutional freedoms to the excesses of Tudor and Stuart reigns: the Star Chamber.
The Star Chamber court operated in secrecy, was not bothered by the picky evidentiary rules that emerged in other courts, and did not believe that those appearing before it on state security charges had many rights—certainly not the right to counsel, nor even the right to conduct a defense. It relied very heavily on torture to extract the evidence it sought to convict, usually a confession—though rarely, of course, a confession with any validity, since the application of the rack would quickly get the subject to say whatever was desired, truthful or not. ...It was a tool for lashing the political opposition. And freethinkers were its particular victims.
The first example, in Virginia, involves an Islamic scholar living in that state. In this case the administration sought to allow only the judge, not the lawyers of the accused, to see secret, classified evidence. Where did this evidence come from? Wiretaps. Illegal wiretaps.
Like defendants before the Star Chamber, the defense is being denied the right of confrontation, the most basic of defense rights. This means that they do not know what is being said against them, nor even who is saying it. And accordingly, they are not able to point out to the Court what is false or suspect in these statements, or to introduce information which would rebut them. And all of this is transpiring in an American court room today, in one of many courts in America in which the Constitution has become a dormant document–at the urging of the Bush Justice Department.
Fortunately, the lawyer has threatened the prosecution with ending the trial and opening a new one unless the defense is given the evidence being used against it.
The second case arises from the Military Commissions at Guantanamo. Some of the biggest US news corporations -- including the New York Times, AP, McClatchy and others -- have filed a complaint that the administration is preventing them from reporting on one particular case, that of the Canadian, Omar Khadr.
The US strategy of closely guarding the proceedings and restricting media access to arguments and materials submitted is ...highly selective. The Department of Defense leaked to CBS News’s “Sixty Minutes” program what prosecutors have long viewed as their “bombshell” evidence: film which they assert shows Khadr involved in insurgent activities in Afghanistan. The Government strategy is that the Government will exercise tight control over what the public learns about the trial and what transpires there.
Of course, that violates one of the most important rights we have: the right to an open court in which justice is seen by the people and by their news media.
As Horton points out, whether the accused is eventually acquitted or found guilty, he or she has the right both to see the evidence and the right to be tried in public, before his or her peers.
