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The first Star Chamber was brought to an end by an Act of the English Parliament in 1641: Act Abolishing Arbitrary Courts (1641) An act for the regulating
the privy council and for taking away the court Like its forerunner - the new chamber asserts the need for ordinary laws to yield to the special needs of the State. Military Order By the authority vested in me as President and as Commander in Chief of the Armed Forces of the United States by the Constitution and the laws of the United States of America, including the Authorization for Use of Military Force Joint Resolution (Public Law 107-40, 115 Stat. 224) and sections 821 and 836 of title 10, United States Code, it is hereby ordered as follows: Sec. 2. Definition and Policy. (a) The term "individual subject to this order" shall mean any individual who is not a United States citizen with respect to whom I determine from time to time in writing that: (1) there is reason to believe that such individual, at the relevant times, (i) is or was a member of the organization known as al Qaida; (ii) has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefor, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy; or (iii) has knowingly harbored one or more individuals described in subparagraphs (i) or (ii) of subsection 2(a)(1) of this order; and (2) it is in the interest of the United States that such individual be subject to this order. On December 9, 2001 David Hicks was detained by US forces in Afghanistan. He has since been identified as "one of six foreign nationals singled out as eligible for trial as terrorists" in a tribunal that has been established under the Presidential Order. On July 4, 2003 the PM said that Hicks would be fairly treated - or, at least, that the PM had faith that he would be: - On July 11, 2003 the PM said "We are satisfied, and I base this on the discussions that Daryl Williams has had, that the normal things like the presumption of innocence, the right to remain silent, beyond a reasonable doubt, that all of those things will apply and we are in the circumstances, on that basis, satisfied that the procedure will be fair and proper." (Radio 3AW) The PM hasn't used the term fair trial - probably deliberately - but Hicks is apparently going to be tried (in Cuba) - so that must be the 'fair and proper procedure' the PM is referring to. The PM has defined 'fairness' (in this context) to mean a procedure that affords Hicks a presumption of innocence, the right to remain silent, access to a lawyer, the criminal standard of proof (beyond a reasonable doubt) and 'so forth'. He calls these characteristics 'the normal things' - from which he must be taken to be saying that these safeguards alone will be sufficient to guarantee Hicks a fair trial - without ever mentioning most of the material aspects of a trial; e.g.. the type of forum (in this case secret); the rules that govern the admissibility of evidence and the weight that is given to that evidence once it is admitted (in this case - a tribunal that is not bound by the rules of evidence that apply in every other criminal trial); or the process of appeal (in this case - no judicial review outside the tribunal itself and a final appellate body composed of the President of the United States sitting alone). If Hicks were a US citizen, the President would lack the power to try him in one of his military tribunals - because the Sixth Amendment to his own Constitution would forbid it:- But if he is tried, David Hicks (who is already being detained without charge) will be denied all but the last of those rights - and even that one right (or condition) will be qualified by restricting his choice of legal counsel. Yet, according to the PM, he will be - is being - treated fairly. Australians don't enjoy anything like the US Sixth Amendment protection - or the protection that all Europeans enjoy under Section 1 - Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. A fair trial in Australia (in a Federal Court) is arguably any kind of trial that the PM (and the Parliament) decides is fair. Our courts do possess the power to halt criminal proceedings in order to prevent "injustice" to an accused - JAGO v. THE DISTRICT COURT OF NEW SOUTH WALES AND OTHERS (1989) 168 CLR 23 - and the High Court has determined that the right to a fair trial is "a central pillar of our criminal justice system." DIETRICH v. THE QUEEN (1992) 177 CLR 292, but our Constitution doesn't expressly forbid the Government from tampering with the trial process - or doing away with it altogether. Even so, by contending that David Hicks will be guaranteed a fair trial if he enjoys the benefit of:
the PM is reinterpreting Australian legal history in a radical fashion. It's radical because he used the words "normal", "fair" and "proper", all the while ignoring (and encouraging his audience to ignore) the sum of learning on what constitutes a fair trial. The PM ignores history and corrupts language and political discourse in this way in order to be able to continue using words like 'fair' to describe what is occurring at Guantanamo Bay. The alternative would be to admit that the procedures are inherently unfair according to our system of law and thereby risk drawing attention to the exceptional nature of the President's assertions of power. Trouble for the entire planet is, freedom's new champion has gone and created himself a tribunal that bears a resemblance to the English Star Chamber (1487-1641) - described in this passage from The Constitutional History of Modern Britain 1485-1951, 5th Ed., Rev. (London: Adam and Charles Black, 1955): - "Unlike the Common Law courts, the Council [Star Chamber] dealt with offences not in the places where they had been committed, but centrally, where the local influences which had impeded justice, overawing or corrupting juries, witnesses, parties, sheriffs, and even judges could not come into play. It dispensed with the jury. It evaded the Common Law rule against the use of torture. It collected information through its own subordinate officials, and by written depositions taken in privacy, and not through evidence given and tested in open court. It could place accused persons on oath, and lead them to incriminate themselves on their own admissions, and indeed without their being aware of the precise charges to be brought against them." The modern incarnation of the chamber again sees a Head of State creating his own system of justice - this time in order to demonstrate the progress that he is making in his war on terror, as well as to remind the world that the President of the United States thinks he possesses an (almost) unfettered global jurisdiction to detain, torture, try, convict, and execute people. A jurisdiction that isn't governed by the norms of legal principle, his nation's Constitution, or any of the human rights covenants that emerged out of the bitter experience of the Twentieth Century. That was the procedure the PM apparently had in mind when he used the words "normal", "fair" and "proper". Normal, fair and proper as judged by the standards that prevailed during the Sixteenth and early Seventeenth Centuries perhaps? The PM has his rank, his fealty and his faith to protect him from the possibility of arbitrary detention and so forth. The people he serves (who include David Hicks) only have a set of principles that he has chosen to ignore in this case.
More: Department of Defense Military Commission Order No. 1 The Village Voice - Military Justice Is to Justice as Military Music Is to Music (also see other links on page) Christian Science Monitor (March 02) - How evidence stacks up on military tribunals Findlaw: MILITARY TRIBUNALS -A Long And Mostly Honorable History Jurist - Law Professors Oppose Military Tribunals for Terrorists Alternet.org - How the Military Tribunals Will Really Work ABC.net 8.7.3 - Fairness in military trials unlikely: US lawyers association Herald
Sun 8.7.3 - "Accused Australian terrorist David Hicks may be
given an ultimatum by the US – plead guilty or face the death
penalty if convicted." (accused?) (terrorist?) |