Friday, May 18, 2007

Not So Open Trial

The flaws with the military tribunals used to determine Gitmo detainees' guilt are pretty widely commented upon. But the alternative to Bush's Star Chamber courts, ie. trying the detainees in American courts, also poses some legal challenges.

Take the trial of Jose Padilla, now under way in Miami. According to the CSM's Warren Richey, a CIA agent was allowed to testify today using a pseudonym. In and of itself, that's neither unprecedented, nor unreasonable. More unusual though still not unprecedented, however, is that the jury wasn't informed at all about the pseudonym, and the defense attorneys were not told the agent's true name.

"Allowing [the CIA agent] to use a pseudonym is pretty uncontroversial, especially if it is someone who is an undercover agent," says Robert Chesney, a national-security law specialist and professor at Wake Forest School of Law. "The harder question is why is it OK for the defendants to be limited in their ability to impeach [the CIA agent's] credibility because they don't really know who the guy is."

Besides cases involving national security, mafia trials also sometimes feature pseudonymous witnesses whose identities are not revealed to the defendant. The reasons are obvious, if not necessarily unimpeachable.

As things stand, the Classified Information Procedures Act leaves a great deal of leeway to the trial judge to determine how to balance the defendant's right to a fair trial with the needs of national security, on a case by case basis. Which strikes me as somewhat arbitrary. One way to standardize the process would be to appoint a judiciary panel with the jurisdiction to review procedural issues surrounding classified information as they arise, similar to the FISA court used to authorize emergency wiretaps.

But while making the process more consistent is inherently desirable, even that won't make the issue go away. The tension between the right to an open trial and national security is an inherent one in terrorism cases. And if critics who call for the abolition of the military tribunals get their way, it will only become more prominent as trying accused terrorists in American courts becomes more prevalent.

Posted by Judah in:  Global War On Terror   Human Rights   

Comments (0)

e-mail  |  del.icio.us  |  digg