Show trials

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Here's an account of Mustafa Ait Idr's "hearing", from Judge Joyce Hens Green's ruling:
In reading a list of allegations forming the basis for the detention of Mustafa Ait Idr, a petitioner in Bourmediene v. Bush, 04-CV-1166 (RJL), the Recorder of the CSRT asserted, "While living in Bosnia, the Detainee associated with a known Al Qaida operative." In response, the following exchange occurred:

Detainee: Give me his name.

Tribunal President: I do not know.

Detainee: How can I respond to this?

Tribunal President: Did you know of anybody that was a member of Al Qaida?

Detainee: No, no.

Tribunal President: I'm sorry, what was your response?

Detainee: No.

Tribunal President: No?

Detainee: No. This is something the interrogators told me a long while ago. I asked the interrogators to tell me who this person was. Then I could tell you if I might have known this person, but not if this person is a terrorist. Maybe I knew this person as a friend. Maybe it was a person that worked with me. Maybe it was a person that was on my team. But I do not know if this person is Bosnian, Indian or whatever. If you tell me the name, then I can respond and defend myself against this accusation.

Tribunal President: We are asking you the questions and we need you to respond to what is on the unclassified summary.

Respondents' Factual Return to Petition for Writ of Habeas Corpus by Petitioner Mustafa Ait Idir, filed October 27, 2004, Enclosure (3) at 13. Subsequently After the Recorder read the allegation that the detainee was arrested because of his alleged involvement in a plan to attack the U.S. Embassy in Sarajevo, the detainee expressly asked in the following colloquy to see the evidence upon which the government's assertion relied:

Detainee: . . . The only thing I can tell you is I did not plan or even think of [attacking the Embassy]. Did you find any explosives with me? Any weapons? Did you find me in front of the embassy? Did you find me in contact with the Americans? Did I threaten anyone? I am prepared now to tell you, if you have anything or any evidence, even if it is just very little, that I proves I went to the embassy and looked like that [Detainee made a gesture with his head and neck as if he were looking into a building or a window] at the embassy, then I am ready to be punished. I can just tell you that I did not plan anything. Point by point, when we get to the point that I am associated with Al Qaida, but we already did that one.

Recorder: It was [the] statement that preceded the first point.

Detainee: If it is the same point, but I do not want to repeat myself. These accusations, my answer to all of them is I did not do these things. But I do not have anything to prove this. The only thing is the citizenship. I can tell you where I was and I had the papers to prove so. But to tell me I planned to bomb, I can only tell you that I did not plan.

Tribunal President: Mustafa, does that conclude your statement.

Detainee: That is it, but I was hoping you had evidence that you can give me. If I was in your place -- and I apologize in advance for these words -- but I a supervisor came to me and showed me accusations like these, I would take these accusations and I would hit him in the face with them. Sorry about that.

[Everyone in the Tribunal room laughs.]

Tribunal President: We had to laugh, but it is okay.

Detainee: Why? Because these are accusations that I can't even answer. I am not able to answer them. You tell me I am from Al Qaida, but I am not an Al Qaida. I don't have any proof to give you except to ask you to catch Bin Laden and ask him if I am a part of Al Qaida. To tell me that I thought, I'll just tell you that I did not. I don't have proof regarding this. What should be done is you should give me evidence regarding these accusations because I am not able to give you any evidence. I can just tell you no, and that is it.

Outstanding.

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Ian Grigg and I have a letter to ICANN about Verisign. See his post. Eric Rescorla has a Kafka-esque excerpt from the "trial" of Mustafa Ait Idr, who wasn't allowed to see the evidence against him. Mort points me... Read More

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8 Comments

Actually, the tribunal described here was anything but a "show trial". Show trials are deliberately dramatized proceedings whose sole purpose is to present the accused in as damning a light as possible to the public, so that popular opinion will support a harsh punishment, irrespective of the matter of guilt or innocence. The famous Moscow show trials, for instance, featured the defendants reading long, elaborate and contrite confessions of their own guilt. Though some of them had obviously been tortured into confessing, their public confessions served to justify their execution--and also to intimidate potential dissidents.

This tribunal, on the other hand, was obviously carried out in secret, with at least some of the prosecution's evidence kept strictly confidential. In such circumstances, the accused often looks--as Eric's reaction proves--much more sympathetic to an outsider than he or she would look if the evidence against him or her were presented at a public trial, "show" or otherwise.

Of course, it's possible that the evidence against this particular defendant was flimsy or nonexistent. It's also possible, though, that it was completely damning, but that revealing it to the defendant would have been tantamount to handing out intelligence secrets to the enemy. That's the whole raison d'etre for these tribunals--they allow classified evidence to be used, when public trials would make it impractical or even dangerous to do so.

Naturally, the use of secret evidence is open to abuse, and therefore a cause of concern for civil libertarians. But it's unfair to dismiss it as contemptuously as one (rightly) would a "show trial".

What I've never understood about these trials is the defense lawyer. Whether the accused as a Constitutional right to one or not, we must provide one in order to bring some balance into the situation.

Take a civilian attourney, preferably criminal defense, run him through the hoops to give him the clearance he needs to be able to see the evidence. Let him do the whole pretrial evidenciary thing. Sure, the rules of evidence are going to be different, but this dramatically improves the situation with no threat to national security.

Dan,

This is a different kind of show trial: it's a trial done for form's sake so you can say you had a trial--which is at least part of the purpose of the Soviet era trials. If the defendant has no access to the evidence against him--and I think the name of the person he allegedly conspired with counts here--it's simply a sham. Would you prefer the word "kangaroo court"?

In any case, it's not just my reaction. It was also the reaction of the judge who wrote the decision I am excerpting. And she did have access to at least some of the classified material.

I think one purpose of having trials open to the public is to allow some kind of confidence that we're not railroading someone mouthed off to a cop or slept with the mayor's wife. This kind of trial doesn't meet that goal at all.

As Dan says, it's possible that there's seriously damning evidence against this guy that just isn't being presented. But there's no way to tell from what's shown here, and I think there are good reasons to expect that people who get judged by how many people they lock up, but don't have to show their evidence in public, will often lock people up on very flimsy evidence.

According to the transcript, the president of the tribunal doesn't know who the accused is supposed to have associated with. In other words, some of the evidence is so secret that not even the judge gets to know it. I think that sets a new standard of justice: does anyone know of anywhere else that's been tried? I'm pretty sure it wasn't used in Stalin's show trials and I don't think that Kafka used it in his novels.

Yes, these proceedings might have been tantamount to a "kangaroo court", if the people involved were simply going through the motions, ignoring the evidence, and churning out an automatic conviction. Or it might have been a serious proceeding, in which the judge honestly weighed the prosecution's evidence, the defense lawyer worked hard to find any exculpatory evidence, and the result was a rough approximation of a normal trial.

Of course, given the information publicly available, we simply have no way of knowing which description fits, or whether the truth lies somewhere in between. That's clearly unacceptable for standard trials, because of the opportunities for massive abuse. It appears that the judge who ruled on this case was simply making this observation.

What's far less obvious (to me, at least) is whether there's room for this kind of trial under certain highly limited circumstances--for example, when the defendants are not citizens, they were apprehended abroad, and the evidence against them is secretly gathered intelligence. Perhaps, with enough oversight, such a system can be kept from collapsing into "kangaroo court" railroadings. (Keep in mind that they would be a small part of a much bigger system with overall proper oversight, rather than the entire system itself.)

I believe that such trials are probably necessary in a small subset of cases, and that the security benefits of being able to keep certain kinds of information secret outweigh the risks of abuse. I should add that proceedings with secret evidence have existed for a long time in other countries--Canada, for one, if I'm not mistaken--and these countries haven't all collapsed into totalitarian repression.

Either way, I don't think the matter is nearly as clear cut as Eric or the commenters seem to be suggesting.

Let's not mince words. The exchange documented above is an embarrassment to the United States of America, and mocks the Constitution.



"The accursed will be advised of the absence of his rights under the secret code of military toughness and will act accordingly!" -- Firesign Theatre

If the accused cannot examine the evidence, then any obvious flaws in it cannot be pointed out. Thus, the evidence is untested, and the facts have not been presented. If that is the case, they cannot move to the next step which is to apply the law to the facts.

Therefore, it was not a trial, it was a determination in closed court. (The witness' presence was uneccessary in this case, except for some purpose obscure to readers.) Such procedures exist for example for injunctions, but there are serious limits on their employment.

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