Is it really necessary to sacrifice fair trial standards
to prosecute terrorism?


BARTRAM BROWN

Professor of Law and Co-Director of the Program in International and Comparative Law at Chicago-Kent College of Law

The threat of terrorism is very real and must be addressed by the government authorities responsible for maintaining security. Even so, it is neither necessary nor appropriate to sacrifice essential fair-trial standards to prosecute terrorism.

Democracy and human rights are built upon a careful balance between human rights and legitimate governmental authority. The indiscriminate brutality of terrorism breeds fears and tension among the population that can strain the legal and political system to the breaking-point. In the heat of the moment governmental responses which would normally be seen as excessive and intolerable may seem appropriate, or even necessary. In times such as these it is crucial to keep in mind the broader relationship between security and human rights.

Ultimately, our security and self-preservation requires not only physical survival but also the maintenance of the legal standards, checks and balances that are the foundation of the rule of law. These standards are carefully expressed both in the US Constitution and in international treaties.

Common Article 3 of the 1949 Geneva Conventions sets out an international minimum standard which bans "the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples." This refers to essentially the same due process guarantees provided by the US Constitution and its Bill of Rights.

Even if we were willing to sacrifice fair trial standards to prosecute terrorism, how would we know for sure who is truly a terrorist? Without the protection of basic fair-trial rights innocent citizens, incidentally swept up in an investigation, could be left with neither legal rights nor recourse. From an American Constitutional perspective it is essential to preserve not only cherished civil liberties but also the fundamental role of the judiciary in defining the limits of executive power.

The Bush administration has attempted to avoid all legal accountability for or external restraint upon its actions in the so-called "war on terror." Fortunately, US federal courts have recently ruled that legal standards do apply to the detention and trial of those detained as part of that effort. This shows that the checks and balances of the US Constitution are still functioning.

Terrorism is a frightening challenge to the rule of law. Some aspects of our fair trial procedures may need to be refined and updated in response to this threat. Nonetheless, the point of this process should be to maintain viable standards for the future not to abandon them altogether.

Bartram Brown is Professor of Law and Co-Director of the Program in International and Comparative Law at Chicago-Kent College of Law. He is a former member of AIUSA's Legal Support Network Steering Committee.

 

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