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8 February 2002

Warping the Judgement of Dissenting Opinion

Case studies for historical comparison

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Annex B to Warping the Judgement of Dissenting Opinion: towards a general framework for comparing distortion in rules of evidence


Introduction

Star Chamber
Catholic Inquisition
Trials under 'Protestantism'
Trials under French Revolution
Trials under Soviet Communism
Trials under Fascism
Trials under Chinese Communism
Trials under Khmer Rouge Communism
Trials under Cuban Communism
Trials under South African apartheid
Trials under Taliban application of Islamic law (sharia)
Military tribunals and war crimes
Judicial investigation of statesmen
Famous 'political' trials


Star Chamber

Understanding the role of this body is currently important because it is widely cited in comparing the current initiatives of the Bush administration in setting up military tribunals for the trial of terrorist suspects. It was created in 1487 by Henry VII to ensure 'speedy justice' and comprised some 20 or 30 judges. Developed as a separate entity from the judicial proceedings traditionally carried out by the king and his council. It was entirely separate from the common-law courts of the day (1487--1641). It was notably used by James I to process the Catholic fanatics, including the much-celebrated Guy Fawlkes, who endeavoured in 1605, through the Gunpowder Plot, to blow up the Houses of Parliament in London -- an act strangely reminiscent of the 11th September attacks, making Osama bin Laden into an American Guy Fawlkes !

The Star Chamber became a tool for political repression. The proceedings were secret, because the nature of the crimes which had been committed could cast doubt on the legitimacy of the entire government. Within that context, the law was what the King said it was. The model was imitated by other regimes. The Bush initiative now provides for: judicial process in secret; ability to decide for itself what the law is; ability to mete out sentences away from public scrutiny; ability to keep the accused from admitting to a crime more embarrassing to the prosecution than to the defense (as almost happened with the Noriega "trial"); and above the common law of the Bill of Rights and the Constitution. [see Bryan Robinson,. Due Process or Star Chamber? Critics worry military tribunals will violate terror suspects' rights; Ed Goodman. Star Chamber court revisited in Bridgeport; for commentary in relation to grand juries, see John J. LaFalce, From "Star Chambers" to "Star Grand Juries"].

Catholic Inquisition

Current attempts to 'root out' the evil of terrorism to 'save civilization' can be usefully compared with the very extensively studied efforts by the Catholic Church, through the Inquisition, to root out evil and heresy in the population in order to save souls. Of special significance were the extensive efforts to establish legalistic procedures for the treatment of those suspected of such evil, notably the nature and level of proof required prior to judgement. Some feminist scholars have recently argued that the focus on 'witchcraft' can be usefully understood as an effort to discredit and eradicate alternatives to the dominant masculine mode of thought. In this respect the focus on 'heresy' may be understood as a concern to eliminate any dissenting mode of thought -- a concern subsequently found amongst the Protestant groups that fled from Catholic oppression to the USA, where they undertook their own witch hunts (see below). This concern was later reflected (see below) in the ideological 'witch hunts' of Communism, Fascism and the US House Un-American Activities Committee (cf Stanley Kutler, American Inquisition: Justice and Injustice in the Cold War, 1982; Cedric Belfrage, The American Inquisition 1945-1960, 1973 [more]). More generally the relevance of reviewing the Inquisition lies in understanding how institutions may distort evidence in dealing with alternative perspectives that are radically different from the dominant mode -- namely how institutions deal with any 'other' perspective, reframing them as 'heresies'. It is therefore somewhat ironic that feminists played a significant role in lobbying for the overthrow of the Taliban regime because of the treatment of women under radical Islam.

The Catholic Inquisition was set up by the 4th Lateran Council in 1215 AD to institutionalise an existing procedure and made the responsibility of the Dominicans in 1232. Other variants were subsequently founded, notably in Spain (1478) in order to deal with the Moors, although its sovereignty then extended from Italy to Latin America. It was formally dissolved in 1870, but only in 1982 did the Church admit that the Inquisition was a "mistake" (although neither immoral nor wrong). Its purpose was to seek out and destroy heretics (the enemy within), pagans (the enemy without), and witches. The Second Vatican Council's decree Dignitatis Humanae (7 December 1965) once and for all put an end to the mode of thought which would revive the Inquisition, or see it as having eternal validity. The term 'Inquisition' can however also refer to the Holy Office, one of the Congregations of the Roman Curia. It was organized in 1542 to combat the spread of heresy, and was known as the 'Roman Inquisition'. It inflicted upon dissenters purely ecclesiastical penalties (such as excommunication, etc.). The Holy Office continues today in the form of the Congregation for the Doctrine of the Faith.

"Inquisition" of course means merely "inquiry". But most Continental legal systems, in contrast to English common law, are derived from Roman law and do not use the adversarial system but one in which the judges were not neutral umpires of the proceedings but were charged with ferreting out the truth. All trial courts in Europe in the medieval era were inquisitorial, regardless of whether they were civil (state) or ecclesial (church). It is appropriate to note that the term 'inquisition' is still used for some legal processes in some jurisdictions (eg Australia, Canada). Aspects of this inquisitorial role are now evident in the manner in which 'trial by media' is served by investigative journalism -- to the extent that it would be virtually impossible, in some jurisdictions, to select a jury unbiased by the media presentation of the guilt of Osama bin Laden or other well-profiled terrorist supects.

As indicated by James Hitchcock, the inquisitors tended to be professional legists and bureaucrats who adhered closely to rules and procedures (notably the Processus Inquisitionis (1248-9), Practica Inquisitionis Heretice Pravitatis (1323-4), Malleus Maleficarum (1486)), rather than to whatever personal feelings they may have had on the subject. Those rules and procedures were not in themselves 'unjust'. They required that evidence be presented, allowed the accused to defend themselves, and discarded dubious evidence. Thus in most cases the verdict was a "just" one in that it seemed to follow from the evidence -- indeed some Catholic authors argue that the Inquisition was the first effective effort to bring order to the previous vagaries of legal process. However it might be asked to what extent the procedures and questions of the infamous Malleus Maleficarum could offer guidelines to understanding how secret tribunals are used in modern society to assess the threat of dissidents and terrorist suspects from whom 'evidence' and 'confessions' are also extracted using torture -- in order to serve democracy and defend civilization.

Contrary to widespread assumption, when the Catholic Church was at the height of its power (11th-14th centuries), very few witches were executed. Persecutions did not reach epidemic levels until after the Reformation, when the Catholic Church had lost its position as Europe's indisputable moral authority. Moreover most of the killing was done by secular courts -- effectively used as proxies for the Church. Church courts tried many witches but they usually imposed non-lethal penalties. A witch might be excommunicated, given penance, or imprisoned, but was rarely killed. The Inquisition almost invariably pardoned any witch who confessed and repented. This raises the question whether the institution of secret military tribunals by the Bush administration (with power to impose the death penalty) is associated with the successful challenge to the indisputable moral authority of the state that is evident in the loss to 'dissidents' of the mainstream intellectual and moral arguments relating to globalization, capitalism, and the market economy -- as panceas for saving millions from degrading poverty, injustice, and other social ills. In their inability to deal with 'alternative' perspectives, is the western coalition distorting the evidence for their validity into evidence for support for 'terrorism'?

With respect to modern suspicions regarding an 'international terrorist conspiracy', it might be asked to what extent the conclusions of key figures may well be 'classified' for many years in order to advance other conservative political agendas. This was done with the influential Antonio Venegas de Figueroa, Bishop of Pamplona, who informed the Inquisition in 1610, after interrogating various people, that there had been absolutely no mention or knowledge of a 'witchcraft' conspiracy before the persecutions by the Inquisition started. Inquisitor Alonso de Salazar Frias, one of the Inquisition's own scholars, wrote in 1612: "There were neither witches nor bewitched until they were talked and written about". Such reports were kept secret for three centuries until rediscovered by the American historian Henry Charles Lea, who used them in his book Inquisition of Spain. Already commentators are arguing that aspects of the evidence relating to the terrorist conspiracy have been fabricated or distorted.

It might also be asked, given the binary 'either with us or against us' logic of the Bush administration, to what extent those that are 'against us' should be understood as 'heretics', to be suspected of 'terrorism' as those in centuries past were suspected of 'witchcraft'. As at that time -- given the 10-20 percent of the US population alone that have indicated to pollsters their non-support of the Bush administration's policies -- is a significant amount of rooting out of 'evil' within the population required? Is the US Attorney-General to take on aspects of the inquisitorial role of Bernado Gui?

Trials under 'Protestantism

From the accession of Elizabeth to the middle of the 17th century, the term "conform", and the appellatives "conforming" and "nonconforming", were becoming more and more common expressions to designate those members of the Puritan party who disapproved of certain Anglican rites, leading eventually to the term 'nonconformist' [more] in the face of the blind obedience demanded by Charles I. In a period of violent religious strife, paralleling the 30 years of religious war in continental Europe, the UK suffered the greatest loss of life prior to World War I in paranoid fear of 'popish plots' (reminiscent of current fears of 'terrorist plots'). Following the Puritan Revolution and the English Civil Wars (1642-51) from 1649 until 1660, Oliver Cromwell and his Puritan followers ruled England under the Protectorate. As 'Lord Protector' Cromwell had, for all practical purposes, made himself absolute monarch over England. In 1641 he engaged in a notorious series of massacres in Ireland which have left a legacy of hatred of British rule that has extended into the 20th century. A belief in witchcraft remained prevalent: people were on the lookout for signs of lust, old women who were quick to curse, people who were spiteful and ill-natured, and people with brown lumps on their body, where Satan had sucked. Women were more frequently the targets of witchhunts and were often thrown into dungeons and tortured, willing to confess to anything to stop their torment. By 1660 the country was weary of the restrictions and excesses under the Puritans, and the Stuarts were placed back on the throne [more].

In the 18th century, Puritans, sometimes called Separatists, were those who rejected the organized denominations' claims of authority. Church of England Separatists made up one small group, by far the largest group of Puritans came out of the Presbyterian Church, while the second largest group came from the Baptists. In a time when hatred and persecution existed between many denominations, every denomination in Europe hated and persecuted the Puritans who came to America. Puritan theology is a version of Calvinism. It remained the dominant religious force in New England throughout the 17th and 18th centuries. There the colonists established independent congregations, each congregation having the right to choose its own leaders and discipline its members. In America, Puritan devotion to democratic principles deeply affected the national character and produced America's first democratic institution, the town meeting [more]. The famous Puritan intolerance was part of a determined attempt to challenge the decadence and wastefulness of the rich aristocratic landlords of England. The Puritans wanted to use the power of state punishment to uproot old and still dominant ways of thinking and behaving [more].

The Puritan ethic (still extolled by contemporary religious advisers of President Bush) had views as rigid as the Taliban concerning women and other matters -- and especially on perspectives different from their own (and notably those of the Native Americans). This extended to prohibition of dancing, drinking, card playing, ribaldry, fashionable clothes and other amusements. When the Puritans temporarily gained control in England, they banned entertainments, closed theaters, and prescribed the death penalty for sex outside of marriage. In the USA, their body guilt and shame became the law of the land; sexual offences in the sixteenth century were punished by the whipping of both parties. Puritans in Massachusetts set up a religious police state in which deviation from their religion could result in flogging, pillorying, hanging, banishment, having one's ears cut off, or having one's tongue bored through with a hot iron. Exactly how fanatical were many of the early Christian settlers(and as an illustration of just how badly they were infected with the worst excesses of that religion) was illustrated by the Salem witch hunt (see below). This took place in colonial Massachusetts in 1692. It resulted (following appropriate torture) in the execution of 20 people and the imprisonment of 150.

In criticizing the strict application of sharia (derived from the Koran by Islamic fundamentalists), Christian fundamentalists [more; more] and neo-Puritans [more; more] with their belief in the inerrancy of the Bible, need to consider how they might strictly apply their literal interpretation of the Bible, were they not constrained by secular law. For example, the Bible (and especially the Old Testament) can be interpreted to prescribe the death penalty for the following offences: premarital promiscuity (Dt. 22:20-24); fornication (Hebrews 13:4, 1 Thes 4:3, Paul I Cor. 6:15, Rom 1:15-27); adultery (Dt. 22:22, Lv 20:10, 1 Cor 7:2 Exodus 20:14-17); homosexual intercourse (Lv 20:13); divorce (Mark 10:11,12, Matt 19:9, 1 Cor 6:9,10); bestiality (Lv 20:15,16); incest (Lv 20:11-14); witchcraft (Exodus 22:18, Dt 18:9); blasphemy (Lv 24:16); apostasy (Dt passim.l3); defiance of parental authority (Dt 21:15-21). Paul accepts these (Rom 1:32, 7:3) [more; more; more; more; more]

As an indication of the challenge for society, Christian fundamentalist leaders Jerry Falwell and Pat Robertson were quick to blame liberal groups for the Sept. 11 terrorist attacks [more]. Although they were forced to apologize, some continue to echo the same theme [more].

Trials under French Revolution

Established during the French Revolution, the Committee of Public Safety (1793-4) fits the stereotype so long attached to the Inquisition, acting effectively as a 'kangaroo court', often run by unbalanced fanatics, it condemned many people without regard for guilt or innocence. Had it functioned for as long as the Inquisition (roughly 1230-1830), its death tolls would have been incalculable, characterized by a wave of executions of presumed enemies of the state. The Committee officiated during the so-called Reign of Terror, which was essentially a war dictatorship, instituted to rule the country in a national emergency. During one rapacious stretch of mindless revolutionary paranoia, 1,376 individuals were guillotined in only 47 days. As a failed revolution, it provides an interesting framework through which to explore the approach of western democracies to the threat of terror -- notably in the light of the proposed use of the death penalty. Already however, in prescient response to the Oklahoma bombing (1995), David B. Kopel and Joseph Olson investigated the challenges of US domestic terrorism in a study entitled Preventing a Reign of Terror: civil liberties implications of terrorism legislation (1996).

Trials under Soviet Communism

In the Soviet Union, notably during the era of Stalin, large numbers of people were 'arrested' and subjected to some form of 'trial' because of their opposition to what might be called the 'Communist Way of Life'. In one way or another the process is tentatively estimated to have had the following consequences: collectivisation in 1937-38 cost 8.5-9 million lives; in 1937-38, 4.5-5.5 million people were arrested, of which 800,000-900,000 were sentenced to death; at the end of the 1940s, between 5.5 and 6.5 million prisoners were held in the Gulag Archipelago. These figures are in substantial agreement with estimates made in the 1960s, without access to the archives, by US researcher Robert Conquest (Conquest, Robert. The Great Terror: A Reassessment, Oxford, 1990). He calculates that only ten per cent of those sent to the camps in 1936-38 survived. The majority of those sentenced during the repression of 1936-38 were tried behind closed doors. The process of the Great Terror was characterized by torture-induced confession [more], grotesque show trials (see below), and orgies of shootings in the Lubyanka's cellars. What constraints are there on the use of similar procedures in western democracies operating under the rule of law -- given the extent of the use of torture as regularly documented by Amnesty International? Who ensures that they operate effectively?

There is a useful description of the Criminal Code of the RSFSR (1934 version), used by N.I. Yezhov to prosecute "enemies of the people" (1936-39). With respect to the identification and prosecution of "terrorism", there is also a much-cited: Report of the Court Proceedings of the Trotskyite-Zinovievite Terrorist Centre: Heard Before the Military Collegium of the Supreme Court of the USSR (Moscow, August 19-24, 1936). Hugo Cunningham has also produced a table of Insults for denouncing enemies of the people at that time -- which is interesting in the light of current techniques of news management and psychological warfare in negatively framing opponents. Also of interest is a Treatment of Dissidents in the 'Years of Stagnation' (Petition on the Legality of the Trial of Ginzburg, Galanskov, Dobrovol'skii and Lashkova). Of special interest is the process of self-criticism, promoted by Stalin as essential to the revolutionary method, and the many in which it was used in work groups to functioning effectively as courts through which people were 'voluntarily' subjected to trial on a regular basis [more].

It is important to be able to distinguish Stalin's 'authorization' for the assassination of 'terrorists' (eg Leon Trotsky in 1940), from the (attempted) use of political assassination by agents of the USA, notably with respect to Fidel Castro, Che Guevara and President Salvador Allende (Chile, 1973) -- until explicitly forbidden by Executive Order 11905 (signed by President Ford, February 1976) and reaffirmed by Executive Order 12333 (signed by President Reagan, 1981). This is especially relevant given that this order has been effectively bypassed in September 2001 by George Bush's signature of an intelligence "finding" instructing the CIA to engage in "lethal covert operations" [more; more; more]. The matter is related to government authorization of 'death squads' in some countries, as periodically reported by Amnesty International, or to their support by foreign governments [more]. How will the future distinguish, from a legal perspective, the handling of 'terrorists' in the KGB's notorious Lubyanka prison from that in the US military's Camp X-ray (Guantanamo base, Cuba) to which al-Qaeda and Taleban prisoners are reportedly being transferred 'drugged, hooded and shackled'? [more].

Trials under Fascism

During the era of National Socialism, the legal system was used to prosecute those who were perceived as a threat to Nazi programmes.

Of special interest are the events relating to the elaboration of the so-called Wannsee Protocol as the 'final solution of the Jewish question' at a highly secret conference that took place in Berlin (am Grossen Wannsee No. 56/58) on 20 January 1942. A report of the meeting was presented in evidence at the post-war Nuremburg Trials [more] although the report of the meeting is disregarded as evidence of Nazi intentions by some historical revisionists who consider it a fabrication [more; more; more]. A particular focus of the meeting was the definition of those to be exterminated on the basis of various degrees of Jewish blood in the light of the Nuremburg Laws of 1935 stripping Jews in Germany of of their civil rights [more; more] as part of the progessive Nazification of Germany [more]. It is noteworthy that the BBC dramatization of the Wannsee meeting (The Conspiracy, BBC2, 24 January 2002) highlighted the fact that the majority of those represented at the meeting had a legal background, as well as the protest of Wilhelm Stuckart, Nazi politician and legal adviser responsible for drafting and implementing the Nuremberg Laws distinguishing 'Jewish blood' -- who purportedly found it offensive that Wansee provisions went beyond those Nuremburg legal definitions. (NB: These Laws should be distinguished from the Nuremberg Rules of August 1945 for war and for the prosecution of Nazi war criminals [more] at the Nuremberg War Crimes Tribunal -- rules also subject to critical assessment [more]).

Analysts in the USA have subsequently compared the Nuremburg Laws with the so-called the 'Jim Crow Laws' of the southern USA [more; more; more; more; more; more]. Providing a precedent for the apartheid laws of South Africa, these "Jim Crow" laws barred African Americans from access to employment and to public places such as restaurants, hotels, and other facilities. By 1914 every Southern state had passed laws that created two separate societies; one black, the other white. Blacks and whites could not ride together in the same railroad cars, sit in the same waiting rooms, use the same washrooms, eat in the same restaurants, or sit in the same theaters. Blacks were denied access to parks, beaches, and picnic areas; they were barred from many hospitals. What had been maintained by custom in the rural South was to be maintained by law in the urban South. Blacks lived in fear of racially motivated violence. It has been claimed that the Nazis modeled their Nuremburg Laws, the first stage of the Shoah, on the Jim Crow laws of the USA [more]. Similarly, it is a sad irony that it was British use of concentration camps in South Africa [more] that provided an early model for Nazi concentration camps.

It will be interesting for historians to compare the use of evidence, in each of the following cases, to distinguish: 'blacks' from other members of society (in the USA and in South Africa), 'Jews' (under the Nuremburg Laws), and 'terrorists' (under the various current initiatives to curtail civil liberties and distinguish terrorist suspects) -- in each case with the full complicity of the legal system. The latter case is especially ironic, given the current position taken by Israel in distinguishing the 'terrorism' of some Palestinians from that of the Jews in the Irgun movement -- whose 'heroic' actions led to the founding of Israel. Such comparisons are even more problematic in the light of current efforts to indict Henry Kissinger (former US Secretary of State) for 'terrorism', notably on the basis of his decisions relating to Chile. The cases invite further comparison in the light of the percentage of the respective populations eligible for such treatment -- notably given the Bush administration's stress on 'those who are not with us are against us', willingness to use 'any measures', and poll indications of 10-20% opposition to its policies in the USA.

In all these cases, a special cognitive framework is created through which certain actions become self-evident. For example, Adolph Eichmann (present at Wannsee) was asked, "Was it difficult for you to send these tens of thousands of people to their death?" Eichmann replied, "To tell you the truth, it was easy. Our language made it easy." Asked to explain, Eichmann said, "My fellow officers and I coined our own name for our language. We called it amtssprache -- 'office talk.'" In office talk "you deny responsibility for your actions. So if anybody says, 'Why did you do it?' you say, 'I had to.' 'Why did you have to?' 'Superiors' orders. Company policy. It's the law.'" [more].

It may be usefully asked to what extent contemporary government policies, notably those of the Bush adminstration, are effectively condition by a particular style of language increasingly borrowed from the military and the intelligence agencies. In this respect, commentators frequently focus on such euphemisms as 'targetting' [more] or 'collateral damage' that obviate any sensitivity whatsoever to the nature of any damage or the responsibility for it. For example, in a widely distributed study, George Lakoff has explored the related use of metaphorical language to justify the Gulf War [more] -- and has used his methodology to explore the implications of the 11th September attacks on the American psyche [more]. In Madeleine Albright's response (12 May 1996), as US Secretary of State, to a query as to whether the death of 500,000 Iraqui children was justified in order to further US policy, she indicated: "the price is worth it" -- an attitude that has been the subject of commentary in relation to the 11th September attacks [more]. If the Bush administration does indeed have its own form of amtssprache, it might be asked to what degree this effectively permeates and conditions its discussion of international development-related issues in meetings of the UN, the World Bank, and the Davos Forum, or in much more secretive fora such as the Trilateral Commission or the Bilderberg Group encounters -- as might be inferred from such studies as the Lugano Report [more; more] and the Iron Mountain Report [more; more; more]. David Cooperrider and his colleagues (Weatherhead School of Management of Case Western Reserve University) have notably explored the role of organizational language in conditioning social change projects (such as EST, Institute of Cultural Affairs, or the Hunger Project).

The legal system of Nazi Germany has been extensively documented by Ingo Muller (1991). One review of this book, by Ira Kasdan, indicates: 'Where the Nazi regime could not obtain its desired results through the official judicial system, it simply created special courts not subject even on paper to the minimal constraints of due process. The most infamous of these was the People's Court specializing in expeditious justice against those who questioned the wisdom of the Fuehrer (even if the "attack" was nothing more than a casual comment made over the dinner table). When all else failed - and for some reason an accused was acquitted, the doctrine of preventive detention allowed for his immediate rearrest by the Gestapo on no legal grounds at all.' Such procedures merit attention in the light of current provisions to detain and to try terrorist suspects in secret. Michael Asimow has briefly reviewed the subsequent challenges at Nuremburg (see Judges Judging Judges: Judgment at Nuremberg) of establishing the responsibility of judges in furthering Nazi policy (see also commentary by Doug Linder).

Kasdan contrasts Muller's perspective with that of Hubert Schorn (Der Richter im Dritten Reich, Frankfurt/Main 1959) who attempted to justify, or at least excuse, the conduct of the legal profession under Nazism using the following arguments (that have subsequently been challenged):

These points give pause for thought with the respect to history's future judgement of the response of the western judiciary and legal profession to the current curtailment of statutory human rights in response to 'terrorism'. In the USA a variant of this problem became evident during trials associated with the civil rights protests of the 1960s -- especially in the southern states.

Michael Stolleis (1998) reiterates the point made elsewhere about legal systems under Nazi rule (Vichy provides another example): namely, that no ruler has power absolute enough to bring about radical evil without help on a massive scale from ordinary people, including lawyers. Hitler's understanding of power by 1933 led him to work with, rather than try to overturn, existing German legal institutions. Of special interest in this respect is the so-called 'Führer principle' and its regulation of conduct within the Ministry of Justice. The first concerned the absolute power of Hitler in person or by delegated authority to enact, enforce, and adjudicate law. The second concerned the incontestability of such law (see relevant commentary by Doug Linder). It will be instructive to distinguish such measures (and their consequences) from those proposed with respect to trial of terrorist suspects by the Bush administration, notably in the light of the authority given to the the US Attorney General. The 'Führer principle' has subsequently been studied in relation to absolute leadership in various social groups.

There is a case for exploring jurisprudence specific to Italian and Spanish forms of fascism to determine whether there are lessons relevant to the western approach to terrorism.

It is unfortunate that the Congregation for the Doctrine of the Faith, despite its mandate, never saw fit to excommunicate Adolf Hitler (a Roman Catholic). As a consequence, the complicity of the Catholic Church in fascist excesses is currently challenged in such controversial works as John Cornwell's Hitler's Pope: The Secret History of Pius XII (1999) [more; refutation). History may be forced to assess the complicity of a variety of international institutions, possibly including the United Nations, in the current curtailment of human rights and the actions that are then enabled.

Trials under Chinese Communism

The criticisms of China's legal system are significant: that it's known for opening trials only when the state's evidence is already clearly stacked and ordered; that the release of dissidents and other problematic detainees indeed flout Chinese law, as medical releases are often more about diplomatic convenience than real medical conditions. Of relevance to current procedures to try terrorist suspects is the Human Rights in China report Going through the Motions: the role of defense counsel in the trials of the 1989 protesters (1993) on the trial of the 'counter-revolutionary' and 'turmoil elements' active in the Tianemen Square demonstrations. The report contains a translation of internal guidelines for lawyers representing "turmoil elements" and "counter revolutionaries" and an analysis of the relationship between lawyers and the state in China. Its preface states:

Although major efforts have subsequently been made to reform the judicial system (see more; and on the reform), of special comparative interest is the manner in which trials were conducted in the earlier Maoist era. As with Soviet Communism, great emphasis was placed, notably by Mao Tse-tung, on the use of processes of collective self-criticism at the local level, especially during the Cultural Revolution [more; more].

There is a case for exploring jurisprudence specific to the Albanian form of communism to determine whether there are lessons relevant to the western approach to terrorism.

Trials under Khmer Rouge Communism

None of the Khmer Rouge, architects of the "killing fields" that led to an estimated 1.7 million deaths in Cambodia, has ever stood trial (see below). Only anecdotal information seems to be available concerning the nature of any judicial process whereby many victims were condemned. With regard to the nature of the 'evidence' that led to some of these deaths, the televised anecdote of the Cambodian documentalist of these crimes describes how his sister's stomach was slit open to determine whether she had stolen any rice. Such procedures are echoed in the use of torture currently advocated to extract evidence from terrorist suspects.

Trials under Cuban Communism

Human Rights Watch has monitored human rights practices in Cuba for over ten years. During that time, it claims to have documented scores of cases of wrongful arrests, detentions, prosecutions, exile, and other abuses. Moreover, the human rights violations committed in the early years of the Castro government stand out as particularly severe. Historian Hugh Thomas, who acknowledged the impossibility of knowing precisely how many executions and other human rights violations had occurred, estimated that by early 1961, the Cuban government had "probably" executed some 2,000 Cubans, while by 1970, the government had, "perhaps," executed 5,000. Thomas does not specify whether these executions occurred following trials, but notes that "in the case of political crimes, there [was] no rule of law." [more]. Unfortunately no studies were located of how the legitimacy of such actions was framed for the Cuban population and its judiciary.

In the light of efforts to bring Augusto Pinochet to trial, the possibility of doing so has also been raised in the case of Fidel Castro [more; more]. Of related interest at this time, in terms of the Bush administration's position on the 'harbouring of terrorists' during the 'war on terrorism', is the incidence of FBI-monitored Cuban anti-Castro terrorism launched from the US mainland [more].

Trials under South African apartheid

Political trials under South African law [more; more; more] merit special attention at this time because of the manner in which the white-dominated regime, through strict application of the law, successfully positioned itself on the moral high ground and framed non-whites as inherently suspect. It might be asked to what extent the stereotyping and racial profiling, currently used by security services in response to terrorism, is adopting procedures reminiscent of those used under the apartheid regime [more]. Of major interest are the trials of Nelson Mandela (below) and Steve Biko (below).

Trials under Taliban application of Islamic law (sharia)

Most of the countries in the Middle East and North Africa currently maintain a dual system of sharia and secular law. Religious courts apply sharia principally to regulate the affairs of private life -- such as marriage and inheritance -- while secular courts rule more on aspects of social life, such as business matters. Exceptions to the pattern are rare. Only two countries use sharia courts alone: Saudi Arabia and Iran. Supporters of sharia claim that it includes strong rules of evidence which -- when properly applied -- favour defendants. These include requirements that an act of adultery (requiring the death penalty) be witnessed by four people known for honesty before an adulterer may be convicted. The punishment for murder, too, is less strict than it often appears. Many countries of the Arabian peninsula provide murderers with the option of paying compensation to their victim's family in lieu of execution. The offer of compensation -- known as "blood money" -- must be approved by the victim's family. The amount is set by the state [more].

Following the progressive takeover of an essentially lawless Afghanistan by the Taliban, from 1994 to 1996, and the strict imposition of the sharia [more], the penalties (including execution) of sharia have aroused increasing concern around the world. Despite the publicity given to isolated executions in order to polarize the world against the Taliban (in contrast with other countries applying such penalties), no information appears to be available on how the Taliban treated evidence of crimes under sharia. Specifically no information seems to be available (notably from RAWA) about the number of executions that aroused such concern (although a televised interview with a person responsible for the Kabul stadium in which public executions were carried out indicated a figure of 'one per week'; on this basis the total formally executed by the Taliban from 1996-2001 might be very roughly estimated at 300). As to the public method of execution, commentators have pointed to the tasteless publicity given to the execution of Timothy McVeigh in the USA and the parallels with the Taliban [more]. For purposes of comparison, it is noteworthy that as Governor of Texas, George Bush signed the death penalty for 152 people [more] and staunchly defended it [more]. As of 1st October 2001, the total number of prisoners on deathrow in the USA was 3,709, with 732 executions since the reinstatement of capital punishment 1976 [more].

Military tribunals and war crimes

Arguments are made for the use of war crimes tribunals [more] as well as against them [more]. The proposed use of military tribunals to try international terrorist suspects has suggested to commentators the need to review the status and operations of previous trials for war crimes [more] and crimes against humanity, notably genocide. The following merit consideration:

Of special interest in the case of the Nuremburg trials is the whole question of Holocasut denial and historical revisionism [more]. This merits examination because of the forms of revisionism already evident in the 'propaganda war' in relation to the 'war against terrorism'. In particular will some forms of 'terrorism denial' be turned into cause for legal harassment? The Military Tribunal for the Far East has been judged a failure in its capacity to prosecute war criminals [more]. Of particular interest is the manner in which immunity of prosecution was given to members of biological warfare Unit 731 in exchange for the medical data -- the evidence by which they would have been prosecuted [more]. Experiments on human beings, similar to those conducted by Unit 731, had however been condemned as war crimes by the International Military Tribunal for the trial of major Nazi war criminals in its decision handed down at Nuremberg on September 30, 1946 -- resulting in the prosecution of leading German Scientists and medical doctors at Nuremberg for offenses which included experiments on human beings which resulted in the suffering and death of most of those experimented on. Presumably the Japanese data was of higher quality.

Judicial investigation of statesmen

The Global Policy Forum has a 'rogues gallery' of statesemen that merit judicial investigation and possible trial. They include: Radovan Karadzic; Bob Kerrey; Henry Kissinger; Ratko Mladic; Augosto Pinochet; Foday Sankoh; Ariel Sharon; Charles Taylor; General Wiranto. They are introduced, as examples 'from five continents', with the following statement:

Of special interest in relation to the current proposed trials of those implicated in terrorism is the case of Henry Kissinger, especially since the justification for his indictment has been documented in a book by Christopher Hitchens (2001). Chile's Supreme Court has authorized an investigating judge to submit questions to former U.S. Secretary of State Henry Kissinger. Other invesigations are being made into his involvment in the overthrow of the Allende government in the 1970s [more] and the instauration of the Pinochet regime (1973-90) during which many were tortured and killed. Kissinger has contributed scholary comment criticizing the 'pitfalls of universal jurisdiction' under which he himself might be indicted. Various authors have criticized his position (John M Forbes), including a former prosecutor at the Nuremburg Trials (Benjamin B Ferencz).

Also of interest is the initiative of former US Attorney General Ramsey Clark to produce, in May 1991, a 19-point indictment of the US government's conduct in the Gulf War that served as the basis of a Commission of Inquiry for the International War Crimes Tribunal. Specifically charged were: George Bush, J. Danforth Quayle, James Baker, Richard Cheney, William Webster, Colin Powell, Norman Schwarzkopf and others. The proposal to try Sharon as a war criminal under Belgian law, has been contested and matvhed by a proposal to try Yasser Arafat under the same jurisdiction [more].

The genocidal massacre in Rwanda, has also resulted in two investigation of the responsibilities of the United Nations, and notably Kofi Annan (in his previous role as Assistant Secretary-General for Peacekeeping Operations).

Famous 'political' trials

There is much to be learnt concerning the treatment of rules of evidence from famous trials [more; more] and the controversies to which they give rise. Several clusters may be distinguished:

People playing key roles:

Trial of Jesus [links]: This much studied case is important because of its fundamental influence on the development of Chritianity (now actively influential in faith-based policy-making), the disinvolvement of Jewish religious authority (to be usefully compared with that of Islamic authorities in relation to Islamic suspects), the use of bribery to ensure betrayal (as practiced by American authorities in Afghanistan), and the nature of confession to secular authorities. [but see: James Still, The Problem with Jesus' Arrest and Trial; Harry Fogle, The Trial of Jesus, Louis Waller, The Trial and Death of Jesus]

William Wallace (1305): Scottish patriot, and greatest hero in Scottish history (popularized in 1995 by the Braveheart movie), he was brought to trial by Edward I who had actually instituted many legal reforms in England, some of which still stand today. In spite of this commitment to the law, Wallace was given no legal rights or privileges. His trial (before a bench of noblemen in Westminster Hall) and punishment were typical of law and order in the medieval ages. It stands as an example of primitive justice systems including government-approved barbarism. One medieval historian's account shows the contempt for which not only Edward I, but also the English people held the Scottish patriot: "William Wallace, a runaway from righteousness, a robber, a committer of sacrilege, an arsonist and a murderer, more cruel than Herod and more debauched in his insanity than Nero" [more]. Necessarily to be viewed as a 'terrorist' of the time, since the English considered Wallace to be an "outlaw", he was treated outside the boundaries of the law as echoed 700 years later by the proposed treatment of terrorist suspects by the western coalition. He had no lawyer. He was not even allowed to speak on his own behalf. The outcome of the trial (a guilty verdict) and the punishment (death) was assured long before Wallace was captured [more]. Barbaric, mediaeval justice would continue to prevail in England, with the most despicable sentences reserved for those, such as Wallace, convicted of acts which threatened the King's authority.

Joan of Arc (1431) [links]: This is notably of interest because of the way history has framed her as as a defender of the French people and of how the trial has been viewed as flawed because of manipulation by the invading English.

Martin Luther (1521) [links]

Thomas More (1535) [links]

Galileo Galilei (1616 and 1633) [links]: This has been extensively studied [documents] in terms of the relation between scientific and religious rules of evidence (between 'reason' and 'faith') -- and notably because it was only in 1992, that Pope John Paul II finally offered an apology for the Galileo affair before the Pontifical Academy of Sciences. A contemporary variant of this has been the so-called 'Monkey trial' in the USA of John Scopes (1925) with respect to creationist scientific views.

Alfred Dreyfus (1894 and 1899) [links]: After a military show trial, Capt. Dreyfus (a Jew) was convicted of espionage, publicly humiliated and sentenced to life imprisonment on Devil's Island (a French penal colony). The trial convulsed France in a violent anti-Semitic spasm (presaging the Vichy situation). Jewish shops and synagogues were destroyed in 50 French towns. It was not until the mid-1970s that the Dreyfus Affair could even be mentioned on French state radio or television. And it was not until 1995 -- 101 years after Dreyfus was convicted -- that the army's historical service, publicly admitted that the army had made a mistake in accepting false evidence, although he had subsequently been pardoned. [more].

Leon Trotsky (1937) [charges]: This much studied case is noteworthy because Trotsky arranged for a 'counter-trial' in Mexico to review the charges of which he had been accused in absentia in the notorious Moscow Trials (1937-8) -- as part of the purges by Stalin (see above) of revolutionary leaders of the 'Troskyite-Zinovievite Terrorist Centre'. [see Preliminary Commission of Inquiry into the Charges Made Against Leon Trotsky in the Moscow Trials: The Case of Leon Trotsky: Report of Hearings on the charges made against him in the Moscow Trials. Held April 10 to 17, 1937 at Avenida Londres, 127 Coyoaca, Mexico] The Dewey Commission, as this body is known, was an independent, impartial body initiated in March 1937 by the American Committee for the Defense of Leon Trotsky.

Adolf Eichmann (1961) [transcripts; documents; links]: This much-studied case presented for the first time systematic evidence for Holocaust procedures. It is noteworthy for highlighting issues of the relationship between orders from legitimate authority and individual responsibility, since Eichmann's defence focused on the fact that he was just following orders.

Nelson Mandela (1963-4) [statements]: The famous case is relevant here because of the manner in which a just cause was treated in the apartheid regime of South Africa. As is currently illustrated in Zimbabwe by President Mugabe's use of the Bush administration logic, Mandela would indeed have been labelled a terrorist and subject to the treatment now envisaged in the USA.

Daniel Ellsberg (1971): Known as the 'Pentagon Papers' case [more; more]. Ellsberg who, through releasing copies of 7000 pages of secret Pentagon documents on the history of the Vietnam War, revealed to the world the secret government that ruled by conspiracy, and who initiated the process that destroyed the Nixon presidency [lessons). It prompted the first attempt ever made by the Federal Government to impose a prior restraint on the press in the name of national security. When the government attempted to prosecute Ellsberg, he was indicted for giving the papers to the press. The charges were dismissed in 1973 after it was discovered that President Nixon had authorized White House aides to burglarize Ellsberg's psychiatrist's office in an attempt to discredit him.

Steve Biko (1976): This trial in South Africa under the apartheid regime (but especially the inquest following his death in police custody in 1977) is of considerable significance for the black consciousness movement and is the subject of a number of studies.

Manuel Noriega (1991): This complex case in the USA against a former CIA 'agent', a national of Panama, is noteworthy because of the status of evidence presented regarding financing of terrorist activity with drug money (the 'contra-drug' story) and the conviction of many government witnesses [more; more; more] Six years after the conviction, Noriega was still seeking a new trial. His attorneys accused federal prosecutors of arranging secret deals with key witnesses and withholding information from the jury that convicted him. The embarassment of this case is believed to be a major reason for the propoal by the Bush administration for the use of secret military tribunals to try suspected terrorists.

Katie Sierra (2001): Case of a 15-year girl suspended from school in the USA for promoting anarchy, notably through wearing T-shirts with messages undermining the Bush war effort (eg "Against Bush, Against Bin Laden"). The county court upheld her suspension, and the Kentucky Supreme Court refused to hear the case she had lodged in defence of free speech [more]. This is indicative of the degree of curtailment of civil liberties in response to terrorism.

Trials of groups:

Salem witches (1692) [links; court records]: Much-cited cases of people accused, interrogated (with the aid of torture), and often convicted (and put to death), of withcraft in Puritan Massachusetts. These cases are interesting as a contrast to the trials for witchcraft under the Catholic Inquisition, from which many early Purtians had fled [more]. Much is made of the hysteria which encouraged the prosecutions [more] -- presumably worthy of re-examination in the light of the hysteria associated with 'terrorism' in the USA. The persecution ended when the judge and jury of Salem confessed their error, saying that they were deluded and mistaken in their judgment in condemning others to death for witchcraft, acknowledging that they had themselves been deluded by the 'powers of darkness' into bringing the guilt of innocent blood upon themselves and others through their own ignorance. It would be unfortunate if those trying terrorist suspects in the USA were to reach a similar conclusion in the 21st century.
It is useful to explore whether the 'evil' of which Osama bin Laden has been accused - seemingly on the basis of equally circumstantial evidence -- has not triggered a collective psychic response framed unconsciously by this traumatic formative period in American culture. The pursuit of him has many characteristics of a witch hunt -- perhaps unconsciously designed to purify American society through the kind of cathartic, scapegoating process necessary to the stability of a conceptually 'closed' society.

My Lai courts martial (1970) [links]: The My Lai courts-martial arose from the massacre by United States soldiers of as many as 500 unarmed civilians -- old men, women, children -- in My Lai (Vitenam) in 1968; this was followed by the military cover-up of that massacre. This case may prove relevant to assessment of the responsibility for the massacre at Mazar-i-Sharif [more] in 2001 with the involvement of US Special Forces.

South African withcraft (1994-5): Over 200 people, accused of being witches, were burnt to death in South Africa between the beginning of 1994 and mid-1995. These killings were not legal executions, but took place at the hands of lynch mobs, mostly from the communities in which the accused lived [more].

Political 'show trials' [more]: Much information is available on political 'show trials'. The current International Criminal Tribunal for the former Yugoslavia is perceived by those opposed to NATO intervention as being a 'show trial', although the effort to organize an International Peoples Tribunal on NATO War Crimes Against Yugoslavia might also be considered to have the nature of a 'show trial', as with the efforts to charge NATO before the World Court [more]. Amnesty International is especially interested in standards for assessing trials. Some examples of 'show trials' include:

Moscow Trials (1937-8): By 1936, all Stalin's real opponents had been isolated or deported, and he was firmly in charge. Despite everything, the economy had at least reached a level of stability and steady growth. But rather than easing political restrictions, Stalin launched a frenzy of political witch-hunting that was unprecedented in history. All the surviving leaders of the 1917 October Revolution were accused of preposterous crimes in a series known as the Moscow Trials. All the accused were executed. Many confessed 'for the good of the Party'. Otherwise confessions were extracted under torture. Those who did not confess were shot anyway. According to Khrushchev, of the 139 members and candidates of the Central Committee elected at the 17th Congress in January 1934, 98 were arrested and shot. Of the 1,966 delegates to the Congress 1,108 were arrested. 80% of these delegates had been members of the party since before the Revolution.

Hearings of the House Un-American Activities Committee (1947-54) [more; more]: The Hearings of HUAC affected many people, whether those who testified or those who did not. They focused on suspected subversion of American society by Communism and culminated in what is termed the "Red Scare" (and McCarthyism; more] in the early fifties -- the era of 'fear-and-smear'. The hearings raised many issues of conscience: how people felt about the whole procedure of "naming names" and how they prioritized morality and conscience vs. their jobs. The HUAC and Senator Joseph McCarthy forced many people to testify at their hearings. They asked if the people had ever been communists, they asked if they were communists now, and they asked them for the names of people who could be communists. Most people did not want to answer, because they felt that it was a violation of both their civil rights and any people they might name. The distrust of the government and the political activism in the 1960's can be directly attributed to the lessons learned from the McCarthy era. The approach of the Bush administration to terrorism has led non-Americans to perceive a return to McCarthyism. (cf Stanley Kutler, American Inquisition: Justice and Injustice in the Cold War, 1982; Cedric Belfrage, The American Inquisition 1945-1960, 1973 [more]). The question is to what heightened level of distrust will the current 'fear-and-smear' policies of the Bush administration move the American population.

Chicago Seven (1969-70) [more; links): This was the trial of seven radicals accused of conspiring to incite a riot at the 1968 Democratic National Convention in Chicago. It has been argued that it represented an important battle for the 'hearts and minds' of the American people. It is now relevant as a framework through which to perceive the trials of those engaged in protesting at major international events, who are increasingly framed as being closely associated with 'terrorists'.

Xinjiang Uighur (1999): Amnesty International has gathered evidence of gross and systematic human rights violations in the Uighur Autonomous Region of Xinjiang (China), which have gone virtually unnoticed by the international community. As elsewhere in China, political trials are a mere formality as the verdict is usually pre-determined by the political authorities. Few defendants have access to lawyers. Some political prisoners are taken to "public sentencing rallies" -- show trials attended by hundreds or thousands of people - during which their sentences are announced. In all cases documented by Amnesty International, the prisoners were reportedly tortured to force them to give incriminating information or to sign "confessions" [more]

Uzbekistan (2000): The Supreme Court of Uzbekistan convicted 12 men, nine of whom were tried in absentia, on terrorism and other anti-state charges. The court sentenced exiled opposition leader Muhammad Solih and nine other defendants to lengthy terms on charges of terrorism and other crimes, and sentenced two accused militants to death [more].

Concern has been expressed that, in the process of ensuring their support for the US-led 'war against terrorism', agreements may be made by the western coalition, with regimes having a history of human rights abuse, in order to discourage international attention to further abuses and to the trials of dissidents in such countries.

Trials in literature:

The Trial (Franz Kafka): For Scott Finet: Although the hero believes the legal system to be fair, predictable and rational, his encounters with that system show the system to be arbitrary and unfathomable. He shows how judges make references to The Trial in published decisions as a symbol of their commitment to the shared value of rational choice. Their references to The Trial seem to be an effort to resolve, on a symbolic level, the contradictions between the ideology of an orderly, rational legal decision making process and the sometimes incongruent workings of that process [more].

Grand Inquisitor (Brothers Karamazov, Fyodor Dostoyevsky )

Trial of Socrates (Plato) [links] [more]

Trials of humanity:

Shikasta (Doris Lessing, 1979),

Animal Farm (George Orwell, 1945)

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