Witness to Abuse - Human Rights Watch
Witness to Abuse - Human Rights Watch
Witness to Abuse - Human Rights Watch
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abuse, international human rights 202 and U.S. constitutional law call for public hearings<br />
when an individual’s freedom is being determined by a court or tribunal. 203 Public<br />
hearings protect the rights of detainees and guard them against abusive or arbitrary<br />
proceedings. They also serve the public’s right <strong>to</strong> know what its government is up <strong>to</strong> and<br />
its interest in restraining possible abuses of government or executive power. 204<br />
Yet since September 11, the Justice Department has proceeded against material<br />
witnesses and others caught up in the investigation behind closed courtroom doors. As<br />
<strong>Human</strong> <strong>Rights</strong> <strong>Watch</strong> documented in “Presumption of Guilt,” and the ACLU set forth<br />
in a brief <strong>to</strong> the Supreme Court, post-September 11, the government arrested more than<br />
one thousand Muslim, Arab, and South Asian non-citizens of “special interest” in secret<br />
and closed the immigration proceedings against them, arguing that national security<br />
202<br />
ICCPR , article 14(1) states:<br />
In the determination of any criminal charge against him, or of his rights and obligations in a<br />
suit at law, everyone shall be entitled <strong>to</strong> a fair and public hearing by a competent,<br />
independent and impartial tribunal established by law. The press and the public may be<br />
excluded from all or part of a trial for reasons of morals, public order (ordre public) or<br />
national security in a democratic society, or when the interest of the private lives of the<br />
parties so requires, or <strong>to</strong> the extent strictly necessary in the opinion of the court in special<br />
circumstances where publicity would prejudice the interests of justice.<br />
The <strong>Human</strong> <strong>Rights</strong> Committee, in its General Comment 13, has noted that the “publicity of hearings is an<br />
important safeguard in the interest of the individual and of society at large.” Apart from exceptional<br />
circumstances, “a hearing must be open <strong>to</strong> the public in general, including members of the press, and must not,<br />
for instance, be limited only <strong>to</strong> a particular category of persons. It should be noted that, even in cases in which<br />
the public is excluded from the trial, the judgment must … be made public.” Ibid. The national security exception<br />
<strong>to</strong> public hearings does not provide states unfettered discretion <strong>to</strong> close hearings. According <strong>to</strong> the<br />
Johannesburg Principles on National Security, Freedom of Expression and Access <strong>to</strong> Information (drafted by<br />
international law and human rights experts in 1995 and endorsed by U.N. special rapporteurs): “A restriction<br />
sought <strong>to</strong> be justified on the ground of national security is not legitimate unless its genuine purpose and<br />
demonstrable effect is <strong>to</strong> protect a country's existence or its terri<strong>to</strong>rial integrity against the use or threat of force,<br />
or its capacity <strong>to</strong> respond <strong>to</strong> the use or threat of force, whether from an external source, such as a military<br />
threat, or an internal source, such as incitement <strong>to</strong> violent overthrow of the government.” Principle 2, available<br />
online at: http://www1.umn.edu/humanrts/instree/johannesburg.html, accessed on June 17, 2005.<br />
203<br />
Public hearings and records also enhance public confidence in the proceedings. “The traditional Anglo-<br />
American distrust for secret trials has been variously ascribed <strong>to</strong> the no<strong>to</strong>rious use of this practice by the<br />
Spanish Inquisition, <strong>to</strong> the excesses of the English Court of Star Chamber, and <strong>to</strong> the French monarchy's abuse<br />
of the lettre de cachet. All of these institutions obviously symbolized a menace <strong>to</strong> liberty. In the hands of<br />
despotic groups each of them had become an instrument for the suppression of political and religious heresies<br />
in ruthless disregard of the right of an accused <strong>to</strong> a fair trial. …The knowledge that every criminal trial is subject<br />
<strong>to</strong> contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial<br />
power.” In re Oliver, 333 U.S. 257, 268-70 (1948) (internal citations omitted).<br />
204<br />
As one court stated in deciding whether <strong>to</strong> unseal the records of a bail proceeding: “The decision <strong>to</strong> hold a<br />
person presumed innocent of any crime without bail is one of major importance <strong>to</strong> the administration of justice<br />
… Openness of the proceedings will help <strong>to</strong> ensure this important decision is properly reached and enhance<br />
public confidence in the process and result.” Seattle Times Company v. United States District Court for Western<br />
District, 845 F.2d 1513, 1517 (9th Cir. 1988) (citing Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 508<br />
(1983)).<br />
63 HUMAN RIGHTS WATCH VOL. 17, NO. 2(G)