Getting Tudor on Their Asses

The military commissions reviewing the status of alleged al Qaeda members being held at Guantanamo Bay follow procedures that differ substantially from the procedures that would be used in a criminal trial in a standard civilian court. According to Senior Judge Green of the United States District Court for the District of Columbia, those differences mean that the commissions fall short of the due process guarantees of the Constitution.

Compare some of the transcripts from Judge Green’s opinion (PDF) with the report of the trial of Nicholas Throckmorton from 1554, the first criminal trial in Anglo-American history for which we have anything approaching a full transcript.


Throckmorton: … both which Statutes I pray you my lords may be read here to the inquest.

[Commissioner] Bromley: No, for there shall be no books brought at your desire; we know the law sufficiently without book.

Throckmorton: Do you bring me hither to try me by the law and will not shew me the law?


Detainee: … 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.


Throckmorton: … Almighty God provided that revelation for me this day since I came hither: for I have been in close prison these 58 days, where I heard nothing but what the birds told me, which did fly over my head.


[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.

The most notable difference in procedure between the commission that tried Nicholas Throckmorton and the one that tried Mustafa Ait Idr is that Nicholas Throckmorton was tried before a jury. The second most notable difference is that Throckmorton was allowed to learn the names of his alleged co-conspirators. It does not speak well of the Guantanamo commissions that they come out on the losing side in a comparison with Bloody Mary’s treason trials.

What was wrong with the Tudor and Stuart treason trials was the utter imbalance of trying a man without telling him the details of the charges against him—and then putting him up in court against the full investigative and prosecutory power of the state. It took the British until the late 17th century to understand that a rough-and-ready criminal trial without defense counsel, disclosure of the charges, and full discovery of exculpatory evidence was woefully inadequate when the prosecution was able to plan and produce a massive spectacle of seemingly damning evidence.

Once they did understand, they reacted with a series of statutes that would become the basis for much of our Bill of Rights. Today, the name of the game is finding ways to avoid those defensive safeguards. But we have those safeguards for a very good reason. Without them, Bloody Jeffreys sells pardons to some while hanging other men for having Jewish first names. Without them, Stephen College is executed after his defense notes are seized from him and turned over to the prosecution. Without them, Alice Lisle, deaf and over seventy, is behaded after a trial in which she gives every sign of not understanding what is happening. And without them, Mustafa Ait Idr pleads vainly to be told whose company he shouldn’t have kept.

In 450 years, we have learned nothing.