Secret trials for terrorists, says US judge
By David Nason, Chicago
The Australian" -- -- A TOP-RANKING US judge has
stunned a conference of Australian judges and barristers in
Chicago by advocating secret trials for terrorists, more
surveillance of Muslim populations across North America and an
end to counter-terrorism efforts being "hog-tied" by the US
Judge Richard Posner, a supposedly liberal-leaning jurist
regarded by many as a future US Supreme Court candidate, said
traditional concepts of criminal justice were inadequate to deal
with the terrorist threat and the US had "over-invested" in
His proposed "big brother" solutions flabbergasted delegates at
the Australian Bar Association's biennial conference, where
David Hicks's lawyer, Major Michael Mori, is to be awarded
honorary life membership.
"We have to fight terrorism with our strengths, and our
strengths evolve around technology, including the technology of
surveillance," said Justice Posner, a prolific legal scholar who
sits on the US Court of Appeals for the Seventh Circuit.
"Are there terrorist plots that are at a formative stage among
the large US Muslim community of two to three million people? In
the 600,000 Canadian Muslim population, are there people
planning attacks on the US?
"What we have to do is discover the extent of the terrorist
threat to the US. There is a danger, and it demands a rethinking
of some of our conventional views on the limits of national
"We should think of surveillance as preventative, not punitive.
We should think of controls that have nothing to do with
warrants or traditional criminal justice to prevent abuses."
Judge Posner said the US temper and culture could not sustain
repeated terrorist attacks.
Melbourne QC Tim Tobin said it was a shock to hear such hard and
isolationist positions coming from a judge known as a liberal
thinker. While he was disturbed by the judge's proposed
crackdown on US and Canadian Muslims, he suspected the sentiment
would be welcomed by the Howard Government.
Judge Posner raised the prospect of secret trials as a "tailored
regime" to prosecute terrorists in cases where there was a
concern about classified information going public.
Queensland SC Glenn Martin said he had been "jolted" by the
address: "I hope we never have secret trials in Australia."
Judge Posner said the US was "a law-saturated society where even
non-lawyers tend to think ofproblems in terms of legal
"Criminal justice and war are the two responses we have to
terrorism. Each comes with its own legal institutions and
doctrines and regimes but the struggle against international
terrorism doesn't fit either very well."
He said it was "quite misplaced" to suggest national security
measures in force or contemplated in the US could endanger
liberty and undermine the political system. This was because
governments could no longer conceal what they did: "We have a
very aggressive media and a huge and complex government where
many people in the government are quite willing to talk to the
© The Australian
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