Due process is a set of legal requirements that protect the individual against abuse by the state. Examples are a person’s right to be notified of court proceedings in which he is involved and the right against self-incrimination. Due process is woven into the fabric of American society through both the Constitution and legal precedent.
Few practices are as damaging to due process as secret courts and secret law. From the abuses of the Spanish Inquisition to the English Star Chamber, historians have detailed how individual rights decline as state secrecy rises. This relationship can be explained in various ways. One of them is with reference to knowledge and power.
Why secrecy empowers the state
“[A] people who mean to be their own governors, must arm themselves with the power which knowledge gives,” James Madison wrote.
Knowledge is power. That’s why an individual’s right to close his front door behind him — that is, the right to privacy — is a crucial defense against state intrusion. Privacy protects an individual’s power over his own life because it restricts the ability of others to know about him without his cooperation.
In terms of freedom, the ideal state is one that exists only to protect the person and property of individuals. Its operations need to be transparent so that individuals and society can judge its propriety and efficiency. That is especially true in the rendering of justice because it is an area defined by conflict and the penalties enacted can be severe. When transparency is present, the courts are reluctant to be blatantly unjust; when proceedings are open, defendants can appeal a ruling to another court or to public opinion.
When a court becomes secret, however, it claims the power that comes from controlling knowledge. Transparency can be properly breached, of course, if the defendants themselves agree to do so — perhaps to protect a child’s identity. But transparency cannot be properly breached in the interests of the court. Why? Because the proper purpose of a court is to serve individuals by delivering justice, not to serve itself. If a court’s operations are unseen, then they are also unchecked. And traditional safeguards, such as accessible transcripts that allow avenues of appeal, are absent.
A current debate on a secret court
The Foreign Intelligence Surveillance Act of 1978 (FISA) established legal procedures for the surveillance and collection of information on foreign powers, including the surveillance of Americans who may be in contact with them. FISA prescribes when and how Americans suspected of espionage or terrorism can be wiretapped or the electronic equivalent thereof. It also permits the issuance of warrants for physical searches.
The stated purpose of the act was to restrain law enforcement agencies such as the National Security Agency (NSA) from conducting domestic surveillance without a warrant from a judge. The act was a response to the exposure of widespread spying on political opponents by the Nixon administration. Without warrants to document “probable cause,” that spying was considered to be a violation of the Fourth Amendment’s ban on unreasonable search and seizure. Thus FISA created oversight. To legally conduct domestic surveillance, a law-enforcement agency needed to receive a warrant from the Foreign Intelligence Surveillance Court (FISC), which consists of 11 judges appointed by the U.S. chief justice; only one judge’s approval is required.
The FISC is a secret court. Its hearings are ex parte, which means they occur in the absence of the targeted individual and without notification to him; the ex parte aspect also places the FISC outside congressional oversight. Records of FISC hearings are classified; they are rarely made public and, if reports are released, they are in redacted form. The Department of Justice can appeal the denial of a warrant to the U.S. Foreign Intelligence Surveillance Court of Review (FISCR), which is a three-judge panel appointed by the head of the DOJ himself. Denials happen so rarely, however, that the FISCR first met in 2002, 24 years after its formation. Until then, the FISC had not denied a single surveillance request. Indeed, the first denial did not come as the result of a warrant but because the DOJ requested approval of a secret regulation to let its prosecutors work with counterintelligence agents from the FBI.
Criticism of the FISC has grown in concert with public awareness of the extraordinary extent to which the NSA has been monitoring the communications of ordinary Americans. The increase in surveillance was partly due to a 2011 ruling by an FISC judge who eliminated a ban on domestic intelligence gathering. The Washington Post (Sept. 7, 2013) stated, “The Obama administration secretly won permission from a surveillance court in 2011 to reverse restrictions on the National Security Agency’s use of intercepted phone calls and e-mails, permitting the agency to search deliberately for Americans’ communications in its massive databases….” In short, the searches no longer required warrants.
Backlash is also coming from tech and social-media companies that have been ordered to facilitate NSA surveillance orders. For example, in June 2013, Google petitioned the FISC for permission to
release NSA requests for information about its users. Google needed permission because the warrants it received were served in conjunction with a gag order. Other media giants that received FISC warrants and gag orders include Yahoo, Twitter, Facebook, and Microsoft.
In a Bloomberg article (June 12, 2013) entitled “Stop the Official Lies by Revealing Secret Court Rulings,” Tim Wiener captured the spirit of backlash. It opened, “The U.S. has forsworn secret prisons. But we have reams of secret laws for our secret intelligence agencies, interpreted by a secret court that hands down secret rulings.” Weiner concluded, “The time is ripe to declassify the rulings, enough to reassure us that the rule of law remains in the realm of government eavesdropping.”
The FISC is a cautionary tale. Even if the court’s origin is rooted in an attempt to protect an individual’s right to due process, critics claim its secrecy doomed that attempt and produced the opposite. A more general issue is, what role does secrecy play in justice and due process? History provides an answer that has particular relevance to the United States because its influence is reflected in the Constitution forged by the Founding Framers.
The Star Chamber becomes a negative role model
When a court is called a “Star Chamber,” the term refers to the court’s secretive nature and abuse of individual rights. It is way to call the court illegitimate.
The Star Chamber was an English court that emerged in the mid 15th century from the king’s privy council but included outside authorities. It was named for the pattern painted on the ceiling of the room in which it met at Westminster Palace. In 1487, under the Tudor king Henry VII, a seven-man court was authorized to handle cases that the lower courts of common law and equity would not or could not handle. Some cases concerned wealthy and powerful people whom the lower courts simply would not punish; the Star Chamber became a court of appeal for those cases. Later, the Star Chamber dealt with state security and other matters that were beyond the jurisdiction of the lower courts.
The Star Chamber’s procedure was generally triggered by a petition or information presented to the court; depositions were taken; the accused was questioned under oath and confessions were often elicited through torture. The judges could not impose the death penalty but, otherwise, they enjoyed almost arbitrary discretion in meting out punishments, including life imprisonment. Short of a royal pardon, no appeal was possible. Under Henry VIII, the Star Chamber’s jurisdiction expanded and it became a political weapon wielded against the king’s enemies. It remained popular, however, because it was seen as an efficient keeper of public peace and a recourse for crimes committed by the powerful.
Scholars differ in describing the Star Chamber as both public and secret during the Tudor period. In its early days, the court seems to have been something of a mixture, although heavily weighted toward secrecy. In an article entitled “Council, Star Chamber, and Privy Council under the Tudors” in The English Historical Review (Oxford Journals, 1922), A.F. Pollard explained, “There was the large room generally indicated by the words star chamber when used alone; there was the inner star chamber; and there was a 3rd room on the east side overlooking the river, in which suitors could wait and distinguished visitors … could watch the course of proceedings.” At times, therefore, a few people could witness some of the procedures. Nevertheless, witnesses were questioned privately and without cross-examination. No appeal mechanism existed and the proceedings were not available to the public.
The Star Chamber fell into notorious disrepute during the reign of the House of Stuart, especially the second Stuart ruler, Charles I, who believed in the divine right of kings. Charles was especially vindictive toward the rebellious Puritans. The Puritans were a group of Protestants who preached strict religious discipline and sought to simplify the existing rituals and teachings of the Anglican church. They were extremely vocal in their criticism of Charles who they believed was moving England toward Roman Catholicism. The Puritans were also a rising power in both society and politics; many were wealthy merchants and land owners who assumed positions in Parliament. Charles and Parliament clashed.
In 1629 Charles adjourned Parliament and ruled without it for the next 11 years. A now entirely sequestered Star Chamber became a parliamentary substitute through which Charles enforced a flood of royal proclamations and punished his enemies. The court became hated for its persecution of nobles and religious dissenters, especially the Puritans. The dissenters were often prominent gentlemen and respected scholars whose brutal treatment could not be hidden even if the proceedings were secret. As details emerged, public outrage grew. One of the Star Chamber’s most despised weapons was the ex officio oath; individuals who were summoned had to swear to answer questions truthfully. The Puritans viewed oaths with great seriousness because breaking one was an offense against God. The ex officio oath was a Catch-22 for the Puritan. If he refused the oath, he could be held in contempt and jailed indefinitely. If he took the oath, he could be asked incriminating questions. Simply being summoned was a prison sentence for every Puritan, depending on the court’s discretion.
The Puritans were extremely influential in discrediting the Star Chamber and establishing what later became the due-process right against self-incrimination as embedded in the Fifth Amendment to the U.S. Constitution.
In 1640 Charles was forced to assemble Parliament to pass finance bills for his campaigns in war. One of the first acts of Parliament was to abolish the hated Star Chamber. The secret court lived on only as a pejorative term.
But the Star Chamber of Charles deeply affected the colonies in America. After all, the secret court had been instrumental in inspiring prominent Puritans to flee England in search of a new world in which to practice their religion.
The Pilgrims (who were largely Puritans) landed in the New World in 1620. They formed the Plymouth Colony in what later became Massachusetts. Despite a bleak start, the colony took hold and proved to Puritans still in England that colonization of the New World was feasible. History calls it the “Great Migration.” The migration of Puritans from England (circa 1620–40) spiked after Charles I adjourned Parliament. In the 1630s, an estimated 20,000 people migrated to New England, many of them Puritans.
In her book The Right to a Speedy and Public Trial: A Reference Guide to the United States Constitution, constitutional law scholar Susan N. Herman explained, “While colonists did not generally enjoy all of the other rights later codified in the Sixth Amendment, like the right to counsel or the right to call witnesses, the customary public trial before a jury was considered a very fair proceeding for its time.”
The American revolutionaries who broke away from England in 1776 drew upon their roots, to which they added the subtleties of due process. For example, in 1761 attorney James Otis Jr. passionately argued a case for hours before the Massachusetts superior court. It involved a legal instrument called a “writ of assistance” that often served as a general search warrant with no expiration. Otis pleaded with the court to “demolish this monster of oppression, and tear into rags this remnant of Star Chamber Tyranny.” He argued for fundamental law that was superior to government by men. Young radicals in the audience, including Samuel Adams, were mesmerized and immediately adopted Otis as a leader. The radicals became one of the core groups around which the American Revolution materialized.
During the Constitutional Convention of 1787, references to the Star Chamber were voiced. For example, the original version contained no provision for a right of jury trial in civil cases. According to the papers of James Madison, which are the best record of the Convention’s proceedings, Elbridge Gerry refused to sign because he believed a “tribunal without juries” would result in “a Star Chamber as to civil cases.”
In the ratification debates that raged in individual states thereafter, the Star Chamber was also invoked. Later, in protest of the Adams administration’s Alien and Sedition Acts, the Resolutions of Virginia and Kentucky, written by James Madison and Thomas Jefferson, quote the famous English jurist William Blackstone on the destructive impact of the Star Chamber on freedom. Over and over, the secretive court was invoked as a symbol of what should be avoided. Strong protections were erected against it within the Constitution. They included:
A tripartite division of power. The Star Chamber was a system of justice administered by the executive as a means to impose law. In The Federalist Papers, Madison wrote, “[The] accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, a few or many, and whether hereditary, self appointive, or elective, may justly be pronounced the very definition of tyranny.” To prevent centralized power, the Constitution provided for a tripartite structure in which the legislative, judicial, and executive branches were independent. Each branch functioned as a check on the power of the others. As Jefferson commented, “The Constitution has erected no such single tribunal [as a star chamber], knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.”
The most dramatic influence of the Star Chamber, however, was on the Bill of Rights, which was missing from the original Constitution and was added after some of the ratifiers demanded it.
The Fourth Amendment. This amendment spelled out the people’s right “against unreasonable searchers and seizures”; it required warrants to be issued only “upon probable cause” and with specific descriptions of “the place to be searched, and the persons or things to be seized.” This was a reaction to the general and open-ended “writs of assistance,” which Otis had denounced as a “remnant of Star Chamber Tyranny.”
The Fifth Amendment. This amendment provided in part, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.” No one could be tried twice for the same crime or be forced to testify against himself. No one should “be deprived of life, liberty, or property, without due process of law….” The prohibition against self-incrimination was a response to the ex officio oath administered by the Star Chamber. In Pennsylvania v. Muniz (1990), the U.S. Supreme Court declared its “unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury, or contempt, that defined the operation of the Star Chamber, wherein suspects were forced to choose between revealing incriminating private thoughts and forsaking their oath by committing perjury.” The insistence upon “due process of law,” which includes notice, was a response to the ex parte of secret courts by which a person could be subjected to adjudication without his knowledge.
The Sixth Amendment. This Amendment gives specific due-process rights to a person who is criminally accused. He “shall enjoy the right to a speedy and public trial, by an impartial jury.” He shall “be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for this defense.” (The ability to compel testimony is lamentable and runs counter to the right to silence that is claimed by the criminally accused defendant himself.)
The Seventh Amendment. This Amendment addressed Gerry’s concern. Civil cases in controversies that “exceed twenty dollars” should preserve “the right of trial by jury.”
The Eighth Amendment. This Amendment states, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” This is sometimes called the “Proportionality Requirement.” It protects against the arbitrary punishment inflicted by the Star Chamber at its sole discretion. During the ratification debates, Patrick Henry highlighted the need for proportionality in order to prevent the establishment of federal courts of “criminal equity” — a reference to the Star Chamber.
A deep and reasonable fear of secret courts runs through Anglo-American history. Where there is secrecy, there is little accountability and great scope for abuse. A rebellious Parliament outlawed the Star Chamber in the 17th century; rebellious Americans embedded protections against it in the very structure of their new nation. The transparency and attending accountability of courts may be the single greatest protection of the individual rights expressed by the Bill of Rights. Secret courts, like secret police, have been a hallmark of tyrannical rule.
The conflict between the FISC and the Bill of Rights cannot be resolved. State secrecy is anathema to the very structure of the United States.
This article was originally published in the August 2014 edition of Future of Freedom.