Note: This lesson should be taught after coverage of 1st, 4th and
5th amendments of the US Constitution, as the Patriot Act and Military
Tribunal's main effects are on freedom of speech, search and seizure,
and other procedural due process rights for defendants.
Instruction and Activity:
Write these quotes on the board as background thoughts for the lesson.
At the end of the lesson, discuss what these quotes might mean.
George Bush: "We are an open society, but we are at war. We must not
let foreign terrorists use the forums of liberty to destroy freedom
itself"
Ben Franklin: "Those that can give up essential liberty to obtain a
little temporary safety deserve neither liberty nor safety"
Activity One: Charting the Differences: Due Process Worksheet
(see handout)
Pass out a blank chart for the students to fill in on the differences
between a military tribunal and civilian trial. Have the students take
a few minutes to fill in as much as they can recall about what the due
process guarantees are for civilian trials (covered in the 5th amendment
lesson).
Lecture:
The President authorized the use of military tribunals through an executive
order (Congress did not vote on it) on November 13, 2001. Military tribunals
apply only to non-citizens (they can be legal residents of the US, but
not citizens). According to the President, the purpose of the tribunals
is to help more swiftly fight the "War on Terrorism" by speeding up
the process to convict terrorists.
On the board or overhead, fill in the military side of the chart and
have the students follow along.
Now ask the students the following questions:
1. Why do you think that fewer freedoms are guaranteed in military
tribunals?
2. Do you think that it is fair for defendants in military tribunals
to have less rights than defendants in regular courts?
3. Do you think the tribunals will help fight terrorists better than
regular criminal trials? What are the advantages and disadvantages of
the tribunals compared to criminal trials?
4. How are the foreign defendants put on trial in a tribunal different
or similar to other kinds of defendants? Are they more dangerous? Less
dangerous? Flight risks?
| CIVILIAN CRIMINAL TRIAL DUE PROCESS GUARANTEES |
MILITARY TRIBUNALS DUE PROCESS GUARANTEES
|
| Defendant can have either a trial by jury or a bench
trial with a judge as the decision-maker if he or she chooses |
Applies only to non-citizens who have allegedly performed,
aided, abetted, or conspired to commit international terrorism. |
| The jury must all agree unanimously on guilt or acquittal |
Military officers judge the case, and military officers
are the jury (3-7 appointed members will hear the case) |
| Illegally seized evidence is excluded from consideration
by the jury (Exclusionary Rule) |
Unanimous verdicts are not required - only 2/3 of
the military commissioners (jury) are needed to convict |
| Defendants can appeal automatically to the appeals
court |
The rules of evidence do not apply (ex: hearsay is
allowed) |
| Defendant must have access to all the evidence against
him or her |
Illegally seized evidence (in violation of the 4th
amendment) can be admitted as evidence (it would be excluded in
a civilian trial) |
| Defendants have a right to a lawyer |
Defendants that are convicted cannot appeal to a civilian
judge, but they can ask for a "review" from a three-member panel
selected by the Secretary of Defense. The Secretary of Defense then
decides whether to perform the review or not. |
| Defendants are innocent until proven guilty |
Evidence can be withheld from defendants and their
lawyer whether classified as secret or not. |
| Defendant doesn't have to testify |
Defendants have a right to a lawyer (unless designated
as an "enemy combatant" by the President) |
| Double Jeopardy applies - cannot be charged for the
same crime twice (same crime, same victim, same time, same place,
same manner, etc.) |
Defendants are innocent until proven guilty |
| Rules of evidence apply. |
Double Jeopardy applies - cannot be charged for the
same crime twice (same crime, same victim, same time, same place,
same manner, etc.) |
| |
Defendant doesn't have to testify |
|
CIVILIAN TRIAL
DUE PROCESS GUARANTEES
|
MILITARY TRIBUNALS
DUE PROCESS GUARANTEES
|
Activity Two: Terrorism Trial
(see Terrorism Case Handout)
Instructions
1. For this activity, you will need to divide the class into groups
of 6 or 7 students. Half of the groups will be acting as juries, half
will be acting as military commissions.
2. The juries must come to a unanimous decision and cannot hear any
non-traditional evidence.
3. The commission groups must have a 2/3 majority to convict and can
hear illegal evidence.
4. The students will need to consider and discuss the facts and evidence
for each side and reach a verdict.
5. Each group should record their verdict on the board under a "Jury"
or "Commission" category.
Follow-up questions:
1. What are the pros and cons of requiring a unanimous verdict? A two-thirds
verdict? Which do you think should be used in a military tribunal? Why?
2. Why do you think criminal civilian courts ban illegally obtained
evidence? Do you think such evidence should be allowed in tribunals?
Why or why not?
3. Do you think the outcome your group reached was fair? Does one process
seem more fair than the other?
Terrorism Trial
Facts of the Case
Ibraham Mahim was born in Syria and is a citizen of Syria, but has
been a legal resident of the US for 20 years, living in Florida for
the past 5 years. On February 5th, Ibraham was detained (held) by
the Central Intelligence Agency and the Immigration and Naturalization
Service. The CIA suspected that Ibraham was a terrorist, and was participating
in terrorist activities. Ibraham had joined a fundamentalist Islamic
group while in Syria, and had served in the Syrian military before
coming to the United States. He is accused of helping Al Qaeda (a
terrorist group based in Afghanistan) plot to blow up several bridges
on the Chicago River downtown - a plot that was not carried out.
Evidence for the Prosecution
Using a search warrant, FBI agents searched Mahim's home and found
a structural diagram of one of the Chicago bridges.
Police Officer Johnson testified that he saw a man that looked like
Mahim looking at a bridge and writing things down in a notebook. When
he went to approach Mahim, he ran away. It was nighttime. The notebook
was found to contain measurements of the bridge and estimates of traffic
on the bridge.
A witness says she saw Mahim in a nearby gas station talking to a
man listed by the FBI as a potential terrorist.
Mahim's girlfriend said he had called her a week before his arrest
to tell her not to be in Chicago the following weekend because "something
big was going to happen".
Evidence for the Defense
Abraham Mahim testified that he is an engineering student at a local
college, and that he had to visit and take various measurements of
downtown bridges for a class project. He says he got the bridge diagram
from the Internet. Mahim testified that he ran because he knew there
were no trespassing signs where he was standing, and he didn't want
to get in trouble for that. He admits that it was wrong to run.
Mahim says he was in the gas station but that he doesn't know any
terrorists. He says the man he was talking to in the gas station was
a family friend, also a student.
Mahim's girlfriend admitted that they had broken up and that she
has told him in the past that she would "make him pay"
Nontraditional Evidence - only to be used by the tribunal groups
By going to a secret court, the FBI tapped Ibraham's phone and cell
phone, and recorded a conversation between Ibraham and the man he
was talking with in the gas station. This man was a known terrorist.
They talked about having a "big celebration soon for all their hard
work on this mission."
Instructions
A defendant is guilty of attempted bombing if the defendant aided
(helped/ assisted) in planning the bombing. The prosecution must prove
beyond a reasonable doubt that the defendant meant to help another
person or persons to attempt the bombing. In other words, the defendant
must have been aware he was assisting in planning the bombing. Merely
associating with someone planning the bombing is not enough by itself
to find the defendant guilty.
©Copyright 2003 Citizen Advocacy Center. All rights reserved. No part
of this lesson plan may be reproduced in any form or by any means without
the prior, written permission of the Citizen Advocacy Center.
--HOME
--