Reviving the Court of the Star Chamber

The US Constitution specifically prohibits in Article IX any bills of attainder. Yet somehow, the Executive Branch of the government manages to claim a person may be an “enemy combatant”. Simply put, a Bill of Attainder stripped free British subject of certain rights in courts of law if ordered by the king. During the passage of the Constitution, it was not uncommon for the Crown to issue Bills of Attainder should a person be accused of a crime. Criminal cases were tried by the auspice of the king. Before the English Civil War kings had used Court of the Star Chamber to try political enemies without being guaranteed any rights.

Enter Ahmed Omar Abu Ali, enemy of the state. The centerpiece of the US’s argument against him appears to be a confession he gave while tortured by the Saudi government. Already there is evidence the US has signed off on torturing potential terrorists by having friendly ally governments like Egypt and Saudi Arabia do the dirty work while handing American authorities a transcript. But now it appears, the Executive Branch is ready to assert that these torture transcripts provide enough evidence to convict Abu Ali.

Does this mean the Court of the Star Chamber is back with a vengeance? Not yet. While Abu Ali may be convicted initially, the Constitution explicit rules against attainder imply that there would be no ability for precedent. In other words, should the US have to try Jose Padilla, Yaser Hamdi or other American citizens currently deemed “enemy combatants” prosecutors could not assume any evidence wrought by other governments torturing would be admissible. A judge would always have the final say.

That is unless a convicted Abu Ali appeals and the Supreme Court weighs in. For now, the Government alleges that the planning was only “at the talking stage.” Federal conspiracy charges do not require a tremendous amount of evidence. But they still need proof of an affirmative act towards the conspiracy’s end. While the legal question is where the prosecution found evidence of this affirmative act, a more salient one is what the act was. Should the Government refuse to say, then the Court of the Star Chamber might be on its way to a comeback.