“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to 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 his defense.”
The Sixth Amendment spells out the right to a “speedy and public trial.” An accused person is entitled to confront the witnesses against him and demand to know the nature of the charges. In addition, the government cannot keep someone in jail for unspecified offenses. We also have the right to be tried by a jury of our peers and be represented by an attorney. This means that our guilt or innocence in criminal proceedings is decided by our fellow citizens, not simply by panels of judges or unaccountable politicians.
At the height of its political power in the mid-1500s, the British legal system included an underground court known as the Star Chamber. These panels consisted of three judges and were held in secret with no indictments, no right of appeal, no juries and no witnesses. To ensure that this conduct would not continue, the Founders enacted the Sixth Amendment, which guarantees a criminal defendant the right to a speedy trial open to all members of the public. Thomas Jefferson declared, “I consider [trial by jury] as the only anchor ever yet imagined by man by which a government can be held to the principles of its constitution.” Because the text of the Constitution permits all criminally accused defendants “to have the assistance of counsel for…defense,” the U.S. Supreme Court has determined that a criminally charged defendant who is unable to afford an attorney shall have one appointed free of charge if he or she desires.
The reasons behind these rights are twofold: first and foremost, a defendant benefits from a speedy and public trial by jury because an open trial suggests a fair hearing of his or her grievances. Second, democratic society benefits from the ability to witness local courts of law in action.
Americans still possess the right to a speedy and public trial by jury. In recent years, however, the government has demonstrated its willingness to ignore important constitutional safeguards found in the Sixth Amendment. Consider what happened at Guantanamo Bay: detainees were kept without charge, not informed of the evidence against them and denied access to a lawyer. Not only have non-citizens been held in such a manner but so, too, were American citizens who were captured on American soil, rather than on a foreign battlefield. For example, Jose Padilla, an American citizen arrested on American soil, was labeled an "enemy combatant," denied access to an attorney and held without charge in a military brig for more than three years.
Despite the Sixth Amendment’s guarantee of public trials, nearly all records are being kept secret for more than 5,000 defendants who completed their journey through the federal courts over the last three years. As Lucy Dalglish, executive director of The Reporters Committee for Freedom of the Press, observed about these “secret dockets”: “In this country, we don’t prosecute and lock up convicts and have no public track record of how we got there. That violates the defendants’ rights not to mention the public’s right to know what its court system is doing.” At least one government official, former Attorney General John Ashcroft, has suggested that the government could ignore the Sixth Amendment altogether and lock American citizens up indefinitely, simply by labeling them so-called “enemy combatants.”
Reports of contracts for new internment camps being awarded to private contractors have also raised considerable alarm among those who fear that the camps may be intended for American citizens. In 2006, the Department of Homeland Security awarded a $385 million contract to a former subsidiary of the Halliburton Corporation to build detention camps in the United States, reportedly for use in rounding up illegal immigrants. But Daniel Ellsberg sees more nefarious motives at work. “Almost certainly this is preparation for a roundup after the next 9/11 for Mid-Easterners, Muslims and possibly dissenters,” says Ellsberg, a former military analyst who in 1971 released the “Pentagon Papers,” the U.S. military’s account of its activities in Vietnam. “They’ve already done this on a smaller scale, with the ‘special registration’ detentions of immigrant men from Muslim countries, and with Guantanamo.”
Such a scenario would not necessarily represent a new course with respect to Americans. Recall, for example, the large-scale detainment of Japanese and Japanese-Americans who had committed no crimes in internment camps during World War II. Remember, too, that thousands of protesters were arrested and taken to Pier 57, a condemned bus depot in New York, during the Republican National Convention in 2004. Ellsberg may not be too far off the mark in wondering whether Arab-Americans and Muslims might be next.