DrDeth,
I cannot, unfortunately, recall which periodical had a description of what was proposed, but what I recall was that the tribunals would be conducted in secret, with no right of habeas (so people could be kept indefinitiely without being charged) or right of appeal, that the prosecution’s burden was not “beyond a reasonable doubt”, but something less (although I can’t remember if it is “preponderance of the evidence” or “clear and convincing evidence”), the federal rules of procedure and evidence do not apply, there is no grand jury and the tribunal may reach a conviction, including the death penalty, by majority vote rather than unanimous vote. I do now know whether the accused can be compelled to testify. My recollection may be flawed, so I apologize if I misstated something.
If any state court tried to apply any of the above rules to an ordinary criminal case (with certain exceptions), it would be readily reversed as violating the Fourteenth Amendment. The terrorism cases add a level of complexity because it is not certain that they are even entitled to these rights as an initial matter. Domestic terrorists presumably are, but the Quirin case throws some doubt on that for wartime.
The problem I have with the idea that we should not reveal sources because it costs us is as follows: you cannot convict someone without evidence. If you have to introduce a piece of evidence to establish an element of your case, then the defense has the right to examine how you got it, because the reliability of the evidence must be at issue. To take the cell phone example: if your aim is to prove that the defendant corresponded with bin Laden to show the defendant is part of a terrorist network, you have to prove each of the following: defendant spoke on W day in X location with Y member of the network on Z issue of network matters. You don’t simply get to have the witness say: “Well, they talked about Al Qaeda business that day, but don’t ask me how I know that. I just do.” It is entirely reasonable for the defense to ask how the witness came to be listening to the conversation and any other circumstances surrounding that piece of evidence. If what we propose is that the defense not be allowed to examine the evidence that can ultimately lead to a defendant’s death, then we really are brazen hypocrites. If the cost is great, then be damn sure you have a good case against the most culpable defendant.
But perhaps the proposal is only to prevent the public from attending the trials. I don’t really have much of a problem with that. Does it solve the problem you posed? Maybe, maybe not. Each defendant, for example, must be allowed to present evidence, including witnesses, in his defense. You can try to sequester witnesses all you want, and you may try to cut off any communication to and from an accused, but you can’t detain a witness, and you’ll find it very hard indeed to keep information seeping in and out of the courtroom or a jail cell.
Finally, I’d be interested in reading up on analyses of how the evidence presented in the first WTC trial led directly and inexorably to the 9/11 attack, so a reference would be appreciated. I’m not saying it didn’t; I’m just a little skeptical that the first trial could have been carried to a conclusion without the evidence, in a manner that not only comports with due process but completely shielded the evidence from the perpetrators.