Public Law & Legal Theory
Due process protections and other constitutional restrictions normally ensure that citizens cannot be tried and punished for political dissent, but these same restrictions interfere with criminal convictions of terrorists and others who pose a non-immediate but real threat to public safety. To counter these threats, governments may use various subterfuges to avoid constitutional protections, often with the complicity of judges, but when they do so, they risk losing the confidence of the public, which may believe that the government targets legitimate political opponents. This paper argues that that the amount of process enjoyed by defendants in criminal trials reflects a balancing of these two factors: their dangerousness, on the one hand, and the risk to legitimate political competition, on the other hand. Political trials are those in which the defendant’s opposition to the existing government or the constitutional order is the main issue. The paper discusses various ways in which governments and judges adjust process protections, so that a public threat can be countered while the risks to political competition are minimized. International trials are also discussed within this framework.
Eric Posner, "Political Trials in Domestic and International Law" (University of Chicago Public Law & Legal Theory Working Paper No. 87, 2005).