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January
22, 2002
Kevin
Alexander Gray
The
Crisis in Black Leadership
January
21, 2002
Marjorie
Cohn
Will
Walker's Words
Be Used Against Him?
Ahmad
Faruqui
MLK
Jr. and the Palestinians
January
19. 2002
Jordan
Green
Enron
Stole Our Future
January
18, 2002
Tom Turnipseed
The
Enron Model
Walt Brasch
Enron
at the White House
CounterPunch
Wire
Human
Rights Groups Says Guantanamo Prisoners Must
Be Treated as POWs
January
17, 2002
Gideon
Levy
Bulldozing
Rafah
Uri Avnery
That
Weapons Shipment
January
16, 2002
John Chuckman
The
Angel and the Pretzel
Lawrence
McGuire
Subverting
the
Geneva Convention
Kathy
Kelly
An
Open Letter to
Richard Perle on Iraq
January
15, 2002
George
Monbiot
Greenpeace,
Lord Melchett
and the Business of Betrayal
Jack McCarthy
Follow
the Pretzel
William
Blum
Atta
and the Times:
Follow the Changing Story
Edward
Said
Emerging
Alternatives
in Palestine
January
14, 2002
David
Vest
Open
Bag. Eat Pretzels.
Patrick
Cockburn
Collapse
of Georgia
Ignored by the World
Mokhiber/Weissman
Enron's
Accountants:
When In Doubt, Shred It
January
13, 2002
C.G. Estabrook
Why
We Kill People
January
12, 2002
Cockburn/St.
Clair
Forbidden
Truths
January
11, 2002
Lee Balllinger/Dave
Marsh
Neil
Young's Duet with Ashcroft
January
10, 2002
Tom Turnipseed
Bush,
Enron, UNOCAL
and the Taliban
St. Clair/Cockburn
Greenpeace
to Greenwash?
Hans von
Sponek
Iraq:
Is There an Alternative
to Military Action?
Jim Lobe
Israeli
Human Rights Group Assails Army
Marina Mayakova
Russia's
Top Military Astrologer Predicts More Attacks from OBL
January
9, 2002
David
Vest
The
Super-Burqa
and the Big Tent
ND Jayaprakash
Winnable
Nuclear War?
Rafiq
Kathwari
Kashmir
Will Make Ground Zero Look Like a Bonfire
January
8, 2002
Prudence
Crowther
Sting
Like a B-52
Nelson
Valdés
Al-Qaeda
at Guantanamo Bay
John Chuckman
Dark
Tales from the
Ministry of Truth
Richard
Corn-Revere
Do
We Fear Freedom?
Joan Hoff
The
Nixon You Haven't Heard
January
7, 2002
Lawrence
McGuire
Confusing
Economic Tales About Argentina
Wael Masri
They
Are Taking
Our Rights Away
Philip
Farruggio
Better
Medicine
A Photographic Journal of Life
in an Afghan Refugee Camp
By Judith Mann
Resources:
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About 9/11
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bin Laden and Bush
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Aisha Ikramuddin on the Hidden Hype
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Jiang Zemin Tells Bush:
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and Jeffrey St. Clair
The Memphis Blues Again:
Six Decades of Memphis Music Photographs
Photos by Ernest Withers
Text by Daniel Wolff
The New Intifada:
Resisting Israel's Apartheid
Edited by Roane Carey
A Pocket Guide to
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The
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January
22, 2002
Invading the Courts
We
Don't Need Military 'Tribunals' to Sort out the Guilty
By Judith Resnik
Legal Times
The press tells us that regulations are in draft
to fill out the president's Nov. 13 order establishing a military
commission to determine the fate of people the government thinks
might be terrorists. A special ABA committee just issued a report
calling for procedures to provide a full and fair trial, presumptively
open proceedings, and defendants' rights to choose lawyers and
to have appellate review. The military has also begun building
a detention center at Guantanamo Bay in Cuba and transporting
captured opponents there.
So, the question again on center stage
is what kind of process to provide for those suspected of threatening
or causing -- in the words of the executive order -- "injury
or adverse effect on the United States, its citizens, national
security, foreign policy, or economy" (or those harboring
others so suspected).
The Nov. 13 order invents something new
and untested. Unilaterally, the president has taken on power
to decide who will be subjected to procedures that he creates
and that are carried out by people of his own choosing.
The public debate thus far has blurred
the issues by talking about the commission as a "military
tribunal." We should not use that term, which gives the
commission an aura of legitimacy it does not deserve.
WITHOUT
JUSTICE
Webster's Collegiate Dictionary defines
a tribunal as a "court or forum of justice." But the
Nov. 13 order gives no assurance of justice. Its text allows
military personnel, acting only on a suspicion of terrorism,
to try and convict individuals, and by a two-thirds vote sentence
them to death -- all in proceedings they can decide to close
and without any right of review.
Lawyers have focused on whether the order
is "legal." That question is really two questions.
First, are there precedents for the order, such that a court
might uphold it? Second, ought it to be legal?
As to the precedents, the quick answer
(and one that all lawyers know before it is even given) is that
there are always some precedents that can be invoked. But consider
what they are.
Apologists for the order invoke case
law from several decades ago, notably the 1942 decision Ex parte
Quirin, in which the Supreme Court upheld the convictions and
executions of German saboteurs. Many of us who teach that case
had grouped it with other "war cases" -- the 1940s
decisions in Korematsu and Hirabayashi, upholding curfews, evacuations
and internment of Japanese-Americans, and the Civil War case
of Ex parte McCardle, upholding congressional retraction of Supreme
Court jurisdiction in a case pending before it. All these cases
are painful reminders that, in times of war, courts often do
not protect against incursions on civil liberties. Up until recently,
we would likely have taught our students not to rely on such
cases because they represent aberrant and largely abhorrent moments
in our constitutional history.
Further, we know now that the restrictions
on civil rights tolerated by the Supreme Court were unnecessary
and wrong. Quirin, the German saboteur trial, was "secret"
in the sense that the public was not permitted to attend. But
it was "public" in the sense that the public knew it
was ongoing. As one Justice Department lawyer involved in the
case later wrote, the government's strategy was to use the drama
of the proceedings to rally public support for war efforts. In
contrast, given current worldwide criticism of the order, using
it is neither necessary nor wise public relations.
And as to the Japanese-American internment
cases, in 1986 a federal appellate court vacated Gordon Hirabayashi's
conviction on the grounds that it was based on racial classifications
that could no longer be understood as constitutional. In 1993,
the president publicly apologized, and today in Tucson, Ariz.,
a monument stands dedicated to Mr. Hirabayashi for his commitment
to the rule of law.
Further, as every first-year law student
learns, these precedents are old. Old, meaning that many years
of more recent precedents have reduced their meaning and cordoned
them out of mainstream jurisprudence. All of these cases predate
the equality law of Brown v. Board of Education, the right of
counsel protected in Gideon v. Wainwright, and decades of developments
in due process and rights of access to courts. Further, after
those precedents, the United States joined the Geneva Protocols
of 1949 and the International Covenant on Civil and Political
Rights, both committing us to fair process through independent
judges.
A BETTER
PRECEDENT
And there is other, more recent precedent
that has not been a part of the debate. In 1978, Hans Tiede escaped
from what was then East Berlin by hijacking a plane to freedom
in West Berlin, where he was warmly greeted. But because the
United States and other countries had just signed a treaty with
the Soviet Union against hijacking, the United States undertook
to try the offender in Berlin.
The State Department asked a sitting
federal judge -- Herbert Stern -- to preside. At trial, the government
argued that the United States, as an occupying force, could conduct
the trial free from the U.S. Constitution and free from judicial
review. Whatever rights belonged to the defendant, said the government,
came from the secretary of state, because the court was an implementing
arm of U.S. foreign policy.
Judge Stern, himself a former prosecutor,
disagreed. He explained, in United States v. Tiede, that "it
is the first principle of American life -- not only life at home
but life abroad -- that everything American public officials
do is governed by, measured against, and must be authorized by
the United States Constitution." Judge Stern required that
the defendant be accorded due process of law. The defendant was
tried by a jury, which convicted him.
As Tiede demonstrates, judges can adapt
familiar procedures to complex circumstances. Other examples
come from current international courts. Last summer, as I watched
proceedings at the Hague of the International Criminal Court
for the Territories of the Former Yugoslavia, I saw some of the
technology of protection. Spectators sit behind thick glass walls;
when necessary, shades can be closed and witnesses' voices can
be scrambled. Around the world, democratic countries have crafted
courts to address horrific terrorism while keeping the values
of due process intact.
Contemporary legal precedents and practices
could thus support a court's rejection of the Nov. 13 order;
none have upheld as extreme a proposition as this order. But,
as the older precedents warn, when judges are scared, they can
be too forgiving of constitutional lapses and too eager to support
a president.
So it is the second question that is
central: What should be legal? Our law should only sanction a
system that protects the rights and procedures reflecting this
nation's fundamental commitments to fairness and equality. To
accomplish this, the best response would be to withdraw the order.
Let the president use that action to demonstrate that deliberative
democracies produce public exchanges that actually make changes
in policy.
The more likely response will be that
implementing regulations will address some complaints about the
order. Rumors describe regulations that will require a unanimous
vote of commissioners to execute defendants, give defendants
a presumption of innocence and permit some public access.
FUNDAMENTAL
FLAWS
But those proposals do not respond to
three fundamental flaws: the grab of power by a single branch,
the failure to guard individuals against government excesses,
and the absence of a truly independent decision maker.
If the executive branch circulated draft
regulations for notice and comment and then responded to criticism,
the order would do less harm to separation of powers. If the
regulations explicitly incorporated procedures used in courts-martial
or (even better) in federal courts, and specifically guaranteed
appellate review, the regulations could help to turn the commission
into a real tribunal. As Tiede teaches, executive tribunals need
not ignore the rights of defendants. And Tiede provides an example
of how to get a neutral adjudicator even in extraordinary circumstances.
If the regulations required a truly independent judge, the commission
might eventually take on the character of our current courts
of law.
Why has that not yet occurred? Why are
we afraid of using our own processes? Trials are emblematic of
both the possibility of knowledge and the risk that information
could come affecting judgment of those accused. The profoundly
emotional response to the tragedy and horror of Sept. 11, 2001,
has created an environment afraid of deliberation. The effort
to preclude that process represents a desire to ensure punishment.
Despite the terrorist attack on the United
States, the presidency has continued to function. And although
disrupted by anthrax, Congress still works. Why should we accept
the order's premise that the federal judiciary cannot similarly
do its job of sorting the guilty from the innocent? Now is not
the time for a radical form of alternate dispute resolution.
Rather, it is a time to display our courts and our constitutional
processes as proudly as our flag.
Judith Resnik
is the Arthur Liman Professor at Yale Law School. She helped
author a letter, signed by more than 700 law professors nationwide,
detailing objections to the Nov. 13 order establishing military
commissions.
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