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Bork's
Law
December
11, 2001
by Jack Rabbit
Robert Bork, by most accounts one of the finest judicial
minds of our time, has written
for the December 17 issue of the National Review a
defense of Mr. Bush's executive order establishing secret
military tribunals for suspected terrorists. Unlike Attorney
General Ashcroft's rant before the Senate Judiciary Committee
last week, Judge Bork presents a reasoned argument that deserves
a reasoned critique.
Judge Bork asserts in his opening paragraph that the problem
is to balance the needs of national security with that of
civil liberties: "The reality we face means that no resolution
will be wholly satisfactory." Judge Bork gives four options:
"trial in a federal court; trial before an international tribunal;
trial before a military tribunal; or setting the captives
free." Judge Bork rightly dismisses the last option out of
hand. He then proceeds to point out the flaws of the federal
courts and the international tribunal, then to extol the virtues
of the military tribunal.
Judge Bork dismisses trials in federal courts on the ground
that juries are inappropriate for trying terrorists. He charges,
first all, that members of a jury might be swayed by an emotional
appeal; and, secondly, that jurors would be fearful of their
personal safety and that of their loved ones should they convict
a terrorist. He also asserts that in the federal system, the
procedural hurdles and appeals process would assure that the
trial would take months and the punishment would be delayed
by years. He also expresses his concern that a terrorist would
use an open court as a forum for propaganda.
In this, Judge Bork has not shown how trying a terrorist
is any more problematic than trying a mafia don. For jurors
to face threats in trials in trials involving violent crimes
is not unheard of and it is true, as anyone who has ever sat
on a jury knows, that some jurors will persuaded by emotion.
This does not keep the federal government from prosecuting
criminals. It is difficult to see how Judge Bork's problem
with the jury system makes it inappropriate for trying terrorists
but appropriate for other defendants.
This is also true of Judge Bork's objection concerning trial
procedures and the appeals process. Yes, it is lengthy, but
he makes no effort to show that if this is an appropriate
way to try one charged with racketeering how it is inappropriate
for trying a suspected terrorist. The charge concerning propaganda
is specious. Presiding judges have ways of dealing with unruly
defendants, although these are often unseemly. Those of us
who remember the Chicago Seven trial remember how Bobby Seale
was bound and gagged in the courtroom. Of course, removing
the defendant from the courtroom is an option.
Judge Bork finally objects to trial of terrorists in a federal
court on national security grounds: "[I]n open trials our
government would inevitably have to reveal much of our intelligence
information, and about the means by which it is gathered."
This is a more legitimate concern for which Judge Bork gives
concrete examples. We shall return to this problem later.
Judge Bork complains that trial by international tribunal
would have all the problems of a trial by a federal court
system with some more. Bork is concerned about the diplomatic
problems of picking members of the court and states that it
would be impossible to keep judges form Islamic countries
off the court. He also states that international courts have
shown in the past an anti-American bias and that convictions
would be uncertain. He again raises the specter of a terrorist
using the court as a propaganda forum and of the compromise
of classified information. Finally, Bork says: "We should
be wary of international tribunals in any event since their
establishment seems part of a more general move to erode US
sovereignty by subjecting our actions to control by other
nations."
If Judge Bork is concerned about the inappropriate nature
of the jury system, then he at least ought to mention, as
he does not, that in an international tribunal the case will
be heard by a panel of judges without a jury. Juries have
been dispensed with in many countries simply because of problems
finding willing jurors. Most international jurists would not
consider trial by jury an necessary component to a fair trial.
Bork gives no examples of anti-American bias by international
courts, so it is difficult to criticize him. Perhaps he means
the case in the World Court where US actions against Nicaragua
were ruled illegal during the Reagan administration. Judge
Bork may have had a problem with that decision, but most jurists
in the world did not.
Perhaps what Bork really means is not an anti-American bias,
but the lack of a consistent pro-American bias. In so, he
is complaining that international courts are fair. Bork also
could have cited examples of where the US won in the World
Court, such as the case against Iran after the embassy seizure
in 1979, but Bork cites no examples one way or the other.
As for Bork's concern that an international tribunal will
be used as a forum for propaganda, we need look no further
than a international tribunal in progress to refute this.
Slobodan Milosevic has attempted to use his trial for his
own ends, but he is firmly told that he will have his right
to speak at the proper time and that in the mean time he should
sit down and shut up.
We will return later to Bork's objections to the international
make up of the court and the potential compromise of classified
material.
Having dismissed federal courts and international tribunals
as inappropriate, Judge Bork comes to his choice, the military
tribunal. Judge Bork speaks of his frustrating but overall
positive experience with tribunals as an officer in the Korean
War. This extolling of military justice has been expressed
by others, including F. Lee Bailey, but the fairness of military
justice per se is not the issue here. It is not even relevant.
Mr. Bush's executive order, setting up secret military tribunals
with there own rules, is the issue. A military court martial
is usually an open proceeding; Mr. Bush's military tribunals
are not. Judge Bork asserts that Mr. Bush's executive order
passes constitutional scrutiny.
For this, he cites the case of Ex Parte Quirin (1942), arising
out of a case of German saboteurs during World War II. However,
Judge Bork neglects to mention that in the case of Quirin
there was no question that the accused were members of the
armed forces of a nation at which America was at war. Even
if we grant that membership in a terrorist organization is
the equivalent of membership in the regular armed forces of
an enemy nation - which is problematic to begin with - there
would still be the difficulty in showing that any given defendant
is a member of that organization. If the defendant is not
a member of a terrorist organization, then the military tribunal
has no jurisdiction.
Under Ex Parte Mulligan, not mentioned by Judge Bork, a civilian
must be tried in a civilian court where one is operating.
Therefore, the defendant's presence before such a tribunal
carries with it a certain degree of the presumption of guilt
about it. We don't do things that way in America.
However, for Judge Bork, the military tribunal has the advantage
of eliminating the possibility of a terrorist defendant using
the court as propaganda and of the compromise of classified
material. They would, indeed. The military tribunals under
Mr. Bush's executive order are secret. All public scrutiny
is eliminated. Not only does the public not hear the rants
of a terrorist defendant, neither will the public hear of
any irregularities that took place in the proceedings. In
short, in spite of all the protests of administration officials,
the public will have only their word and that of the judges
that the trials were fair. Should we believe them?
Although Mr. Bush may enjoy high poll ratings today, there
is nevertheless no reason for Americans to assume that a system
of secret military tribunals established by him will be just,
and many reasons to expect that they will not be. First of
all, Mr. Bush came to power by subverting American political
institutions; since then, he has used his power to transfer
public funds to his cronies. Since Mr. Bush governs in the
style of a banana republic dictator, it should be prudent
to remain vigilant lest he attempt to remain in power in the
style of a banana republic dictator. The suppression of civil
liberties through secret trials would be consistent with that
end.
For those who see the very presence of Bush in the White
House as an assault on the principles on which American government
is founded, the words of the Attorney General - "those who
raise the phantoms of lost liberties . . . aid the terrorists"
-- is chilling; it is seen as an implicit threat that secret
tribunals will later be turned on those who oppose Mr. Bush
and his agenda for any reason.
Judge Bork, no doubt, would say that such people are alarmists.
Let's hope he's right. On the other hand, it would be better
if we just not go down that dark road in order to find out
who is right.
Even had Mr. Bush come to power honestly, there is much to
fear from his cavalier view of due process. One need only
look at his record as Governor of Texas, especially in his
attitude towards the appeals and clemency processes regarding
capital crimes. Over 150 capital sentences were executed by
the state of Texas under Mr. Bush.
Many critics have charged that the appeals and clemency processes
in Texas barely qualify as due process and many more say they
do not qualify as such. Among those put to death by Mr. Bush
was Gary Graham, who was convicted of murder on the basis
of a single witness who identified him from a considerable
distance in a dark parking lot. The witness was not properly
cross-examined by Graham's attorney, who slept through much
of the direct examination. Yet Mr. Bush has the gall - or
the stupidity - to assert that Graham received a fair trial.
A secret military tribunal for which Mr. Bush is the ultimate
guarantor of justice is not an arrangement to which any defendant
for any crime anywhere should be subjected.
The lack of public scrutiny of secret tribunals should also
be of a concern because, whether Mr. Bush or Attorney General
Ashcroft or Judge Bork like it or not, public opinion in this
case is not only American but global. The grievances of the
common man in underdeveloped countries have proved to be a
fertile breeding ground for Osama bin Laden's movement. As
uncomfortable as it is, Osama successfully exploited to the
frustrations of these people. Perhaps it was a false appeal
to their hopes, but it was an appeal that received a sympathetic
ear in many quarters nevertheless.
This is the public that will demand scrutiny of the proceedings
and will be most suspicious of convictions of terror suspects
arrived at in secret with sealed records. They are the ones
who most need to see that justice is done, for they are the
ones who may some day strike again at America if they feel
slighted by this process. It is they who must be convinced
that bin Laden and his associates are guilty. Secret military
tribunals are contrary to that end.
Thus, we come back to a choice between trial in US federal
court or by an international tribunal. It is a question of
which of the two better facilitates the end of justice being
done and that it be seen to the entire world to be done. The
common man of underdeveloped is likely to have little more
confidence in US federal courts than in secret tribunals.
The international tribunal, then, would appear to be the best
option.
However, we have left some of Judge Bork's objections unanswered.
It is now time to address them. First of all, there is the
matter of the international make up of the court. Judge Bork
believes it will be impossible to keep jurists from Islamic
countries off the court. Indeed, it would be. However, to
exclude Islamic jurists from such an international tribunal
would only make it appear that the trials are stacked against
Islamic defendants. We cannot afford such a perception. Consequently,
the inclusion of Islamic jurists, which to Judge Bork is a
vice of the international tribunal option, is in fact a virtue.
Judge Bork is also concerned that sensitive intelligence
will be compromised in the course of the proceedings. He is
probably right that it will be. However, that would have to
be weighed against the greater goal of discouraging future
terrorism.
A series of suspiciously secret trials will most likely exacerbate
the problem of future terrorism; a fair and open trial would
help to alleviate the problem. Think of it this way: if Mr.
Bush could have prevented the attacks of September 11 and
the war in Afghanistan by disclosing a few classified documents
and blowing the cover of valuable intelligence source, wouldn't
it have been worth it?
Judge Bork is also concerned about the possibility of acquittals
in international tribunals; however, that is the risk a society
must take when maintaining a fair justice system. In his concluding
remarks, Judge Bork, arguing that military tribunals would
be fair trials, actually states that there is a possibility
that terrorists would go free as a result. Those who are more
cynical about Mr. Bush's motivation, however, believe that
the secret tribunals are designed to exclude the possibility
of an acquittal; that they are inherently not fair.
Judge Bork's last objection to the international tribunal
option concerns the desire by other nations to erode American
sovereignty. Perhaps an international tribunal would have
such an effect. However, America will get greater security
by giving up some of its sovereignty. America may be the strongest
nation in the world, but she is part of a community of nations.
To act unilaterally, as Mr. Bush seeks to do at every turn,
only brings mistrust and suspicion that will work against
America in the long run. There is a greater benefit to rejoining
the community of nations.
Having
Their Day in (a Military) Court
- National Review Online
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