Democratic Underground

Bork's Law
December 11, 2001
by Jack Rabbit

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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