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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.
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.
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.