Learning to love tribunals.

Who's winning, who's losing, and why.
Jan. 15 2002 1:59 PM

Learning To Love Tribunals

The only thing worse than military justice is civilian justice.

Many folks are horrified at President Bush's intention to try foreigners accused of terrorism by military tribunals rather than civilian courts. Even Osama Bin Laden, they believe, deserves justice on the full American plan if he survives long enough to get it.

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Do any of those who object to military tribunals believe that Bin Laden and other al-Qaida or Taliban leaders would be—or should be—acquitted? Unlikely. Fact is Bin Laden would lose before a military tribunal, a civilian jury, or a board meeting of the ACLU. Bin Laden's right to a "fair" trial is more or less his right to get his death sentence in an American courtroom from an American jury and not in a military courtroom from a military judge (or judges). So, at least concerning terrorist higher-ups, all the grand rhetoric about not giving in to mob rule and so forth is a bit hollow.

And here's something else odd. In their opposition to military tribunals, civil libertarians seem to have forgotten that they aren't that wild about civilian justice either. Their general complaint is that—contrary to the impression left by the O.J. Simpson case—guilty verdicts are all-too-predictable, even when the defendant isn't Osama Bin Laden. More specifically, 1) eyewitness testimony, 2) crime lab data, and 3) line-up procedures are unreliable. This has been well established by laboratory experiments. Also 4) jurors are too trusting of prosecutors; 5) elected state judges—that is, most judges—bow to political pressure; 6) race plays a role; and 7) juries are swayed by all the wrong facts. This is what we've learned by applying DNA evidence to past convictions.

What liberals admire in the American criminal justice system isn't the results: It is the procedure. And the stinting on procedure is what really offends them about the Ashcroft tribunals. This fondness for procedure—all the rules about excluding evidence and restricting testimony and "Objection, Your Honor" and "May we approach the bench" that fill the scripts of court scenes on television and in movies—has a serious premise. That premise is rarely articulated because it is so unattractive, although not necessarily wrong. It is that we can't trust juries to just hear a bunch of testimony and render a fair verdict. Jurors are prejudiced, gullible saps, easily misled by a slick defense attorney or prosecutor. Procedural rules are intended to make sure that juries see or hear only the evidence they can be trusted to assess correctly.

But the American lawyer's procedural fetishism has taken on a life of its own. Thus we have shelves of rules about which types of evidence the jury can't see, what adjectives a prosecutor may use to describe a witness, and so on. The leap of faith is that making fair rules and following them to the letter can prevent jurors from acting like, well, ordinary unfair people.

Well, good luck. To be sure, better procedural rules can make for better justice. The fact that rape victims no longer can be accused of wearing too short a skirt is surely an advance. The danger lies in believing—or wanting to believe—that this is enough. It certainly doesn't prevent a juror from imagining what the victim's skirt length might have been. Or giving her skirt length the benefit of the doubt because the accused rapist happens to be black.

The usual critique of procedural excesses is that they let the guilty go free. But you ought to be skeptical about procedure even if your concern is the opposite: innocent people being wrongly convicted, or justice being insufficiently tempered by mercy. For civil libertarians, the fetishizing of procedure is a way to avoid facing up directly to those nagging doubts about whether the system is unfair to minorities, poor people, and other disfavored groups.

As disfavored minorities go, fanatical foreign Muslim mass murderers are pretty high on the list. The idea that Bin Ladin and his associates can expect a "fair"—that is, open-minded—trial at the hands of any American institution is a doubtful proposition. Whether this or that American institution is more likely to be fair is a sideshow by comparison. In fact, a military tribunal may even be fairer in this regard. The decision will be made up of blue-ribbon judges, maybe even federal judges, Supreme Court justices, or well-respected figures like George Mitchell. The Sixth Amendment to the Constitution and a congressional statute, on the other hand, ensure that any civilian trial will be decided by 12 ordinary Americans (unless the judge, defendant, and prosecutor all agree otherwise).

Which would you choose if you were the defendant? Even trials for members of al-Qaida will have to make some real distinctions and judgments about both what individuals did and how they should be punished. A civilian jury is certain to give us an answer to these questions. That it was produced by a jury is no guarantee that it is the right one.

Bruce Gottlieb is a former Slate staff writer and chief counsel at the Federal Communications Commission; he is currently general counsel at the Atlantic Media Company.