Slate's Bizbox
politics: Who's winning, who's losing, and why.

Learning To Love TribunalsThe only thing worse than military justice is civilian justice.

By Bruce Gottlieb
Posted Tuesday, Jan. 15, 2002, at 1:59 PM ET

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.

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.

Print This ArticlePRINTDiscuss this in The FrayDISCUSSEmail to a FriendE-MAIL
Share on FacebookPost to MySpace!Share with MixxDigg ThisShare with RedditShare with del.icio.usShare with FurlShare with Ma.gnolia.comShare with SphereShare with Stumble Upon
Bruce Gottlieb is a law student and a former Slate staff writer.
Join the Fray: our reader discussion forum
What did you think of this article?
POST A MESSAGE | READ MESSAGES

Notes From The Fray Editor

Dilan Esper takes issue with the article here: his post is too long to feature, but is highly recommended for its explication of the anti-tribunal case.


Reader Comments From The Fray:

Perhaps it's been too long, in the collective mind of Western Civilization, for anyone to remember the way that military and/or peoples' "tribunals" used to routinely hand out massive "administrative sentences" on the basis of no discernable evidence using pre-printed forms with only the number of years to be served left blank. If so, it's a pity, because that might mean it's due to happen again.

I'm not suggesting that Bin Laden and his ilk deserve media show trials in the United States. Perish the thought! But I am saying that we should be very, very, very careful about telling the government that we no longer care to supervise the execution of justice. Am I the 999th person this week to say that next time it might be you or me? Then so be it. It still bears saying nonetheless.

--Thrasymachus

(To find or answer this post, click here.)

I'm a civil libertarian… and I'm very much a supporter of our civilian justice system. I'm not saying that I don't believe that there are inequities at times, or that there are not sometimes bad results. But I believe that those inequities and bad results are more likely to be the result of improper or plain bad applications of the laws, or failures to apply the law at all. All of Mr. Gottlieb's examples of civil libertarian objections are not about the system as designed, rather as sometimes applied.

I do admire the procedure, not because of how it sounds in a TV show or appears in a transcript, but because it is in the procedure that we can arrive at a just result. Juries are not saps, and the rules are there to try to insure that what the jurors hear is reliable and relevant evidence. Of course, just doing it right is not enough. But if we don't do it right, we are not doing justice.

Military tribunals may not be unjust, either in theory or fact. But the tribunals envisioned, or implied, or as presented by the President's order, were a slap at the idea and reality of our civilian system of justice; a very strong implication that our system is broken and cannot be trusted; and a grave breach in the form and substance of our constitutional government. The fact of the tribunals is troubling, and so is the fact that they can be secret. What social or security interest is protected by a trial, in secret, upon charges not fully disclosed, upon evidence not fully aired, by rules decided upon and adjudged by those handpicked by the prosecutor? If I were a defendant I would want a public trial conducted with the full panoply of the due process procedures of the civilian justice system.

--Mrachmuth

(To find or answer this post, click here.)


The concern about using military tribunals doesn't go so much to OBL, who (first) almost certainly will never be tried anyway, and who (second) could not receive a neutral trial in any tribunal in the world if he were. It is about the several thousand Taliban and al-Qaida underlings who have been or will be captured and who are far more vulnerable to rushed, biased "justice." Whether these men are tried in civilian or military courts, steps must be taken to ensure fairness in accordance with our legal norms and traditions. Not only because it is right, but because it would be very damaging to the United States politically to be perceived as treating the rights and lives of foreigners as not worthy of respect.

Second, the difference between civilian and military tribunals is far more substantive than Gottlieb recognizes. The two most obvious differences are that in military trials of foreign enemies, the accused has no right to select his own attorney and no right of appeal. Even more sinister, however, is the phenomenon of "command influence." This refers to the fact that military judges in such trials would be career military officers, not tenured judiciary. Such judges are not only not insulated from outside pressures and influences, they may in the worst way be exposed to them: the displeasure of senior officers who will have considerable say about their future careers…

--Yukon

(To find or answer this post, click here.)


'Procedure' covers those little things like having public hearings, as opposed to private and secret trials. It covers publicly revealed and cross-examined evidence, as opposed to secret evidence ('I have a list...'?). It provides for judges who aren't part of the executive branch. It provides for defense attorneys who aren't under military command. It provides for appeals. In short, it provides for those little things which help make the difference between a decent system, and a system in which people are 'disappeared'.

--Barry

(To find or answer this post, click here.)

(1/16)


Washington Post