Saturday, March 6, 2010

The Rule of Law vs. The Rule of Judges

If this Washington Post report that the Khalid Sheikh Mohammed (“KSM”) case will be referred back to a military commission is true, the Obama administration has resigned itself to yet another political humiliation on national security issues. That probably means the end of the road for Eric Holder as Attorney General. So drastic a change of course by the administration will surely be regarded by liberals, in any case, as a stab in the back. American Civil Liberties Union Executive Director Anthony Romero’s reaction (as reported by Josh Gerstein) typifies their likely reaction (my emphasis):

“If this stunning reversal comes to pass, President Obama will deal a death blow to his own Justice Department, not to mention American values. . . . If the president flip-flops and retreats to the Bush military commissions, he will betray his campaign promise to restore the rule of law, demonstrate that his principles are up for grabs and lose all credibility with Americans who care about justice and the rule of law.
The view that trying alleged terrorists before military commissions is inconsistent with “justice and the rule of law” is held so viscerally, and upheld so reflexively, in liberal circles that liberals seldom bother to defend it. But it’s worth stepping back and asking: why is it so vital to the rule of law that people like KSM be tried before Article III courts?

The most systematic and persuasive liberal briefs for using civilian courts that I’m acquainted with, like this report by Richard B. Zabel and James J. Benjamin, Jr., never quite get to that issue. Their principal argument for using civilian courts is that Article III judges have a pretty good track record of meeting the challenges presented by terrorism cases by applying laws already on the books. That makes civilian courts a better bet to render justice and secure legally conclusive convictions than an untried military commission system instituted on the fly by an ideologically polarized Congress reacting to the political pressures generated by 9/11.  The closest Zabel and Benjamin come to justifying the view that using civilian courts promotes the rule of law are the usual conclusory statements to the effect that using military commissions damages our international reputation for the law-governed administration of justice. They never explain, however, why the fact that international observers share some ideological reflexes with domestic liberals shows that those reflexes push us in the right direction.

As far as I can see, the argument for using civilian courts over military commissions is formidable, but it doesn’t turn on the relative lawfulness of using one system or the other. There’s at least one respect in which trying alleged terrorists before military commissions is easier to reconcile with the rule of law. You might not like the military commission system set up by Congress in any number of technical respects (say, the rules governing the admissibility of hearsay or the operative interpretation of a defendant's right to confront adverse witnesses before a jury).  But the litigants would have a much better sense of what the rules are going into a trial before a military commision than they’d have before a District Court judge obliged to confront legal issues of first impression, all of which will be subject to appeal in Circuit Courts, and some of which would probably remain unresolved for years until the Supreme Court gets around to addressing inevitable Circuit splits. Worse, the decisions reached by Article III judges at every level may well differ depending on whether the judge was appointed by a Republican or a Democratic president.

As far as I can tell, the liberal argument against military commissions has always been less an argument about the rule of law than about the rule of Article III judges. It made tactical sense during the Bush administration when liberals thought that the military commission system had been devised by a Republican administration and a Republican-controlled Congress that were indifferent to the demands of due process. But now that there are liberal majorities in both houses of Congress and liberal president in the White House, any defects in the present military commission system can be remedied once and for all if liberal politicians are willing to stand up and be counted.

It’s becoming painfully obvious that liberal politicians aren’t about to stand up. It’s far easier to come up with empty rhetoric about the rule of law.

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