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Criminal Justice Magazine
Winterl 2002
Volume 18 Issue 1

Chair’s Report to Members

By Ronald C. Smith is chair of the Criminal Justice Section and a professor of law at The John Marshall Law School in Chicago, Illinois.

The First Thing We Do, Let’s Kill All the Terrorists

In case you were nodding off the last time you watched act 4, scene 2, of Shakespeare’s Henry the Sixth, part 2, you slept through one of the Bard’s most popular T-shirt quotations. When a demagogue promises the mob a revolutionary utopia, a character named Dick chimes in: "The first thing we do, let’s kill all the lawyers."

Does he seek to kill off lawyers who are paper shuffling parasites (read almost any novel by Charles Dickens) or even the lawyer who represented his former spouse in a divorce or child custody case? Hardly. In the time of Henry VI and Elizabeth I (Shakespeare) the lawyers were a totally different lot from the lawyers of today.

So Dick is not calling for court reform, tort reform, or a rethinking of Argersinger. Dick and the rest of the crowd want to get rid of those who would insist on the rule of law in a culture of order and precedent. The crowd wants vigilante justice and rule by the ringleader’s fiat.

In those days Dick would not have been entitled to anything resembling due process, much less a free lawyer to defend him in a criminal court. Today, Dick will be the first to ask for a lawyer. His mother will declare that Dick should go free because he was not warned of his rights. And the defense attorney has to ward off Dick’s father, who claims he can talk to the judge because they have friends in common. (I don’t make up this stuff; we have all been there.)

The moral authority of the criminal justice system today is that the greater society perceives that the process, while imperfect, is fair. The prosecution has to be up-front with the charges, and cannot keep exonerating evidence secret. The attorneys duke it out in front of a presumably informed and impartial judge and jury that will follow the evidence and the law. Both sides have the time to prepare, and perhaps get some pretrial discovery as well.

The trial is public. The Sixth Amendment is straightforward: "In all criminal prosecutions, the accused shall enjoy the right to a speedy public trial, by an impartial jury. . . ."

Screw-ups can be corrected by the appellate court.

So, when the executive branch of the United States announced, without the formality of a declaration of war, that military tribunals will conduct the trials of "suspected terrorists" (so characterized without judicial check or legislative definition) if they are noncitizens (about 20 million of those currently reside in the United States), you might have noticed almost unanimity of reaction by prosecutors, defense attorneys, and (in informal conversations) judges. The collective reaction is "What’s wrong with us?"

In effect the executive branch is saying, the first thing we do, let’s get rid of the established courts, judges, prosecutors, defense attorneys, rules of evidence, and constitutional protections. Is anyone clear on the burden of proof or the burdens of going forward with the proof? Will the military tribunal members be impartial? Will they be career officers or military lawyers, or what?

I think that there is the widespread view that a military tribunal, by its nature, cannot be impartial, that military careerists will be reluctant to acquit an alleged terrorist (too much explaining to do), and that tribunal members will indulge in the presumption of administrative regularity while giving lip service to the presumption of innocence. As much as we may quarrel with those who hold such views, we still have to admit that convictions handed down by military tribunals may forever be tainted, not only by the perception that the tribunals rendered foreordained convictions, but also by the perception that the tribunals were illegal under domestic and international law. I am writing about long-range global perceptions that our critics will exploit in this brave new world of transient allies and ambivalent friends.

Let me come down to basics: A verdict rendered by an unbiased jury in an American criminal courtroom, after a full and fair trial, will carry far more credibility now and forever than a verdict rendered by the most upright military tribunal.

For what it is worth, I report that the military people I have discussed this with don’t want to be saddled with this ugly business, either.

Some of the arguments for military tribunals are that the crimes of the terrorists are so great that:

(1) Terrorists have forfeited their rights. First, this statement concedes that these tribunals pare down the protections that the Constitution and the common law afford an accused. Second, this statement assumes the guilt of the accused. Third, it sounds like the argument the citizenry uses when a mass murderer, a child molester, a torture-rapist, or a drug lord is arrested and waiting for trial. What are we waiting for? People like that should not have rights.

(2) Our system of justice was not meant to accommodate these terrorists. Our system of justice was not meant to accommodate a great many things, but our Constitution has been strong, flexible, and enlightening. We claim it is a beacon for other governments to follow. Beware the slippery slope of creating exceptions: a drug war exception to the Fourth Amendment, a Cold War exception to the Fifth Amendment, a porn war exception to the First Amendment, and a freedom fighter exception to the separation of powers doctrine.

(3 ) We should not expose our judges and civilian jurors to the likelihood of retribution by terrorists and terrorist sympathizers. In almost any criminal case, every witness, juror, and judge is exposed to the possibility of intimidation and retribution by the accused and his or her sympathizers. The members of the military tribunal will be no less exposed. Moreover, if fanatics or bullies wish to express their anger and frustration, they will do so wherever they want, against whomever and whatever they choose. The use of military tribunals will not change their attitudes or their methods. But it may undermine the moral authority of the verdicts for the rest of the world.

What about precedent? Referring to the controversial decision of FDR to use a military tribunal to try a handful of German spies during World War II, we might be tempted to say, "We’ve done this before." This glib analysis ignores the troublesome history of the use of military tribunals to pare down the protection of rights and to establish order during the chaos and hysteria of the Civil War and the early months of World War II. Recall, however, that in 1866 the U.S. Supreme Court, in Ex Parte Milligan, declared military tribunals unlawful as long as the civil courts were operating.

To top it all off, the executive order calling for military tribunals says that persons tried before military tribunals "shall not be privileged [emphasis mine] to seek any remedy or maintain any proceeding" in any court. Since when was seeking a remedy in court a "privilege"? What happened to Magna Carta and the Sixth Amendment? I thought we were concerned with rights.

The Constitution, as I understand it, recognizes that we all have inherent rights and provides that government shall not abridge or interfere with the exercise of those rights without due process of law.

Otherwise, why not just take these "suspected terrorists" outside and shoot them? The apparent attractiveness of military tribunals is that they will render quick, secret, and uncluttered justice, i.e., they will convict. Sort of like the code of the West, where the judge promises the ranchers that he will give the horse thief a fair trial before hanging him. None of this "O.J." stuff.

What is the Criminal Justice Section doing? I am pleased to report that the Section is working to ensure that Congress and the judiciary are involved in this whole process. The ABA and the Criminal Justice Section are insisting that if there are to be tribunals, then Congress should provide rules consistent with the Federal Rules of Criminal Procedure and the Federal Rules of Evidence, and adhering to constitutional and common law protections.

If there are to be tribunals—and I am not conceding there should be, as I am a believer that our courts and judges are more than up to the task—why should they be military tribunals? If military, will they be required to adhere to the protections afforded an accused under the Uniform Code of Military Justice? We must insist that the tribunal’s judges be lawyers with substantial judicial experience. The members of the tribunal should be insulated from professional retribution if they adhere to their consciences and their oaths of office. The accused should have access to competent attorneys (of their choice, if possible) and have the opportunity to present their legal and factual defenses. The trials should be public: The tribunal’s rules can allow for a limited amount of nonpublic testimony; juvenile courts do it all the time, and somehow confidential informants are protected by rules allowing in camera proceedings. The convicted person should have the opportunity to appeal—to a court. If the convictions and sanctions are to have moral authority, there must be a process that is fair today and perceived to be fair a generation from now.

The first thing we do? Let’s kill off the dangerous, un-American idea of holding drumhead secret trials of anyone. It’s one thing to sleep through Henry VI, part 2; it’s another thing to sleep through the undermining of our precious Constitution.

Recall the colloquy between Sir Thomas More and Roper in Robert Bolt’s A Man for All Seasons. Roper says he would cut down every law in England to get at the Devil. Thomas More responds, "And when the last law was down, and the Devil turned round on you—where would you hide, Roper, the laws all being flat?"

Thomas More—whose portrait hangs in a great many law schools in the United States—quietly adds, "Yes, I’d give the Devil benefit of law, for my own sake."

Even suspected terrorists are entitled to benefit of law. For our own sakes.



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