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Jury Trial Endangered from
the Right and From the Left
(Originally published in my Discordant News Newsletter, 8/19/2003)
Trial by jury has been taking hits from both left and right this summer.
From the right, we have an article from former judge Robert Bork in the July-August issue of *Commentary* Magazine. Bork, whom I used to think would have made a great Supreme Court justice because of his willingness to enforce the Constitution of the United States according to its real meaning, now proposes to rewrite the Constitution so as to delete the guarantees of trial by jury. In an article endorsing just about every civil-liberties violation committed by the Bush administration after the terrorist attacks of September 11, Bork includes an endorsement of President Bush’s proposed military tribunals for the trial of alleged terrorists (see “Civil Liberties After 9/11,” http://www.commentary.org/bork.html).
Here is Judge Bork:
“. . . The government’s policy is as follows: if a captured unlawful enemy combatant is believed to have further information about terrorism, he can be held without access to legal counsel and without charges being filed. Once the government is satisfied that it has all the relevant information it can obtain, the captive can be held until the end of hostilities, or be released, or be brought up on charges before a criminal court.
“The government chose one of these options when it charged John Lindh, an American citizen who fought with the Taliban in Afghanistan, and Zacarias Moussaoui, who is thought to have been involved in the planning for September 11, with crimes. Lindh entered into a plea agreement under which he was sentenced to twenty years in prison. Moussaoui’s case has proved more complicated. The government proposes to use only unclassified materials in its prosecution, but Moussaoui, a French citizen of Moroccan heritage who has admitted in open court to belonging to al Qaeda and swearing allegiance to Osama bin Laden, has demanded to see classified materials and to have access to other captured terrorists for the preparation of his defense.
“For obvious reasons, Moussaoui’s demands are unacceptable to the government, which does not want to divulge classified information or allow terrorists to communicate with each other. But the prosecutors’ offer of an alternative procedure was rejected by the presiding judge. If the government continues to be unsuccessful in its determination to protect classified information, it may decide to prosecute Moussaoui in special military tribunals created for trying terrorists. That would surely trigger the outrage of civil libertarians, even though it is plainly arguable that Moussaoui could and perhaps should have been prosecuted there in the first place. I will return to this issue below. . . .
“. . . In [the Quirin] case [of 1942-Bork usually isn’t known as a fan of Roosevelt-era Supreme Court precedents], German would-be saboteurs had entered the U.S. illegally with the intention of attacking war industries and facilities. Upon capture, they sought habeas corpus, claiming a right to trial before a regular court rather than a military tribunal. In denying the petition, the Court deemed it irrelevant that one of the captives claimed U.S. citizenship and was on U.S. soil when apprehended.
“THIS IS where there is a role for military tribunals, an institution that has played an important and honorable part in American jurisprudence throughout our history. In Quirin, the Court made clear that such tribunals rightly enjoy a separate constitutional track from grand juries and trial by jury, which “at the time of the adoption of the Constitution [were] familiar parts of the machinery for criminal trials in the civil courts.” Quite properly, however, the procedures followed by these civil institutions were, and had to be, “unknown to military tribunals[,] which are not courts in the sense of the judiciary articles” of the Constitution.
“Consistent with this understanding, military tribunals have been used by several Presidents in time of war. In the Revolutionary War, before there even was a Constitution, George Washington employed them freely. So did Abraham Lincoln in the Civil War, and Franklin D. Roosevelt in World War II. Although we remember the Nuremberg trial, with its many trappings of a civilian court, the victorious Allies did not always regard such open trials as the only or preferred method of proceeding. As the legal scholar Mark Martins reminds us, ‘German regular army soldiers were also defendants in many of the thousands of military courts and commissions convened by the Allies after the war in different zones of occupation.’”
Bork forgets to mention that these German defendants were enemy aliens captured and imprisoned abroad, which according to U. S. Supreme Court precedent means that they have no right of access to U. S. courts
“In any event, the image of military tribunals as drumhead courts manned by stony-faced officers ready to convict regardless of the evidence is a fantasy. In reality, military courts may achieve just and equitable results more frequently than the run of civilian juries. Military judges tend to be more scrupulous in weighing evidence, in resisting emotional appeals, and in respecting the plain import of the laws. There are no Lance Itos or Johnny Cochrans in military trials. If, as the war against the terrorists drags on, we are forced to have recourse to military tribunals, there may well be clear gains for both justice and security.”
I suppose it was only a matter of time before Bork invoked the O. J. Simpson case. It is now conventional wisdom that the jury in Simpson’s criminal trial was stupid because it refused to overlook the perjury of at least one key prosecution witness and the admitted incompetence of the police forensic team. And the decision of O. J.’s criminal jury is supposed to by typical of all juries.
“There are, to be sure, costs to be paid for going the route of military courts. It was no doubt partly out of a desire to placate critics, both at home and abroad, that President Bush first announced that U.S. citizens would be tried in our regular courts, and that the decision was made to try even Moussaoui in a federal district court. In the future, moreover, some of our allies may refuse to extradite captured terrorists if it is known they are likely to land before a military tribunal.
“But the critics show every sign of being implacable, and in any case the cost of staying with the civil route is likely to be higher. In a district court a defense attorney will almost inevitably demand access to classified information; continued disclosure of such information in court would inform not only Muslim terrorists but all the world’s intelligence services of the information we have and our methods of gathering it. If compromising national security is one alternative that may be forced on government by the demand for access to classified material, the other is to drop charges. Neither alternative is acceptable. . . .”
Nor is it acceptable to deny to criminal defendants their Constitutional rights under the Sixth Amendment: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed; which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”
Note the word “all” in “all criminal prosecutions.” It doesn’t say “some,” or “all criminal prosecutions where there is no risk that Johnny Cochrane will confuse the jury,” or “all criminal prosecutions where the rights of the accused do not conflict with the needs of the intelligence agencies,” or “all criminal prosecutions where terrorism is not alleged.” It says “all.” I prefer to stand on the literal meaning of “all,” rather than engage in Clintonesque debates about how “all” doesn’t really mean “all.”
On the left, Bork, whether he knows it or not, has an ally in his attempt to carve exceptions out of the Sixth Amendment. Ben Ferencz is a lawyer who helped prosecute alleged German war criminals after World War II. Now Ferencz seeks to achieve world peace through international law, a cause to which he has dedicated his life, and on which he has written many books. On June 26, National Public Radio broadcast an interview that Dick Gordon, of the program *The Connection,* had with Ferencz.
Ferencz was singing the praises of the new International Criminal Court (ICC), a tribunal set up under United Nations auspices to put alleged war criminals and human-rights violators on trial if (in the opinion of the court) the alleged criminal’s own country isn’t doing enough to bring the guy to justice. Naturally, Ferencz denounced the Bush administration for refusing to submit Americans to the ICC’s jurisdiction.
A listener in Green bay, Wisconsin called in to suggest that maybe the Bush administration was right to resist the ICC because of its duty to defend the U. S. Constitution. After all the Constitution guarantees the right to a jury trial (see above).
Ferencz replied that the omission of jury trial from ICC procedure was a “very small compromise.” Defendants still have plenty of other rights in the ICC. So what if they are tried by a panel of foreign judges rather than a jury of Americans. Look at all the rights that defendants have left. That reminds me of the people who complained, during the Exxon Valdez oil spill, that the media was focusing on all the oil that was leaking into the ocean instead of the oil that *wasn’t* leaking (Ferencz didn’t mention that the ICC can, in some cases, try people who have already been acquitted in their own country’s courts. So much for the freedom from double jeopardy).
Ferencz pooh-poohed the importance of the right to a jury trial where defendants in the ICC was concerned. After all, the U. S. military doesn’t have juries. Only crimes committed in the U. S. have juries. Blah, blah, blah.
Ferencz and Bork seem to have forgotten, if they ever knew, that the jury is the lamp that shows that freedom lives (to approximate Lord Devlin’s remark). If that lamp goes out, the justice system will stumble around in the dark, barking its shins against the liberty and life of innocent people.