Monday, February 15, 2010

On Justice

Recently, I engaged in a fairly extensive discussion with several posters over at Glenn's Place, touching on many subjects, but focusing -- at least in my mind -- on the concept of "Justice" and what it is and what it means -- and how it can be achieved in a corrupt or frankly "unjust" legal system.

A good deal of the discussion revolved around the differences between the Federal Court and Justice system versus the drumhead Military Commissions system attempted -- but not really operating -- at Guantánamo. My argument was that the military system might be more likely to produce justice in terrorism cases than the Federal courts, in part, I thought, because the military legal officers were, to my mind, showing a good deal more integrity and fealty to the concept of justice than were Federal Court officers.

My view was partly shaped by what I knew of my father's service as a JAG officer during and after WWII, and what I was able to learn of the Hayat terrorism case in Federal Court in Sacramento, California, in 2006 and 2007.

What I learned from my father was that he and most of his colleagues in the JAG Corps were devoted to Justice, not simply Law or Process. This notion of Justice above all was extraordinarily important to him, and he would rely on it in the one civilian trial he served as defense counsel for -- the murder trial of his brother, my Uncle Vincent (when my father left the military, he specialized in Real Estate Law, and except for his brother's trial, he never served as a trial counsel again.)

My father won a directed verdict of acquittal for his brother -- who had not committed the crime in any case -- something the DA knew before he went to trial. It was, bluntly, a political trial of a rival, and despite the acquittal, it was effective in destroying the political ambitions of my uncle and was a devastating blow to any ambitions toward politics and public service in that community that anyone in our family might have in the future. It put a shadow on the civilian "justice" system in that a "just" system would not have subjected my uncle to trial for a murder the DA knew he didn't commit in the first place.

But this concept of Justice seems to be a difficult one for many Legalists to approach, and few of them can accept it. Legalists are obsessed with the forms of "Justice", not its realization.

In the Hayat case in Sacramento, the investigation, prosecution, trial and eventual conviction were a farce and a tragedy and were, on their face, an example of the kinds of injustice that has become the rule in terrorism trials in federal court in this country. It was appalling through and through, corrupt, venal, deeply offensive and wrong. I advise anyone with an interest in Justice to read through the material publicly available, starting with the Frontline piece linked above, and decide for yourself whether the Hayats -- and the American People -- were the beneficiaries of Justice or its sham.

Glenn and many others have taken the position that maintaining terrorism trials in Federal Court, except under extraordinary conditions of military and battlefield necessity, is essential for the preservation of the Rule of Law and of Justice in this country. I can certainly see their point of view. I would be more inclined to accept it if the evidence showed that Justice -- as opposed to Rule -- was the focus of Federal Court terrorism trials, but that's not what we see. We see the opposite.

And under those circumstances, I argue that military justice in terrorism cases might actually be more likely to produce a just outcome than civilian trials.

And I pointed to the truly ironic outcome of the Hamdan military commission, in which the officers trying him convicted him of the charges against him -- because he had actually been Osama's driver, had actually provided "support" (by driving) to Osama (Terrorist in Chief, so they say), and there was no dispute about it, though the charges of any sort of crime involved in what he had done were and are disputable) -- and then the commission essentially ordered him released, because, at least in my view, they saw that justice would be served by releasing him, not by holding him for 30 more years or whatever, for doing something that essentially shouldn't be categorized as a "crime of war" in any case. This is how, even in a patently unjust system, such as that of the military commissions, a just result can occur.

Unfortunately, in civilian terrorism trials, the concept of Justice is too often sacrificed on the altar of Rule.

Although the discussion at Glenn's was extensive, we weren't able to get in to all the ramifications of what we were discussing, and one of the points we didn't touch on is that Justice does not necessarily mean that the accused are released or that they are encaged (as Glenn is wont to term it) indefinitely.

Glenn pointed out accurately that some 33 of the men held at Guantánamo whose habeas petitions have been heard in Federal Court have been ordered released primarily due to lack of evidence or lack of support for the evidence that they had done anything wrong, or in some cases on the basis of the outright fraudulence of the claims against them. Is this a just result? It may or may not be just, but more to the point, it is primarily rule-bound. Glenn and others it seems to me are primarily concerned with following Rules and not with Justice, and some will go so far as to equate Rule Following with Justice, something I would dispute vigorously.

The point was made repeatedly that Military Commissions are unjust from the get, something I don't really dispute. How they are set up is one aspect of them that needs correction, to say the least, and I pointed out that military officers in the JAG Corps have been the ones objecting most loudly about the purpose-built injustice of the Military Commissions, and they have gone so far as to resign and go public with their objections rather than participate in them, and in the case of Hamdan, they have used their authority -- even as limited as it may be under the Military Commissions Act -- to free someone accused and convicted who they believe was being unjustly held. In other words, even though the system was unjust on its face, they set out to achieve a Just result, and looks like they did achieve it to the extent they could.

We don't see such devotion to Justice in Federal Court. I'm sorry, we just don't. Nor do we see officers of the Federal Courts resigning in disgust or going public with their objections to the lack of Justice -- in terrorism cases especially, but not exclusively -- in Federal trials. In the Hayat case, for example, misconduct was rampant throughout the Government's conduct of the case, from investigation through prosecution, judicial misconduct was almost as bad, with the intent of securing a patently unjust outcome, not just a conviction, but an unjust outcome. That's what they wanted. That's what they got.

I say they deliberately violated Rules of Due Process to ensure the injustice they were aiming for, but an argument could be made that they were actually following the Rules, and that those Rules made the unjust result mandatory. I don't agree, but I can understand the argument.

Over and over again, Glenn and others have argued that Federal Courts are "perfectly capable" of handling terrorism cases, and they love to cite the conviction rates in terrorism cases, and the long sentences that are obtained as proof. Well, isn't that just special?

Yes, indeed, the civilian courts are capable of "handling" these matters (and many others) but are they capable of producing justice? And this is a question I raise again and again. If the outcome is unjust, why are you supporting the process that leads to such injustice?

One of the many ironies of discussions like this is that the "Giving the Devil the Benefit of the Law" scene in Robert Bolt's "A Man For All Seasons" is often invoked to defend the Federal Court process.

Let's review the scene and then consider:

Of course, Sir Thomas is defending respect for Law as opposed to the arbitrary imposition of Authority, at the time something of a difficult needle to thread, despite the thicket of Law with which the Sceptered Isle was planted. There was, after all, still the King to consider, and his distemper.

Respect for Law is not the same as a respect for Justice -- and this scene does not touch on Justice, for that's not what this scene is about.

The following scene from the same movie touches on Justice, and I think we should consider it well:

The quote is as follows:

Sir Thomas More: You threaten like a dockside bully.
Cromwell: How should I threaten?
Sir Thomas More: Like a minister of state. With justice.
Cromwell: Oh, justice is what you're threatened with.
Sir Thomas More: Then I am not threatened.

Very brief, to be sure, but the whole scene could be said to be about Justice and its fragility, and in the case of Sir Thomas and his controversy with King Henry and his Ministers, the absence of Justice. That's in fact what the movie pivots on. It's topic -- as it were.

Consider well what is going on here.

On that note, I'd like to point out that at the same time that we were getting into it at Glenn's (who, I'm sorry, did not really participate except with his usual snark) Scott Horton was dealing with some of the same issues over at his place at Harper's.

While I've no doubt that he is generally in agreement with Glenn, vis a vis, Federal Court versus Military Commissions (as I am in the abstract, but not necessarily in practice), his approach was quite different. Rather than lash out, he provided a series of posts, starting with an excerpt from Abraham Lincoln's Cooper Union Speech, continuing with Ali Soufan's defense of Federal Court versus Military Commissions in the New York Times, and culminating with an interview with Michael Sandel whose recent book, Justice: What's the Right Thing to Do? explores the topic in depth and goes well beyond the issues of this or that venue for achieving Justice.

It is a moral question, isn't it? Perhaps the ultimate moral question.

Watch Professor Sandel discuss it at Harvard on the WGBH series:

Justice: What's the Right Thing to Do?

[Note: I would ask those who use the "Giving the Devil the Benefit of the Law" scene in "A Man for All Seasons" as justification for putting terrorism suspects in Federal Court whether they believe Justice was done in the trial of Sir Thomas More. If so, how? And if not, why not? It is the fundamental issue here. And it is, perhaps, what the theme of this whole blog has been.]


  1. che,

    When you said this,

    "...the commission essentially ordered him released, because, at least in my view, they saw that justice would be served by releasing him, not by holding him for 30 more years or whatever, for doing something that essentially shouldn't be categorized as a "crime of war" in any case."

    Aren't you saying that justice here is a matter of men and not laws. The judges came up with a result that contradicted the letter of the law. They released the guy after convicting him. Did they have this disgression? Maybe it wasn't against the letter of the law if it was an unusual sentence, and not a sentence that flouted the law.

    Perhaps Greenwald is wanting to keep the courts bound by as many rules as possible, because, as More thought, you need the laws to protect yourself.

    He sees the military tribunals as a way to skirt the regular criminal courts that have well defended laws or rules about just about everything. He thinks, as I see it, that the military courts are a way to have men make more personal lawless decisions. They do this, create these courts, because they want to punish these guys harder than they think the regular courts would given the evidence and the sloppiness of their prosecutions.

    Can you tell me that you would want anyone to be tried in a "kangaroo court" just because you think the judges might be more lenient when, as I see it, these courts are being created to be stocked with hanging judges...?

  2. Che,

    you said this,

    "Yes, indeed, the civilian courts are capable of "handling" these matters (and many others) but are they capable of producing justice? And this is a question I raise again and again. If the outcome is unjust, why are you supporting the process that leads to such injustice?"

    Isn't the problem here that the Supreme Court has decided that courts only follow the rules, if the rules themselves are unjust, the courts themselves cannot correct these things.

    This was the principle behind the Court not ruling on cases during the 60's challenging the government's wars in southeast asia. The Court said it was a political question that Congress needed to decide, and let the several convictions stand.

    The conservative Courts distinguish themselves by saying, slavery may be wrong, but the laws of the U/S. now condone it, so there's nothing that the Courts can do about that. This is the definition of Conservative judging. They don't allow the Courts to decide political questions on wars, labor, etc.

  3. Steve,

    Thanks for the questions.

    Aren't you saying that justice here is a matter of men and not laws.

    Well, no. Not actually. "Justice" is found in "doing the right thing", which means deciding on the totality of the Facts and the Law together with Judgement.

    The officers in the Hamdan commission recognized that they had to take all of this into consideration. Apparently the process essentially required them to bring a guilty verdict -- Hamdan was Osama's driver after all, he did not dispute it. But is this a crime of war by any rational judgement? Of course not. He was a driver. How is that even conceivably a war crime? The charge and the verdict they were compelled to render were nonsense. Is there any way to get "Justice" out of this situation?

    That was, I think, their dilemma, because from what I could tell, not being there and not knowing the officers involved, but knowing something about the JAG Corps, they were as concerned with Justice, even under the circumstances of a drumhead military commission, as they would be under any other circumstance.

    They didn't have the option to render a not-guilty verdict, but they did have a sentencing option and they used it. They sentenced him to time already held in custody (and a few months) and shortly he was on his way back home, and he is a completely free man now.

    In that situation, that was Justice, insofar as it could be achieved.

    If Hamdan had ever made it to Federal Court, we can be almost certain he would be rotting in a SuperMax somewhere for the rest of his life, if not executed outright.

    Would that be Justice?

    Was Justice done in the trial and execution of Sir Thomas More?

    There is no easy answer.

    Law is incapable of Justice without judgement. And I argue that -- unfortunately for the Rule of Law -- these kangaroo courts (which really aren't operating, so it's hypothetical) staffed with highly ethical JAG officers, are potentially more likely to render Justice than the corrupted and politicized Federal Court system.

    You bring up another point as well: the Federal courts don't necessarily have the leeway to render Justice in these or many other cases because of all the restrictions placed on Federal courts and judges by the Supreme Court. Their ability to use judgement is highly restricted.

    It's a real problem for our legal system. Just throwing all the Gitmo captives and terrorism suspects into the Federal Court system willy-nilly isn't the answer if Justice is to be done. All the forms and styles of Justice with an unjust result is in some ways worse than setting up an unjust system that produces a just result.

  4. Che,

    I am skeptical that justice can be gotten out of U.S. courts or U.S. military courts on certain questions, in any case. The business with the Muslims seems to be about the fact that they have valuables that the rich and powerful want. The system is being rigged to make them respond in ways that break laws and harm people, that can get them eliminated in these court systems. Judges and ethical JAG officers would have a difficult time taking any of this into account when they investigate, prosecute, or sentence.

    You seem to be impressed with JAG officers becuse of your experience with them. Can that be a very strong concideration , though, in deciding about which system anyone who's accused of a crime should be placed in? I don't think so. I , at this moment at least, think there should be one public transparent system that tries all the accused. I assume that such a system would involve less abuse.

  5. Steve,

    You write:

    I , at this moment at least, think there should be one public transparent system that tries all the accused. I assume that such a system would involve less abuse.

    I don't disagree. The problem is, we don't have such a system, neither in Federal court nor in the military.

    So, if you're interested in Justice, what do you do?

    That's the dilemma.

    Yes, at this moment, I have higher regard for the JAG Corps as a whole and the potential for justice within almost any military justice system than I do for Federal courts and the Department of Justice -- which have soiled themselves so badly and are institutional disasters (Witness the recent OPR report and the Anthrax Investigation closure. Sigh.)

    So what to do?

    I don't have the answer, but what's being done doesn't satisfy me at all.