April 2002

Two Cents' Worth

by Mark A. Panitch, Bar News Editor

On a trip to Asia a few weeks ago, President Bush took the opportunity during a fuel stop in Alaska to talk to American troops stationed there. He told the military audience that the war against terrorism is a "crusade" and asserted that "if you're not with us, you're against us."

This is the kind of language that you expect from a drill sergeant or a football coach or a politician. It's the language of the zero sum game. If I win, you must lose. It's good politics, but it's questionable public policy, and it's bad law. So when those words come from the president of the United States, you have to wonder: "Is he speaking as a politician trying to rally the troops?" or "Is he speaking as the chief executive announcing policy and law?"

These are really important questions because patriotism and national spirit are important. The troops and the nation need to be rallied. If there are legitimate hardships to be borne, the citizens have to be prepared. But if you are a lawyer, sometimes the most patriotic thing you can do is hold up your hand and say, "Whoa, not so fast." If you think these are conflicting demands, you couldn't be more right.

After all, the United States is different from most other countries. It is the only country that was literally invented by lawyers. Lawyers and the law have a much more central role in America than other countries. The author of the Declaration of Independence, Thomas Jefferson, was a lawyer. Three of our first five presidents were lawyers. Thirty-five of the 55 delegates to the Constitutional Convention were practicing lawyers or had a legal education.

In most countries there is a founding family with mythic origins. And most countries have relatively homogeneous populations bound together by a common language and culture. Indeed, we often confuse citizenship and nationality, using them as synonyms for each other. The United States, on the other hand, is a country with a heterogeneous population speaking many languages and representing cultures from every corner of the world. Instead of a founding myth we have a founding legal document — our Constitution. And Article 6 of that document creates a system of courts and judges.

Courts are right up there with Congress and the presidency as one of three co-equal branches of government. And that system is echoed in every state constitution as well. In most countries the government system is designed to encourage quick decisions with a minimum of dissent and no popular recourse. In America the system is exactly opposite. Our three co-equal branches of government are in a state of near constant deadlock, which is only broken by a lawful compromise. Of course politics generally is called the art of compromise. But we may be seeing a new paradigm emerging from the last election and the "war on terrorism."

In his recent book Too Close to Call, attorney-author Jeffrey Toobin describes the 36 days between the presidential election and Al Gore's ultimate concession. His conclusion: despite winning the popular vote — and possibly even the Florida vote — Gore lost because he was too deferential to the legal process (with an emphasis on process).

On the other hand, George W. Bush's election campaign continued for more than a month after the election. He never deferred, never conceded and — most surprisingly — never compromised on anything. The strategy was obviously successful. The result appears to be an administration that seeks to create a new paradigm, attempting to transfer this election experience to the world at large. It's fair to ask if this experience doesn't nourish unrealistically high expectations of the administration's ability to control events, and an unrealistically low tolerance for frustration.

The administration announced the implementation of secret military tribunals using both very relaxed evidence standards and a very relaxed burden of proof to try foreign nationals accused of being terrorists.

The response wasn't what the administration expected. The strongest objection came from the military. Military lawyers, many of them career officers, formed the core of the opposition. These officers — quietly supported by senior military commanders — pointed out that what separates "us" from "them" is the rule of law, and that should not be sacrificed for expediency. This may seem ironic, but it shouldn't be. First, every military lawyer is also a civilian lawyer; there is no federal bar exam. Second, the people who are most likely to kill or be killed in defense of the Constitution are often among those who actually know — and care — what it says.

The military operates under the Uniform Code of Military Justice (UCMJ), which superseded the Articles of War in 1950. Unlike its predecessor, the UCMJ clearly adopts the basic principles of due process that underlie civilian law. There is a presumption of innocence. Soldiers subject to serious punishment are entitled to counsel; soldiers subject to penalties that don't include loss of liberty may have counsel at their own expense. No one can be forced to incriminate herself, and the military version of the "Miranda" warning must be given to any suspect, not just those in custody. Defendants have the right of confrontation. It's a principled and uniform system that can be replicated at any U.S. military installation anywhere in the world. There are differences between American military and civilian law, and lawyers, but the similarities are far greater.

Every high government official, every executive in private business, and every bureaucrat in every local sewer district seeks to concentrate her power and expand her zone of authority. The common goal is invariably to increase control and power while reducing impediments and questions. The current Bush administration is no different in its goals. What is different is its attitude toward power — and our nominal state of war. Clearly the United States was attacked last September 11th. Congress would undoubtedly have approved a formal declaration of war — if we just knew who we were fighting. And there is the rub.

The "war against terrorism" threatens to become the rationale for enacting or imposing many bad plans and policies whose connection to fighting terrorism is tenuous at best. Many of these ideas would particularly impact our criminal justice system, changing or reversing established principles of due process. Some would impose new principles that have been rejected over the years, but which continue to lurk in the darkest political recesses like legal vampires waiting for troubled times and an injection of new blood to bring them back to life.

We are starting to hear again about the necessity to obtain quick information without the technicalities of due process, and words like "torture" and "unlimited detention" without trial are starting to be heard. The reality is that both the British and the Israelis — among the most democratic countries on earth — have used these methods without success. Despite the most draconian measures, the IRA was not stopped, and the Palestinians continue to kill Israelis with suicide bombs and other weapons of terror. The fact is that adopting the methods and the end-justifies-the-means mindset of the terrorists — whether domestically or abroad — doesn't work. It just turns "us" into "them."

I would never suggest that one administration's political policies are superior or inferior. That would be straying far from the mandate of this magazine to cover legal matters. But I can, and do, suggest that when the political goals of an administration include important changes in the justice system, Law-yers' first duty is to protect the law. American concepts of access to justice and due process have evolved slowly in response to American needs. Our courthouses substitute for village squares. Our jury-based criminal justice system provides legitimacy for our government. Most police (including the FBI) gave what amounted to "Miranda" warnings long before the Supreme Court codified the warning and made it universal.

Congress enacted federal civil and criminal rules and the Federal Rules of Evidence only after decades of study and debate by the most distinguished lawyers and jurists in America. The system itself received "due process" before it was significantly changed.

Before anyone messes with our principles of due process, such as warrant-based arrest, lawyer-client confidentiality, humane treatment of prisoners, and all the rest that distinguishes "us" from "them," lawyers need to stand up and loudly and firmly utter the words of caution that have served us well for the last 300 years: "Hold on, let's look at this a little more carefully; Once something is done it's pretty hard to undo; Put yourself in the defendant's place — is this what you would want for yourself?"

The end never justifies the means, and we lawyers are the people with the special duty to say so.