Judicial Review of Military Trials?

[Wells, Christina E.]

With respect to Chris's argument.  I do think the Pentagon Papers case is an
important signal that the Court won't always bow to the executive but it has
its limitations.  I think that the historical context of that, and, by
analogy, many free speech cases, suggest that the Court might not be immune
to public fear in this context.

In my opinion, the justices' refusal to issue an injunction in Pentagon
Papers was driven in large part by the executive's assertion of inherent (as
opposed to statutory) authority to regulate national security WITHOUT much
(anything) in the way of evidence regarding a national security issue.  It
seems to me that the Nixon administration made a serious tactical error by
refusing to pony up with anything other than an assertion and the majority
voting against the injunction made the executive pay for that mistake.  Even
given this situation, several justices dissented from the Pentagon Papers
decision, indicating that they would have left the decision to the executive
-- something that could happen here.

In addition, some of the justices voting against the injunction indicated
that in the right situation (i.e., on a showing of clear and present danger)
an injunction might have been warranted.  If ever anyone could make the case
for a "concrete" threat of harm it would be now.  That is what concerns me
most about all of the civil liberties issues that arise from September 11th.
Most of the justices (and probably most people) would agree that there is a
time at which the danger is so grave that we must act to prevent it.  It has
been difficult, though, for the Court to define the parameters of the
"danger" and the type of proof that is necessary with this test.  As a
result, the Court itself has bowed to public pressure when applying that
test -- magnifying the extent of or distorting the nature of the danger.
John Ashcroft has been guilty of this kind of manipulation from the
beginning of this crisis.

Maybe one can argue that the Court has moved to more rigid, protective
approaches (like strict scrutiny) regarding civil liberties but that hasn't
always been enough.  In the associational rights context, the Court noted in
NAACP v. Alabama that infringements of associational rights were essentially
subject to strict scrutiny but just a few years later in Barenblatt the mere
use of the word "communist" was enough to allow the Court to justify
infringement.  The tests and, for lack of a better word, "mood" of the Court
today aren't necessarily immune even in the best of times.  They probably
never will be.

Maybe the obvious attempt at cutting off court review of the military
tribunals will be enough to alert the justices.  On the other hand, they
have seemed quite willing to allow serious limitations on that right in
recent years -- at least when "undesirables" like prisoners and aliens are
involved.  I think the best we can do is be very vocal about this so that
the Court's sense from the public is that it is ambivalent about these
tribunals.  It won't have the incentive to bow to public fear if sentiments
are mixed.

-Chris Wells


Christina Wells
Enoch N. Crowder Professor of Law
University of Missouri School of Law
Columbia, Missouri   65211
(573)882-8375

-----Original Message-----
From: Christopher Eisgruber [mailto:eisgrube at PRINCETON.EDU]
Sent: Wednesday, November 21, 2001 9:11 AM
To: CONLAWPROF at listserv.ucla.edu
Subject: Judicial Review of Military Trials?


As bipartisan criticism of the Bush military order continues, one
interesting
question is whether American judges will be courageous enough to invalidate
it (or
limit its scope).  Some think not.  I draw encouragement, though, from
decisions
like The Pentagon Papers Case.

I've also been drawing some encouragement from a foreign precedent:  the
Israeli
Supreme Court's 1999 decision in Committee Against Public Torture in Israel
v.
Israel.  As I understand it, the Israeli court held unlawful the
government's
policy of using "moderate physical pressure" against terrorists.  The court
did
not say that such coercion was absolutely impermissible--but it did hold
that
explicit authorization by the Knesset was necessary:  the executive could
not act
without legislative authorization.  A similar strategy might be available to
a US
Court now.

It occurs to me, though, that I might be mistaken about the decision or its
consequences.  Anybody know more about it?  Or about its aftermath?

--Chris

--
Christopher L. Eisgruber
Director, Program in Law and Public Affairs
Laurance S. Rockefeller Professor of Public Affairs
Woodrow Wilson School
Princeton University
Princeton NJ   08544
eisgrube at princeton.edu
tel: 609 258-6949
fax: 609 258-0922