Doing Justice Differently

Sir, — Abraham D. Sofaer and Paul R. Williams make a good contribution to the ongoing debate about the policy and legal merits of the president’s November 13 Military Order (“Doing Justice During Wartime,” February/March 2002). They offer a succinct and correct statement of the problem facing the United States — “unconventional warfare conducted by unprivileged combatants” — and proceed to lay out good rebuttals of various criticisms directed at military commissions. Likewise, they do a good job debunking the currently fashionable proposals to mete out “international justice” to unlawful combatants, either through the International Criminal Court or a specialized international terrorism court. Unfortunately, the article goes off the rails in its final section, which explores the possibility of a hybrid judicial system under which U.S. military commissions would try most suspected unlawful combatants, while an expanded and augmented International Criminal Tribunal for Yugoslavia would handle “top-level suspects and those who do not come into U.S. custody.”

While this hybrid proposal is a middle ground between those who believe that U.S. military commissions offer the best venue for trying unlawful combatants and the proponents of wholesale internationalization, it is plagued by fundamental legal and policy problems. Here, it is useful to step back and reflect briefly on why military commissions are a useful policy option in the current war against international terrorism and its state sponsors. The fact that they are constitutional (as applied to unlawful combatants during time of war) and permissible under the international law does not, by itself, suggest that they ought to be used. From the policy perspective, the commissions’ major advantages are that they are capable of rendering speedy trials, protecting sensitive national security information, and delivering — at least for the more senior and culpable unlawful combatants — harsh penalties, up to and including the death penalty. Whatever else can be said about the icty, its trials would possess none of these features.

Moreover, in the aftermath of September 11 and the oft-proclaimed desire of various terrorist leaders to acquire weapons of mass destruction, it is clear that unlawful combatants pose a grave threat both to the United States and to the civilized world as a whole. While a wide range of military, diplomatic, and economic means is being used to deal with this threat, the symbolic aspects of the struggle are highly important. While lawful combatants who commit war crimes also merit prosecution and punishment, international law has always recognized a distinction between individuals who lawfully are privileged to use force and those who are not. This distinction remains important, despite the fact that some war criminals may have perpetrated far more heinous offenses (such as mass murder) and should be punished much more harshly than low-level unlawful combatants. To put it in a nutshell, the relevant domestic analogy is between police officers, who are authorized to use force but can be punished if they violate the rules of engagement, and criminals, who can be punished for merely using force no matter what the circumstances. Given this context, an entity like the icty, whose jurisdiction covers all persons in the former Yugoslavia, including civilians and lawful combatants, presents precisely the wrong symbolic venue.

Maintaining this distinction is now more important than ever before. Such decisions as denying al Qaeda and Taliban members pow status and trying them by military commissions are an indispensable component of an overall campaign to delegitimize unlawful combatants and portray them as a scourge of humanity. This effort is all the more important given the palpable reluctance of many of our allies to acknowledge the “good vs. evil” aspect of the threat.

Any use of the icty would also raise a very significant legal issue regarding the authority of the United Nations Security Council. It is not at all obvious that the council could endow the icty with the authority to try all existing and future unlawful combatants. To do so would require the Security Council to invoke its Chapter 7 authority, permitting it to take measures to maintain or restore international peace and security. Yet it is at least possible that unlawful combatants may be present in circumstances that would not support Security Council action. Supporting such a promiscuous use of the council’s Chapter 7 authority would only reinforce the unfortunate and incorrect view that the Security Council has a plenary power to do whatever it wishes. While the U.S. has a veto power in that forum, it retains a compelling interest in preserving state sovereignty by, among other things, promoting a high threshold for Security Council intervention.

David B. Rivkin Jr.
Washington, D.C.

 

Culture Clash

Sir, — Kudos to Stanley Kurtz for his prescient comments about Bernard Lewis’s superb new book (“Root Causes,” April/May 2002). Kurtz does us all a marvelous favor by succinctly reviewing the historical perspective that has embroiled the Israelis and Arabs in their current war. But it is a pity that principled scholars like Lewis get short shrift from the media while Edward Said and others of like mind are provided an unfettered platform to hurl bombast down on those who don’t support their pro-Arab stance.

Charles Snee
Troy, Ohio

 

Sir, — Stanley Kurtz’s description of family/clan/tribal attitudes could explain much about lack of economic development, but the kind of society you describe actually sounds compatible with a Jeffersonian model of government. The key to the success of any democratic system is the extent to which informed citizens participate in it. Improvements in education (especially for girls) and media would appear to be key here.

As to separation of church and state, when you say “Western separation of church and state is ultimately a product of our gradual evolution toward a non-kin-based individualist society,” I have to wonder if you aren’t mixing up causes and effects. No doubt the growth of individualism made certain philosophical and religious ideas more attractive to certain people and accelerated the splintering of Western Christendom into a multitude of sects. But if you are looking for root causes, I would think that you would have to identify the printing press, increased literacy, indignation at corruption in the Catholic Church, and the extent to which that underpinned other injustices as the primary contributors to the development of Protestantism in the first place. Britain’s North American colonies became home to many religious nonconformists, some of whom felt perfectly comfortable creating theocracies and imposing their religious views on others, but none of whom would have been comfortable with the idea of a state religion unless said religion was their own. The idea that there should be no state religion was an example of sensible public policymaking for a religiously diverse society by late eighteenth century American lawmakers.

It seems that in Muslim countries the idea of separation of church and state, instead of protecting religious freedom for all, became a tool with which religious minorities (Sunnis in Iraq, Alawites in Syria) managed to tyrannize religious majorities. Maybe this can be explained partly by the failure or refusal of the majority groups to pay much attention to what the state was doing, or to appreciate what it could do during its formative stages. Again, it would seem that information and participation would be the key to making separation of church and state work in those societies the way it works here.

Jim McDonnell
Baton Rouge, Louisiana

 

Lawyers’ Ethics

Sir, — I have no quarrel with the proposition that a lawyer representing a defendant in a criminal matter ought not to suffer any moral taint by reason of the representation (Lee A. Casey and David B. Rivkin Jr., “Devil’s Advocates,” February/March 2002). In such instances, defense counsel ensures that society itself honors the rules it has created to limit its own liability in depriving an accused of life, liberty, or property. I would even go so far as to say that in any action, civil or criminal, involving the government as a party, counsel representing a private party in conflict with the government is ensuring that the government is complying with its own rules and its own laws, and thus should not be condemned morally by reason of such representation.

But it is a different story when a partner in a large private law firm actively seeks to earn high fees by representing private interests in conflict with other private interests. In such situations, it will not do to point piously to the rules of professional conduct and intone that everyone has a right to a lawyer. Such a defense smacks of the famous comment by Anatole France: “The law in its majesty equally forbids the rich as well as the poor to sleep under bridges.” Well, yes — but just as that law had no practical application to the rich, so too the rich need not rely on the right of every man to a lawyer to call on some public-spirited counsel to step forth. They simply pay for the lawyers they need. Large corporations and wealthy individuals have crowds of lawyers pounding on their doors seeking to represent them. Where a lawyer actively seeks to represent a private interest in conflict with other private interests for purposes of substantial personal financial gain, it is absolutely appropriate to burden that lawyer with the same moral taint (if taint there be) carried by the client.

Nor should a lawyer who is in charge of such a civil case, and in a position to decide which arguments are made, be allowed to disassociate himself from the arguments he makes by claiming, after the fact, that no one should presume he personally agreed with every argument he made. Lawyers do not make arguments in court by diffidently saying, “Here is an argument; believe it if you wish.” Instead, they muster all the apparent sincerity they can display and give every impression of personally believing every argument. It cannot be right that when a lawyer makes arguments to the audience that matters — the judges and the juries who decide the case — the lawyer can claim to believe every argument, but then, after the case is over and the lawyer is before a new audience that finds the arguments distasteful, he can turn around and say, “Don’t assume I meant it.” To be morally consistent, a lawyer must convey the same level of belief in the argument to the people who matter to the client (the judge and jury) as to those who matter to the lawyer (the public). There is nothing moral in stating that the lawyer may display two different levels of apparent sincerity depending on which is more to the benefit of the lawyer. Such a position turns venality into morality.

Lastly, it is not correct that lawyers bear a special obligation, greater than that assumed by the public at large, to refrain from casting aspersions on the choices made by other lawyers. To the contrary, precisely because practicing lawyers are in the best position to know just how clients are wooed and just how cases are argued, lawyers have a particular burden to illuminate the moral implications of legal practice, despite the potential adverse impact on their ability to rake in fees and gain advancement within the hierarchies of their firms. The practice of law involves making choices that have moral implications, and often requires a choice between what is moral and what is remunerative. Desire for financial gain does not justify the attempt to avoid the consequences of those choices.

Edward Sisson
Washington, D.C.

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