A Trial? Naw, Too Messy

A Trial? Naw, Too Messy
January 13, 2003
by John Bloom

NEW YORK, January 13 (UPI) -- What's wrong with simply having a good old-fashioned courtroom trial to decide things?

Why is everyone so afraid of having two lawyers duke it out?

John Ashcroft keeps going before courts to say, we don't want this guy to have a lawyer, we don't want to file any charges, we don't want to reveal the reasons we're holding him, but we especially don't want him to be given a lawyer.

In other words, why is having a lawyer, in and of itself, considered some kind of frightening state of affairs? If these things were happening in any other country, we would be sending the State Department's human rights guys to check it out.

A lawyer doesn't do anything except speak the words that the defendant is often too inarticulate to speak for himself. He doesn't have any magical powers. He's not able to alter a man's crime or change his plight. Technically he doesn't even work for the defendant. His first loyalty, by oath and by law, is to the court.

But it's almost as though there's a popular perception that, if someone is given a lawyer, he's automatically declared innocent. No one actually says this, but they imply that all sorts of terrible things are likely to happen if a man has a mouthpiece.

A lawyer doesn't change anything. A lawyer doesn't make a man less guilty. A lawyer doesn't create any special privileges for the man in jail merely by existing. If you give a lawyer to a man sitting in a jail cell, cut off from the world, he becomes a man sitting in a jail cell, cut off from the world, with a lawyer.

In all the news accounts the term "special protections" is used. The appeals courts mostly agree with President Bush that certain prisoners shouldn't be given "special protections." Well, they aren't special and they aren't protections--these are simply the bare-bones necessities given to any prisoner, like food and water, following a principle established, oh, about 700 years ago. In fact, it's such a well established legal principle that it hasn't even been discussed much in academic literature for the past 50 years. It's always been assumed that one thing that can never happen here is jail without hearings or lawyers. It's the kind of thing English kings used to do, and so we specifically banned it in the Constitution.

If you read the law review articles on habeas corpus, they're concerned almost exclusively with convicts in state prisons who are appealing to the federal court. The idea that they never got the right to appear before any court never even occurs to anyone.

There are actually two principles at stake here. The first is the right to counsel, which has been firmly established since 1963, and honored long before that in any case of obvious importance. The second is habeas corpus, which the Supreme Court called as recently as 1991 "the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action."

It derives from the 14th century and it works like this. If a man is in jail, he has the right to demand--actually anyone has the right to demand on his behalf--that he be taken before a judge. The way this was done is that a petition was given to the jail warden that began "Habeas corpus ad subjiciendum," which roughly translates, "You are holding the body of a man who should be produced and brought for examination." Presented with the petition, a jailer had no choice but to transport the prisoner to a court, where there would be an examination as to why he was being held.

Notice it doesn't mean "Set the man free." It means walk him over to the court and let a judge inquire into why he's in jail in the first place.

As enshrined in the Habeas Corpus Act of 1679, which was later incorporated into the U.S. Constitution, the law declared a specific period of time a man could be held without a hearing. It was three days. If the jail was 20 or more miles from the court, it could be ten days. If the jail was a hundred or more miles away, it could be 20 days--but never more than 20.

Guess what we've got today, when no court is more than 24 hours away? Guys imprisoned without charges and without lawyers, looking at their 500th day behind bars.

In the most important of those cases, Yasser Esam Hamdi is an American citizen being held in a military brig in Virginia, without a lawyer and with no charges filed, and this week the Fourth Circuit ruled that a) they were hesitant to interfere with the executive branch, and b) it was too hard to find out what the facts were in the first place.

The second assertion would be laughable were it not such a jaw-dropper. Ferreting out difficult-to-ferret facts is exactly what courts are set up to do. That's their job. There is no such thing as an easy fact question.

But the first one--that courts shouldn't tell the President what to do--indicates how cowardly the judiciary has become. Almost as cowardly as the Congress--which, by the way, has the sole power to suspend habeas corpus.

We know this because of the last time it happened. (I'm ignoring the 110,000 Japanese-Americans detained during World War II. Those were not enemy combatants, but their clearly illegal detention led to no court precedents.) The last time it happened, and the courts got involved, was during the Lincoln administration.

When the southern insurrection broke out, Lincoln suspended habeas corpus as hundreds of "dangerous" men were rounded up. One was a Baltimore secessionist named John Merryman. He was arrested on May 25, 1861, and on the same day his lawyer filed a habeas corpus petition. Supreme Court Chief Justice Roger B. Taney granted the petition, defying Lincoln, and ordered the man brought from the military brig for examination. General George Cadwallader refused, saying he needed more time to get orders from his superiors. Taney was so outraged that he sent a sheriff to the brig to get the man, but the Army refused to let the papers be served. The only way the Army was able to hold these "enemy combatants" in prison is by brute force, but the case remained in the courts, and in 1866 the Supreme Court struck down the Lincoln precedent, saying that the chief executive does NOT have the right to suspend habeas corpus.

Notice that having the right to counsel was never an issue at all.

The only rationale offered in the Yasser Esam Hamdi case is that the President is waging a war. So was Lincoln. The current war is undeclared, open-ended, and confused as to who exactly the enemy is. Is Hamdi being held because he fought for the Taliban, for Al Qaeda, or for some other reason? We don't know. That's why you have hearings. That's why you formalize charges. That's why you force the executive branch to state its case. That's why you don't accept the executive's case at face value, but you subject it to cross-examination and fact-finding.

Too hard? Not really. The men who planned the bombings of American embassies in Africa were captured in foreign countries, given lawyers, formally charged, allowed to cross-examine witnesses, found guilty by a jury, and formally sentenced to life in prison.

In other words, we had a good old-fashioned courtroom trial. We know how to do this right, so that it's seen by the rest of the world as fair justice. We've just decided not to.

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