June 2010

In a talk at the Brookings Institution the week before last, Assistant Attorney General David Kris, who heads the National Security Division, commented on the relative merits of trials in the district courts and in courts-martial for international terrorists. His remarks are available on the Justice Department's Website, and I encourage you to read them if you have not already done so.

Mr. Kris identified five factors that argue for using a military forum and five that argue for civilian trials. In the military column he included proof requirements (beyond-a-reasonable-doubt in both systems), the admissibility of confessions, the ability to close the courtroom, the admissibility of hearsay, and classified evidence. In the civilian column he listed certainty and finality, scope, incentives for cooperation, sentencing, and international cooperation. He wisely cautioned that an observer would have to go far deeper into the weeds to reach solid conclusions on any of these points. Nonetheless his list is helpful, and he has done a public service by setting out these considerations to help inform public debate.

I would like to offer a different take -- in part at the 50,000-foot level, but in part a worm's-eye view.

At the highest level, it seems to me, the question is whether trials in military courts are likely to generate public confidence in the administration of justice-a factor Mr. Kris mentioned. Obviously this can be an exercise in self-fulfilling prophecy. If many voices are heard singing the praises of military commissions, then perhaps public confidence is boosted. And conversely if there is a chorus of criticism, with people asserting that public confidence cannot be served in such a forum, that in itself can erode public confidence. So there is a conundrum built into the discourse. And yet, the question remains whether these tribunals do or will within a reasonable further period merit public confidence. I will leave it to you to make a judgment, but in order to make that judgment it seems to me that you have to try to isolate the factors that tend to foster or detract from public confidence.

During his ACS speech, Sen. Franken tagged conservative activists' and jurists' advocacy of originalism - a strict reading of the Constitution to tackle today's controversies - as "a talking point," not a "pillar of our Constitutional history." Franken went on to slam the Roberts Court for dismantling "the legal protections that help ordinary people find justice when wronged by the economically powerful," using numerous examples of cases demonstrating that point.

Gerson's article attacked Franken as someone who "should not be taken seriously," and Franken's description of originalism as a "talking point."

In an article for The Huffington Post, Marshall rips Gerson's column, writing that Franken's "central observation that the Roberts' Court has been activist in favor of conservative results is unassailable."

Marshall notes that conservatives lay claim to judicial restraint "on grounds that they purportedly adhere to binding constitutional principles of originalism while liberals, in contrast, are guided only by untethered principles of justice."

Marshall continues:

Franken attacked this assertion in his ACS speech as well, characterizing the conservatives' purported reliance on originalism as little more than a talking point, and it is this particular characterization to which Gerson takes great exception. To Gerson, originalism is not a talking point but ‘a developed, consistent theory of judicial interpretation.' And maybe it is for some academics who are willing to take the theory as far as it will go - including to results that for most Americans would be politically unacceptable. But the fact that Franken is correct and, for most conservatives, reliance on originalism has been little more than a talking point. Not too many conservatives argue that various federal drug laws are unconstitutional, for example, and many contend that federal power has not been expanded enough in the areas of tort reform and property takings. In reality, most conservatives rely on originalist principles only selectively and seldom when it gets in the way of results that they want to achieve. Whatever else the Citizens United case may stand for, the notion that corporations have unlimited rights to spend money to influence elections is no originalist. The Court's rejection of federal affirmative action, whatever else one thinks of the policy, is not originalist. The Court's efforts to place curbs on the ability of local communities to protect the environment or to allow public access to beaches are not originalist. The list goes on.

See Marshall's entire column here. Video and transcript of Franken's ACS speech are available here.