Posted on 12/06/2001 3:34:33 AM PST by tberry
National Review Gets Borked
by Bob Murphy
For some time now, I’ve been privately making excuses for the modern "conservative" movement. I’ve told some of my colleagues not to be so critical of the present hawks; after all, we’ve got clowns like Bill Clinton paying lip service to anti-imperial sentiments, and perhaps our message is just being clouded.
But enough is enough. The December 17 print issue of National Review contains an article by Robert Bork titled, "Having Their Day in (a Military) Court: How best to prosecute terrorists ." And it is this article that has finally convinced me that I was being naïve; the modern American conservative movement is indeed dangerous, not merely misguided.
Bork, you will recall, was the beloved nominee of Ronald Reagan, who was so unfairly kept off the Supreme Court by those vicious liberals. Back in those days, I didn’t know much about him except that he favored an "original intent" approach to the Constitution. Now this troubled me a little, since I always thought you should just read the Constitution to see what it meant, rather than go back to the context in which it was written. After all, if you allowed the Justices to override the written word because they knew what the Founders "really" meant, that seemed to open the door to tyranny. But I was just a punk kid at the time, and Rush Limbaugh (my hero) opined, during the Anita Hill fiasco, that yes indeed, Clarence Thomas wasn’t the most qualified judge for the Court – Robert Bork was. Take that, liberals!
Well, after all this time, it turns out my gut instinct was right; Robert Bork is one scary fellow. I realize most of you readers don’t have the same free time I do, so I’ll cut to the punchline: In the concluding paragraph of his NR piece, Bork actually writes, "If there is a problem with Bush’s order, it is the exemption of U.S. citizens from trials before military tribunals….Contrary to some heated reactions, military tribunals are well within our tradition. They are needed now more than ever."
How did Bork reach this monstrous conclusion? He first rules out the possibility of trials in federal court. "Jurors often respond to emotional appeals, and, in any event, would have good reason to fear for their and their families’ safety if they convicted." Bork then complains about the length of trials and postponed death sentences caused by appeals and the ACLU. Finally we are told, "The conclusive argument, however, is that in open trials our government would inevitably have to reveal much of our intelligence information, and about the means by which it is gathered."
The problem with these arguments is that they’re not unique to suspected terrorists. In fact, each of Bork’s points applies just as well to mobsters on trial. Jurors could be swayed by their charm or by the disloyal stool pigeons who testify against them, and of course would fear retribution if they convicted. Shyster lawyers could indefinitely delay mobster trials with endless appeals. And if it has to actually present its evidence against mobsters in open court, the FBI would reveal all of its secrets, thereby stalling the War on Organized Crime. Would Robert Bork favor military tribunals for mobsters?
Actually, he probably would. You see, after showing the flaws in federal trials for terror suspects, Bork argues that military tribunals don’t deserve their bad reputation: "During the Korean War, the officers in my battalion took turns prosecuting and defending….I sat on the court, and never saw an innocent man convicted but did see a guilty man acquitted. (I prosecuted that one and it still rankles.)"
On the face of it, this quotation looks to be drawn from Kafka. A judge rating a court system based on how closely it approximates his own prior opinions as to who is guilty and who is innocent is simply terrifying in its implications.
Bork spends the rest of his article explaining that, contrary to popular opinion, military tribunals judging American citizens are perfectly within the bounds of the Constitution. Now I’m not a legal scholar, so I can’t comment on the merits of his case. But what I can say is that this episode demonstrates the dangers of placing one’s faith in parchment , when you can’t control who gets to interpret it.
I’m reminded of the (1976) Preface to The Road to Serfdom , in which Hayek writes:
I still regarded it [when originally writing] as a rhetorical question when I asked (p. 82) if Hitler had obtained his unlimited powers in a strictly constitutional manner, "who would suggest that the Rule of Law still prevailed in Germany?" only to discover later that professors Hans Kelsen and Harold J. Laski…had maintained precisely this.
In discussions of legal procedures, it should always be remembered why we have trials in the first place: to convict the guilty, yes, but above all to acquit the innocent. Only once in his entire article does Bork use the word suspected before terrorists, and that is in the very first sentence. That such myopia could come from the modern conservative’s favorite legal scholar is significant indeed.
Bork et al. want to ensure the punishment of terrorists, and their distrust of the American criminal justice system is quite understandable, especially in the wake of such publicized cases as the O. J. Simpson trial. But the mockery of State "justice" should only underscore the need to switch to a private legal system , not to sweep away the last refuge of the innocent, trial by jury.
I understand the modern conservatives, I really do. They can’t understand why we don’t simply trust them to take care of things; they’re not the jack-booted thugs that so worry conspiracy theorists.
But it’s a bit hard to trust them when they keep changing their stance. Just a week ago (Nov. 26), Jonah Goldberg, editor of National Review Online (which ran Bork’s article), wrote :
FDR may have been right or wrong when he used military tribunal[s] for icing a few Nazi spies, but that's a stand-alone argument; it didn't launch any long-term authoritarian trend. And, barring some argument I've yet to hear from William Safire, Wes Pruden, the Cato Institute, or any of the other anti-tribunal crowd, there's little evidence that using a tribunal on Osama Bin Laden would be any different.
I guess Goldberg’s got a point. We don’t need to quote Safire, Pruden, or the Cato Institute to demonstrate the slippery slope danger of military tribunals for foreigners. We can quote National Review’s own Contributing Editor, Robert Bork.
December 6, 2001
It's starting to sound fascist/totalitarian to me.
It's starting to sound naive and similar to typical leftist utopianism to me.
So who's right? On one side you've got Robert "original intent" Bork. On the other side there's William "emanations and pernumbras" Brennan and his cohorts- who brought us Roe v. Wade.
While still requiring vigilance, it seems Bork's view is preferable. At least it moves in the direction of the founders' viewpoints, rather than running from them.
I agree. I guess I could best be called a Paleo-Conservative and when I see that just about everyone has retreated from most traditional conservative principles it really makes me concerned for the future of the Republic.
I think we need to keep very vigilant and see how things get sorted out. Liberals are now calling for the protection of our Constitutional rights while conservatives are going totalitarian.
I'm not sure anyone is reading the constitution anymore and going by its principles no matter what. Both parties just seem to be for doing whatever the other party is against. Big government and attacks on freedom continues under both regimes. The examples of Bork's thinking certainly do not tend toward the freedoms and rights of the constitution.
Since the war has started, I've stopped going to Lew Rockwell's sites; his columnists, like this one, have gotten very nutty.
If we don't take out these guys, it will happen again.
If we don't take out terrorists, there can never be peace (the Middle East, Chechneya, and Northern Ireland all make wonderful examples of this).
Extrordinary times demand extrordinary actions, and these are extrordinary times. Our nation has used military tribunals before, so it is not as if there is a precedent being set here. Last time I checked, military tribunals are not the normal course of things here in the United States, so even though they have been used before, they have not lead to a fascist state.
Whatever label you want to attach to yourself, the Lew Rockwells and Justin Raimondos of the world are showing that they have more in common with the far left than they do with the far right. This is just the latest example.
Great piece by Goldberg. Someone posted it at 1AM here, and when I get to the office I might repost it for those who missed it.
I look at a lot of different places and see their positions. Some I agree with and some I don't and occasionally they give me a perspective that influences my thought. LewRockwell.com is just one of many.
Don't get in a flag waving fascist frenzy that now says that simply because we have been attact that the administration can do no wrong. No matter how many people have been killed it does not give us the right to now embrace the principle for which Free Republic and conservatism has traditionally fought against.
Acts of violence like the Twin Towers have happened in the past and will happen in the future but we can't forget our Constitutional principle simply to make our vengeance and hate more acceptable.
If you are against conserving the principles for the freedoms of the constitution now then perhaps you never really believed in them and never will but beware:
"Necessity is the plea for every infringement of human liberty; it is the argument of tyrants; it is the creed of slaves." -- William Pitt
"Perhaps it is a universal truth that the loss of liberty at home is to be charged to provisions against danger, real or pretended, from abroad." -- James Madison
NO problem for a dictator, king or oligarchy who wants to make all the rules for the continuation and growth of their personal power and control.
OMG - in other words, "I don't know WTF I'm talking about, I don't know the legal history behind Bork's reasoning, nor do I understand the case he's trying to make, but I don't like it, so therefore Bork is a Fascist."
Oh, well okay, then. That refutation will surely blow him right out of the water.
Just as an aside, someone should let the folks over at Lew Rockwell know that there's a Perl script that you can run your text through that will strip out the Microsoft smart quotes, and avoid them being rendered as question marks - it's called, appropriately enough, "Demoroniser"....
HUH????????? They have?? In America??? where and when???? And I seriously doubt the President is out there worrying about "acceptance". He aready stated, you are either with us or you are not.
This seems like just a throwaway line, but what the heck is he advocating? A "private legal system"? So we out-source the courts? This guy IS a nut.
Reasonable people won't argue that. The true test, however, is what happens when the extraordinary times pass and "normalcy" returns.
Our country has been fortunate and blessed - the few potential tyrants we've had (FDR, LBJ) have not brought total ruination. But it has been somewhat of "a death by a thousand cuts". In other words, the trend is always this: in a crisis, we take 10 steps toward bigger government and losses of freedoms. When the crisis passes, we might take 8 steps back. The overall net result is 2 steps toward tyranny. And so it goes until the next crisis.
Something to consider: What might a reprobate like Xlinton done with some of the powers George W. is wanting - considering how much he abused (and got away with abusing) the power he had.
Good point. Just because you've been accused doesn't mean your guilty.
I presume you call yourself a conservative. That being the case, I am surprise you would use such a phrase.
This mantra of "extraordinary times..." has been used by the "far left" for decades to justify the implementation of unconstitutional regulation of our property and lives.
The best statement I have found to refute the "extraordinary times..." mantra is in the majority opinion of the Supreme Court, declaring Mr. Lincoln's use of military courts and justice, on U.S. citizen's, unconstitutional.
Ex Parte Milligan, 1866, revisited in a speech given by Chief Justice William Rehnquist in 1996 at University of Indiana, School of Law. (Remember, Mr. Lincoln also thought during the time period from 1861 to his death, that those were "extraordinary times...)
"The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers granted to it, which are necessary to preserve its existence;"
Justice Rehnquist, then follows up with the following remark:
"The Milligan decision is justly celebrated for its rejection of the government's position that the Bill of Rights has no application in wartime."
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