National security and judicial modesty

Yesterday, at the Reclaim American Liberty conference in New York, a distinguished panel considered the status of our national security. Prominent among the issues were (1) whether we have the right legal architecture for maintaining our security and (2) whether we have the right battlefield architecture for this purpose. In both instances, the answer appears to be that we do not. In this post, I will focus on the first point.
Our friend Andy McCarthy took the lead on the legal issues, with former Attorney General Michael Mukasey adding his thoughts during a subsequent panel discussion. After 20 years in government — first as a federal judge and then as a cabinet member — Mukasey is emerging as a leading critic of the legal side of the Obama administration’s anti-terrorism policy. His credibility stems not just from his expertise and stellar record of public service, but also from his ability to combine a stolid demeanor with, at times, an acerbic wit.
Mukasey set out the advantages of giving terrorists military trials instead of civilian ones. These advantages, which are familiar to readers of Power Line, stem from the fact that the civilian court system is skewed to confer advantages upon the defense, on the theory that it is better to let many guilty defendants go free than to convict one innocent defendant. But this analysis should not extend to the situation in which the defendant is a suspected terrorist because of the national security implications in these cases.
Mukasey acknowledged that, so far, civilian trials have produced only guilty verdicts. But he noted that these have come at a high cost. For one thing, the monetary cost is significant, Mukasey himself had a security detail protecting him for a considerable period of time when he was the presiding judge in the first of these trials in the 1990s, the trial of the blind Sheik. Moreover, information from these trials may get back to terrorists. This, in fact, is what happened in the case Mukasey tried. The government was required to list the unindicted co-conspirators in the World Trade Center bombing, and the list got back to al Qaeda, thus alerting that organization as to which of its members were known to our intelligence services.
Another risk of trying terrorists as civilian criminals is that if courts bend the process to reduce the risks of not getting a conviction and/or keeping information from terrorists, the rulings that accomplish this may seep into the system, to the detriment of traditional notions of fairness in ordinary cases. And, despite the government’s success to date, the risk of not obtaining a conviction exists. Mukasey noted, as we have (via Andy McCarthy), that the Fourth Circuit’s opinion upholding the conviction of Moussaoui indicates that, had this terrorist not pleaded guilty, this might have turned out differently.
Andy McCarthy contrasted the treatment of modern-day terrorists with that of the German saboteurs in World War II. That these guys were executed without a civilian trial is well-known. But McCarthy recounted that, when the Germans petitioned the Supreme Court, President Roosevelt sent word to the Justices that he was prepared to disregard an unfavorable ruling. The Court proceeded to rule favorably.
McCarthy argued that we must return to a regime in which judicial institutions take a backseat to the robust defense of the country. Decisions about national security are the most important ones the government makes. They shouldn’t be made by a branch that is not accountable to the electorate and that, to make matters worse, is lacking in the expertise necessary to make correct judgments about our security requirements.
In the most controversial portion of his remarks, McCarthy called on the executive branch to be willing to face down the courts, as FDR did. He noted that interpreting the Constitution is not the sole province of the judiciary, but rather the obligation of all branches of government.
This is true. But the question is, who has the final say. The elected branches of government can insist on it — the president by simply refuseing to follow a court mandate and Congress by refuseing to do anything about it (or Congress might try to remove the president and he might resist). However, this scenario would produce a constitutional crisis, and at this point, the tired line that the terrorists have “won” would actually take on real meaning.
To be sure, it’s possible that an executive as assertive as FDR might intimidate the Supreme Court into avoiding a power struggle. However, just as they don’t make presidents as assertive as Roosevelt these days, neither do they make as many shrinking violet Justices.
Nonetheless, McCarthy’s remarks serve as a useful reminder as to what might happen (albeit not under the current president) if courts are insufficiently modest in major national security cases. Should their immodesty result in a constitutional crisis, it will be far from the executive’s exclusive fault.