‘Merely Organized to Convict’

by Andrew C. McCarthy
Sage advice for Holder from his professed role model.

Attorney General Eric Holder keeps on the wall of his office a portrait of Justice Robert Jackson, who was attorney general under FDR. Holder explains that Jackson is one of his heroes. The display is both an homage and a reminder to consider the justice’s reservoirs of wisdom, which ran deep.

Or maybe it’s just for show. For all the professed admiration, the attorney general mentions only Justice Jackson’s famous concurring opinion in the “Steel Seizure” case, regarding the limits of executive power. In that 1952 case, Youngstown Sheet & Tube v. Sawyer, the Supreme Court invalidated President Truman’s attempt to nationalize the steel mills in order to avert a work stoppage that might have harmed the Korean War effort.

Justice Jackson’s concurrence laid out a very general three-part test, arguing that the president’s constitutional power ebbs and flows with congressional support, silence, or opposition. In modern times, it has become a favorite of Democratic lawyers — at least during Republican administrations. As is their wont, they exaggerate the parts they like: Jackson did not, as they suggest, declare the president was without power if Congress opposes him. He acknowledged that even at this “low ebb” — presidential action that contravenes a congressional statute — the measure of lawfulness is the Constitution, not the statute. Regardless, Holder claims that Jackson’s opinion “remains the gold standard to this day for defining the extent to which the president can operate consistent with the rule of law.”

That would probably surprise Justice Jackson. The concurrence was never the gold standard. No other justice signed it when it was published, and Jackson himself described his three-prong analysis as “somewhat over-simplified.” Moreover, the Supreme Court substantially refined the applicable test about 30 years later, in Dames & Moore v. Regan. The Court was duly respectful to Jackson — Dames & Moore was written by William Rehnquist, who had been Jackson’s law clerk. The justices did not, however, find his Steel Seizure prescription adequate to the task of resolving private claims that arose out of President Carter’s settlement of the Iranian hostage crisis.

No matter. Jackson was a giant, in both the political and legal worlds, and those worlds are ever more entangled. In our more litigious era, we continue to grapple with international terrorism. Largely, it is a military challenge, but one on which we struggle to impose some sort of judicial framework. In selecting a role model, then, Attorney General Holder has chosen well.

But he ought to get better acquainted with other parts of his hero’s oeuvre. As I’ve previously suggested, he could start with Jackson’s 1948 opinion explaining why judges should stay out of national-security matters. As Jackson put it in Chicago & Southern Air Lines v. Waterman S.S. Corp., speaking not just for himself but for the entire Court:

The very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and have long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.

There could be no worse judicial intrusion, Jackson thought, than civilian trials that would hamper an American “war effort and bring aid and comfort to the enemy.” Writing for the Court again in 1950’s Johnson v. Eisentrager, he pointed out that such trials

would diminish the prestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home.

Justice Jackson’s views about national security flowed naturally from the conviction he memorably expressed in the bon mot that the Constitution is not a “suicide pact.” For what little it may be worth, I am not a fan of Jackson’s specific position in that 1949 case, Terminiello v. Chicago. He dissented from the majority’s invalidation of a conviction for disturbing the peace with a fiery speech. The Court was not saying that “fighting words” that incite violence are never actionable but instead held that the trial judge had improperly allowed the jury to convict if the speech had merely stirred listeners to anger.

Jackson’s admonitions, though, were worthy. Security cannot be based on abstract paeans to our cherished rights, divorced from real-world conditions. With al-Jazeera and the Internet at their service, modern Islamist clerics are stirring up a sea of antsy jihadists. Jackson was ahead of his time in warning that not all provocative speech can be judged as if it were “spoken to persons as dispassionate as empty benches, or like a modern Demosthenes practicing his Philippics on a lonely seashore.” Attorney General Holder and President Obama absurdly portray as a false choice the commonsense fact that lines have to be drawn between our security and our freedom. They’d do well to consider Justice Jackson’s explanation:

The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.

And then there is the matter of show trials. The Obama administration insists that, in order to improve our purportedly degraded reputation in the world, we must endow our alien terrorist enemies with all the rights American citizens enjoy in civilian trials. Yet Attorney General Holder and President Obama continue to subvert those very rights and undermine the integrity of the process they claim is necessary, suggesting that convictions and executions are forgone conclusions.

Holder and Obama promise that the terrorists will surely be convicted and executed. In the inconceivable event that one is acquitted, we’re told not to worry — because he will never be released. The administration has been widely derided for this foolish chest-beating. Clearly, it runs roughshod over the most fundamental of trial rights: the presumption of innocence. The commentary has empowered defense lawyers with a very strong argument that their clients cannot get a fair trial.

Like most Americans, I think it is a terrible idea to give alien enemy combatants civilian trials. It’s bad for security, it needlessly compromises intelligence during wartime, it defeats the purpose of having military commissions (which Congress has authorized and Obama is using in some cases), and it betrays international humanitarian law, which civilizes warfare by awarding greater privileges only to those who wage war lawfully and refrain from targeting civilians. Still, one needn’t agree with the administration’s plan in order to appreciate that if we’re going to have trials, then they shouldn’t be farces. But there is more than a suggestion of that in the administration’s apparent certainty that no terrorist will be acquitted at trial, an attitude that was expressed over the weekend when the president’s spokesman, Robert Gibbs, once again vowed that KSM would be “tried, convicted, and likely executed” — that he would soon “meet his maker.”

On April 13, 1945, Justice Jackson delivered a speech to the American Society of International Law in Washington, D.C. It was the day after FDR’s sudden death. The Nazis were then buckling toward surrender, and, two weeks later, President Truman would ask Jackson to design what became the Nuremburg tribunals, at which Jackson served as the prosecutor. Of all the wise things he said, this was the most trenchant:

The ultimate principle is that you must put no man on trial under the forms of judicial proceedings if you are not willing to see him freed if not proven guilty. If you are determined to execute a man in any case, there is no occasion for a trial; the world yields no respect to courts that are merely organized to convict.

If Justice Jackson really is his inspiration, and America’s reputation in the world really is his priority, Attorney General Holder should ponder those sage words when next he looks up at his wall.

National Review’s Andrew C. McCarthy is a senior fellow at the National Review Institute and the author of Willful Blindness: A Memoir of the Jihad (Encounter Books, 2008).

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