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Revolutionary Tribunals
Our courts have too often become expressions of the popular will.


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Victor Davis Hanson

In ancient Athens, popular courts of paid jurors helped institutionalize fairness. If a troublemaker like Socrates was thought to be a danger to the popular will, then he was put on trial for inane charges like “corrupting the youth” or “introducing new gods.”

Convicting gadflies would remind all Athenians of the dangers of questioning democratic majority sentiment. If Athenian families were angry that their sons had supposedly died unnecessarily in battle, then they might charge the generals with capital negligence — a warning to all commanders to watch their backs. As in the case of Socrates, a majority vote often led to conviction, and conviction to a death sentence, or at least ostracism or exile. The popular courts freelanced to ensure that “the people” would hold sway over the perceived powerful and elite.

For a couple of years in revolutionary France, a Tribunal Révolutionnaire tried royalists, clergy, the wealthy, and supposed counter-revolutionaries on trumped-up charges of crimes against the people. Their purpose was a more violent version of the Athenian idea that the courts should serve the public by targeting the prominent, influential, or wealthy.

We in the United States are in jeopardy of turning our own criminal-justice system into revolutionary tribunals — fanned by the popular media and public opinion and directed against so-called enemies of the people.

In October 2005 popular anger against the Bush administration over the Iraq war was at its zenith — and in particular against the unapologetic Dick Cheney, Karl Rove, and other top Bush officials. The Democrats were rightly confident of making huge gains in the upcoming 2006 midterm elections, in part by attaching animus and scandal to administration grandees.

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We don’t hear much any more about Scooter Libby, who was chief of staff to Vice President Cheney. But in late 2005, by a set of strange circumstances, he became a target of media anger and liberal fury. Libby was indicted by a Washington grand jury and put on trial by Special Prosecutor Patrick Fitzgerald, supposedly for leaking the claimed covert identity of Central Intelligence Agency officer Valerie Plame Wilson.

We know now that not only was Ms. Plame’s identity probably not covert, but, if it ever had been, former Secretary of State Colin Powell’s own deputy, Richard Armitage, had already leaked it. And we also know that both Mr. Fitzgerald and Mr. Powell knew that fact at the time of the trial, and yet kept silent about it. The prosecutor’s apparent concern was not whether Libby had indeed first leaked a supposedly classified fact — since it was clear from the outset that he had not — but instead that at least someone in the Bush administration was owed a comeuppance.

Libby was eventually convicted not of disclosing anything illegal about Plame, but, in the course of unending testimonies, of obstructing justice by supposedly not telling the entire truth under oath to various federal bodies. The crushed career of Libby served as a sort of national venting and warning. Once the federal court had become a revolutionary tribunal acceding to the popular will, the furor passed, the media were satiated, Libby was ruined and soon to be forgotten, and calm returned.

Note that, last week, Director of National Intelligence James Clapper calmly admitted that he had lied while under oath in testimony to the U.S. Congress, in answering “No” to the question, “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?” Clapper has been neither fired nor indicted for perjury. For that matter, Attorney General Eric Holder was also not truthful when, under oath, he denied knowledge that the Justice Department had gone after reporters.

Do not expect Patrick Fitzgerald to come out of retirement as a special prosecutor to try Clapper or Holder as he did Libby — much less to wade through the NSA scandals. Do not expect administration personnel to be asked to testify under oath about their leaks to the New York Times or the Washington Post concerning national-security information favorable to President Obama.

I doubt that the Post’s David Ignatius or the Times’s David Sanger will be jailed as was the Times’s Judith Miller in 2005, should they choose not to reveal who in the administration gave them such intimate knowledge of the Stuxnet virus or of the bin Laden raid and the trove of documents found in the al-Qaeda leader’s compound. And yet these are not minor issues like the supposed status of one Valerie Plame. Instead, these scandals are only deemed minor in the mind of our revolutionary prosecutors and judges, who prefer to ignore them. How strange that a country that once tore itself apart over who said what about Valerie Plame now snores when its top officials lie under oath and the most intimate details of our national security are leaked to the press.

Nor will there be a special prosecutor to depose IRS executive Lois Lerner, who took the Fifth Amendment rather than disclose to Congress why her tax-exemption division seemed to single out conservative organizations for rough treatment.



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