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“In this case I want to go no further than to declare that these particular defendants are subject to the jurisdiction of a military tribunal because of the circumstances … .” So wrote Justice Hugo Black in a 1942 memo, while he was struggling to justify the Supreme Court’s decision to legitimize a military tribunal that tried eight German saboteurs caught in the United States. In one sense, Black succeeded: Chief Justice Harlan Fiske Stone’s unanimous opinion for In re Quirin states, “[W]e hold only that those particular acts constitute an offense against the law of war which the Constitution authorizes to be tried by military commission.” But in a larger sense, Black failed miserably. Despite his caution, Quirin is now Exhibit A in the Bush administration’s attempts to justify its wide-ranging order establishing military tribunals to try foreigners for terrorist activities. Not that anyone should be surprised at Black’s failure. His goal of writing an opinion for a case in the here and now that would leave no precedent for future generations is simply impossible. To take just one other example of how impossible it is to lay down the law for one case and one case only, look to the Court’s most controversial decision in years — Bush v. Gore. After contorting itself and its precedents to discover in hidden crevices of the Constitution a rationale to declare George W. Bush the president, the Court furiously tried to restrict the damage its holding could do in the future: “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.” Or, in the words of Stanford law professor Pam Karlan, “Don’t try this at home, kids.” The result? Even back in May, Karlan noted in Harper’s Magazine, “[P]eople are trying it at home. Six voting cases have been filed since November 7, all based on the Supreme Court’s equal-protection arguments.” The issue — how to act now without screwing things up later — goes to the core of what law, and fairness, is about. We all want to do what’s fair between the parties in court today. We also want to treat disputes that come along later pretty much the same way that we treated similar disputes that came along before. The importance of the first principle is what infuriates people about letting apparently guilty individuals go free. And concern for the second is what people are getting at when they talk about civilization resting on the rule of law. (For that matter, concern for the second is what prompts judges to write down the reasons for their decisions: Why put pen to paper unless you want people to read and take into account what you’ve written?) So the question isn’t whether to be fair or not. Everyone wants to be fair. And often we can have it all. Punishing a murderer helps sets things right today and sends a strong signal to the future. But when there is tension, we have to choose: Fairness for people now or for people later? Whatever else Sept. 11 might have changed, it hasn’t come close to resolving that question. VICTIMS TODAY If anything, Sept. 11 has thrown the question into high relief. Look at two new legal procedures we’ve set up since then: one to compensate the victims, and one to punish the perpetrators. Both seek to be fair to people today, at the risk of laying down legal land mines for tomorrow. Congress passed the special compensation procedure in September, soon after the attack. Tucked into the legislation that bails out airlines, the law sets up an alternative to litigation for victims of Sept. 11. In exchange for giving up their right to sue, victims and their families may file a claim with a special master, who can award all the relief that a court could have, except for punitive damages. Alternatively, victims can go to court to seek full damages, but there’s a catch — the law limits their recovery to whatever insurance the airlines held on Sept. 11. The special master appointed to run the program, Kenneth Feinberg, has plenty of fairness problems to handle here and now. As he has said, “I don’t want a system that gives $6 million to the stockbroker on the 38th floor and $38,000 to the waiter at Windows on the World.” Preliminary regulations released last week for disbursing money, evenhanded as they seem, have already prompted debate about who deserves what. VICTIMS TOMORROW That’s not the only quandary — the program also raises questions about fairness in the future. The legislation might be seen as a form of tort reform, in that it limits lawsuits in favor of an alternate mechanism for resolving claims. But is it really that? According to Brooklyn law professor Anthony Sebok, “If like me, one believes that in all likelihood these victims have no legal claim against anyone but the hijackers themselves, the alternative compensation scheme is just a nice, if ad hoc, form of welfare.” Real tort reform, he notes, is “a zero sum game, where one side (usually plaintiffs) loses, and the other side (usually defendants) gets what the other side loses.” Nonetheless, as Sebok also notes in his Findlaw.com column, there have already been efforts to expand the precedent of the law beyond Sept. 11. Most notable is a bill that the House of Representatives passed in November. It would, for any future act of terrorism that the treasury secretary certifies, remove all lawsuits to federal court, limit attorney fees, eliminate punitive damages — and make it impossible for anyone to appeal the secretary’s decision that an act of terrorism had taken place. This, as Sebok points out, is undeniably real tort reform. But why stop there? If the theory behind the November bill is that a streamlined system should be set up to process thousands of claims with fundamental similarities, why not extend the system to suits against, say, managed health care companies? Or all doctors? As one plaintiffs lawyer recently said, “I’m very much afraid that the tort reform people will use this as a springboard to advance administrative remedies.” The point isn’t whether tort reform is a good idea or not. Rather, it’s that something done to deal with today’s emergency creates a precedent for dealing with tomorrow’s routine disputes. TRYING HARD And then there are the military tribunals — President Bush’s attempt to be fair, or at least sure and swift, when dealing with terrorists. Of course, there’s a huge amount of controversy about the implications even for present-day fairness. For instance, why subject all suspected terrorists to military tribunals, rather than only those specifically involved in Sept. 11? In defending the scheme, the administration has blurred the lines between fairness today and fairness tomorrow, claiming that regulations the Pentagon has yet to release will make everything right. The Justice Department’s Michael Chertoff told the Senate Judiciary Committee on Nov. 28, “[I]t is simply too early to discuss the specific details of how any such commissions would operate.” But Chertoff’s response misses much of the point. The outrage that has met Bush’s executive order is aimed not only at the harm that might come to people subject to the tribunals now, but at the harm that will come to the rest of us in the future. With the precedent of the tribunals, why not suspend appeals for all violent criminals? Or eliminate the hearsay rule in all trials? Or, as Georgetown law professor Neal Katyal warned at the same Senate hearing, “A president might say that some prospective threat is ‘the moral equivalent of war’ and set up military tribunals to counter that threat as well. … The administration’s military order is such a dramatic extension of the concept of military tribunals, when compared to the predecessors in American history, that these other steps appear not only plausible, but even likely, down the road.” CHAIN OF EVENTS For anyone still thinking that Sept. 11 is unique, and that legal responses to it will be limited by the circumstances, consider the following: “This Court has previously granted expedited treatment of cases involving substantial questions of national importance. The importance of this case is at least equal to, if not greater than, those landmark decisions. The Presidency itself is at stake.” Those words were written by candidate Bush’s attorneys, long before Sept. 11, in making the argument that the Supreme Court should accept expedited review of one of the cases that led to Bush v. Gore. Of course, the Court did take the case. And one of the opinions that Bush’s brief cites to is Quirin. So, to be completely reductionist for a moment, Quirin helped pave the way to Bush v. Gore. Bush v. Gore led to President George W. Bush. And President Bush ordered the establishment of potentially wide-ranging military tribunals. As for limiting cases to their circumstances? Sorry, Justice Black. Evan P. Schultz is associate opinion editor at Legal Times. He can be reached at [email protected].

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