Why should the Constitution require Article III courts for criminal trials of federal offenses?

[UPDATED for clarification.]  Many thanks to Charlie Dunlap for his thoughtful response to my posts (here and here) about al-Bahlul and the Article III question in that case. Our posts — and Article III itself, and the Court’s jurisprudence — more or less speak for themselves. I would like to be clear, however, that I have not argued — and that I do not believe — several propositions that Charlie raises:

I have not argued, nor do I believe, that life-tenured judges and Article III-type juries are typical of “most justice systems on the planet,” let alone of international war crimes tribunals.  Nor that the current military commissions afford defendants fewer due process rights than do counterpart tribunals around the globe.  Nor that life tenure is “an unqualified virtue.”  Nor that civilian juries and life-tenured judges are “essential to fair and just dispositions,” or that military judges and juries “are somehow conclusory indications of unfairness.”  Nor that non-tenured military judges will always, or often, “kowtow to the government in some way in order to assure their continued employment,” or “compromise themselves merely for a job.”  Nor that most federal juries are “as well-educated as a military commission panel.”  Nor that “the commissions as currently reformed are unfair to those they judge.”

Perhaps most importantly, and contrary to Charlie’s post, I have not “suggest[ed],” nor do I believe, that “the military officers who serve on military commission panels would fail to ‘manfully’ stand ‘up in defense of liberty.’” We have certainly come a long, long way from Luther West’s description of military tribunals in They Call It Justice.

Even so . . . I do remain committed to the notion that the judge and jury protections of Article III are very important constitutional safeguards — the gold standard. And I assume Charlie does, too.  Yet to read Charlie’s account, you’d think that there’d be no obvious reason to apply a strong presumption in favor of the judge and jury protections of Article III:  It seems as if military judges and juries are more well-educated, more principled, fairer, less biased, and more efficient than their civilian counterparts.

On this view, why not simply move all federal trials to military courts?  Charlie, of course, does not and would not recommend any such thing.  But if not–if the Article III protections are valuable in the mine run of trials for domestic law offenses–why should there be a different rule for the domestic law offense at issue in al Bahlul?  After all, Article III judges and juries, unlike military judges and panels, assess such charges of inchoate conspiracies to commit terrorism on a regular basis.

I will leave it to others more familiar than I am with military justice systems to evaluate the merits of Charlie’s relative assessments of military and civilian courts. (See also Steve’s post from June, which responds in much greater detail to a similar argument of Charlie’s.) It’ll suffice for present purposes for me to note only two things:

First, I doubt one can look honestly at what’s transpired in the Commissions in the past five or so years and conclude that military judges are, in general, on a par with Article III judges. Compare, for instance, Judge Kaplan’s management of the Ghailani trial with the still-a-long-ways-from-trial 9/11 and Nashiri cases. Despite what I assume to be the best of intentions among all concerned, and what I know to be the extraordinary dedication and hard work of the prosecution and defense alike in the Commissions proceedings, there’s simply no comparison between what transpires in the two types of tribunals.

Second, regardless of what Charlie’s public opinion polls might say, it remains the case that Article III itself — for better or worse — reflects a constitutional commitment that it is important to try federal cases before civilian juries from a cross-section of the community, and with tenure-protected judges. The Court has, of course, recognized limited exceptions to this norm — but there are good reasons that such exceptions are few and far between, starting, as Judge Kavanaugh noted at oral argument, with the fact that the Constitution itself makes no express provision for any exceptions at all. 

About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center. He was Deputy Assistant Attorney General at the Office of Legal Counsel from 2009-2010, and Attorney Advisor at the Office of Legal Counsel from 1994-2002. You can follow him on Twitter (@marty_lederman).