Victor Davis Hanson talks about earlier experiments with tribunals:
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.
[. . .]
The American court system is insidiously focusing on social transformation rather than individual justice. If Neanderthal reactionaries in California twice voted to reiterate that marriage is between a man and a woman, then leave it to judges and courts to find them bigoted and politically incorrect. In the present revolutionary environment, the degree of the Obama administration’s enforcement of federal laws concerning gay marriage, or illegal immigration, or the new health-care law has hinged on politics and perceptions about social justice — and the courts increasingly predicate their own decision-making on these same considerations. The street can brand a court either an esteemed ally or a reactionary enemy of the people, and so the courts make the necessary adjustments.
Update: The New York Times editorial board expresses its concern about “the laws you can’t see”.
As Eric Lichtblau reported in The Times on Sunday, the Foreign Intelligence Surveillance Court has for years been developing what is effectively a secret and unchallenged body of law on core Fourth Amendment issues, producing lengthy classified rulings based on the arguments of the federal government — the only party allowed in the courtroom. In recent years, the court, originally established by Congress to approve wiretap orders, has extended its reach to consider requests related to nuclear proliferation, espionage and cyberattacks. Its rulings, some of which approach 100 pages, have established the court as a final arbiter in these matters.
But the court is as opaque as it is powerful. Every attempt to understand the court’s rulings devolves into a fog of hypothesis and speculation.
[. . .]
As outrageous as the blanket secrecy of the surveillance court is, we are equally troubled by the complete absence of any adversarial process, the heart of our legal system. The government in 2012 made 1,789 requests to conduct electronic surveillance; the court approved 1,788 (the government withdrew the other). It is possible that not a single one of these 1,788 requests violated established law, but the public will never know because no one was allowed to make a counterargument.
When judicial secrecy is coupled with a one-sided presentation of the issues, the result is a court whose reach is expanding far beyond its original mandate and without any substantive check. This is a perversion of the American justice system, and it is not necessary.
