Rites Without Rights: A Tale of Two Military Commissions

Abstract

This Essay, written as part of a symposium celebrating Judith Resnik's and Dennis Curtis's book Representing Justice: Invention, Controversy, and Rights in City States and Democratic Courtrooms, explores the idea of justice being done and being seen to be done. Publicity and performance are central to the idea of modern courts. Courts in a democracy are supposed to perform their function publicly, openly, so that judges may be held accountable for their actions. The adversarial process that characterizes American courts is likewise supposed to assist the courts in their search for truth and in their ability to do justice by "hearing the other side." But in some proceedings justice only seems to be done. This Essay tells the stories of two military commissions and of the federal courts' reactions to them. Through these stories, it explores what happens when democratic institutions (in this case a democratically elected president) want rites - that is, justice being seen to be done - without rights. What ought a democratic society expect of courts and of the lawyers who argue before them in such moments of crisis?