(Fourth in a series)

ImageLast week I cited some court cases as examples of dysfunction in the judicial side of our government. I showed how the Lewis Libby "perjury" case, the Sandy Berger stolen-documents espionage case, and the Supreme Court ruling upholding the 2003 prohibition on partial birth abortion were flawed with respect to our historic principles of law and government (i.e., legislative intent, Judeo-Christian morality, proper regard for precedent, and Constitutionality).

Dissenters will argue, of course, that these are simply "anecdotes" - exceptions that do not necessarily prove the rule. If such cases were few and scattered, I might concede the point. But the reverse is clearly true. So many cases exhibit judicial dysfunction, vis-à-vis the historical governing principles of our country, that one is hard-pressed to select a representative few. A mere glance at the daily newspaper discovers one bizarre ruling after another.

Sensible corrective actions in such cases are so unusual that they fit the man-bites-dog category. The finale of the "rape" case involving three Duke University lacrosse players is a fortunate example. Mike Nifong, former district attorney of North Carolina's Durham County, has recently answered to the state bar association for his misconduct in this atrociously mishandled case. Mr. Nifong admitted that he failed to disclose the results of DNA tests that exonerated the defendants, early on. He also admitted that his inflammatory public statements damaged the personal reputations of the accused, who were ultimately cleared of all charges by the state. Mr. Nifong has now been disbarred.

Soon after the rape story broke, a mob of angry, pot-banging students marched on the campus carrying signs that said, "Castrate". Eighty-eight faculty members ran an inflammatory ad in the school paper accusing the university of allowing a climate of racism and sexism and thanking the noisy demonstrators for not waiting for the legal process to work. The defendants' exoneration and the subsequent ethics charges against Mr. Nifong have produced few apologies from faculty who thus rushed to judgment. The university remains deeply split over the case.

The man-bites-dog aspect here is that a politically ambitious district attorney tried to bulldoze the wrong defendants. Had the accused pled to lesser charges (as was undoubtedly the expectation), the DA would have been excused from proving his flimsy case and justifying the racist charges he used to stir up local resentment against the white Duke players. State investigators said Mr. Nifong clearly hoped the public outrage he had fomented would propel him to re-election (as, indeed, it did).

The three accused players knew they were innocent, however, and their parents fortunately possessed the financial resources to fight. Ultimately they prevailed. Few others could have done this. We can be glad they were able to, but one wonders how many others, similarly charged, have pled to lesser (but false) charges to end the bleeding of expensive legal fees - or because they had to rely on a public defender who lacked the skill to contest false accusations.

The exonerated players' families have hinted that they might sue Mr. Nifong in civil court to seek redress for the harm his actions caused to their sons' reputations and futures and to recover their costs. Their legal bills are estimated as high as $5 million.

Man does not bite dog very often, however. Usually, bad legal decisions monster-mash across the land, leaving bad results. This might include the "vaccine-autism" cases that will soon be heard in the U. S. Court of Federal Claims. In "Science is Not a Democracy" (Washington Times; June 15, 2007), Dr. Gilbert Ross, executive and medical director of the American Council on Science and Health, describes the wave of cases lined up with claims that childhood vaccines cause autism - despite scientists' conclusive dismissal of any causal link. Studies have repeatedly shown that the incidence of autism in vaccinated children is the same as in non-vaccinated children. Yet thousands of emotional parents - who want someone blamed for this unfortunate malady in their children - continue to press the issue.

Dr. Ross writes: "What the parents of the autistic children, plaintiffs in the 4,800-plus pending cases, cannot realize (though certainly their lawyers do) is that the truth about scientific and medical facts [cannot] ...be decided either by the whims of judges or the will of the masses..."

If plaintiffs fail to convince the panel of three non-scientist judges, they can have their cases heard by a regular jury in the tort system. Finally, claimants can go before a panel of laymen whose "...vote would be an even more democratic one - but not necessarily based on valid evidence."

The five pharmaceutical companies still manufacturing vaccines - down from 26 a few decades ago - will be watching these cases closely, says Dr. Ross. "If these few sense increased liability after a verdict against vaccines in federal court, they will flee the market as well. Vaccine shortages, already common, will become a real disaster, undermining our ability to counter potential pandemics and bioterrorism."

Dr. Ross emphasizes the danger of non-scientific officials ruling on scientific issues by recalling how EPA Administrator William Ruckelshaus ignored scientific evidence and banned DDT in 1972. The ban produced millions of deaths from mosquito-borne malaria, world-wide. Dr. Ross points out that "Vaccine-related autism fears have fueled recurrent epidemics of mumps in the United Kingdom and whooping cough in the United States..."

His conclusion: "If the judicial panel vote comes down against the scientific evidence on vaccine safety, be prepared to reap a whirlwind of resurgent childhood scourges we had long thought relegated to historical texts."

Court-dysfunction on vaccines might produce bad results, but the possible fallout could be even worse from the Fourth Circuit Court panel's recent decision about which terrorist suspects the government can treat as enemy combatants during wartime. Writing for the Wall Street Journal ("Terrorist Safe Haven", June 14, 2007), former associate White House Counsel Bradford A. Berenson described how the Fourth Circuit decided that Ali Saleh Kuhlah Al-Marri was a "civilian" who could be treated only as an "ordinary criminal".

Mr. Marri is not a U. S. citizen. He is an Al Qaeda member who entered the USA as a "sleeper agent" just before the attacks of 9/11/2001. The government believes he was meant to be part of a second wave of attacks on our national financial system. President Bush declared him an enemy combatant waging war against the United States - thus placing him under military authority. After Marri's arrest, agents found data on his personal computer dealing with chemical weapons, jihad and Al Qaeda - plus over 1,000 credit card numbers.

In Mr. Berenson's words: "According to the Fourth Circuit decision, unless you participate in actual combat against the U. S. on something that looks like a traditional battlefield, or are allied with the armed forces of a foreign government, you can't be an enemy combatant, and the U. S. military is powerless to act against you, at least on U. S. soil." He mentions the Supreme Court enemy-combatant precedent from the Civil War, which the Fourth Circuit panel has contravened in this far-reaching and dangerous decision.

Concludes Mr. Berenson: "...the federal courts now seem to feel far too comfortable rejecting actions that the national executive deems necessary to protect the lives of American citizens... As a nation, we used to err on the side of too much presidential power - and victory... With the ever increasing judicialization of warfare, we now seem to be erring on the other side. Given who our enemies are, what they want, and what they are prepared to do to get it, this new kind of error could prove... costly."

Were President Bush playing a stronger hand, supported by higher approval ratings - and had he a surer sense of how to win a war - he might well ignore this ruling and let ACLU attorneys waste themselves on unpopular habeus corpus suits for terrorist suspects wearing Arab-sounding names. But Mr. Bush exhibits little appetite for scrapping with other branches of government. He will far more likely let the Fourth Circuit have its way and allow his war-powers to be trimmed. The next president will have to worry about whether he (or she) can fight a ruthless enemy with both hands untied and fully functional.

If we let Islamist terrorists defeat us because we were "too nice" to wage real war, no one will praise our officials and judges, on their way to the scaffold, for their legal delicacy. Only the president is authorized to wage war, and only he is empowered to decide how it shall be waged. God save us from meddling judges who don't know their limitations.