Fall 1991
In justice and law, the United States and Great Britain share a common heritage. In our respective countries, the people hold deeply to the beliefthat while their executive branches of government may err, may oppress, may even attempt to place themselves above the law, the enduring courts will protect them from the occasional excesses of the transient and replaceable head of government. Or so it seemed.
Governments, like individuals, place self-preservation above all other imperatives. Unscrupulous governments, be they communist, fascist, ordemocratic, are demonstrably capable of the most cynical and often brutal acts of despotism against their own people when they perceive that their darkest secrets may be exposed. At such time the sacrosanct separation of powers between the executive and the judiciary is usually the first victimon the path to tyranny. All of history is replete with the debris of nations which found that law and justice must yield to the exigencies of high office.
Two starkly parallel dramas involving the most egregious miscarriages of
justice are still unfolding. In Great Britain and here in the United
Statesindividuals closely associated with the national government stand accused
ofviolating laws of conscience, laws of governments, and laws of the society
ofnations. In each case, the accuser, armed with a surfeit of evidence, has
become, through the remorseless power of government, the victim rather than the
plaintiff.
In England, Count Nikolai Tolstoy, a historian and descendant of the
Russiannovelist, has written of the dark and mostly hidden chapter of recent
English history involving the forced repatriation of millions of Russian
soldiersand civilians at the close of the Second World War. Evidence unearthed
by Tolstoy reveal that a few mid-level English officers on the scene in Austria
(and elsewhere) in 1945 implemented the forced return of Russian nationals into
Soviet hands, knowing full well that the act would result in their slave labor,
torture, and, often, death. The problem with this revelation is that several of
those English officers are living, ennobled, and well-connected with the present
governments in Great Britain.
Tolstoy has written a number of books covering different aspects of the forced repatriation that occurred in this era, including 'Secret Betrayal1944-1947', 'The Victims of Yalta', and 'The Minister and the Massacres'. It was the latter that got Tolstoy into trouble with Lord Aldington, named as a principal actor in this disgraceful episode. An essential aspect of the case is that Aldington and others like him acted on their own wlition, pandering to the implicit wishes of a few high officials in English government,but under no direct orders from the British high command. The highest ranking British officer, Field Marshall Lord Alexander, consistently denied the use of force to repatriate foreign nationals. Moreover, the Yalta agreement between Rosevelt, Churchill, and Stalin contained not one written word concerning forced repatriation.
Despite the fact that only two percent of 'The Minister and the Massacres'related to Lord Aldington's activities at the time, and that no courtfound the book to be libelous, the book has been banned in Britain and Tolstoy handed a &1.5 million fine. In upholding this ontrageous finding against Tolstoy, which contravenes the English tradition of freedom of the press and speech, the British government, in effect, has declared that any attempt to impugn the honor of powerful English gentlemen, "the good and the great," will be put down with all necessary force.
Similarly, at this moment in the United States, a perhaps more flagrant miscarriage of justice is being played out in the federal court system. The case is that of Avirgan v. Hull. The plaintiff Avirgan charges that Hullplanned a bomb assassination in which Avirgan was nearly killed. The target of the assassination was Eden Pastora, a moderate Contra commander who opposed drug funding for the Contras and who resisted the CIA edict to merge his forces with the larger Contra army controlled by the United States. An investigation carried out by the Christie Institute on behalf of Avirgan revealed that Hull was part of a quasi-private organization, "The Enterprise,"cobbled together by a handful of CIA operatives, former military officers, Cuban dissidents, and National Security Agency officials.
It was discovered that Hull operated a base in Costa Rica, near the Nicaraguanborder, that was used by CIA contract pilots to bring arms to the Contras from the United States and to return with shipments of cocaine. These findings were substantiated in 1989 by the Senate Foreign Relations narcoticssubcommittee and by the government of Costa Rica, which also brought charges against Hull and his co-conspirators.
The Christic Institute filed for a jury trial to bring forward a civil lawsuitcharging 29 members of "The Enterprise" with criminal racketeering. However, in February 1989, just four days before the trial was scheduled to open in Miami Federal Court, Judge James King, a Reagan appointee, dismissed thetrial and ordered the Christie Institute, its leading attorney, and plaintiff Avirgan to pay $1.2 million in punitive sanctions to the defendants.
This dismissal and fine were deliberate attempts by a federal judge to derail
a trial whose impact doubtless would have transcended the criminal conduct of 29
miscreants. The trial was quashed for the extraordinary reason that itimperiled
the present administration and individuals closely connected with the previous
Reagan one. Moreover, an open trial might carry with it constitutional
implications of a nature and magnitude not previously faced by this nation.
In a 300-page, fully documented declaration of evidence, the charges brought
against members of the "Enterprise" included murder, destruction of
property, drug trafficking, gun smuggling, money laundering, and other crimes.
Judge King ruled on none of these charges, but instead issued a summary judgment
(to dismiss a case without a trial) on the premise that no issue to be tried had
been advanced by the plaintiff. In effect, Judge King assumed the role of sole
trier of fact in contravention of law which prohibits summary judgment when the
plaintiff has formally demanded a trial by jury. By judicial edict, the
plaintiff and his attorney were denied a fundamental constitutionalright.
The case was subsequently placed before the 11th Circuit Appeals Court on the grounds that the dismissal was improper, ignored precedent, disregarded evidence, and denied the plaintiff's right to trial by jury. However, thethree appellate judges (including two Reagan appointees) upheld the summaryjudgment of Judge King.
This action left no alternative but to appeal to the Supreme Court of the United States. In January 1992, the Trial Lawyers for Public Justice fileda friend-of-the-court brief petitioning the Supreme Court to hear the case. A hearing was denied (by a Supreme Court dominated by Reagan and Bush appointees). The Trial Lawyers responded with the warning that sanctions of this sort "constitute a danger to all who litigate in the federal courts."In fact, this warning goes far beyond those who litigate in the courts; indeed, it applies to every one of us.
Alexander Hamilton, writing in 'The Federalist' about the role of the judiciary,suggested "the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because itwill be least in a capacity to annoy or injure them." But what of a judiciary that allies itself with either of the other branches of government? For thatcircumstance, Hamilton agreed with Montesquieu, "There is no liberty if the power of judging be not separated from the legislative and executive powers.
Howard Garcia