January 7, 2009, The Top Ten Judges of 2008
Or, Praise for Those Defending Rights and Liberties in the “War on Terror”
A Talking Dog/Andy Worthington co-production
Andy suggested that he and I team up on a top ten list of what we felt after at least seven years of winter in the American judicial system, when we now have some semblance of the sun breaking through. And so, we have nominated ten cracks in the judicial ceiling last year, from all levels of the judiciary, and, in one case, from a foreign court.
So I'm going to start with my own nominees. Andy's list may be different, or overlap, or he may have different rationales. The judgments are entirely subjective, and are entirely mine, from the perspective of an attorney making his living in the American legal system here in New York, and his, from the perspective of a historian and journalist looking at this from London. Maybe we'll let commenters or others suggest their favorites, or their preferences. Who knows? My five are below.
The Talking Dog’s Top Five Judges of 2008
1. The U.S. Supreme Court. The Supremes’ nomination covers two cases this year. One is from the start of December, for accepting review in the case of Ali al-Marri, better called “The Case of the Executive Override of the Rest of the Constitution,” and the second most important case of our life-times after the eerily similar Jose Padilla case. The other is for their courageous, albeit 5-4, holding in June, in Boumediene v. Bush, that habeas corpus is actually still a Constitutional first principle even if terrorists get lucky and George W. Bush happens to be the President. And on the basis of Boumediene, we immediately garner two more nominations, both for judges on the District of Columbia federal district court.
2. The first of these is Judge Ricardo Urbina, who ruled that 17 Uighur detainees from China were not “enemy combatants” at all. Urbina ordered their release to human rights groups within the United States, cutting through the red tape that “legislation is needed” to enforce a remedy that the Supreme Court says is required by the Constitution. The government has appealed and obtained a stay from the D.C. Circuit Court of Appeals. However, the government is not going to return them to China (where they would almost certainly be tortured and/or killed), and unless they join their fellow Uighur former detainees in Albania (who were sent there in May 2006), it is not clear where they will go, as the Bush administration refuses to permit them to be admitted to the United States and insists they rot in solitary confinement in GTMO. In addition, it has, of course, become difficult to get other countries to take the political risk of accepting the Uighurs, when the Bush administration insists (against all facts, btw) that they are terrorists.
3. The second of these D.C. District Court judge heroes is, oddly enough, Judge Richard Leon, a habeas judge, who found that five of the six Boumediene plaintiffs themselves -- Algerian/Bosnian detainees -- were not “enemy combatants,” despite the government's contesting this fact. Leon, a judicial conservative appointed by George W. Bush himself, had famously found that the detainees had no rights of legal redress in an earlier, pre-Boumediene round of legal proceedings.
And now I'm going to go to the two most courageous judges of all, IMHO, those being military judges who, like military defense attorney Lt. Cmdr. Charlie Swift and others, have ostensibly put their military career at risk by trying to do the right thing by Guantánamo detainees, even those charged in the Military Commissions (aka the worst of the worst of the worst).
4. The first is Captain Keith Allred of the US Navy, for courageously sticking to his guns despite pressure (unlawful pressure, as our next entrant will show) from the Bush administration to do what it wanted. Specifically, after managing the show trial of Salim Hamdan, at which angels dancing on the head of a pin were parsed to establish that carrying a weapon potentially used against American military forces (i.e. being part of a force that opposes the United States military) is now defined as a war crime. Despite the ludicrousness of the conviction, the military jury imposed a five and a half year sentence (sustained by Judge Allred), who concluded that, less the nearly five years Hamdan had already served, he would be released on December 26.
Notwithstanding the fact that its own kangaroo court had adjudicated an outcome and determinate sentence, the Bush administration insisted that it could still nonetheless hold Mr. Hamdan -- just as it can hold Mr. al-Marri, Mr. Padilla, or, if it felt like it, Mr. Worthington or Mr. Talking Dog -- for as long as it feels like, up to and including for the rest of our lives. Fortunately, Judge Allred held the line and would not alter the sentence.
5. The second, rounding out my top five, is Air Force Col. Steve Henley, who, in the prosecution of a detainee named Mohamed Jawad, held that Brig. Gen. Thomas Hartmann, chief legal advisor to “the convening authority” (the official in charge of the entire Guantánamo military commissions process, Cheney/ Addington protégé Susan Crawford) was intrinsically biased, insisting on the use of coerced evidence and demanding that all cases end in conviction. Hartmann also outraged former chief prosecutor Col. Morris Davis, who resigned in October 2007, and confronted skeptical prosecutors (such as Lt. Col. Darrel Vandeveld, who resigned in September 2008) by demanding that they comply with the program.
Andy Worthington’s Top Five Judges of 2008
1. I’m with the Talking Dog on the importance of the Supreme Court’s ruling in Boumediene v. Bush, reinforcing the habeas rights the justices first granted in June 2004, only to watch as Congress than passed legislation purporting to strip the prisoners of these rights. By making the prisoners’ habeas rights constitutional, and by ruling that parts of the legislation passed by Congress were unconstitutional, five of the nine highest judges in the land asserted their powers in an ongoing struggle with a compliant Congress and an executive branch besotted with claims of unfettered Presidential authority. For the record, Justices Anthony Kennedy, John P. Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer ruled in favor of the prisoners, while Chief Justice John G. Roberts, and Justices Antonin Scalia, Clarence Thomas and Samuel Alito dissented.
Just as significant, however, is what happened shortly after Boumediene, when Parhat v. Gates, a case that had been frozen during three years of wrangling over the prisoners’ rights, was heard in a Washington D.C. Appeals Court. My first nomination, therefore, is for Chief Judge David B. Sentelle, Judge Merrick B. Garland, and Judge Thomas B. Griffith (two Conservatives and a Liberal), who, after looking at the government’s material to support its claim that Huzaifa Parhat (one of the Uighurs) was connected in any way with terrorist activity, concluded that the material supposedly proving that he was an “enemy combatant” who could be held without charge or trial was in fact groundless, and resembled the reasoning used in “The Hunting of the Snark,” a nonsense poem by Lewis Carroll, the author of Alice’s Adventures in Wonderland.
The Parhat verdict was an enormous blow to the administration. Within months, the government gave up trying to prove that any of the other 16 Uighurs were “enemy combatants,” which led, as the Talking Dog has pointed out, to Judge Urbina’s eloquent assertion of constitutional rights in the Uighurs’ case in October.
2. My second nomination follows swiftly on from the first. When the government appealed Judge Urbina’s ruling to release the Uighurs into the care of communities in the United States, and the court accepted the government’s appeal, one of the three judges, Judge Judith W. Rogers, made a sweeping defense of the Uighurs’ rights -- and the government’s lies -- that earns her this nomination. The full story is available here, but what was particularly striking about her dissent was the way in which she repeatedly attacked the government for failing to demonstrate that the Uighurs were a danger to anyone, and also condemned the government’s lawyers for attempting to undermine the court’s powers as endorsed in Boumediene.
3. My third nomination is Judge Diana Gribbon Motz, the valiant dissenting judge in the 4th Circuit Appeals Court review of the case of US “enemy combatant” Ali al-Marri in July. With the support of three other dissenting judges, M. Blane Michael, Robert B. King and Roger L. Gregory, Judge Motz comprehensively demolished the other judges’ assertions that an American -- whether a citizen or a resident -- could be seized and held indefinitely as an “enemy combatant.” The full story is here (and an update on al-Marri is here), but Judge Motz’s most critical passages are worth reproducing in full.
In the first, Judge Motz wrote,
With regret, we recognize that this [dissenting] view does not command a majority of the court. Our colleagues hold that the President can order the military to seize from his home and indefinitely detain anyone -- including an American citizen -- even though he has never affiliated with an enemy nation, fought alongside any nation’s armed forces, or borne arms against the United States anywhere in the world. We cannot agree that in a broad and general statute, Congress silently authorized a detention power that so vastly exceeds all traditional bounds. No existing law permits this extraordinary exercise of executive power.
And this is Judge Motz’s conclusion:
To sanction such presidential authority to order the military to seize and indefinitely detain civilians, even if the President call them ‘enemy combatants,’ would have disastrous consequences for the Constitution -- and the country. For a court to uphold a claim to such extraordinary power would do more than render lifeless the Suspension Clause, the Due Process Clause, and the rights to criminal process in the Fourth, Fifth, Sixth and Eighth Amendments; it would effectively undermine all of the freedoms guaranteed by the Constitution. It is that power -- were a court to recognize it -- that could lead all our laws “to go unexecuted, and the government itself to go to pieces.” We refuse to recognize a claim to power that would so alter the constitutional foundations of our Republic.
4. My fourth nomination is for a number of judges in the case of Binyam Mohamed, a British resident and a victim of “extraordinary rendition” and torture. Seized in Pakistan in April 2002, Mohamed was rendered by the CIA to Morocco, where he was tortured for 18 months, and was then rendered to the CIA’s “Dark Prison” near Kabul, where his torture continued for another five months, at the end of which he falsely confessed to being involved with al-Qaeda and being part of the spectral “dirty bomb” plot in which Jose Padilla had also become entangled.
For most of the year, Mohamed’s lawyers, at the London-based legal action charity Reprieve, have been engaged in reviews of his case on both sides of the Atlantic. In the UK, this took place when a judicial review was granted after Mohamed’s lawyers sued the British government for refusing to provide exculpatory evidence in its possession regarding British knowledge his rendition and torture.
In the British High Court, Lord Justice Thomas and Mr. Justice Lloyd Jones earned this nomination for their handling of Mohamed’s judicial review, in which they were clearly appalled by the behavior of the British intelligence services, and were also shocked by the lawlessness of the Bush administration’s Military Commissions trial system, even though it was outside their remit to comment directly on its shortcomings.
When they delivered a judgment at the end of August, they condemned the British intelligence services for sending agents to interrogate Mohamed in May 2002, while he was being held illegally in Pakistan, and also for providing and receiving intelligence about him from July 2002 until February 2003, when they knew that he was being held incommunicado, and should not have been involved without receiving cast-iron assurances about his welfare. “[T]he relationship between the United Kingdom Government and the United States authorities,” they wrote, “went far beyond that of a bystander or witness to the alleged wrongdoing.”
Also in August, as a result of Boumediene, Mohamed’s habeas review began in the United States, when Judge Emmet G. Sullivan pressed the US government to reveal all exculpatory evidence in the case. Sullivan shares the nomination for asking, when the Justice Department suddenly dropped the allegation about the “dirty bomb” plot, “That raises a question as to whether or not the allegations were ever true,” and for then ordering defense secretary Robert Gates to testify that all exculpatory evidence had been provided. As I pointed out in a recent article, although Gates complied, his assertion that all the required evidence had been handed over was patently untrue, as the government has never once acknowledged that Mohammed was rendered and tortured in Morocco and Afghanistan, and cannot conceivably defend its allegations without providing an opportunity for Mohamed’s lawyers -- or Judge Sullivan -- to ascertain the circumstances in which his “confession” was produced.
5. My final nomination, with a nod to Col. Henley and especially Capt. Allred, who appeared to steer Salim Hamdan’s trial towards a just conclusion that was then endorsed by the military jury, is Col. Peter Brownback, the judge in the case of Omar Khadr, the Canadian who was just 15 when he was seized in Afghanistan in July 2002. Brownback’s finest hour actually came in June 2007, when, with Capt. Allred, he temporarily derailed the entire Commission process by ruling that the Military Commissions Act, which revived the Commissions after the Supreme Court ruled them illegal in June 2006, had empowered them to try “illegal enemy combatants,” whereas the Combatant Status Review Tribunals (the military review boards that had authorized the prisoners to be put forward for trial) had only decided that they were “enemy combatants.”
After the government hastily convened an appeals court to indicate that the judges could overrule themselves, Brownback continued to cause trouble by publicly lambasting the prosecution for not handing over evidence that was necessary for Khadr’s defense. The high point came in May last year, when, noting that the prosecution, led by Maj. Jeffrey Groharing, had failed to provide Khadr’s lawyers with records of his interrogations at Guantánamo, despite repeated requests to do so, Brownback declared, “I have been badgered, beaten and bruised by Maj. Groharing since the 7th of November to set a trial date. To get a trial date, I need to get discovery done.”
Three weeks later, Brownback was gone, and although there may be an innocent explanation -- involving Brownback coming out of retirement to serve as a Commission judge, and reaching the end of his contract -- the timing struck many observers as suspicious. Whatever the truth is, Col. Brownback’s “badgered, beaten and bruised” speech concludes my review of liberty’s judicial defenders in 2008.
The New Year, as the Talking Dog explained, brings some semblance of the sun breaking through, but is clear that much work needs to be done to do away with the abominations of the Bush years. This time next year, both TD and I hope that the Supreme Court will once more be nominated, this time for ruling, in Ali al-Marri’s case, that the President has no right to seize and indefinitely detain Americans as “enemy combatants” on the US mainland, but we also both wonder whether any of the administration’s other crimes -- approving the use of torture by US forces, implementing “extraordinary rendition” on an industrial scale, holding foreign prisoners neither as criminals nor as prisoners of war, but as “enemy combatants” without rights -- will also have been addressed. We sincerely hope so, as, without some sort of accountability, the message that the new President will send to America and the wider world is that you can break whatever laws you feel like, and get away with it, so long as you get voted out of office at the end.
Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America's Illegal Prison (published by Pluto Press).
Comments
excellent list....
Posted by candace gorman at January 7, 2009 10:50 AM
I troubled by your selections. I don't think most of them would get past the swimsuit round.
Posted by Gawker at January 9, 2009 8:19 PM