Much ado about nothing? Or a comedy of errors? Tempest… or teapot?

In a move that I believe unprecedented in a Guantanamo habeas case, Chief Judge Royce Lamberth of the United States District Court for the District of Columbia recused himself from further proceedings in the case of Candace’s client, Razak Ali.
Although it has been reported that the sole basis for recusal was Judge Lamberth’s public comments both in a bar association breakfast and in an interview with “Pro Publica” to the effect that federal judges hearing Guantanamo detainee habeas cases might have trepidations and be concerned that the people they might order the Government to release might just go on to blow up the United States Capitol or the Washington Monument… this is not actually the full story, nor indeed, is it even the actual reason that Judge Lamberth recused himself.
While the public statements present an interesting question that certainly raises a number of issues concerning the fairness of a proceeding when the arbiter has expressed such concerns that may impact his decision for reasons other than the merits of the case itself, despite how this is being reported, this is not what ultimately led Judge Lamberth to recuse himself. It’s what happened after Candace filed her motion to recuse (which motion, as usual, is near and dear to my heart). Specifically, seconds before filing its opposition papers, the Government advised Candace that at the very same bar association breakfast where Judge Lamberth made his statement, an attorney in the employ of the U.S. Dept. of Defense assigned to the very same case of Razak Ali buttonholed the judge, and asked him questions about discovery on the case, an exchange that might well have been casual, brief and not particularly interesting in its own right (notwithstanding that it is an ex parte communication, and wholly improper as a matter of both legal and judicial ethics and rules of conduct)… except for the fact that the Government, when asked by Candace to disclose who had the communication and precisely what had actually transpired, the Government asserted that the communication was… wait for it… privileged.
On reply in response to the Government’s late revelation, Candace observed that such an assertion rendered the question of whether Judge Lamberth could properly continue to serve as the judge all but answered in the negative: an appellate court simply could not review the communication and determine if it was sufficiently “no harm no foul” for the judge to go on hearing Razak Ali’s case if the Government insisted that it would not even disclose what it was. Judge Lamberth ultimately accepted this proposition, although he attempted to characterize the issue as “a sideshow” and “much ado about nothing.”
Candace advises me that Razak Ali’s case has been reassigned to Judge Richard Leon. In “scorecard” terms, IIRC, GTMO detainees are 0 for 2 before Chief Judge Lamberth and 7 for 12 before Judge Leon in habeas petitions decided, but this is not the issue. In these cases in which nothing short of life-imprisonment without any showing of actual criminality is at issue, all the Government needs to show is pretty much any connection at all to al Qaeda or the Taliban, seemingly no matter how tenuous, and it wins. Needless to say, there is plenty of room for nuance and for conflicting interpretation of the same set of facts, and if there is any doubt at all as to whether the arbiter cannot do so fairly… that is really too much doubt. In this case, the Government’s own misconduct of having an ex parte communication in the first place (and then insisting on covering it up!) removed any possibility that Judge Lamberth could stay with this case: absent full disclosure of just what that communication even was, no one could really assess whether it resulted in an unfairness.
And so, as the Afghan war passes Vietnam as the longest-length conflict involving the United States military ever, the hapless captives picked up in that conflict continue to languish at Guantanamo Bay, just waiting for their day in court. With Judge Lamberth’s decision, at least, in my view, we can all be that much more assured that the proceedings will be fairly adjudicated.