Posted 11:20 PM by Howard Bashman

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December 22, 2005

JUDICIAL UMBRAGE SIGNALS NEW LIMIT FOR BUSH'S WAR POWERS

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - First, a judge stands down from a special court that oversees government surveillance after the Bush administration admits it has been tapping phone calls without judicial approval.

The next day, a conservative judge seen as a leading candidate for the Supreme Court starts questioning Bush's legal tactics in the war on terror.

For legal experts, these two exhibitions of judicial pique this week are further indication that the judiciary's deference to executive power in the wake of Sept. 11 is rapidly waning.

"We are basically seeing challenges to the president's asserted authority that, as commander-in-chief, he can do whatever he wants in the war on terror," said Professor Scott L. Silliman, Director of the Center for Law, Ethics & National Security at Duke University law school.

In a rare case of a judge dissenting by giving up his job, U.S. District Judge James Robertson on Tuesday abruptly stepped down from the Foreign Intelligence Surveillance Court.

Robertson, who will still serve as a federal judge in the nation's capital, was upset by the administration's disclosure over the weekend that it had been authorizing spying without court approval, according to the Washington Post.

On Wednesday, a three-judge panel of the Richmond-based 4th U.S. Circuit Court of Appeals led by Judge J. Michael Luttig rebuked the White House over its handling of Jose Padilla, the suspected "dirty bomber" who has been held for three years as an enemy combatant.

I. Michael Greenberger, a law professor at the University of Maryland who worked on counter-terrorism in the Clinton administration, said both developments "go the president's unilateral use of his war powers."

Luttig, who has previously been a staunch defender of the administration's interpretation of executive power, joined his colleagues in denying a White House request to release Padilla into civilian custody.

Just three months ago, Luttig authored an opinion upholding the administration's right to hold Padilla without trial.

But President Bush's lawyers, apparently fearing that the Supreme Court would rule against them, decided last month to file criminal charges against Padilla instead and asked the 4th Circuit to rule that the case was moot.

It's not the first time the Bush administration has switched positions at the 11th hour in a case pitting executive power against judicial authority.

In a Texas death penalty case, a Mexican citizen facing execution claimed on appeal that he should have been notified that he could seek assistance from consular officials.

The World Court backed his claim in a 2004 decision, ruling that the United States had violated his constitutional rights.

The Bush administration, which usually pays little attention to foreign rulings, ordered that Texas comply with the ruling a month before arguments were held in front of the U.S. Supreme Court.

The court subsequently dismissed the case in May of this year after hearing the arguments. Medellin v. Dretke, 125 S. Ct. 2088.

In Wednesday's ruling, Luttig wrote that the administration's desire to avoid Supreme Court review was not a legitimate reason for the 4th Circuit to declare Padilla's case moot.

Luttig voiced concern at the administration's willingness to change at will an approach he and his fellow judges had endorsed.

Luttig wrote that the government's actions could leave the impression that the principle upon which the president relied "can, in the end, yield to expediency with little or no cost to its conduct of the war against terror."

He noted that this was an outcome "we would have thought the government ... could ill afford to leave extant."

Luttig concluded that the case is of "sufficient national importance" to warrant review by the Supreme Court.

The Supreme Court could still rule that the case is moot, but Luttig made clear that he would prefer the high court justices to make that determination.

Several legal experts expressed surprise at Luttig's decision, bearing in mind his previous support for the administration.

"It's a striking opinion," said Silliman. "It's clear that a judge who is traditionally supportive of the administration, and a conservative, has spoken out in frustration and anger at what he perceives as an end-run."

Michael J. Gerhardt, a law professor at University of North Carolina Chapel Hill, described the decision as "interesting and provocative," particularly coming from a court that has been so helpful to the administration in the past.

Luttig's opinion, taken with Robertson's decision, also indicates that exasperation with the Bush White House is coming from judges of all political persuasions.

Robertson was appointed by President Clinton and has a background in civil rights as a leading member of the Lawyers' Committee for Civil Rights Under Law.

Luttig, by contrast, is a poster child for conservative activists and sits on what is generally regarded as the country's most conservative court.

The White House has usually been able to rely upon two courts in war on terror cases: the 4th Circuit and the D.C. Circuit.

The 4th Circuit repeatedly has endorsed the White House's right to detain enemy combatants without trial, with Luttig playing a central role.

In Hamdi v. Rumsfeld, 296 F.3d 278, a 2002 case, the court held, for example, that the administration could detain a U.S citizen without trial.

In July, the D.C. Circuit ruled in favor of the government that the use of military commissions at Guantanamo Bay was constitutional. Hamdan v. Rumsfeld, 415 F.3d 33.

The case is now pending before the Supreme Court, which has consistently questioned the Bush administration's approach.

In 2004, the high court held that Guantanamo Bay detainees are subject to the jurisdiction of the United States and can therefore file habeas corpus claims. Rasul v. Bush, 124 S. Ct. 2686.

When it reviewed the Hamdi case in 2004, the court held that the appellant, Yaser Esam Hamdi, could be detained, but that he also had the right to seek review of his detention.

The administration responded by releasing Hamdi on the condition that he move to Saudi Arabia.

Gerhardt said that since the Sept. 11 attacks, the administration has dedicated itself to "protecting a very aggressive, broad reading of executive power."

With members of Congress joining judges in questioning the president's approach, Gerhardt said, the administration now faces an "uphill struggle," both legally and politically.

"It's a challenge for President Bush," he said.

Posted 2:30 PM by Howard Bashman

DAILY JOURNAL NEWSWIRE ARTICLE
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© 2005 The Daily Journal Corporation.
All rights reserved.

Posted with permission. This file cannot be downloaded from this page. The Daily Journal's definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

December 02, 2005

FORTHRIGHT ALITO GIVES LIBERALS MORE TO PROTEST
Candor Seeds Senate With More Material Than Demure Roberts

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - There's one big difference between Supreme Court nominee Samuel A. Alito Jr. and new Chief Justice John G. Roberts Jr.

Although both are dyed-in-the-wool conservatives, only one of them seems willing to admit it.

That would be Alito.

When Roberts was nominated back in July, he went out of his way to downplay any affiliation to the conservative lawyers' group the Federalist Society.

Alito trumpets his membership in the group for more than two decades.

Difference in Manner
The contrast comes into even sharper relief in the two men's written responses to questions from the Senate Judiciary Committee.

Alito returned his 61-page questionnaire and lengthy appendices earlier this week.

What Roberts and Alito share is a stellar academic background and a strong relationship with the Reagan administration, where both spent formative years as lawyers.

"Their background and career trajectory is very similar in almost every way," said Sean Rushton, executive director of the Committee for Justice, a conservative group.

Senate Grilling Likely
Where they differ is Alito's apparent willingness to show his political leanings, which will probably subject him to more intense questioning from liberal senators at the confirmation hearing in January.

"That will cause some problems for him," said John A. Maltese, a political science professor from the University of Georgia. "There will be some tough questions."

Sheldon Goldman, a political scientist at the University of Massachusetts at Amherst, agreed that Alito will have a harder time than Roberts.

"I think he is more vulnerable than Roberts was because of the paper trail that can be interpreted as being out of the mainstream," he said.

Alito states in the questionnaire that he has been a member of the Federalist Society since 1983.

He wrote two articles for society publications, one in 2001 on "presidential oversight and the administrative state" and one in 1998 on the role of the lawyer in the criminal justice system.

Alito also gave 11 speeches at events sponsored or held by the group at various locations on the East Coast.

He also reveals in the questionnaire that he spoke at events sponsored by the Heritage Foundation, a conservative think tank in Washington.

In the 1980s, Alito belonged to Concerned Alumni of Princeton, which expressed open hostility to affirmative action admission policies at the Ivy League college favoring women and minorities over children of alumni. His association with that group already has drawn fire from the left.

Roberts, in contrast, took pains on his questionnaire to distance himself from the Federalist Society.

He wrote that he had "no recollection" of serving on the group's Washington lawyers steering committee, despite media reports to the contrary that referenced Roberts' name in the society's internal records.

Roberts did say, however, that he had "participated in society events" over the years, including a lunch meeting in Washington in 2003 at which he spoke.

But most of the other speaking engagements Roberts mentioned were strictly nonpartisan, ranging from bar associations to law schools.

The portrait Roberts painted in his questionnaire was of a consummate "gun for hire", a theme he returned to during the confirmation hearing, when he was asked about his work on behalf of gay rights proponents in a 1996 case.

Roberts said at the hearing that he would have represented the defendants if they had asked him first.

Both men were asked in the questionnaire to explain their views on judicial activism.

Again, Roberts seemed reluctant to rock the boat.

He wrote that the "exercise of our judicial role in our constitutional system requires a degree of institutional modesty and humility," and stressed the need for self-restraint.

Alito largely agrees with that assessment in his questionnaire, noting that the "Constitution sets forth a limited role for the judicial branch." But he also makes clear that judges are sometimes required to push against those limitations.

"When a constitutional or statutory violation has been proven, a court should not hesitate to impose a strong and lawful remedy if that is what is needed to provide full redress," he wrote.

Alito added that "some of the finest chapters in the history of the federal courts were written when federal judges, despite resistance, have steadfastly enforced remedies for deeply rooted constitutional violations."

He does stress, though, that judges should refrain from making decisions that properly belong with politicians.

Rushton, whose organization was formed to support President Bush's nominees, said both men's judicial philosophies are essentially the same.

"John Roberts has a certain style that is unique to him and Alito will have his own style," he added.

Although conservative activists will no doubt be heartened by Alito's willingness to wear his politics on his sleeve, it may make his confirmation more tempestuous than Roberts'.

When Roberts appeared before the Senate Judiciary Committee in September, he presented himself as shying away from political controversy throughout his career, despite spending periods working for both the Reagan and the first Bush administrations.

Throughout the summer, activists and journalists dissected memos and other documents he wrote, but no smoking gun emerged.

In contrast, by the time Alito's hearing begins on January 9, there could be a battalion of smoking guns.

Just this week, a memo that Alito wrote in 1985 attracted more attention than anything Roberts authored.

Written while Alito was at the U.S. Solicitor General's Office, the memo outlines his suggestions on how the Reagan administration should have attacked Roe v. Wade.

The burden will be on Alito to prove to moderate senators that he is not an extremist.

Alito may be in for a tougher grilling than Roberts because his writings and affiliations are bolder, more akin to Robert H. Bork, the Republican nominee from 1987 whose nomination failed, Goldman argued.

"Alito may not be able to finesse his positions the way Roberts did because Alito, like Bork earlier, came out strong and hard stating his own views and at an older age than Roberts did in his memos," Goldman said.

Their differences notwithstanding, Roberts and Alito look more alike when their questionnaires are compared with the one submitted by doomed nominee Harriet E. Miers.

While Alito and Roberts both listed dozens of cases they argued or ruled upon, Miers had much less of a track record to disclose, largely because she had not been a judge or spent much time in court.

This only added to the criticism she received at the hands of conservatives.

Sen. Arlen Specter, R-Pa., chairman of the Senate Judiciary Committee, even had to ask Miers to try again with some of her answers after deeming them unacceptable.

Soon after that, she withdrew her nomination.

Unlike Miers, Alito seems more than ready for the fight.

Posted 2:15 PM by Howard Bashman

DAILY JOURNAL NEWSWIRE ARTICLE
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© 2005 The Daily Journal Corporation.
All rights reserved.

Posted with permission. This file cannot be downloaded from this page. The Daily Journal's definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

December 02, 2005

CONGRESS PUTS HABEAS CORPUS ITSELF ON TRIAL
Would Change Curb Rights or Provide Necessary Reform?

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - Habeas corpus, the centuries-old last legal resort for prisoners, is now on trial itself.

The ancient legal right of a prisoner to question the reasons for his or her incarceration, commonly known as the 'Great Writ,' is facing tough scrutiny from Congress.

A recent vote in the Senate to curtail the habeas rights of Guantánamo Bay detainees came at the same time senators debated a bill that would place restrictions on the habeas procedure used by convicted criminals, including death-row inmates, to ask courts to reopen their cases.

Convoluted Process
In states with sizable death rows, such as California, some believe the latter proposal would bring much-needed reform to a convoluted appeals process that sometimes can drag on for years as defense attorneys constantly file new claims that have to be reviewed by federal courts.

But others see the pending measures as a double-barreled assault on the American legal system itself and the hundreds of years of English law that spawned it.

"There are people in Congress who have run out of ways to show how tough they are on crime," said Bryan A. Stevenson, executive director of the Equal Justice Initiative in Montgomery, Ala., who represents death-row inmates. "What's so tragically misguided is that we have these review procedures to protect innocent people."

Explanation for Detention
For advocates like Stevenson, the ultimate fear is that evidence of innocence will surface too late to stop an execution.

From the Latin for "you may have the body," habeas corpus has been a central component of American law, and English common law, for centuries. Technically, it is an order issued by a judge that requires both the imprisoned person and the jailer to appear before the court to establish why the prisoner needs to be detained.

Although the British Parliament passed the Habeas Corpus Act in 1679, historians believe the writ dates back even further than the Magna Carta, which was signed into law in 1215.

In criminal cases, convicted defendants typically file habeas petitions to bring new evidence that was not presented at trial, demonstrate that the prosecution relied on false evidence or show that prosecutors withheld favorable evidence.

The filing of petitions in federal courts has increased dramatically in the last 50 years, starting in the Deep South, where black inmates felt they were not getting a fair shake from state courts.

Backers of the proposals in Congress insist they don't want to gut habeas corpus rights but are merely trying to ensure habeas petitions are used appropriately.

They say the Guantánamo detainees should not be accorded the same rights as U.S. citizens because they are foreigners who were captured overseas and are being held under military law.

In criminal cases, the concern is that too many frivolous habeas petitions are clogging the courts and delaying the appeals process, particularly on death row.

The Streamlined Procedures Act, S.1088, would speed up the resolution of habeas corpus cases in federal court by restricting claims that have already been litigated in state court.

Supporters of the bill, led by Sen. John Kyl, R-Ariz., say it would prevent unnecessary delays while preserving an opportunity for prisoners to assert actual innocence if they have the evidence to back up their claims.

Kyl argued at a Senate hearing in July that the right to seek a writ "is not a guarantee of absolutely unrestricted federal review of state convictions."

Former California Attorney General Daniel E. Lungren, who is now a Republican congressman from Sacramento, sponsored the House version of the bill, H.R.3035, which has yet to pass the judiciary committee.

Congress attempted to speed up habeas litigation in 1996 by limiting prisoners to a single petition and giving state courts permission to set strict deadlines for briefing appeals. But there was a catch: The states had to guarantee that they would provide competent defense attorneys.

Nearly a decade later, only Arizona has qualified for the fast-track system provided by the Antiterrorism and Effective Death Penalty Act.

California attempted to qualify for fast-tracking but was blocked from doing so by a federal judge in San Francisco who ruled that the state's system for appointing attorneys to death-row inmates was deficient. It can still take death-row inmates up to five years to get a lawyer appointed by the California Supreme Court.

The Streamlined Procedures Act would get around this problem by bypassing the courts and allowing the federal Department of Justice to give states authority to fast-track their habeas litigation.

The legislation prompted vocal opposition from respected lawyers and judges and prominent organizations like the American Bar Association and the U.S. Judicial Conference.

Sen. Arlen Specter, R-Pa., the chair of the Senate Judiciary Committee, recently introduced an amended version of Kyl's bill, which waters down some of the more controversial provisions and expands opportunities for defendants to request DNA testing to prove innocence.

But at a hearing on Nov. 16, there were still objections.

Opponents said they are particularly concerned that defendants with legitimate claims of actual innocence could be barred from federal court in certain circumstances.

Sen. Patrick J. Leahy, D-Vt., the ranking member on the Judiciary Committee, said at the hearing that even Specter's revised version contained "amazing court stripping" measures that could "stop federal courts from enforcing constitutional rights."

He also claimed there is no data to suggest there is a systemic problem nationwide.

Former U.S. Solicitor General Seth P. Waxman, who served under President Clinton, said the bill will "deny relief ... to people whose fundamental constitutional rights have been violated, some of whom are innocent."

Waxman, now in private practice with Wilmer, Cutler, Pickering, Hale & Dorr in Washington, told senators the Streamlined Procedures Act effectively would shut the federal courthouse door to most prisoners by setting too high a burden of proof.

Lungren and others who support change point to the glacial pace of death penalty litigation in California as a case study in what's wrong with the habeas process.

Only 11 California murderers have been executed since capital punishment was reinstated in 1978 while hundreds of other death-row inmates pursue appeals for 15-to-20 years or even longer.

Critics say part of the problem is that defense attorneys take advantage of the complex procedural framework to fend off execution by filing one habeas petition after another.

Michael D. Rushford, president of the Sacramento-based Criminal Justice Legal Foundation, said another problem is that some U.S. District Court judges take too many liberties with habeas claims.

"Many district judges like to push the envelope, especially in capital cases," he said. "They stretch rights or concoct constitutional reasons to overturn a sentence."

Judiciary Committee member Sen. Dianne Feinstein, D-Calif., conceded during the hearing that a "disproportionate number of delays" in capital litigation before the 9th U.S. Circuit Court of Appeals involve cases from California.

But Feinstein said federal courts may feel they have to give extra scrutiny to habeas claims from California inmates because the state's high court is too overwhelmed to give enough attention to every case. She pointed out that the California Supreme Court often issues so-called "postcard denials," one page rulings that reject petitioners' claims without going into much detail.

The fate of the Streamlined Procedures Act remains uncertain.

At least one provision, aimed at allowing states to speed up the resolution of cases if they provide competent defense attorneys, could end up attached to a bill that would re-authorize the U.S.A. Patriot Act. Other measures contained in the bill could be added to other legislation.

It is also not yet clear whether the Guantánamo Bay proposal will pass Congress. It won Senate approval on Nov. 15 as part of the National Defense Reauthorization Act, but the House has not yet taken up the issue.

Known as the Graham-Levin amendment, after sponsors Sen. Lindsey Graham, R-S.C., and Sen. Carl Levin, D-Mich., the proposal is the first attempt by Congress to codify the rights of enemy combatants.

Following the Sept. 11 terrorist attacks, the Bush administration has maintained that the executive branch should not be hemmed in by either Congress or the courts in how it deals with suspected terrorists captured abroad.

But last year, the U.S. Supreme Court held that detainees held at Guantánamo Bay must be permitted to file habeas claims in federal courts. Rasul v. Bush, 124 S.Ct. 2686. Among its reasons, the court pointed out that the prison facility is in a territory in Cuba over which the United States has total control, that the inmates are from countries not at war with the United States, and that they are being held without trial.

Graham at first wanted to prevent detainees from having any right of appeal, but he amended his bill to allow them limited access to the U.S. Circuit Court of Appeals for the District of Columbia to challenge the procedures used by the U.S. government. Any detainees convicted before a military tribunal would also have one chance to appeal their conviction to the same District of Columbia court and, if necessary, the Supreme Court.

Even with the amendments, the legislation has drawn criticism that it makes the United States look hypocritical to curtail fundamental legal rights at home even while promoting legal reforms in countries like Iraq and Afghanistan.

"I find it interesting we are doing it at the same time the president is abroad telling people in other countries that they have to improve their rule of law," Leahy said at the November hearing.

Rushford, who frequently helps write amicus briefs on behalf of crime victims and prosecutors at the Criminal Justice Legal Foundation, said terrorism suspects held by the military are not entitled to the same habeas protections as prisoners convicted in United States' courts.

"Guantánamo Bay [inmates] and capital murderers are moving through different systems," he said.

But others say there's a common thread running through the Streamlined Procedures Act and the Graham-Levin amendment: They both radically limit jurisdiction of federal courts.

Michael C. Dorf, a law professor at Columbia, said he's troubled by both proposals.

But from his perspective, the right of Guantánamo Bay detainees to challenge their confinement goes to the heart of what the habeas writ always has been intended for.

"The original purpose of habeas corpus was to enable people to challenge detention without trial," Dorf said. "The reason why we think of habeas corpus as the 'Great Writ' is because of its utility in checking tyranny."