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The Judiciary Enters the War By: Henry Mark Holzer
FrontPageMagazine.com | Friday, October 22, 2004


Despite our supposedly three co-equal branches of government, the judiciary has always been, with a nod to George Orwell, the “more equal” branch. So, too, in the War on Terrorism. While the President may direct that war and the Congress may fund it, the courts and the Supreme Court make the rules.

 

As we have recently seen, those rules can have potentially disastrous consequences.

 

Several months ago I wrote in these pages that the Supreme Court’s decision in the leftist-engineered case of Rasul v. Bush—that Guantanamo detainees had a right to challenge their detention in United States federal courts—augured ill for the War on Terrorism. I have been proved right. In Washington, D.C., United States District Judge Colleen Kollar-Kotelly—appointed to the federal bench by Bill Clinton, and as Presiding Judge of the U.S. Foreign Intelligence Surveillance Court by Chief Justice William Rehnquist—has just ruled that the detainees have an unfettered right to counsel. Her ruling can best be understood in light of what I wrote about Rasul v. Bush.

 

Shafik Rasul (along with other petitioners in the lawsuit) was captured fighting, or otherwise acting against the United States, outside our borders. They were incarcerated at the United States Guantanamo naval base, and eventually sought habeas corpus relief to challenge their detention—represented by the America-hating Center for Constitutional Rights, preeminent defender of the ruthless radicals (and now terrorists) who would destroy this country.

 

When the case reached the United States Supreme Court, Justice John Paul Stevens ruled for the Court’s majority (O’Connor, Souter, Ginsburg and Breyer [Kennedy concurred in the result]) that: “the habeas corpus statute, 28 U.S.C. Section 2241, extends to aliens detained by the United States military overseas, outside the sovereign borders of the United States and beyond the territorial jurisdictions of all its courts.”

 

“Thus,” I wrote, “did the Supreme Court liberals, aided and abetted by the turncoat O’Connor and the inconsistent Kennedy, open the doors of every federal district court in the United States to the Guantanamo detainees, many of them killers captured on the battlefield and elsewhere around the world, their murderous hands at least figuratively, and sometimes literally, soaked with the blood of Americans, our allies, and innocent civilians.” I added that:

 

But unlike the cloistered liberals of the Supreme Court—irony: four of the six justices in the Stevens majority were appointed by Republican presidents—the rest of America must face the music right now. Armed with the Supreme Court’s Hamdi (due process) and Rasul (habeas corpus) decisions, and aided and comforted by radical lawyers like Ramsey Clark, Stanley Cohen, Lynne Stewart, and their America-hating colleagues, the flotsam and jetsam of Guantanamo Bay, and perhaps other enemy combatants held from Afghanistan to who-knows-where-else, can now forum shop among our 94 federal judicial districts in search of judges sympathetic to tales of mistaken identity and religious persecution—anything to justify the habeas corpus petitioners’ release.

 

Elsewhere, I argued that since the Guantanamo detainees now had a right to seek

habeas corpus relief in federal district courts, the Left’s next legal maneuver would be to secure counsel for them, complete with all the related constitutional and statutory guarantees of the client-attorney relationship.

 

That is what has just happened, and the implications are horrific.

 

Building on the Supreme Court’s Rasul decision, several non-citizen Guantanamo detainees, represented by the terrorist-friendly Center for Constitutional Rights, sued in the United States District Court for the District of Columbia for a writ of habeas corpus, claiming that in order to challenge the legality of their detention they were entitled to counsel of their choosing and to be free of limitations placed by the government on their communications with counsel. In other words, alleged enemy combatants (hundreds, by last count) could challenge their detention in Guantanamo Bay in any federal court in the United States, and they were entitled to the assistance of counsel like Ramsey Clark, Stanley Cohen, Michael Ratner and Lynne Stewart with no interference from the government. The case is entitled Odah et al. v. United States of America.

 

In the words of Judge Colleen Kollar-Kotelly, the case presented “two narrow but crucial questions: first, whether the detainees are entitled to counsel as they pursue their claims, and, second, whether the proposed monitoring and review [by the government of lawyer notes and lawyer-client mail] procedures are allowable....”

 

The rationale for the monitoring and review procedures for the three petitioners in Odah was spelled out by the Acting Commander at Guantanamo, a Brigadier General. According to footnote 4 of the Judge’s opinion:

 

Brigadier General Lucenti has stated that there is a particular concern that these three detainees would “attempt to use their [unsuspecting] counsel to engage in communications that would facilitate terrorist acts.” * * * Specifically, Brigadier General Lucenti states that Petitioner al Kandari may have “served as a spiritual advisor to Usama bin Laden,” and “[h]e is clearly a well-trained member of the al Qaida network with significant influence” who “has exhibited counter-interrogation methods that reveal his training by al Qaida.” * * * Of Petitioner al Odah, . . . Lucenti states that he has admitted to having “Taliban connections and has admitted to being a member of al Qaida,” he is believed to be connected to Usama bin Laden’s bodyguards,” and that “al Qaida’s ability to communicate effectively with his comrades and leadership is not substantially reduced by the fact that he has been in detention.” * * * Finally . . . Lucenti states that during interrogation, Petitioner al Mutairi “has expressed his anti-American views and his desire to engage in terrorist and other violent activity against Americans,” he “has an extensive history of violent assaults on detention facility personnel,” and he “has demonstrated extensive knowledge of counter-interrogation techniques.” * * * For these three individuals . . . Lucenti expresses his belief that they “will attempt to further terrorist operations or otherwise disclose information that will cause immediate and substantial harm to national security if [they are] granted unmonitored communications with . . . counsel. * * *

 

These are the kinds of enemy combatants the Center for Constitutional Rights and their cohorts in the Legal Left – which for fifty years has supported America’s enemies – want to turn loose on the American people by obtaining their release on writs of habeas corpus.

 

In answer to the “two narrow but crucial questions she posited,” Judge Kollar-Kotelly made two rulings: (1) “Petitioners are entitled to be represented by counsel. . . .” and (2) “[i]n light of this finding . . . the Government is not entitled to unilaterally impose procedures that abrogate the attorney-client relationship and its concomitant attorney-client privilege covering communications between them.”

 

Her first ruling was virtually mandated by the Supreme Court’s decision in Rasul.

If a person being confined by the federal government has a right to seek habeas corpus, it follows that he has a right to legal representation (whether retained or appointed). Judge Kollar-Kotelly—apparently thinking she was writing about some dope dealer or wife beater, instead of international terrorists, captured outside the United States—explained her first ruling this way:

 

Petitioners . . . have clearly presented a non-frivolous claim. They have been detained virtually incommunicado for nearly three years without being charged with any crime. To say that Petitioners’ ability to investigate the circumstances surrounding their capture and detention is “seriously impaired” is an understatement. The circumstances of their confinement render their ability to investigate nonexistent. Furthermore, it is simply impossible to expect Petitioners to grapple with the complexity of a foreign legal system and present their claims to this Court without legal representation. Petitioners face an obvious language barrier, have no access to a law library, and almost certainly lack a working knowledge of the American legal system.

 

Blame it on the Supreme Court, she said. The High Court said these cutthroats could go to federal court, so how can they do so without lawyers?

 

That being so, said the judge, the government’s monitoring and review procedures cannot stand, because “[t]he privilege that attaches to communications between counsel and client has long held an exceptional place in the legal system in the United States.”

 

Perhaps because she saw a glimmer of the government’s national security concerns, the judge established procedural rules: One client, one lawyer.
Attorney-client non-disclosure privilege applies. Except, the lawyer could disclose information unless the government could show “properly asserted national security concerns.”

 

These rulings, by a Clinton appointee to the federal bench in the sensitive jurisdiction of Washington, D.C., teach a powerful lesson about the judiciary taking over the War on Terrorism, and about the forthcoming election of a man who will have the power to shape that judiciary.

 

The detainees who were the subjects of Rasul and Odah were not American citizens like the recently deported Yasir Hamdi, captured on a foreign battlefield, or Jose Padilla, captured in Chicago. The Rasuls and Odahs were non-citizen fighters operating against the United States abroad. As such, they were not even enemy soldiers, to whom some rights attach under various Geneva Conventions. While today there are hundreds of these people incarcerated at Guantanamo, elsewhere in the world there are thousands of such fighters in perhaps as many as 60 countries, and probably hundreds being held under United States control in such places as Pakistan, Yemen, Jordan.

 

If, under the Supreme Court’s decisions in Hamdi, alleged enemy combatants, wherever held by the United States, are entitled to due process, and under Rasul they are entitled to seek habeas corpus relief from federal district courts, and under Odah they are entitled to unfettered representation by counsel, then, next there will be court decisions entitling them to the full range of constitutional criminal procedural guarantees under the Fourth, Fifth and Sixth Amendments:

 

·        no unreasonable searches and seizures;

·        warrants issued only on probable cause specifically describing the places to be searched and the things to be seized;

·        no double jeopardy;

·        no self-incrimination;

·        speedy and public jury trials;

·        confrontation by witnesses;

·        compulsory process for obtaining witnesses, appointed counsel;

·        Miranda warnings, and much more.

 

The Hamdi, Rasul and Odah decisions are a travesty of justice and national security, and a potentially fatal one for the United States.  

Henry Mark Holzer, a member of the New York Bar, is Professor Emeritus at Brooklyn Law School. He specializes in federal appeals. See www.henrymarkholzer.com.


Henry Mark Holzer, Professor Emeritus at Brooklyn Law School, is a constitutional lawyer and author most recently of The Supreme Court Opinions of Clarence Thomas, 1991-2006, A Conservative’s Perspective.



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