THOSE PESKY ACTIVIST JUDGES

By William Fisher

This column is for those of you who despair about "activist" judges becoming the Bush Administration's echo chamber and look to Congress to solve the nation's problems. Here are a few things you might want to think about:

Since Dubya launched our "global war on terror," it was not Congress but the Courts that handed the president his most stinging defeats. And it was Congress, not the Courts, who proved to be the supine servants of the Bush Administration.

Case in point: In 2004, Yaser Esam Hamdi, a U.S. citizen being detained indefinitely at Guantanamo as an "illegal enemy combatant," sued President Bush, claiming he was denied his right to have the courts adjudicate the basis of his detention. A U.S. District Court ruled against him. But the Supreme Court reversed the dismissal of his habeas corpus claim. It recognized the power of the government to detain unlawful combatants, but ruled that detainees who are U.S. citizens must have the ability to challenge their detention before an impartial judge.

Case in point: In the same year, the Supreme Court in a case called Rasul v. Bush, established that the U.S. court system has the authority to decide whether foreign nationals (non-U.S. citizens) held in Guantanamo Bay were rightfully imprisoned.

Case in point: Two years later, it was the Supreme Court that held that the military commissions set up by the Bush administration to try detainees at Guantanamo Bay lack "the power to proceed because its structures and procedures violate both the Uniform Code of Military Justice and the four Geneva Conventions signed in 1949."

That decision led to Congress's passage of the Military Commissions Act, which most legal scholars find to be irreparably flawed. The challenge to that Act of Congress eventually found its way to the Supreme Court. It was brought by Salim Hamdan, Osama bin Laden's driver, who recently became the first detainee in seven years to face any kind of trial at Guantanamo. A Pentagon-appointed jury found him not guilty of the most serious charge brought against him - conspiracy to kill Americans - and convicted him of materially supporting terrorism. He could be a free man before the end of the year.

Case in point: Also in 2006, it was a federal judge in Detroit who ruled that the Bush administration's "warrantless wiretapping" program was illegal. After the Supreme Court refused to review that decision, the Bush Administration submitted the program for approval by the FISA (Foreign Intelligence Surveillance Act) court. Within months, that secret spying court had also declared the program illegal.

It was Congress, not the judiciary, which then passed legislation not only approving the warrantless domestic wiretapping powers, but which granted immunity to the telecom companies that were being sued for helping with the program.

Now comes more potential bad news for the Administration. In a breathtakingly unusual move, a federal appeals court in New York last week decided to rehear a case it had decided in June, when a three-judge panel dismissed a lawsuit filed by the man who has arguably become the poster child for the Bush Administration's rendition program.

Why is this move by the Second U.S. Circuit Court of Appeals in Manhattan unusual? Well, first, the full circuit assembles for a case only once or twice a year. Secondly, the plaintiff's attorneys never asked for a full hearing. Third, any full airing of this particular case is certain to result in embarrassment to the Bush Administration.

Bringing the suit is Maher Arar, a telecommunications engineer from Canada, who was detained at Kennedy Airport in 2002, flown to Jordan and expelled to Syria, where he was held for ten months and said he was tortured.

In Canada, a high-level commission concluded that the Canadian police and intelligence officials had erroneously linked Arar to Al Qaeda. The commission found that the Canadians had provided American officials with misinformation. The commission also concluded that Canadian officials had been behind a campaign to discredit Arar after he was released from Syria and arrived in Canada in October 2003.

The Canadian government issued a formal apology to Arar last year and paid him $9.75 million. Secretary of State Condoleezza Rice said last year that the matter had not been "handled as it should have been." In June, the Department of Homeland Security's inspector general said at a Congressional hearing that the Justice Department's ethics office was reviewing the decision to send Arar to Syria.

The rehearing will take place in December, this time before of all 13 appeals judges.

The defendants include John Ashcroft, who was attorney general when Mr. Arar was stopped at Kennedy airport on his way home to Canada from a vacation because immigration officers found his name on a terrorist watch list. Mr. Arar accuses Ashcroft and other Bush administration officials at the time - among them Robert S. Mueller III, director of the Federal Bureau of Investigation, and Tom Ridge, the director of homeland security - of violating federal law and his civil rights.

In the original decision, the three-judge panel affirmed a lower-court decision, ruling 2 to 1 that the federal courts lacked jurisdiction to hear Arar's complaint. The reason, they said, was that technically, Arar was never in the United States.

But one of the three judges dissented, blasting as "a legal fiction" the idea that Arar was not in this country when he was apprehended at Kennedy.

That judge, Robert D. Sack, a Clinton appointee, said that Arar's case should continue because Arar "was, in effect, abducted while attempting to transit at J.F.K. Airport."
Legal experts believe the rehearing resulted from a request by one of the Appeals Court judges, though it is not known whether it was Judge Sack. The request was granted by a majority of the appeals judges.

However, a full U.S. appeals court hearing is far from a slam-dunk. Even if Arar is able to establish that he has standing to bring his suit, the chances are the government will invoke its "state secrets privilege," claiming that disclosure of the details of Arar's case in open court would compromise America's national security.

However much we may applaud court rulings in the Guantanamo and warrantless wiretapping cases, it is in the area of "state secrets" that the courts have generally been almost universally deferential to the claims of the Executive Branch. No one denies that there are genuine secrets that any government has the right - the obligation - to keep. But, once rare, use of the state secrets privilege has increased exponentially during the Bush years, and the courts with only a few exceptions have been quick to support the government's assertions.

So rare is a judge's dismissal of a government "state secrets" motion that, when it happens, it becomes front-page news. That's what happened when a federal judge in Chicago recently disagreed with the government's use of the privilege in a case involving the Department of Homeland Security's terrorist watch list. The plaintiff, a local businessman, sued to discover whether his name was on the list. The government called that a "state secret," but the judge disagreed. The government is appealing the decision.

The bottom line is that invocation of the state secrets privilege has kept many cases from ever coming before any court. It is an essential part of the curtain of secrecy the Bush Administration has built, often for nothing more than avoiding political embarrassment.

There are efforts in Congress to enact legislation to limit the government's use of the state secrets privilege. The Senate Judiciary Committee has approved a bill that attempts to do just that -- it would require the government to actually produce the evidence it says is protected for review by a federal judge in a classified setting. But the bill lacks bipartisan support on the committee (only one Republican, Sen. Arlen Specter (R-Pa.) voted to move it to the Senate floor). That makes the future of the measure unclear.

Also unclear is the role the Judiciary will play in a new Administration. Several of the current Supreme Court justices are nearing retirement age. John McCain has vowed to appoint replacements in the mould of Roberts, Alito, Scalia and Thomas, i.e. the kinds of conservative judges who have predictably dissented in cases such as those brought by Guantanamo detainees in particular and those involving expansionist presidential power generally. But it's unclear how a President McCain would get their nominations through a Congress dominated by Democrats.

But neither McCain nor Obama have had much to say about issues such as the role of the Judiciary or the limits of presidential power. Apparently these are concerns that both presidential candidates appear to think are so far down in the weeds that American voters won't understand their importance. Or too politically dangerous to discuss. Whatever their reasons, both candidates have been sadly silent on these issues.

Yet voters have a right to demand that their presidential candidates give them more credit for being able to understand complex issues. They need to demonstrate that they can explain these issues in language ordinary voters will understand. They need to tell voters how they would approach those issues. And they need do a better job of explaining the centrality of these issues to the rule of law and to the very definition of who we are as a nation.