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Anyone who says it doesn’t really matter who sits on the federal bench might want to look at what is unfolding in federal courthouses in New York and Virginia. In these two venues, the most divisive legal issue yet to emerge from the Sept. 11, 2001, attacks is being decided by two men with lifetime tenure. U.S. District Judge Robert Doumar of the Eastern District of Virginia is presiding over the case of Yaser Esam Hamdi, and Chief Judge Michael Mukasey of the Southern District of New York has the case of Jose Padilla. Both Hamdi and Padilla are U.S. citizens detained as enemy combatants in the war against terrorism and held incommunicado in military jails without access to counsel. The government says that during wartime, the president has absolute power to designate someone, even a U.S. citizen, an enemy combatant and detain the person indefinitely without judicial review. This year, Doumar and Mukasey, both Ronald Reagan appointees, flatly rejected the administration’s argument that citizens detained as enemy combatants in the war against terrorism have no right to meet with their lawyers. Hamdi, a U.S.-born Saudi caught on the battlefield in Afghanistan, has been held since April in the Navy brig in Norfolk, Va. In May, Doumar appointed the federal public defender as counsel to Hamdi and ordered that Hamdi be allowed to meet privately with the lawyer. The government appealed that decision, and the matter is pending before the U.S. Court of Appeals for the 4th Circuit. Mukasey addressed the case of Jose Padilla in a decision issued just a few weeks ago. A Chicago native, Padilla was arrested as a material witness in the terrorism investigation and held for a month before President George W. Bush designated him an enemy combatant on June 9 and ordered his transfer to the custody of the Department of Defense. Padilla is now held in the Consolidated Naval Brig in Charleston, S.C. In his Dec. 4 opinion, Mukasey, 61, wrote that the government has the right to designate American citizens as enemy combatants and hold them until the end of the war, even in a conflict as nebulous as the war against terrorism. He took issue, however, with the government’s assertion that the detainee should not be allowed to meet with a lawyer who could assist him should he wish to challenge his status. Judges Doumar and Mukasey meet in their rejection of the government’s argument for unchecked power. They arrive at that point by very different paths. Doumar is described by attorneys who practice before him as a good judge to get if your opponent is the federal government. He is a conservative in the most traditional sense, they say. Born and raised in Norfolk, Doumar, 72, was appointed to the bench in 1981 after a career in private practice and a tour in Korea. He took senior status in 1996. As a judge in the Eastern District’s Norfolk Division, his docket reflects the admiralty and government contracting issues connected to the shipbuilding industry there, as well as a healthy dose of the Eastern District’s intellectual property disputes. Opportunities to make decisions in terrorism cases are unusual. For Mukasey, terrorism cases are old hat. The Bronx native presided over the trial of Sheikh Omar Abdel Rahman, the mastermind of the 1993 World Trade Center bombing. And Mukasey reviewed most of the warrants for material witnesses in the post-Sept 11 dragnet. Although he ruled against the government in its quest to prevent enemy combatants from meeting with lawyers, he has in the past seen things the administration’s way. In July, Mukasey ruled that the prosecutors may detain material witnesses indefinitely in order that they might testify before grand juries. His ruling came in sharp contrast to an April 30 decision by fellow Southern District of New York Judge Shira Sheindlin stating that such detentions were impermissible under the material witness statute. Before taking the bench in 1987, Mukasey had been in private practice since 1967, punctuated by four years as an assistant U.S. attorney in the Southern District of New York from 1972 to 1976, and was chief of the Official Corruption Unit in 1975 and 1976.

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