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A federal bankruptcy judge caused a stir when he sent National Public Radio an e-mail denouncing recently passed federal legislation that he says deprives suspected terrorists of rights. Although she has received no complaints, 5th U.S. Circuit Court of Appeals Chief Judge Edith Jones says she is looking into U.S. Bankruptcy Judge Leif Clark’s comments in the e-mail message, which was read on NPR’s “Morning Edition” program on Oct. 6. “It is a very novel situation,” Jones says. “On the federal bench, you don’t have many situations where judges are commenting on public affairs like this . . . Where the line is to be drawn on that, I just don’t know.” But a nationally recognized judicial ethics expert says Clark did not violate the Code of Judicial Conduct when he commented on the detainee bill. “In my opinion, it is a tempest in a teapot,” says Jeffrey Shaman, a DePaul University College of Law professor and co-author of “Judicial Conduct and Ethics.” The 58-year-old Clark has been a bankruptcy judge for the Western District in San Antonio since 1987 and is an adjunct professor at the University of Texas School of Law. He sent the e-mail in response to comments that John Yoo, a former deputy attorney general in the Office of Legal Counsel at the U.S. Department of Justice, made in support of recently passed legislation that prohibits terrorist suspects detained by the United States from filing petitions for writs of habeas corpus to challenge their detention. Yoo, a professor at the University of California, Berkeley Boalt Hall School of Law, said during an Oct. 4 interview on NPR that the bill, which Congress passed on Sept. 28, gives a noncitizen who has been declared an enemy combatant the right to go before a military tribunal for a hearing to challenge the evidence against him. But the noncitizen does not have a right to a lawyer. “You have representation from an officer but not necessarily one who’s a military lawyer,” Yoo said in the interview. “The very idea of holding anyone without trial, without the right to see the evidence that was used to justify naming them an enemy combatant, and depriving them of the ability to challenge why they’re even there, is so repugnant to a constitutional democracy that I’m shocked this man actually claims to be defending American values,” Clark wrote in the e-mail. “These are the tactics of the old Soviet Union, not of a country that stands for freedom and the rule of law.” Clark, who identified himself as a federal judge who has taught constitutional law for 16 years, also wrote that he quibbles with Yoo’s contention that U.S. citizens detained as suspected terrorists still have the right to habeas review. “The president can form his own tribunal, which can determine who is an “enemy combatant’ (not just an alien enemy combatant), and the decision of that tribunal would not be subject to habeas review,” Clark wrote. Clark concluded with two questions: “How easy would it be for a president to use such a law to make his political enemies simply disappear? Can this be America?” Clark declines comment about the e-mail. As a bankruptcy judge, Clark does not have a lifetime appointment. The 5th Circuit appointed Clark to the bankruptcy bench, and he is in the fifth year of a second 14-year appointment. Jones says she learned about the comments in Clark’s e-mail on Oct. 9, when a reporter called to ask her whether Clark could face a disciplinary action. “There is no complaint here, but there is an unusual situation,” Jones says. “What will happen, I can’t say.” How to proceed The disciplinary process for the federal judiciary is spelled out in 28 U.S.C. ��351-361. Under those statutes, the chief judge of the circuit may, by written order, identify a complaint against a judge based on information available to the chief judge even if no one has filed a written complaint. If a complaint is received or identified, the chief judge must conduct a limited inquiry and may request the judge whose conduct is the subject of the complaint to file a written response. After conducting an inquiry, the chief judge, by written order, can dismiss the complaint if it is frivolous or related to a decision or procedural ruling, or conclude the proceeding because appropriate action already has been taken. If no written order is entered, the chief judge must appoint herself to a special committee made up of equal numbers of district and circuit judges, which can dismiss the complaint or take disciplinary action against the judge named in the complaint. Possible actions by the committee include ordering, on a temporary basis, that no more cases be assigned to the judge, or publicly or privately censuring or reprimanding the judge. But Shaman says Clark’s comments don’t warrant discipline. The judicial canons prohibit judges from commenting on cases that come before them or are likely to come before them, Shaman says. Since Clark is a bankruptcy judge, cases involving new legislation on trials for terror suspects and habeas corpus rights are never going to come before him, he says. Shaman says he believes it is “very important” for the public to hear that there are judges, law professors and others who have concerns about depriving people of habeas corpus rights. James Alfini, president and dean of South Texas College of Law, says he believes Clark’s comments are protected under a 2002 decision by the U.S. Supreme Court that struck down a provision in the Minnesota Code of Judicial Conduct which had prohibited judicial candidates from announcing their views on disputed legal and political issues. “The most [Clark has] done is to announce his view on a disputed legal issue, a hot topic. That would be protected under Minnesota Republican Party, et al. v. White, et al.,” says Alfini, who was another of the co-authors of “Judicial Conduct and Ethics.” But Tom Phillips, the Texas Supreme Court’s former chief justice, who represented the state of Minnesota in White, isn’t sure that the Supreme Court’s decision applies to a judge’s speech outside of a political campaign. “That is an open question,” says Phillips, now a partner in Baker Botts in Austin.

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