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On June 14 Chief Justice William Rehnquist told an audience at the Judicial Conference of the U.S. Court of Appeals for the D.C. Circuit that in times of war, American courts usually defer to whatever the executive branch asks of them. It is not until after the war is over, Rehnquist suggested, that the courts resume their independence. On that same day, by coincidence, U.S. District Judge Leonie Brinkema of the Eastern District of Virginia ordered the federal government to provide Zacarias Moussaoui, the alleged 20th hijacker of Sept. 11, with a computer, envelopes and paper to aid in his self-defense. Clearly, the judicial response to Sept. 11 has not gone entirely according to the government’s plan — or to Rehnquist’s reading of history. The U.S. Department of Justice has suffered defeats large and small in its courtroom battle against terrorism. Judges have not waited until after the war is over — whenever that might be — to treat Attorney General John Ashcroft’s arguments with skepticism and to show solicitude toward those detained. “The initial judicial response to the Ashcroft agenda is encouraging,” says Georgetown University Law Center Professor David Cole, who has monitored — and participated in — many of the challenges brought against the government’s handling of detainees since Sept. 11. As the undeclared war wears on, however, Cole worries that a handful of judges won’t be able to hold back the erosion of civil liberties. Still, he says, so far, so good. Consider U.S. District Judge William Young, a Reagan appointee to the federal bench in Boston, who ruled in March against the government’s request for restrictions on the contact between alleged “shoe bomber” Richard Reid and his lawyers. Young devised some restrictions of his own, but rejected the government’s burdensome procedure, which would have compelled Reid’s lawyers to sign a contract — limiting, for example, how they could disseminate information told to them by Reid — as a prerequisite for seeing him. That process could not be applied to lawyers for a pretrial detainee, Young said. “He is not a prisoner of the executive,” said Young in open court. “He is an innocent man. If the executive seeks to subject him to the strictures of a prisoner, they know what to do. They must prove that he is guilty of one or more of the crimes with which he is charged before an American jury, unanimously, beyond a reasonable doubt.” Young’s view of the case seemed unaffected by the war footing that the government had tried to remind him of, or by the inherent scariness of what Reid is alleged to have done: trying to blow up his explosives-packed shoes — and the rest of the plane — on a transatlantic flight. In April, U.S. District Judge Nancy Edmunds in Detroit ruled against holding closed immigration hearings for the detainees. “It is important, particularly for individuals who feel they are being targeted by the government as a result of the terrorist attacks of September 11, to know that even during these sensitive times the government is adhering to immigration procedures and respecting individuals’ rights,” wrote Edmunds, a 1991 appointee of the first President Bush. “Openness is necessary for the public to maintain confidence in the value and soundness of the government’s actions, as secrecy only breeds suspicion.” The post-Sept. 11 immigration procedures ruled on by Edmunds were ordered by Ashcroft and set out in a Sept. 21 memorandum by chief immigration judge Michael Creppy. The much-maligned Creppy memo requires all “special interest” immigration hearings to be closed to the public and press. Critics say it is one of several heavy-handed Justice Department strategies that have virtually invited judges to rule against the government. In a ruling May 29 by yet another Reagan appointee, Chief Judge John Bissell of the U.S. District Court in Newark, N.J., the Creppy memo came in for more criticism. The government policy of closing detainees’ immigration hearings was challenged by a coalition of media organizations including the New Jersey Law Journal, a sister publication to The American Lawyer and law.com. Ruling in North Jersey Media Group v. Ashcroft, Bissell found a First Amendment right of press access to deportation hearings — a view that not all courts have taken, even in peacetime. Bissell gave a cursory nod to the government’s national security arguments: “The countervailing interests advanced by the government regarding the impeding of terrorism are serious and legitimate, particularly in the wake of the dastardly attacks of September 11, 2001, and the continuing threat of their repetition.” Nonetheless, Bissell concluded, “those concerns can be well served by addressing the need to close specific proceedings regarding particular deportees.” But Bissell’s was not the final word on the subject. As soon as Bissell ruled, by some accounts, the government began moving detainees out of New Jersey to avoid having to open their hearings. Meanwhile the government asked the 3rd U.S. Circuit Court of Appeals to stay Bissell’s order, but the Circuit declined. Finally the Justice Department raced to the U.S. Supreme Court to keep the doors shut. On June 28 the high court stayed Bissell’s order, allowing closed hearings to persist. To Bennet Zurofsky, the Supreme Court’s action is a sign that no matter what lower court judges do, the Supreme Court may brush them back and take the Rehnquistian view that the executive branch get its way in wartime. Zurofsky, a partner in the Newark firm Reitman Parsonnet who represented a Lebanese detainee, was asked by Bissell to represent aliens’ interests in the media case. “Judge Bissell’s ruling was very sound. Closing these hearings is a very basic denial of due process,” says Zurofsky. “I think the Supreme Court is showing undue deference to the attorney general’s flag-waving.” That may or may not be the case in the end, but along the way, the lower courts will be invoking the Supreme Court’s own decisions as reasons for not being deferential to the government. Most of the anti-Ashcroft immigration rulings thus far have cited INS v. St. Cyr, a ruling issued just a scant three months before Sept. 11 that imbues deportation proceedings with the protection of habeas corpus review, and clarifies federal court jurisdiction over deportation cases. Even a war won’t move the Supreme Court to reverse itself that quickly. And in June the Court issued Ring v. Arizona, a death penalty case that may also impact the legal war against terrorism. The Ring decision says that juries, not judges, must find the facts that result in a death sentence. Some commentators since the ruling have said that the federal death penalty is now vulnerable, because not all of the aggravating factors that lead to a death penalty in the federal system are included in the indictment. In July, Brinkema ordered federal prosecutors to brief the question of whether Ring affects Moussaoui’s potential death sentence. It may be that the courts’ historical deference during wartime has been overtaken by decades of rights-oriented jurisprudence from the Supreme Court itself. Judges, no matter how patriotic or fearful they may be, are trained not to ignore precedent too often. Even J. Harvie Wilkinson III, chief judge of the 4th U.S. Circuit Court of Appeals, often mentioned as a potential Bush nominee to the high court, would not go quite as far as the Bush administration wanted him to in the case of Yaser Hamdi, the so-called Cajun Taliban — a Louisiana native captured by U.S troops last November in Afghanistan. It was not until he had been moved to the U.S. prison camp in Guantanamo Bay, Cuba, that his U.S. citizenship was revealed. Over the government’s protest, a lower court judge had ordered that Hamdi be allowed to talk to his federally appointed public defender without their conversation being monitored by the government. On appeal, Wilkinson wrote for a unanimous three-judge panel that said that Hamdi could be kept from seeing his lawyer because of the national security context: “The president’s wartime detention decisions are to be accorded great deference from the courts,” Wilkinson wrote. But he would not go along with the government’s motion to dismiss altogether Hamdi’s petition to see his lawyer. “With no meaningful judicial review, any American citizen alleged to be an enemy combatant could be detained indefinitely without charges or counsel on the government’s say-so,” wrote Wilkinson. “Given the interlocutory nature of this appeal, a remand rather than an outright dismissal is appropriate.” The Hamdi case is a candidate to become the first case stemming from this war to make it to the U.S. Supreme Court’s docket. Wilkinson’s forceful argument in favor of wartime deference will likely resonate strongly with the justices. But so may his caveat that the courts should retain some role as a check on executive power. The days are long past when the Supreme Court would go as far as it did in World War II in Korematsu v. United States, washing its hands of the decision of the executive branch to detain and relocate Japanese Americans. “That is their business, not ours,” the Court said then. It is hard to imagine even a Rehnquist Court saying that now.

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