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As a criminal defense lawyer, I have never been an unqualified fan of the federal judiciary. I have great respect for the institution, and perhaps because of that respect and my consequent high expectations, I am frequently disappointed by the actions, or inactions, of federal judges. Too often, I feel federal judges defer to excessive governmental and prosecutorial positions.
I have therefore been mildly surprised and quite pleased by a series of courageous rulings by federal appellate and district courts in the past months that have rejected extreme governmental positions. In these rulings, the judiciary has asserted itself as an equal branch of government and reminded us of its role as guardian of the Constitution.
Following the 9/11 terrorist attacks, the government arrogated a number of new executive powers that made the war on terrorism seem like a war on the Constitution. Many of these measures demonstrated a remarkable disdain for the judicial branch (a disdain I have noticed has trickled down to line prosecutors). Some were designed to insulate the Executive Branch's actions from any scrutiny, whether by the courts or Congress, lawyers or the public.
Governmental claims
The government claimed that it could, on its own, designate citizens or non-citizens “enemy combatants” and as such detain them indefinitely without charges, or access to counsel, or civilian judicial review. It claimed that it could secretly arrest and detain certain aliens, and then deport them after secret proceedings. It claimed that it could arrest citizens and non-citizens without probable cause and imprison them as “material witnesses” for an eventual grand jury appearance. And it attempted to enact guidelines that would allow information gathered through intelligence investigations by special procedures that permitted court-ordered eavesdropping and searches on less than probable cause to be shared with criminal prosecutors.Advances rebuffed
In each of these instances, courts have rebuffed the government's advances. In Hamdi v. Rumsfeld, the United States Court of Appeals for the Fourth Circuit, generally considered one of the most conservative circuit courts, rejected the government's “sweeping proposition” that it could hold an American citizen indefinitely without charges and without access to counsel or the courts by deeming him an “enemy combatant.” And, while at this writing there has been no decision on remand, Judge Robert Doumar of the Eastern District of Virginia, to whom the case was sent, has strongly expressed his dissatisfaction with the government's extreme positions.In U.S. v. Awadallah, Judge Shira Scheindlin of the Southern District of New York held that the government could not use the material witness statute to arrest and detain a person without probable cause to believe he or she committed a crime on the ground that it intended to call that person as a witness before a grand jury. That decision (which is contrary to a decision by another judge of the same court) is on appeal.
In Center for National Security Studies v. Department of Justice (a case in which the NACDL is a co-plaintiff), Judge Gladys Kessler of the District of Columbia ordered the government to release the names of the over 1000 non-citizens it had secretly arrested and detained in antiterrorist investigations unless it could justify nondisclosure on a case-by-case basis. That case is also on appeal. Similarly, in Detroit Free Press v. Ashcroft, the United States Court of Appeals for the Sixth Circuit held that the government could not automatically close all terrorist-related deportation cases from the press and the public.
Lastly, In re All Matters Submitted to the Foreign Intelligence Surveillance Court, that court (FISC), whose procedures allow authorization of domestic electronic and other surveillance on less than probable cause, rejected the Justice Department's proposal to allow ordinary prosecutors access to information gathered by intelligence investigators employing such surveillance. That decision is also on appeal.
