It's too early to call it an avalanche of momentum or even a trend, but it is slowly becoming clear that the federal courts are backing the Bush administration in the legal war on terror.
On Friday, the Supreme Court gave the Justice Department two minor victories in the area of immigration detention. The justices agreed to hear two important cases next term. Earlier in the week, a federal appeals court sided with the administration in the case of Yassir Esam Hamdi, an American citizen now currently held incommunicado as an "enemy combatant."
Combine those recent rulings with the government's clear victories lately in the John Walker Lindh case (all of Lindh's dismissal motions were rejected by a federal judge) and in the Richard Reid case (Reid's efforts to suppress incriminating statements were rejected by another federal judge) and you begin to see a pattern.
Right now, judges are giving the administration the benefit of the doubt. They are affording great deference to the President's war powers under the Constitution and also to the representations made by law enforcement officials and members of the intelligence community who keep testifying, in court and on paper, that draconian measures are necessary in order to prevent future terror attacks.
At the same time, these judges are giving fairly short shrift to the arguments made by civil libertarians.
That is not to say that the judges who have faced terror-law issues recently aren't evaluating the impact the administration's aggressive law enforcement measures are having on constitutional rights and individual liberties. It's just that, right now, the balancing test that judges often apply in these situations are skewing heavily toward the government. That's why the Supreme Court Friday put on hold a lower court ruling that would have opened now-secret immigration and detention hearings to the public.
Sure, the public in normal circumstances would have some right of access to such hearings. But, as the justices are likely to say this fall when they hear and decide the case, these aren't normal times.
The next month or so will tell us much more about how the courts are reacting to the Administration's offensive on the legal front in the war on terror.
In July, U.S. District Judge T.S. Ellis III will have to decide whether Lindh's statements made to military and civilian officials in Afghanistan can be used against him at his trial later this year.
The Hamdi case, whether the alleged "enemy combatant" even may be allowed to see a lawyer, also may come to a head. And U.S. District Judge Leonie Brinkema, who shares a courthouse with Judge Ellis in Alexandria, Virginia, will be required to make a few key decisions in the govermment's terror conspiracy trial of Zacarias Moussaoui. If these events and issues also turn the government's way, and it wouldn't surprise me, we can all update our scorecards from "pattern" to "trend."
Meanwhile, in case you were disappointed that there was only one zany episode in the Moussaoui case this week, fear not. There was at least one other.
While Moussaoui was confusing everyone in the world with his plea to the revised indictment against him -- for the record the judge entered a "not guilty" plea on the defendant's behalf -- a Texas lawyer named Charles Freeman was filing with Moussaoui's judge a document entitled: "Is this How Alexandria Division Treats its Guests?" In the court paper, straight out of the Jackie Mason School of Captioning.
Freeman essentially told Judge Brinkema that he had no interest in becoming Moussaoui's "stand-by counsel" because "I refuse to be a toothless paper tiger amounting to absolutely no counsel at all."
Moussaoui, apparently, had earlier expressed some interest in having Freeman assist him as he prepares his own defense and the feds, apparently, had earlier told the judge that they had no particular problem with Freeman's involvement in the case so long as Freeman complied with all the requirements that out-of-district lawyers must comply with before they can actually be recognized by the court. Also, the feds had asked that the judge make sure that Freeman passed the various security clearances necessary to allow him to view classified documents relating to the case.
Freeman's largely incoherent 5-page filing must have struck some sort of nerve in Washington because two days later, on Wednesday, the feds responded with a motion of their own, this one captioned: "Government's Response to Pleading Filed by Charles Freeman entitled: "Is This How Alexandria Division Treats its Guests." In their filing, prosecutors told Judge Brinkema that they aren't really sure if they oppose Freeman's involvement in the case as counsel to Moussaoui but then added that they aren't sure he really wants the job anyway.
The government's lawyers are in a real pickle, of course, because it would actually aid their case against Moussaoui if he were to have lawyers helping him, if for no other reason than such help would dramatically reduce the chance that a Moussaoui conviction would be overturned on appeal. That's why they are saying at the same time that they don't have any objection to Freeman while saying that he still has to pass all the tests to be counsel in this sort of a case. And no matter how bizarre his words may be, Freeman has a point that "stand-by" counsel in a case like this really isn't much counsel at all. But Freeman's beef shouldn't be with Judge Brinkema. If he has a beef, it oughta be with his putative client.
By Andrew Cohen