Another Brick In The Wall

Aeurobi Beandalis an alleged member of the terror organization al Qaeda, wears an eye mask as he is driven out of the the regional superior court in Frankfurt, Germany, April 16, 2002. Five Algerian men charged with planning to blow up the Christmas market in Strasbourg, France, went on trial April 16, 2002.
The latest big decision in the legal war on terror is not much different from so many others than have come down since Sept. 11, 2001. Two federal appeals judges in Washington, over the sharp dissent of one of their colleagues, ruled Tuesday that the Justice Department is entitled to great deference from the courts when it says that it cannot release to the public the names of certain detainees held in the wake of the terror attacks on America.

That's the same deference that three federal appeals court judges in Philadelphia last year gave to the Justice Department when the feds fought to keep the public out of special interest deportation hearings. It's the same deference that three appeals judges in Virginia earlier this year afforded the executive branch when it comes to "enemy combatants" who are U.S. citizens and who want to be able to meet with their lawyers to challenge their detention.

It's basically the same deference that a panel of federal judges in Illinois gave to prosecutors who sought to freeze the assets of suspected terror organizations without having to show their evidence in open court. And it's essentially the same deference federal trial court judges around the country have afforded their cousins in the executive branch when faced with other terror law issues, like whether Guantanamo Bay detainees can challenge their detention in court.

There is now a decent body of case law, all of its generated since the Twin Towers fell, that holds that judges are neither required nor permitted to make a meaningful inquiry into the justifications offered by the executive branch for the extraordinary power and secrecy the Justice Department has seized and maintained in the domestic fight against terrorism. Trial judges who will face these issues going forward will have to deftly circumnavigate this body of precedent if they want to restore some balance back to the scales that represent the principle of separation of powers.

So far, only two federal courts have done so. In Michigan, a federal appeals panel refused to keep secret those "special interest deportation hearings," which means that there is a direct conflict now between that court — the 6th U.S. Circuit Court of Appeals — and the 3rd U.S. Circuit Court of Appeals in Philadelphia. Also, a federal judge in New York so far has refused to buy the government's rationale for holding suspected terrorist Jose Padilla indefinitely as an "enemy combatant," without the right to see his attorneys or even to face charges. The government has appealed the New York ruling.

Ultimately, only the Supreme Court itself can offer the judiciary's final word on whether the threat posed by domestic terrorism warrants such a dramatic imbalance between two branches of government that are supposed to be co-equal. So far, the Justices have neither accepted nor decided on the merits a terror law case arising in the wake of the attacks on America. But clearly the time for such a review is coming and coming soon. The appellate conflict noted above, and the fact that judges all over the country appear to be in headlong retreat from their obligation to effectively evaluate government power, cries out for a definitive ruling from the Court. Stay tuned.

In the meantime, the latest ruling from the D.C. Circuit Court of Appeals, then, is noteworthy not necessarily because of the result reached by the two-judge majority. Center for National Security Studies v. Department of Justice is noteworthy mostly because it represents another example where brilliant jurists — in this case Judges David B. Sentelle and Karen LeCraft Henderson ruling in the majority — were willing and able to accept the Justice Department's incomplete explanations as to why it's necessary to keep secret the names of these detainees — and the names of their lawyers!

You don't get to be a federal appeals court judge in the most important circuit in the country without having an inordinate amount of intellectual curiosity. And yet, as Judge David S. Tatel pointed out in his dissent, in merciless detail and with impeccable logic, Judges Sentelle and Henderson failed or refused to ask or have answered even the most fundamental questions about the Justice Department's position. Worse, Tatel suggests, "by accepting the government's vague, poorly explained allegations, and by filing in the gaps in the government's case with its own assumptions about faces absent from the record, this court has converted deference into acquiescence."

Do yourself a favor. Take the time to read the 56-page decision handed down Tuesday. It's long, and complicated at times, but it's actually a fairly quick way to grasp what's truly going on in all of these terror law cases. On the one hand, you have judges who are taking at face value (and sometimes at less than face value) the arguments made by the executive branch. And on the other hand, you have judges who, usually in vain, ask perfectly sensible questions that show just how little the government is being required to show in these cases in order to get its way. It's not as sexy a read as, say, the Scott Peterson arrest warrants. But in the larger scheme of things, it's far more important.

By Andrew Cohen