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Courtroom Tips For The War On Terror

Attorney Andrew Cohen analyzes legal decisions for CBS News and

The surest way to engender judicial resentment and suspicion is to tell a judge, any judge, "Don't worry your pretty little head about it." And yet that is precisely the message the Bush Administration is sending to federal judges everywhere as it battles to keep Yasser Esam Hamdi away from even his own lawyers.

Instead of drawing the judicial branch into the terror war as a junior partner, the executive branch is shutting it out of the action almost completely. It's a self-defeating strategy that ultimately will backfire on the White House and Justice Department.

During a hearing Tuesday in federal district court in Norfolk, Virginia, government attorneys solemnly faced down U.S. District Judge Robert G. Doumar over the factual bases for Hamdi's classification as an "enemy combatant" captured fighting with the Taliban in Afghanistan during the height of the war.

Assistant Solicitor General Gregory G. Garre failed to answer the judge's direct and relevant questions on the topic. And he also told Judge Doumar that, despite his requests, the government would not be supplementing the record to provide additional information about the rationale behind Hamdi's classification and detention. You aren't the boss of me even when I'm in your courtroom, Garre might as well have told Doumar.

The hearing Tuesday was just the latest milestone in a case that already has had a tortured procedural history. First, President Bush unilaterally designated Hamdi as an "enemy combatant," a classification that, for now anyway, allows the Defense Department to detain Hamdi indefinitely and incommunicado without charges ever being brought against him despite the fact that he is a US citizen.

Then, Hamdi's father and the Federal Public Defender's Office for the Eastern District of Virginia asked Judge Doumar to help out Hamdi with a ruling requiring the government, at a minimum, to let Hamdi, see a lawyer so they could evaluate whether he has any substantive constitutional claims.

Judge Doumar initially ordered the government to allow attorney access to Hamdi but the Justice Department immediately appealed that ruling. Judge Doumar's bosses on the 4th U.S. Circuit Court of Appeals - rock-ribbed judicial conservatives that they are - quickly moved to block the attorney-client meeting and required Doumar on remand to at least inquire further into the government's justification for the classification before rejecting it. Judge Doumar got the case back and promptly did what trial judges do: he followed as best he could the directions given to him by his appellate colleagues.

A few weeks ago, the judge asked the Administration for information about why the government considers Hamdi an "enemy combatant," why it moved him from Afghanistan to America, what he was doing when he was captured and other relevant facts any reasonable judge would want to know before rubber-stamping someone's indefinite detention.

What the judge initially got from the Administration was a bare-boned two-page "declaration by Michael H. Mobbs, a "special advisor to the under secretary of defense for policy. The "Mobbs Declaration," as it now will forever be known, didn't declare much of anything, according to Judge Doumar, who had hoped that the government would take advantage of Tuesday's hearing to elaborate on its content.

The government, via Garre, did not. According to published news reports, Garre couldn't or wouldn't answer questions about how long the government intended to keep Hamdi this way; why Mobbs and not any other "special advisor" was selected to make the declaration; and what Hamdi's custodial conditions were like.

By all accounts, Judge Doumar was ticked off with the way Garre dodged and parried his every request and, if he was, I cannot say that I blame him. The battle between Garre and the judge Tuesday was the personal embodiment of the separation of powers: of two of the three branches of government clashing together in a single space.

The hearing may or may signal a turning point in the Hamdi legal dispute. After all, even if Judge Doumar rules against the Administration and again orders access to Hamdi, the Justice Department will have two conservative bulwarks - the 4th Circuit and the Supreme Court - to help its cause.

But Tuesday's hearing - and Garre's attitude toward Doumar - no doubt will resonate in a negative way across the judiciary. It will be remembered and discussed by federal judges presiding over other terror cases. It will be cited as an example of how arrogant and dismissive the executive branch has so far been in its legal fight against terror. And, mark these words, it ultimately will come back to bite the Administration in its collective caboose.

Federal judges aren't traitors. They can handle the truth as much as or more than any other part of America's governing team. Indeed, they are uniquely qualified to keep secrets.

The Administration didn't have to play hide-the-ball with Judge Doumar. It didn't have to employ the slap-in-the-face strategy Garre employed on Tuesday. Government attorneys could have have shared detailed information with the judge, in camera and under seal, so that he could have evaluated first-hand the bases for the Mobbs Declaration without jeopardizing any secrets about the government's war on terror.

Without conceding that the judiciary always should have a formal role in this particular process, the executive branch could have cooperated with the judicial branch in this case. And had it done so it would have sent a much healthier and ultimately more productive message than the one it sent this week.

By Andrew Cohen

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