Ex-judges’ brief cast aside in detainee cases
on Dec 29, 2006 at 10:07 am
The D.C. Circuit Court on Friday barred a group of retired federal judges from filing a friend-of-court brief supporting war-on-terrorism detainees’ challenge to the new Military Commissions Act of 2006. In a brief order, two of the three judges on the Circuit panel indicated that they thought the ex-judges may have skirted the code of judicial conduct in filing the brief using their former title as judges. The third member of the panel would have accepted the brief. The order and dissenting opinion can be found at this link.
This was the only ruling by the Circuit Court Friday morning in two packets of detainee cases; its release may be a hint that the cases are to be decided soon. The panel is considering a government plea to dismiss the cases, based on its argument that Congress has taken away the power of every federal court to hear habeas challenges by any foreign nationals now being held by the military or in U.S. custody anywhere in the world. If the Court finds that it retains jurisdiction, as the detainees argue, it presumably will then rule on the merits of their challenge to prolonged detention. The lead case in the proceedings is Boumediene v. Bush (Circuit docket 05-5062).
The former judges’ brief was filed on Nov. 1 by seven retired federal judges, arguing that the new Military Commissions Act is unconstitutional because it would allow the military to use evidence obtained by torture or “inhumane treatment” in detention proceedings, and the courts would not be able to review the legality of such evidence. An earlier post discussing the brief, with a link to the brief itself, can be found here. The seven are former Circuit Judges Shirley M. Hufstedler (Ninth Circuit), Nathaniel R. Jones (Sixth Circuit), Timothy K. Lewis (Third Circuit), Abner Mikva (D.C. Circuit) and Patricia M. Wald (D.C. Circuit) and former federal District Judges George N. Leighton (Illinois) and Frank J. McGarr (Illinois).
Circuit Judges David B. Sentelle and A. Raymond Randolph signed the order denying an unopposed motion for leave to file the ex-judges’ brief. It cited an advisory opinion (No. 72) of the Committee on Codes of Conduct of the U.S. Judicial Conference stating that “Judges should insure that the title ‘judge’ is not used in the courtroom or in papers involved in litigation before them to designate a former judge, unless the designation is necessary to describe accurately a person’s status at a time pertinent to the lawsuit.” Thus, the majority ordered the Court’s clerk to return the lodged brief to the former judges.
Circuit Judge Judith W. Rogers dissented, in a three-page opinion. She argued that the former judges’ brief satisfied federal rules of appellate procedure dealing with unopposed motions to file amicus briefs. She concluded that the ex-judges had met the requirement of having an interest in the case by saying that they were retired federal judges who have “dedicated their professional careers to our judicial system,” and that the life-long detention of individuals based on credible evidence that they were tortured “challenges the integrity” of the judicial system.
Rogers noted that former judges can be of aid to the courts, and cited the filings of such amici in the Supreme Court’s decisions in 2005 in U.S. v. Booker and in 2006 in Hamdan v. Rumsfeld.
The dissenting judge also cited an opinion by Supreme Court Justice Samuel A. Alito, Jr., when he was a member of the Third Circuit Court in 2002, saying that a restrictive policy on granting leave to file briefs may result in “disparate treatment” and can “convey an unfortunate message about the openness of the court.”
