Fourth Circuit Majority Auditions for JP Stevens' Job

by: Daniel De Groot

Wed Jul 16, 2008 at 01:00

In a different 5-4 decision though (one judge flipped), they ruled the particular complainant had not been given an appropriate hearing in which to challenge his status as an "enemy combatant."  

Before I analyze some aspects of this party line and fairly contemptible ruling, let me use this opportunity to visually remind everyone what is at stake with this election as this picture becomes ever more red:

Updated: Click for large (~300k) savethecourt.org care of CAF

The Ruling

Meat of the ruling (p5):

Having considered the briefs and arguments of the parties, the en banc court now holds: (1) by a 5 to 4 vote (Chief Judge Williams and Judges Wilkinson, Niemeyer, Traxler, and Duncan voting in the affirmative; Judges Michael, Motz, King, and Gregory voting in the negative), that, if the Government's allegations about al-Marri are true, Congress has empowered the President to detain him as an enemy combatant;

Now it's not as bad as it could be.  As one of the dissenting Judges notes (p6):

[The Government] maintains that the President has both statutory and inherent constitutional authority to subject to indefinite military detention al-Marri or anyone else who associates with al Qaeda and "prepare[s]" for such acts.

So the Executive branch continues to try to use Article II as a "Get Out of Democracy Free" card, but at least this Court did not endorse that view.  They stuck to the "statutory" part of the government's case, and if you've been following such things, they are referring to the Authorization for Use of Military Force (AUMF) Congress passed in 2001.

The decision hinges on whether the appellant was in fact an "enemy combatant" even if he might support Al Qaeda.  Several prior cases have established some level of authority for the President to detain enemy combatants, but as the excellent dissent by Judge Motz from pages 6 to 64 does a thorough job of trouncing the Government's case and the opinions of the Executive worshipping majority.  Essentially, she argues, the guy isn't an enemy combatant under any precedent or previously understood legal definition of the term, and the majority has creatively drummed up some new definitions sufficiently broad that would cover it.

The four dissenting Judges were, unsurprisingly, all appointed by Bill Clinton.  Did you catch my trick here?  It turns out that Judge Gregory was actually appointed to the 4th Circuit by one GW Bush in July 2001.  Ahh, well if you dig deeper, you'll find out that he was originally a recess nominee by Clinton in late 2000, and (I presume) elevated by Bush as part of some deal with Senate Democrats during Bush's infamous 2001 Best Summer Ever where he hid in Crawford from the mean old partisan Democrats and ignored all sorts of vital memos and briefings about terrorism.  I digress.

On the ruling's majority, we will find one Judge Traxler, who appears to be a Clinton nominee (which is how he appears on the image posted above) but remember that reflects which President put him on the 4th Circuit.  He was originally nominated a Federal Judge by HW Bush in 1991.  Clinton elevated him in 1998 probably as part of some other deal of bi-partisan nominations during his best summer ever.

Traxler's not all bad, he does flip to create a majority behind the ruling giving the prisoner another hearing to determine his status as an enemy combatant at least.  Just so we're clear though that he is at best a centrist, and a Republican.  

So that makes the abhorrent majority on this ruling a clean sweep for Republican nominees.  Huzzah for non-partisan courts!

How this Relates to SCOTUS

I know, this diary is long and JP Stevens isn't getting any younger.  Well three things:

1. The dissent and supportable ancillary ruling giving al-Marri another day in court is only made possible by the few good rulings that have emerged since Bush took office, like Hamdan, Hamdi and Boumediene.  These also mean this ruling has a fighting chance of being overturned on appeal to SCOTUS


2. Which brings me to the problem though - It is always better to have won at each level, and particularly at Circuit court level because nothing requires SCOTUS to hear an appeal.  Now that the 4th has ruled to make the AUMF disgustingly broad, SCOTUS can just quietly deny to hear an appeal.  Assuming there is one.  Even if there was a liberal majority on SCOTUS, they can only overturn so many crummy authoritarian conservative rulings in one session.  


3. Should the unthinkable happen and John McCain takes office in January 2009, remember the four judges (Williams, Wilkinson, Niemeyer,  and Duncan) who ruled both for expanding the President's powers under the AUMF and against a fair hearing for the prisoner to challenge his status as an enemy combatant.  They've just auditioned for nominations on McCain's or another future Republican President's Supreme Court.  Allyson Duncan is only 57 and is both black and female which makes her the ideal stealth authoritarian nominee for a Republican eager to expand executive authority.
   

In closing:

Our colleagues hold that the President can order the military to seize from his home and  indefinitely detain anyone in this country - including an American citizen - even though he has never affiliated with an enemy nation, fought alongside any nation's armed forces, or borne arms against the United States anywhere in the world. We cannot agree that in a broad and general statute, Congress silently authorized a detention power that so vastly exceeds all traditional bounds. No existing law permits this extraordinary exercise of executive power.2 Even in times of national peril, we must follow the law, lest this country cease to be a nation of laws.