Attorney General John Ashcroft has never been one to hide his anger under a bushel. On November 12, just three days after he announced his resignation, Ashcroft lashed out at what he called “excessive judicial encroachment on functions assigned to the President” in the “war on terrorism.” His immediate target was plainly Judge James Robertson, who four days earlier had halted the military tribunals in Guantánamo Bay, ruling that they violated both international and federal law. But Ashcroft’s real beef is with the Supreme Court, which in June had set the stage for Judge Robertson’s opinion by declaring that the President’s powers to detain “the enemy” must be limited by the rule of law, articulated and enforced by courts.
The most important legacy of the Supreme Court’s enemy combatant decisions may be the renewed willingness of judges to stand up to the likes of Ashcroft and his successors. The High Court rulings have already been succeeded by a trio of courageous lower court decisions rejecting the executive’s claims that it is above the law when fighting terrorism.
In September Victor Marrero, a federal district court judge in New York, held unconstitutional a Patriot Act provision that authorizes the FBI to obtain information on subscribers to Internet services from the service provider by issuing a national security letter, or NSL. Under the law, the FBI need not get judicial approval to issue an NSL and need not have probable cause to believe that it will uncover evidence of a crime. Most troubling, the law imposed a gag rule barring recipients of NSLs from telling anyone–including a lawyer or a court–that they had received such a request, thereby precluding any chance for judicial review.
Indeed, to challenge the law, an Internet service provider first had to violate the gag rule to seek the advice of the ACLU, and then had to violate the rule again to file suit in court. The case was filed under seal, and its very existence could not be made public until the court so ordered. Even now the identity of the plaintiff is classified, and the case is designated only Doe v. Ashcroft. Judge Marrero held the law unconstitutional because by precluding judicial review, it places the executive branch above the law.
In October a federal judge in Washington followed suit, ordering that three long-term detainees in Guantánamo be given access to their attorneys. Their attorneys filed the successful lawsuit in the Supreme Court this past summer establishing that Guantánamo prisoners have a right to seek federal court review of the legality of their detention. But the government had continued to insist that the detainees be denied any contact with their lawyers. Judge Colleen Kollar-Kotelly rejected that argument, reasoning that in order for the three to have a fair opportunity to make their case in federal court, they needed the assistance of lawyers. Here, too, the court’s bottom line was that by barring effective review, the executive’s position would have placed the President above the law.
Judge Robertson’s decision on November 8 in Hamdan v. Rumsfeld similarly emphasized the importance of legal process to check unilateral executive action. Robertson ruled that the military tribunal process violated both the Geneva Conventions and federal statutes. The Geneva Conventions expressly bar the use of military tribunals to try prisoners of war and require that detainees be treated as prisoners of war until a “competent tribunal” has found otherwise. George W. Bush has unilaterally declared that all alleged Al Qaeda members are not prisoners of war, but as Judge Robertson noted, “the President is not a ‘tribunal.'” More significant, Judge Robertson ruled that the provisions permitting secret evidence to be used to convict (and even execute) defendants in military tribunals cannot be squared with federal law requiring military tribunal procedures to be consistent with those provided our own soldiers in military courts-martial.
Together these decisions insist that executive action depriving human beings of their liberty or privacy must be subject to the rule of law, which in turn requires fair process and meaningful access to courts. In that regard, they echo the Supreme Court’s message last summer that “a state of war is not a blank check.” John Ashcroft may not like being second-guessed, but if the rule of law means anything, courts must have the power to assess the legality of executive actions impinging on basic freedoms. Fulfilling that role is not encroachment. It’s a judge’s solemn responsibility.