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Roger Fitch Esq
13 September, 2005  
Our Man in Washington

Much will depend on the new nominee to fill the Sandra Day O’Connor vacancy as the appeals process tries to resolve conflicting lower court opinions about the rights of Guantanamo detainees. Maybe Sandra will sit on until her replacement gets through all the hoops


What a week in the US of Anarchy! In the midst of an incredible civil disaster which cannot help but hurt the reigning monarch, the chief justice died, and the Court of Appeals judge and Republican functionary John Roberts was elevated from a replacement for retiring justice Sandra Day O’Connor to a candidate for the top job itself.

Nevertheless, ethics questions raised before (see my previous column) have not gone away – far from it. Roberts is under even greater scrutiny as the nominee for chief justice.

Some of us were rather startled to hear William Rehnquist described as a great chief justice. Not in the view of Alan Dershowitz, who didn’t hesitate to speak ill of the dead on the Huffington Blog. Or in the view of Kermit Roosevelt.

imageThe big question now is whether the more moderate O’Connor, who reportedly dated Rehnquist (pictured) at Stanford Law, will stay on. Her resignation is effective upon a new appointee taking office in her position. So she could, if she wished, stay and participate in the new term’s cases starting in October, pending her replacement, which will be after the chief justice is confirmed. That may not happen before the term begins. The court’s quorum is seven.

When the Guantanamo cases (eg, David Hicks) move on from the Court of Appeals to the Supreme Court, the composition of the bench will be important.

The decision in Rasul (the first Hicks’ case) had six justices voting for habeas jurisdiction in Washington, and five will still be there after O’Connor retires. There remains the possibility that one or more of the majority might accept the government’s extreme argument that there is only jurisdiction in DC to hear the cases, as distinct from the detainees possessing any substantive rights to be vindicated there.

In any case, whether as an associate justice or as CJ, Roberts won’t be able to vote in the Hamdan (military commission) appeal, because he sat on the Court of Appeals panel that decided it.

That issue – the legitimacy of “presidential” military commissions – has not yet been before the Supreme Court, but a four-four split there would give victory to the government, as a divided court must affirm.

The lawyers for Guantanamo prisoners who have been charged in the commissions, such as Hicks, must be praying that O’Connor’s replacement will be a “moderate” or swing vote, as she has been described.

Across the Hill in the federal courthouse, things are hotting up in both the District Court and the Court of Appeals. The Hamdan appeal on the validity of military commissions has been decided and is a setback for Hicks, but the Al Odah case in which Hicks was the lead petitioner, and in which he was successful, is still on appeal.

The DC Court of Appeals is considering a consolidated review of the contrary decisions of Judge Joyce Hens Green – who ruled Hicks was entitled to prisoner of war determination – and Judge Richard Leon, who found detainees had no rights whatsoever.

Oral argument was on September, 8 but it doesn’t seem to have gone all that well for the government.

Presiding is Judge Randolph, who wrote the opinion in the Hamdan case and also presided over David Hicks’ case (Rasul) when it came before his court last time. But now Randolph may have modified his views in light of the high court’s decision. Unlike the Hamdan case, the Guantanamo Cases panel isn’t all Republican-appointed judges. There’s a Clinton appointee on it this time, Judith Wilson Rogers.

Not only is Hick’s military lawyer, Major Mori, still valiantly battling the Pentagon bureaucracy, but he now has behind him a newly appointed chief defence counsel who seems to share his law officers’ outrage. Col. Dwight Sullivan was in fact formerly an American Civil Liberties Union lawyer. How did he get appointed? Rumsfeld must be livid.

Sullivan and Mori have come out swinging. After the decision in Hamdan reversed District Judge James Robertson and reinstated the “presidential” military commissions, Mori filed a new motion for Hicks in the Washington proceedings in which he distinguished his client’s case from Hamdan.

Now, Mori and Sullivan have filed an amicus brief in the Hamdan case itself, presently on appeal to the Supreme Court.