Detainee Rights & Bankruptcy Courts
There are two topics I didn't expect to see intersect, but yesterday morning, National Public Radio's Morning Edition ran a letter from Judge Leif Clark of the United States Bankruptcy Court for the Western District of Texas. Judge Clark was reacting to an interview that Morning Edition did with John Yoo, a former official with the Bush Administration. Judge Clark wrote:
Listening to John Yoo talk about this new legislation was chilling. I'm a federal judge, and have taught constitutional law for 16 years. The very idea of holding anyone without trial, without the right to see the evidence that was used to justify naming them an "enemy combatant," and depriving them of the ability to challenge why they are even there is so repugnant to a constitutional democracy that I am shocked that this man actually claims to be defending American values. These are the tactics of the old Soviet Union, not of a country that stands for freedom and the rule of law.
I also quibble with his contention that U.S. citizens still have the right to habeas review. I've read the law. The president can form his own tribunal, which can determine who is an "enemy combatant" (not just an alien enemy combatant), and the decision of that tribunal would not be subject to habeas review. Moreover, persons targeted by this tribunal would not even have access to the military tribunal trial created under this law.
How easy it would be for a president to use such a law to make his political enemies simply disappear. Can this be America?
This letter has stirred a minor controversy over at Is That Legal? Although the initial blog post was quite complimentary to Judge Clark, a comment asked whether he had violated canon 7 of the Code of Judicial Ethics, which requires judges to refrain from political activity and should not publicy endorse or oppose a candidate for office. Can that possibly be right? Is a statement criticizing the executive branch "political activity?" There have to be some limits to the reach of canon 7 or every public utterance a judge made could be construed as being "political activity." Are First Amendment issues raised by disciplining a judge for such a statement? Not being an expert in judicial ethics, I ask these as questions, not to suggest an answer.