The government claims “separation of powers”. Since when does SOP mean the executive is free to ignore judgments of the judiciary? I guess they can also ignore laws passed by the legislative? Maybe the answer is to imprison the judges in Guantanamo? That will teach them to sympathise with terrorists.
First off, it’s not exactly “the government” defying the order. It’s the executive branch of the government defying the order. (The judicial branch is trying to enforce the order.)
Semantics aside, this is troubling. The executive branch is claiming the right to be judge, jury and executioner of these prisoners with zero judicial oversight, so long as the prisoners are classified as “enemy combatants.” And oh, by the way, the executive branch is claiming that they have the exclusive right to determine whether someone is an enemy combatant.
Where are the checks and balances in that approach?
Strikes me as an awfully un-American way to defend the American way of life.
It is an interesting question - when the question is whether the judiciary should be involved in the first place, to whom do you go for the answer? The judiciary?
On its face, the Judiciary attorneys who defied the court’s order (or whoever ordered them to defy said order) should be held in contempt. It is a long-standing legal principal that, even if the judge is wrong, you must obey. The remedy for the Judiciary from a putatively invalid order is to appeal the order, not ignore it.
Countervailing that is the argument that the judiciary had no jurisdiction in the first place, so there really is nothing to appeal. Kind of like if a judge in Hawaii orders you to appear for jury duty in Oahu, and you live in Texas, you can simply ignore the order without having to get it overturned.
The argument doesn’t wash, however. The 4th Circuit has already ruled that the judiciary has some role here, and the DOJ’s position merely appears to be that the judge is going too far in that role. Jurisdiction is established, so the judge has the right to issue orders. If the orders are overreaching, the DOJ has to get them overturned, not merely defy them.
Sua
Just a question: How developed is the legal concept of Judicial Review in the US ?
"To understand the Judicial Review firstly, we need to look at the area of Public Law. Public law, is concerned with the relationship between ‘us’ as individuals and the State authorities. Public law is then sub-divided into: Constitutional law, which involves the study of the Parliament and the main institutions of government; Civil Liberties, which looks at issues such as human rights and the limiting of police powers; and Administrative law, which focuses on the legal aspects of the day-to-day administration by government and local authorities and how the individual can gain access to redress for a grievance they have against a public body.
It is Administrative law which is important here and the part that is of particular importance is the procedure by which an individual or an ‘interested’ party can question the legality of an action taken by a public body. The government and local authorities amongst others are elected and are given powers to enact legislation for the benefit of the country. In a democracy, the people who govern us have to do so with our consent. One of the responsibilities of government is therefore to provide people with adequate opportunities to question the good sense and lawfulness of public decisions."
Just posting that I am the most pro- law-and-order, government-lawyers-are-great person you’ll ever meet, having been one for a while, and I find this very troubling for the reasons SUA already posted. If you think a court order is wrong, you appeal it or move up the food-chain to get a stay, as they apparently know how to do, since they’ve done it before. You do not defy it. Defy the judiciary? Government lawyers?
I find it absolutely appalling. I devoutly hope, and indeed presume, that they will be soundly spanked for it
What would the consequences be if they defy it?
What options does the Justice department have?
Reading your link, L_C, I would say that Judicial Review in the U.S. is a stronger concept here, which isn’t surprising given British notions of Parliamentary supremacy.
In particular,
does not apply to the U.S. We have prohibition, mandamus and the like, but in the U.S., the court can enforce its order.*
Sua
*Well, technically speaking, court of the U.S., lacking an army or police force, can’t enforce any of its orders without reliance on the other branches of government.
Theoretically, Judge Doumar can find some or all of the DOJ attorneys involved in concempt, and direct the U.S. Marshalls to arrest them, the U.S. Attorney, or even Ashcroft, until they have purged their contempt of court. Doumar can also impose fines or summarily rule for the prisoner.
Sua
Since Andrew Jackson did so in the 1831 when the president noted, “Well John Marshall has made his decision. Now let him enforce it.” This was of course in response to Worcester v. Georgia decision, which Andrew Jackson did not concur with and refused to enforce and defied the ruling.
Despite this historical fact I understand your concern Sua. At this point, in my opinion, the DOJ/Executive branch is behaving in a similar tyrannical manner as Jackson did regarding a decision by the U.S. Supreme Court. According to Alexander Hamilton in Federalist 77 the Judicial branch is supposed to operate, and has done so within the constitutional framework, to serve as a check on the Executive and Legislative branches exercise of power, particularly in abating and precluding either branch from becoming tyrannical.
An executive branch or legislative branch refusing to comply with legal rulings issued by the Judicial branch is tantamount to tyranny as the rule of law and the Judicial branches interpretation of the law through rulings is paramount.
So yes this does concern me. This is a very dangerous precedent. The Executive and Legislative branches of government must be subject to judicial rulings.
Thanks Sua. For someone who finds the entire premise, at best, confusing:
-
The Executive labelling of this as a ‘war’ (BTW, when do asymetrical war’s end – when the Executive decide ?)
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The Executive labelling of prisoners by different categories – and, damn it, that’s just the US citizens – some with legal representation, others with none…
this development seems particularly troubling.
Sua – I wish I could be so confident the 4th Circuit has some form of jurisdiction here. Reading the OP link, that Appeal Court only asked the District Judge to “reconsider” – but what, his Order or his decision to assume jurisdiction ?. The way things are going, the DoJ will argue/have already assumed that doesn’t amount to establishing jurisdiction per se.
Also, two further questions (any Con Lawyers, don’t want to burden Sua with all of this):
One -
“An inspection of the requested materials would all but amount to a [new] review of the military’s enemy combatant determination, and thus exceed the limited standard of review governing the Executive determination at issue,” the Justice Department said in a legal memo."
- what, then, are the limitations of which this memo speaks ? – I’m so rusty it hurts, but I’m not sure we have “limitations”, especially if those limitations are subject to arbitrary Executive labelling of the subject.
Two -
The DoJ are relying on a defence of ‘Separation of Powers’ and have determined unilaterally – and in the face of a contrary Court Order – that Discovery “was not necessary in this case”…presumably this line of defence has been established and Ashcroft/the DoJ are not making up the rules (and in relation to US citizens) as they go along ?
I can’t help but feel sorry for the authors of Con Law books. They must be tearing up the contents of entire chapters at this point, not knowing what to write in its place…well, besides “Ask Ashcroft”
I’m still a bit undecided about the Executive branch’s actions in this case. As I’ve mentioned in other threads, I think there has been a huge grab for power by the President, a grab that is well beyond the powers he should have under the constitution. However, in this particular case, I can kinda, sorta see where the DOJ is coming from.
The DOJ is basically arguing that they have met their constitutionally mandated burden regarding their determination of why Hamdi is an “enemy combantant.” They provided the judge with a statement from Michael Mobbs as to why Hamdi should be classified as an enemy combantant. The DOJ feels that, by providing that, they have given sufficient information to the judge for him to make a determination yes or no whether Hamdi is an “enemy combantant.”
However, as Jodi and Sua pointed out, the judge had ordered that DOJ provide hime with more evidence regarding their determination. Regardless of whether they felt they had already given enough information to the judge, it was still an order. One of my concerns is (and I am woefully out of practice on my federal appellate law) whether they could actually appeal the judge’s order, or if they must risk a contempt citation before they can make their case on appeal. The DOJ may be legally wrong on this, but they are willing to face a potential contempt citation because they believe the judge has overstepped his constitutional role in this case.
So you have the judicial branch saying “You overstepped your constitutional authority!”, and the executive branch saying “No, YOU overstepped your constitutional authority.” Who is actually right may be a question only the Supremes can answer.
To the best of my knowledge, the notion that the Judiciary’s interpretation of the law is not part of the US Constitution, but was established by John Marshall in some ruling - possibly Marbury vs. Madison.
I was amazed when I first read about the actions of the DOJ attorneys. But some subsequent information makes it look like the DOJ’s actions are not quite as controversial as they first appear.
Judge Doumar ruled that Hamdi had the right to see counsel. The government appealed and the Fourth Circuit issued a stay of the decision and told Judge Doumar he had to reconsider his decision and give deference to the executive branch’s constitutional role in conducting a war. The Fourth Circuit also said the judicial branch had a role to play in determining certain issues.
Now, here’s where it gets strange. The Fourth Circuit didn’t issue an official mandate sending the case back to the district court. So Judge Doumar might truly not have jurisdiction over this case right now – jurisdiction remains with the appeals court. In this context, the DOJ lawyers have a very good argument for refusing to abide by Judge Doumar’s orders. And, in fact, Judge Doumar had suspended proceedings pending resolution of the jurisdictional issue.
Justice has also said that Judge Doumar is violating separation of powers by asking for the documents. But it doesn’t look like that’s why DOJ refused to comply. I think they refused to comply because of the procedural issue. It will be interesting to see if they continue to refuse compliance once the jurisdictional issue is cleared up.
Mr. Madison, welcome to the Boards. Take the following as very friendly advice:
You misquoted me. The sentence you attributed to me was actually written by sailor in the OP. I have no problem with it - it’s obviously just a goof- but the boards recently went through a relatively nasty spat over purported misattributions. So just be careful in the future.
London Calling,
The 4th Circuit required Judge Doumar to reconsider his order, not whether he has jurisdiction. The 4th Circuit made it clear that the judiciary does have jurisdiction, and really was only saying that the district court must give great deference to the opinions of the executive branch:
Sua
I admit I’m confused by the details of judicial review, but I do know that it’s typical of despotic administrations in various countries that they ignore the courts when a ruling goes against them. I wouldn’t use a loaded word like “despotic” if it weren’t for the clear pattern of bypassing due process that the Ashcroft DoJ has shown during the past year.
Zoff, that certainly puts a new spin on things. Do you have a link to the source of your information?
Thanks,
Sua
Cites? You mean you don’t trust me? 
I’m not entirely sure my spin is correct, because I can’t really find enough information to confirm my suspicion. But I’ll run you through my reasoning.
Here’s an article in the Washington Post (published Aug. 7) that gives a fairly good rundown of what’s going on procedurally, though it leaves out the full procedural history. It reports that (1) the Fourth Circuit didn’t issue a mandate to the district court and (2) Judge Doumar has suspended proceedings until things are cleared up. But it doesn’t say whether DOJ is ignoring Judge Doumar because of the procedural issues. This article made me re-evaluate the information in the earlier article.
This is the first article (published Aug. 6) the Post did on the story (the one linked by sailor) and it seems to imply that Justice is ignoring the order for substantive, rather than procedural, reasons. It cites a Justice Department “legal memo” saying that Judge Doumar is overstepping his constitutional bounds. The article implies that this is the reason for DOJ ignoring the orders, but it never really says so and it’s hard to tell what context surrounding the memo The article also cites a motion Justice filed asking Judge Doumar to drop his request. But it again seems to assume the lack of response is tied to that document. Since the Department of Justice declined comment it’s tough to tell what they are relying on for their position. And, with the new information about the jurisdictional issues I question some of the reporter’s conclusions.
I also think it would be odd for the government to go through several appeals and motions before the district court about this and then suddenly ignore the court. Especially since the Court of Appeals seems sympathetic to the government’s arguments.
So, that’s the information and my interpretation. I could be wrong, and we’ll certainly find out soon enough after the jurisdictional problems are resolved. But my guess at this point is that the refusal is jurisdictional.
Oh I did, my apologies Sua. I thought I quoted something you said but didn’t. Again my sincerest apologies. It was a goof. I again am very sorry.
IzzR if in Marbury v. Madison where John Marshall said judicial review was strongly inferred by Article III of the U.S. Constitution, then Judicial interpretation is in fact as much a part of the Constitution as a the commerce clause in Article I, section 8.
It is as much a part of the Constitution as the right to privacy. The document was interpreted and this interpretation was ruled to be constitutional hence it is a part of the Constitution.
However, this is an entirely different argument from the one presented here for discussion and I did not reference Judicial review or Judicial authority with the intent of engaging a discussion on it but only to demonstrate how the Judicial branch has the authority to check the power of the other two branches abating and precluding tyranny. I made such considerations to support a point Baldwin made in his post.
Hamdi v. Rumsfeld
2002 WL 1483908
C.A.4 (Va.),2002.
Decided July 12, 2002. (Approx. 6 pages)
The Court of Appeals held the following:
(1) district court failed to extend proper deference to decisions of President and Congress relating to sensitive matters of foreign policy, national security, or military affairs; (2) court failed to address questions relating to detainee’s status as an alleged enemy combatant; but (3) dismissal of petition was not appropriate.
The case was sent back to the District Court because it was “reversed and remanded”.
The Court of Appeals in number two says the District court failed to consider questions regarding the detainees status as an “alleged” enemy combatant but if one reads the opinion by the Court of Appeals it is imbued with cases and legal standards demonstrating the Judicial branch allows the Executive and Legislative considerable deference in determining belligerents or “enemy combatants”. So the Court of Appeals stated the District Court must decide the issue of whether or not the detainee is an enemy combatant but do so in a manner giving the Executive branch deference.
I suppose the issue could be more narrowly focused as a query of “Has the amount of information the DOJ provided in determining detainee’s status as an enemy combatant sufficient and requests by the District Court Judge for more information may not be allowing the Executive branch the amount of deference the Court of Appeals discusses.”
In which the Court of Appeals provided a framework to decide this query when they said, " Separation of powers principles must, moreover, shape the standard for reviewing the government’s designation of Hamdi as an enemy combatant. Any standard of inquiry must not present a risk of saddling military decision-making with the panoply of encumbrances associated with civil litigation." Whatever the hell that means. So I am supposing the DOJ may have to argued there is a risk of saddling military decision making posed by the District Court’s requisition for more information? Does this sound accurate Sua or Jodi?
I am guessing somewhere within this framework the consideration of “deference” has to be operative since the Court’s opinion discusses at some length the Constitutional role the Executive and Legislative branches have in hostilities and matters of national security. So would it be a stretch to say the District Court Judge must give deference to the DOJ’s argument that requiring more information poses a risk of saddling military decisions? Jodi and Sua any thoughts?
In my opinion the Court of Appeals gives a very strong inference that perhaps the Disctrict Court Judge may be violating the Separation of Powers in its discussion of deference to the Executive branch during times of hostilities and matters of national security. At the very least the Court of Appeals handed the DOJ a starting point for espousing such an argument in the Court’s discussion regarding deference for the Executive and Legislatvie branch of government during times of war, hostilities, or matters of national security.l
The Supreme Court, dating as far back as the Civil War, has given deference to the Commander in Chief in determining those in rebellion were belligerents the Court of Appeals said citing the Prize Cases.
The Court of Appeals notes the Executive branch has some “delicate, exclusive, and plenary powers in the field of international relations” powers which do not require Congressional acts to be exercised.
The Court of Appeals then notes when the President does act with statutory authority from Congress then this is all the more reason for deference. The statute the Court is referencing is ." Authorization for Use of Military Force, Pub.L. No. 107-40, 115 Stat. 224 (2001). Court then cites Articles One and Two provide the Executive and Legislative branch shared responsibility for military affairs.
If you ask me, the Court of Appeals handed the DOJ a legal argument.
Of course Sua’s point still stands. A ruling or order from the District Court Judge should not be ignored for refused to comply but appealed.
So, there’s an up side!