Source: Wall Street Journal- ASIA EDITION

When U.S. President Barack Obama sharply challenged a recent Supreme Court decision in his State of the Union address, prompting a soto voce rejoinder from Justice Samuel Alito, nobody was concerned that the contretemps would spark a blood feud between the judiciary and the executive. The notion that judges could or would work to undermine a sitting U.S. president is fundamentally alien to America’s constitutional system and political culture. Unfortunately, this is not the case in Pakistan.

Supreme Court Chief Justice Iftikhar Mohammed Chaudhry, the country’s erstwhile hero, is the leading culprit in an unfolding constitutional drama. It was Mr. Chaudhry’s dismissal by then-President Pervez Musharraf in 2007 that triggered street protests by lawyers and judges under the twin banners of democracy and judicial independence. This effort eventually led to Mr. Musharraf’s resignation in 2008. Yet it is now Mr. Chaudhry himself who is violating those principles, having evidently embarked on a campaign to undermine and perhaps even oust President Asif Ali Zardari.

Any involvement in politics by a sitting judge, not to mention a chief justice, is utterly inconsistent with an independent judiciary’s proper role. What is even worse, Chief Justice Chaudhry has been using the court to advance his anti-Zardari campaign. Two recent court actions are emblematic of this effort.

The first is a decision by the Supreme Court, announced and effective last December, to overturn the “National Reconciliation Ordinance.” The NRO, which was decreed in October 2007, granted amnesty to more than 8,000 members from all political parties who had been accused of corruption in the media and some of whom had pending indictments.

While some of these people are probably corrupt, many are not and, in any case, politically inspired prosecutions have long been a bane of Pakistan’s democracy. The decree is similar to actions taken by many other fledgling democracies, such as post-apartheid South Africa, to promote national reconciliation. It was negotiated with the assistance of the United States and was a key element in Pakistan’s transition from a military dictatorship to democracy.

Chief Justice Chaudhry’s decision to overturn the NRO, opening the door to prosecute President Zardari and all members of his cabinet, was bad enough. But the way he did it was even worse. Much to the dismay of many of the brave lawyers who took to the streets to defend the court’s integrity last year, Mr. Chaudhry’s anti-NRO opinion also blessed a highly troubling article of Pakistan’s Constitution—Article 62. This Article, written in 1985, declared that members of parliament are disqualified from serving if they are not of “good character,” if they violate “Islamic injunctions,” do not practice “teachings and practices, obligatory duties prescribed by Islam,” and if they are not “sagacious, righteous and non-profligate.” For non-Muslims, the Article requires that they have “a good moral reputation.”

Putting aside the fact that Article 62 was promulgated by Pakistan’s then ruling military dictator, General Zia ul-Haq, relying on religion-based standards as “Islamic injunctions” or inherently subjective criteria as “good moral reputation” thrusts the Pakistani Supreme Court into an essentially religious domain, not unlike Iranian Sharia-based courts. This behavior is profoundly ill-suited for any secular court. While Article 62 was not formally repealed, it was discredited and in effect, a dead letter. The fact that the petitioner in the NRO case sought only to challenge the decree based on the nondiscrimination clause of the Pakistani Constitution and did not mention Article 62 makes the court’s invocation of it even more repugnant. Meanwhile, the decision’s lengthy recitations of religious literature and poetry, rather than reliance on legal precedent, further pulls the judiciary from its proper constitutional moorings.

The second anti-Zardari effort occurred just a few days ago, when the court blocked a slate of the president’s judicial appointments. The court’s three-Justice panel justified the move by alleging the president failed to “consult” with Mr. Chaudhry. This constitutional excuse has never been used before.

It is well-known in Islamabad that Mr. Zardari’s real sin was political, as he dared to appoint people unacceptable to the chief justice. Since consultation is not approval, Mr. Chaudhry’s position appears to be legally untenable. Yet Mr. Zardari, faced with demonstrations and media attacks, let Mr. Chaudhry choose a Supreme Court justice.

There is no doubt that the chief justice is more popular these days than the president, who has been weakened by the split in the political coalition which brought down Mr. Musharraf. Former Prime Minister Nawaz Sharif is now a leading opponent of the regime. There is a strong sense among the Pakistani elites that Justice Chaudhry has become Mr. Sharif’s key ally.

The fact that Mr. Chaudhry was a victim of an improper effort by former President Musharraf to replace him with a more pliant judge makes his current posture all the more deplorable. His conduct has led some of his erstwhile allies to criticize him and speak of the danger to democracy posted by judicial meddling in politics. The stakes are stark indeed. If Mr. Chaudhry succeeds in ousting Mr. Zardari, Pakistan’s fledgling democracy would be undermined and the judiciary’s own legitimacy would be irrevocably damaged. Rule by unaccountable judges is no better than rule by the generals.

Messrs. Rivkin and Casey, Washington, D.C.-based attorneys, served in the Department of Justice during the Ronald Reagan and George H.W. Bush administrations.

---

Add this page to your favorite Social Bookmarking websites

WASHINGTON — A federal appeals court ruled Friday that three men who had been detained by the United States military for years without trial in Afghanistan had no recourse to American courts. The decision was a broad victory for the Obama administration in its efforts to hold terrorism suspects overseas for indefinite periods without judicial oversight.

The detainees, two Yemenis and a Tunisian who say they were captured outside Afghanistan, contend that they are not terrorists and are being mistakenly imprisoned at the American military prison at Bagram Air Base.

But a three-judge panel of the United States Court of Appeals for the District of Columbia ruled unanimously that the three had no right to habeas corpus hearings, in which judges would review evidence against them and could order their release. The court reasoned that Bagram was on the sovereign territory of another government and emphasized the “pragmatic obstacles” of giving hearings to detainees “in an active theater of war.”

The ruling dealt a severe blow to wider efforts by lawyers to extend a landmark 2008 Supreme Court ruling granting habeas corpus rights to prisoners at Guantánamo Bay, Cuba. A lower court judge had previously ruled that the three Bagram detainees were entitled to the same rights, although he had found that others captured in Afghanistan and held there were not.

A lawyer for the detainees, Tina Foster, said that if the precedent stood, Mr. Obama and future presidents would have a free hand to “kidnap people from other parts of the world and lock them away for the rest of their lives” without having to prove in court that their suspicions about such prisoners were accurate.

“The thing that is most disappointing for those of us who have been in the fight for this long is all of the people who used to be opposed to the idea of unlimited executive power during the Bush administration but now seem to have embraced it during this administration,” she said. “We have to remember that Obama is not the last president of the United States.”

Senator Lindsey Graham, Republican of South Carolina and an influential lawmaker in the long-running debate over detentions, called the ruling a “big win” and praised the administration for appealing the lower court’s ruling.

“Allowing a noncitizen enemy combatant detained in a combat zone access to American courts would have been a change of historic proportions,” he said. “It also would have dealt a severe blow to our war effort.

“There is a reason we have never allowed enemy prisoners detained overseas in an active war zone to sue in federal court for their release. It simply makes no sense and would be the ultimate act of turning the war into a crime.”

It was not entirely clear how the ruling might affect detention policies for terrorism suspects caught outside Afghanistan or Iraq. While the Obama administration has stepped up the use of Predator drone strikes to kill terrorism suspects and has relied on other countries, like Pakistan, to hold and interrogate suspects who are captured alive, it is not known whether the United States has directly captured anyone outside Afghanistan or Iraq recently — and, if so, where it has taken them.

A Justice Department spokesman, Dean Boyd, would not comment on the decision.

David Rivkin, who filed a friend-of-the-court brief on behalf of the Special Forces Association urging the court to side with the government, said the ruling would have broad significance by removing doubts over whether the United States could capture and interrogate terrorism suspects without worrying about having to collect, in dangerous situations, evidence that would later stand up in court.

“This is an excellent decision,” said Mr. Rivkin, who was a White House lawyer in the administration of the first President Bush. “It has restored a considerable degree of sanity to what threatened to be a crazy legal regime that would have deprived the United States, for the first time in history, of the opportunity to capture and detain — outside of the United States, in theaters of war — high-value combatants. That has been solved, and it will apply to many other situations in the future.”

The case was brought on behalf of a Tunisian man who says he was captured in Pakistan in 2002, a Yemeni man who says he was captured in Thailand in 2002, and another Yemeni man who says he was captured in 2003 at another location outside Afghanistan that has not been disclosed. (The government has disputed the second Yemeni’s claim.)

The men’s case was originally heard by Judge John D. Bates of the Federal District Court, an appointee of former President George W. Bush. The Bush and Obama administrations had both urged Judge Bates not to extend habeas corpus rights beyond Guantánamo, arguing that courts should not interfere with military operations inside active combat zones.

But in April 2009, Judge Bates ruled that there was no difference between the three men who had filed suit and Guantánamo prisoners. His decision was limited to non-Afghans captured outside Afghanistan — a category that fits only about a dozen of the roughly 800 detainees at Bagram, officials have said.

In urging the appeals court to let Judge Bates’s decision stand, lawyers for the detainees argued that reversing it would mean that the government would be able “to evade judicial review of executive detention decisions by transferring detainees into active combat zones, thereby granting the executive the power to switch the Constitution on or off at will.”

But in the appeal panel’s decision reversing Judge Bates, Chief Judge David B. Sentelle said there had been no such gamesmanship in the decision to bring the three detainees to Bagram because it happened years before the Supreme Court’s Guantánamo rulings.

Still, he left the door open to approving habeas corpus rights for prisoners taken to prisons other than Guantánamo in the future, writing, “We need make no determination on the importance of this possibility, given that it remains only a possibility; its resolution can await a case in which the claim is a reality rather than speculation.”

Ms. Foster vowed to keep fighting. But Mr. Rivkin said that the detainees’ chances for overturning the decision were dim because the three appeals judges spanned the ideological spectrum: Chief Judge Sentelle, appointed by President Ronald Reagan; Judge Harry T. Edwards, appointed by President Jimmy Carter; and Judge David S. Tatel, appointed by President Bill Clinton.

It could also be difficult to win a reversal by the Supreme Court, where five of the nine justices supported giving habeas rights to detainees in the Guantánamo case. Among the narrow majority in that case was Justice John Paul Stevens, who is retiring.

The nominee to replace him, Elena Kagan, who as solicitor general signed the government’s briefs in the case, would most likely recuse herself from hearing an appeal of the decision, and a four-four split would allow it to stand.

---

Add this page to your favorite Social Bookmarking websites

Published in the LATimes: May 10, 2010 By: David B. Rivkin Jr. and Vincent J. Vitkowsky

In a recent hearing before the Senate Judiciary Committee, Atty. Gen. Eric H. Holder Jr. said that a civilian trial in New York City for Khalid Shaikh Mohammed and four other accused 9/11 plotters was still “not off the table.” This is unfortunate, and not only because such a trial would inevitably compromise classified information, impose massive security and logistical costs on New York, and provide the defendants with a superb propaganda platform. Another major problem with a civilian trial has been largely overlooked: the impact on the 12 private citizens unlucky enough to be chosen as jurors.

The trial of Mohammed would be a long and dangerous ordeal for jurors. They would be forced to surrender years of their lives. They would have to be entrusted with classified information of value to Al Qaeda. Their identities almost certainly would become public knowledge, and they could easily be subjected to intimidation. Consider Osama bin Laden’s threat on March 25 to execute all captured Americans if the defendants or any other Al Qaeda operatives in U.S. custody are executed. Wouldn’t jurors who vote to convict or impose the death penalty have reason to fear that they themselves could become targets for revenge attacks? Meanwhile, a juror who, however improbably, voted to acquit a defendant thought to be responsible for an attack that killed thousands of Americans is likely to be ostracized by many of his fellow countrymen. Either scenario would wreak havoc with civilian jurors’ lives.

The problems posed by holding highly publicized terrorists trials, involving defendants who belong to a functioning paramilitary organization, are well illustrated by the British experience in Northern Ireland, where the British government was forced to create specialized terrorism courts, in part because of the inability to obtain convictions from thoroughly intimidated jurors. Under constant threat from the IRA and other factions, most prospective jurors in Northern Ireland either showed a propensity to acquit or were afraid to serve.

Closer to home and more recently, the experience from the civilian trial of Zacarias Moussaoui, the so-called 20th hijacker, also demonstrated the formidable potential for verbal intimidation, propaganda and grandstanding, with significant deleterious impact on the jury. Even though Moussaoui pleaded guilty, a jury had to be empanelled because the government sought the death penalty. The sentencing phase alone took a full year. The prosecution reviewed the horrors of 9/11, and the defense put the government on trial by arguing that the U.S. did little to prevent the attacks.

Moussaoui had to be ejected from the courtroom several times. As the prosecution described 9/11, he pumped his fists and shouted, “God curse America!” He called the collapse of the twin towers “gorgeous,” and predicted that “3,000 miscreants” will burn in “hellfire.” He testified that the 9/11 survivors and family members were “pathetic” and “disgusting.” Most of the jury favored death, but there was a lone holdout, so the jury delivered a sentence of life imprisonment. Upon hearing it, Moussaoui declared, “America, you lost! I won.” It was difficult not to conclude that, given Moussaoui’s involvement in the worst terrorist attack on American soil, the failure to secure the death penalty was both a setback for the prosecution and a source of grief for many of the victim’s’ families.

To be sure, similar concerns about intimidation can arise when private citizens serve as jurors in some criminal trials. Organized crime’s presence in the U.S. is of much longer standing than Al Qaeda’s, and jurors have often faced threats of retribution. That is one reason criminal trials do not always succeed. Witness, for example, the government’s capitulation earlier this year in deciding not to proceed against John Gotti Jr. in New York after four mistrials in over five years. Yet, while Gotti is a U.S. citizen, entitled to be tried in a civilian court, Mohammed is not.

All of the jury intimidation problems are resolved entirely by trying Mohammed and the other accused 9/11 plotters before a military commission. The jury in this setting would consist of 12 officers who have voluntarily accepted the risks of their profession, including the prospects of facing death on or off the battlefield. Given the choice between trying the accused mastermind of the 9/11 attacks before a vulnerable jury in civilian court or before a military commission in a secure location such as Guantanamo Bay, we should choose wisely.

David B. Rivkin Jr., an attorney in Washington, served in the Department of Justice in the administrations of Presidents Ronald Reagan and George H.W. Bush. Vitkowsky is an attorney in New York City. Both are affiliated with the Center for Law and Counterterrorism.

---

Add this page to your favorite Social Bookmarking websites

Author: Kris Wernowsky
kwernowsky@pnj.com

U.S. Judge Roger Vinson said Wednesday he wants the lawsuit challenging federal health care reform to move quickly.

A preliminary schedule hammered out by U.S. Department of Justice attorneys, representing the United States, and the plaintiffs' attorneys, representing more than 13 states, had the case reaching well into December.

Vinson suggested that with the stakes high, and a $2.5 trillion health care reform law hanging in the balance, resolving the issue in a timely manner is key.

"I would like to remind everyone we're working for the taxpayers," Vinson said. "Including myself."

He made his comments during a scheduling hearing — a routine proceeding in federal civil cases to set filing deadlines for attorneys.

The stage was packed with four attorneys each representing the respective sides. Eighteen attorneys from various states named as plaintiffs in the lawsuit listened in via teleconference.

Fewer than 10 spectators sat in the gallery to get a glimpse of a legal battle that, no matter the outcome, will resonate throughout the nation.

"I am hoping this is resolved and the plaintiffs prevail," said Tim Frey, 53, of Pensacola.

Vinson gave the plaintiffs until May 14 to file an amended complaint since six other states have joined the lawsuit and several changes to the bill took place during the Senate reconciliation process.

The case likely will not contain an evidence discovery phase as the judge, and the attorneys believe that the lawsuit can be settled through previous case law.

The defendants in the case will have until June 16 to file an answer to the complaint and to file its motion to dismiss the case.

Ian Gershengorn, an attorney for the Justice Department's civil division, said the federal government has a "strong basis for a motion to dismiss," and there are a host of jurisdictional issues to be resolved.

The plaintiffs have until Aug. 6 to file a response to the dismissal motion and to file its motion for summary judgment.

Vinson said the first arguments before him will begin at 9 a.m. Sept. 14.

Florida Attorney General Bill McCollum, a Republican candidate for governor, was joined by attorneys general in 13 states in challenging the law. McCollum said Tuesday that six other states are expected to join the legal fight.

The lawsuit claims the legislation is an illegal expansion of Congress' regulation of interstate commerce and unfairly penalizes uninsured people who refuse to buy into the program.

"I can give you a list of more than a half-dozen academics who have said this is a serious claim and Congress does indeed have limits on its authority under the Commerce Clause," said Chief of Staff and Deputy Attorney General, Joe Jacquot.

David Rivkin, a Washington attorney and a former adviser in the Reagan and George H.W. Bush administrations, was retained by the attorneys general. He has long been an outspoken critic of national health care reform and is a regular fixture on cable TV talk shows.

The defense attorneys, critics of the lawsuit, many legal scholars, professors and pundits have said the lawsuit has no chance of success due to the supremacy clause of the U.S. Constitution, which says the federal government supersedes state governments.

"I would not look to law professors necessarily as the best predictors of how litigation will turn out," Rivkin said after the hearing. "That's why they are teaching law, rather than practicing law."

---

Add this page to your favorite Social Bookmarking websites

Source: Wall Street Journal- ASIA EDITION

When U.S. President Barack Obama sharply challenged a recent Supreme Court decision in his State of the Union address, prompting a soto voce rejoinder from Justice Samuel Alito, nobody was concerned that the contretemps would spark a blood feud between the judiciary and the executive. The notion that judges could or would work to undermine a sitting U.S. president is fundamentally alien to America’s constitutional system and political culture. Unfortunately, this is not the case in Pakistan.

Supreme Court Chief Justice Iftikhar Mohammed Chaudhry, the country’s erstwhile hero, is the leading culprit in an unfolding constitutional drama. It was Mr. Chaudhry’s dismissal by then-President Pervez Musharraf in 2007 that triggered street protests by lawyers and judges under the twin banners of democracy and judicial independence. This effort eventually led to Mr. Musharraf’s resignation in 2008. Yet it is now Mr. Chaudhry himself who is violating those principles, having evidently embarked on a campaign to undermine and perhaps even oust President Asif Ali Zardari.

Any involvement in politics by a sitting judge, not to mention a chief justice, is utterly inconsistent with an independent judiciary’s proper role. What is even worse, Chief Justice Chaudhry has been using the court to advance his anti-Zardari campaign. Two recent court actions are emblematic of this effort.

The first is a decision by the Supreme Court, announced and effective last December, to overturn the “National Reconciliation Ordinance.” The NRO, which was decreed in October 2007, granted amnesty to more than 8,000 members from all political parties who had been accused of corruption in the media and some of whom had pending indictments.

While some of these people are probably corrupt, many are not and, in any case, politically inspired prosecutions have long been a bane of Pakistan’s democracy. The decree is similar to actions taken by many other fledgling democracies, such as post-apartheid South Africa, to promote national reconciliation. It was negotiated with the assistance of the United States and was a key element in Pakistan’s transition from a military dictatorship to democracy.

Chief Justice Chaudhry’s decision to overturn the NRO, opening the door to prosecute President Zardari and all members of his cabinet, was bad enough. But the way he did it was even worse. Much to the dismay of many of the brave lawyers who took to the streets to defend the court’s integrity last year, Mr. Chaudhry’s anti-NRO opinion also blessed a highly troubling article of Pakistan’s Constitution—Article 62. This Article, written in 1985, declared that members of parliament are disqualified from serving if they are not of “good character,” if they violate “Islamic injunctions,” do not practice “teachings and practices, obligatory duties prescribed by Islam,” and if they are not “sagacious, righteous and non-profligate.” For non-Muslims, the Article requires that they have “a good moral reputation.”

Putting aside the fact that Article 62 was promulgated by Pakistan’s then ruling military dictator, General Zia ul-Haq, relying on religion-based standards as “Islamic injunctions” or inherently subjective criteria as “good moral reputation” thrusts the Pakistani Supreme Court into an essentially religious domain, not unlike Iranian Sharia-based courts. This behavior is profoundly ill-suited for any secular court. While Article 62 was not formally repealed, it was discredited and in effect, a dead letter. The fact that the petitioner in the NRO case sought only to challenge the decree based on the nondiscrimination clause of the Pakistani Constitution and did not mention Article 62 makes the court’s invocation of it even more repugnant. Meanwhile, the decision’s lengthy recitations of religious literature and poetry, rather than reliance on legal precedent, further pulls the judiciary from its proper constitutional moorings.

The second anti-Zardari effort occurred just a few days ago, when the court blocked a slate of the president’s judicial appointments. The court’s three-Justice panel justified the move by alleging the president failed to “consult” with Mr. Chaudhry. This constitutional excuse has never been used before.

It is well-known in Islamabad that Mr. Zardari’s real sin was political, as he dared to appoint people unacceptable to the chief justice. Since consultation is not approval, Mr. Chaudhry’s position appears to be legally untenable. Yet Mr. Zardari, faced with demonstrations and media attacks, let Mr. Chaudhry choose a Supreme Court justice.

There is no doubt that the chief justice is more popular these days than the president, who has been weakened by the split in the political coalition which brought down Mr. Musharraf. Former Prime Minister Nawaz Sharif is now a leading opponent of the regime. There is a strong sense among the Pakistani elites that Justice Chaudhry has become Mr. Sharif’s key ally.

The fact that Mr. Chaudhry was a victim of an improper effort by former President Musharraf to replace him with a more pliant judge makes his current posture all the more deplorable. His conduct has led some of his erstwhile allies to criticize him and speak of the danger to democracy posted by judicial meddling in politics. The stakes are stark indeed. If Mr. Chaudhry succeeds in ousting Mr. Zardari, Pakistan’s fledgling democracy would be undermined and the judiciary’s own legitimacy would be irrevocably damaged. Rule by unaccountable judges is no better than rule by the generals.

Messrs. Rivkin and Casey, Washington, D.C.-based attorneys, served in the Department of Justice during the Ronald Reagan and George H.W. Bush administrations.

---

Add this page to your favorite Social Bookmarking websites