The first days of the Trump Administration have underscored the role that the judiciary could play in blocking the executive branch. It also highlights the importance of securing the appointment of a compliant set of jurists, particularly those who are committed to presidential supremacy.
The Gorsuch nomination demonstrates that the optimal judicial nominee is one who shares a key (mistaken) belief--namely, the view that the president's inherent power to interpret his constitutional responsibilities as he sees fit--has been tested under fire, while serving in the trenches with the executive branch's legal advisers. In the course of that service, those who find the Department of Justice's defences of indefinite arbitrary detention, torture, and extrajudicial assassination distasteful can be encouraged to find more lucrative work in private practice.
This winnowing process leaves behind a hardened cadre of true believers willing to work on a government salary within the Beltway in search of a great reward --of the type extended to now-Justice Alito and soon-to-be-Justice Gorsuch. Their prayers may soon be answered, as President Trump looks to fill a record number of vacancies in the federal judiciary. In doing so, he may follow and expand this well-trod path for the most loyal zealots.
While the executive branch now has firm control over the Supreme Court and the D.C. Circuit (which is of particular importance since virtually all cases brought against senior officials are under its purview), the federal courts scattered across the land are capable of damaging the executive's agenda. While their rulings are subject to being reversed, they can stall the agenda and score rhetorical blows, which are particularly damaging to an Administration struggling for momentum and credibility.
It is no coincidence that the first serious challenge to the Trump Administration's use of executive orders came from the Ninth Circuit, which has historically been controlled by the nation's most liberal jurists. Washington v. Trump shows the executive sees this as a problem to be addressed. Indeed, it has understood this for some time. The only defence of Trump's immigration orders comes in the form of a dissent from the Ninth Circuit's decision to decline en banc review of a panel's review of the decision to grant the temporary restraining order barring access to refugees and immigrants from seven specified countries. The author of this very infrequent sort of dissent (which sketched out an argument that the Supreme Court should reverse the Ninth Circuit's ruling) was Judge Jay Bybee.
Jay Bybee was the chief of the legal service for the executive branch --formally known as the Assistant Attorney General for the Office of Legal Counsel, Department of Justice (the "OLC"). In that capacity, he signed the "torture memos" that specifically authorized waterboarding, along with other forms of abuse that had been recognized to be war crimes by such authorities as the International Military Tribunal for the Far East. Contemporary observers (such as the general counsel of the US Navy) criticized the opinion for its "catastrophically poor legal reasoning" about the legality of torture, but the Bush Administration attempted to destroy all the legal memoranda that criticized Bybee's conclusions.
Bybee obtained his position at the head of the OLC after serving for five years in a sensitive position at the Office of Legal Policy of the Department of Justice and then spending ten years in academia. At the time of his appointment to the Ninth Circuit, Bybee was fifty years old, which put him in the position of being able to influence that court's jurisprudence for decades to come.
Bybee's appointment put his colleagues on the court in a difficult position. They were required to extend him professional courtesies even after a investigation by the Office of Professional Responsibility released a report concluding that Bybee had committed "professional misconduct" by writing the torture memos. They also were forced to adjudicate appeals of a lawsuit suing him and other officials brought by the victims of the torture he approved, which were decided while Bybee was the subject of a war crimes investigation in Spain. Bybee weathered all of these storms, and can now look forward to more of his colleagues from the Bush Administration's legal offices joining him on the bench, as they are the pool from which the Trump Administration's judicial nominees will be drawn.
A recent leak from the office of the White House Counsel revealed that Trump has turned his attention to filling what one NGO called the "alarmingly high number" of federal judicial vacancies. The nomination crisis created by the Republicans during the Obama Administration (exemplified by the unprecedented failure to consider the nomination of Judge Merrick Garland to the Supreme Court) had given Trump an unparalleled opportunity to reshape the federal courts in his own image. Reportedly, Trump is looking at young conservative law professors in their late 30s and early 40s, who likely served in the Bush Administration as well. In short, Bybee and Gorsuch's subordinates and accomplices to the executive branch's atrocities.
Soon these jurists will likely sit in judgment on challenges to the renewal of "war on terror" programs that closely resemble those that they crafted and defended. Even the temporary and rhetorical judicial rebukes to executive illegality will then cease. It is difficult to imagine how it will be challenged in that event; with the doors to the courthouses barred, they will likely take place in the streets, for better or for worse.
Guantánamo Bay has fewer detainees in the Trump Administration than it did during his predecessors’ tenure –at least, until such time as the President makes good on his promise to “load it up with some bad dudes”. Despite this, it has never been more sinister, or at least more Kafkaesque. Camp Justice, where the military commissions sit, is gearing up for more mockery.
The executive branch has worked hard to get to this stage, against significant resistance. In 2006, the Supreme Court ruled that Salim Hamdan’s trial by military commission could not proceed, owing in part to its failure to conform to the Geneva Conventions. Accordingly, if the Bush Administration had proceeded under the existing regime, it might have been guilty of war crimes. However, Congress stepped in twice to attempt to provide a legal basis for these tribunals, and President Obama signed the Military Commissions Act of 2009, which revived the charges against such detainees as Omar Khadr, a Canadian who had been arrested as a fifteen year old, brought to Afghanistan by his father.
Khadr was put on trial for his life under conditions that were repeatedly denounced by international observers: he was denied exculpatory evidence and access to the evidence against him (such as it was: the tribunal explicitly allowed the introduction of hearsay evidence and anonymous witnesses for the prosecution). A number of military officials were barred from participating after attempting to exercise undue command influence, and prosecution witnesses were withdrawn in order to keep details of the torture program secret, despite the fact that evidence obtained under “enhanced interrogation” is explicitly permitted.
After numerous failures of this sort, the Pentagon is determined to proceed against its most hated detainees, the same men that they subjected to the worst forms of torture, including mock execution, a month of confinement in a coffin-sized box, and sodomy. Unfortunately, it appears that this torture had destroyed these detainees’ minds: one of those alleged “masterminds” of terrorists attacks about to be tried was described as “the dumbest terrorist I ever met” by the CIA’s Director of Operations, while the FBI’s leading al-Qaeda specialist said another was “insane, certifiable, split personality.” Dr. Sondra Crosby described another high value detainee (Abd al Rashim al Nashiri) as having been “irreversibly damaged by torture that was unusually cruel and designed to break him”, while Abu Zubaydah, who lost an eye and suffered brain damage under torture, “cannot picture his mother’s face or recall his father’s name.”
Numerous American politicians have argued that prisoners cannot be released—even if they were factually innocent—because they have been radicalized by their treatment at GITMO; they hate America owing to being tortured by Americans. One Republican staffer said that “whether they were radicals before they got to Guantánamo or they were radicalized while they were there doesn’t really matter.” But there is substantial evidence that many detainees were not radicals when they got there. In addition to clear cases of mistaken identity (including Afghans who happened to have the same name as terrorism suspects) there were numerous teenagers and even children among the detained. Mohammed el Gharani was fourteen when he arrived at GITMO; Mohamed Jawad may have been as young as twelve at the time of his detention.
There is also no compelling evidence that innocent detainees nurse burning hatred towards their captors. Mohamedou Slahi endured the worst forms of torture during his fourteen year detention without charge; after his release he noted that “Anger is very painful in the heart. So why should I be angry? Why should I pay twice?” He and his lawyers told 60 Minutes that he “forgives” and he “loves Americans”, as many--including his dauntless lawyer--supported him for years. It is impossible to read The Guantanamo Diaries or see his smiling face and believe that he has become the racist caricature that sustains the belief that the detainees are too dangerous to release. The same is true of Omar Khadr, who demonstrated his moral superiority to his torturers in Guantanamo’s Child, a remarkably moving documentary film.
It is possible that the flood of sympathy towards Slahi, Khadr and others has motivated the Administration and the Pentagon to stage a travesty of justice involving prisoners it tortured past the point of madness. These are not only “show trials” in the sense of being designed to produce propaganda; they are also not true trials because they are heads-I-win-tails-you-lose propositions. The detainees will likely be executed if found guilty, but if found not guilty, they will not be released. This is the reason why they have been labelled “forever prisoners.”
In 2011, the Obama Administration transferred Khalid Sheikh Mohammed from the civilian justice system back to the GITMO military commissions. When the alleged mastermind of the 9/11 attacks was arrested in Pakistan, he was photographed wearing western clothing and a short mustache. When he appeared before the military commission in 2012, on his head he wore a shemagh wound like a turban and a white bisht worn like a hooded cloak. The commission later gave him the right to wear a camouflage vest. This, in combination with his flowing salt-and-pepper beard, created a striking similarity to the iconic depiction of Osama bin Laden. Kangaroo court convictions of detainees tortured into insanity because they resemble hate figures would be a new low for the United States. Brigadier General John G. Baker—chief defense counsel for the detainees facing military commissions, provided this apt analysis:
“Justice Jackson said in his opening argument at Nuremberg: ‘We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well.’ Instead of respecting the Constitution and ensuring equal protection under the law, the U.S. Government is choosing to drink from a poisoned chalice.”
It appears that the poison is now spreading through the veins of the American body politic. When the symptoms manifest, they may prove lethal to its constitution.
The same week that the 9th Circuit released its opinion denying a stay in Washington v. Trump (see last post below) that court released an opinion that disposed of a momentous case brought against the government. The fact that the stay order received so much attention and the final order in Saleh v. Bush says much about the failure of the judiciary to protect the rule of law in any meaningful way.
The plaintiff in Saleh was an Iraqi immigrant who, along with other members of a class who sought to bring claims against high officials of the Bush Administration for what they suffered during and after the American invasion. He claimed that Donald Rumsfeld and others had planned an illegal war and used the panic that ensued after the 9/11 attacks as an excuse to put the plan in motion. (There is ample evidence for this, but one need only point to the Bush Administration's consistent insinuation that Saddam Hussein sponsored the attacks.)
Despite the defendants admissions, and the reports of multiple official inquiries conducted into the illegality of the Iraq War that concluded that the United States had committed the "supreme international crime" of waging aggressive war, the case was dismissed. The plaintiffs were not even permitted to present the shocking evidence against Rumsfeld et al. that they had compiled. The courts concluded that former government officials were (or would be) immune from suits alleging that they had committed war crimes.
American courts have acknowledged that there are certain offences that are so serious that that those who commit them are the common enemies of mankind, who can be prosecuted in any court. The Nuremberg defence that a war criminal was "only following orders" and doing what was not illegal in a foreign country has been categorically rejected. However, the judiciary has not allowed suits against American war criminals to proceed; Saleh was dismissed because these former high officials were immune from prosecution in American courts. It is not the nature of the crimes that mattered, but the status of the defendants.
No American has been prosecuted for violating the most fundamental set of rights while conducting the "war on terror". Those who tortured detainees were immunized by act of Congress, while those who planned that torture (including Donald Rumsfeld, again) were protected with the doctrine of qualified immunity or Westfall Act (which require the implicit conclusion that planning war crimes was part of their official duties),while the whistleblowers who revealed these crimes were locked up.
As I detail in my book, wherever a possibility remained to bring actions against US officials, the courts went out of their way to tell the legislature how to take action to eliminate it. In Saleh, the opinion concludes--gratuitously--that Congress could immunize executive branch officials from all claims for violation of jus cogens norms (including torture, slavery, and genocide). (If this seems far-fetched, one should remember that in 2003 Congress passed the American Service-Members Protection Act, which authorizes the President of the United States to invade the Netherlands if any American is put on trial in the Hague for war crimes.)
The Saleh opinion was released on a Friday, so that it might pass through the news cycle unnoticed, while the (ultimately insignificant) denial of the stay in Washington v. Trump was released to great fanfare. The latter waxed poetic about the rule of law to no significant effect, while the former landed a muted but devastating blow. How can there be a rule of law if there is no forum where the executive can be held accountable?
The short answer is that without courts willing to hold the executive responsible for violations of the most fundamental rights, there is no rule of law (this is my book's main argument, by the way). This really should surprise anyone familiar with the history of our constitutional tradition, which emerged as a response to the argument that no one had the right to hold the executive accountable. The world's leading human rights lawyer (Geoffrey Robertson) detailed this history in The Tyrannicide Brief. As every schoolchild used to know, King Charles I, when put on trial, spoke only once, at the outset of the proceedings. He began his infamous speech by challenging the court's power to judge him:
"I would know by what power I am called hither ... I would know by what authority, I mean lawful."
The only answer to this question is the rule of law. If governments are permitted to re-empower the executive to plead in the same manner as Charles I and the defendants at Nuremberg, we have abandoned the idea of a government of laws, and not of men. One might as well allow the president to wear a crown, or let his assistants carry fasces.