Judge Griffen's plans | Arkansas Blog

Judge Griffen's plans



I heard today from Court of Appeals Judge Wendell Griffen, in a letter about his reaction to yesterday's U.S. Supreme Court ruling in the case of detainees at Guantanamo. That was one of the subjects he touched in a guest column for the Arkansas Times that contributed to his long-running conflict with the Judicial Discipline and Disability Commission over efforts to curb his First Amendment rights.

Judge Griffen won the battle but lost a war. His notoriety undoubtedly was a factor in his defeat in a re-election bid this year.

In the course of getting permission to reprint his letter (on the jump), he told me what the future holds.

He'll join the faculty of the UALR Bowen School of Law as a visiting professor in spring 2009, teaching a pre-trial course in criminal procedure and leading a seminar on Cultural Competency, Inclusion and Law. He said: "The seminar will examine how cultural competency--and the absence of it--operates in the context of legal controversies, court decisions, and societal outcomes. "

He also has formed a consulting firm, Griffen Strategic Consulting, which will assist business, government, education and religious organizations "in achieving proactive success" in leadership development, organizational management, conflict resolution, team building and morale, diversity and inclusion, community relations, public affairs and legal affairs. His term on the court runs through the end of this year.


The ruling yesterday by the Supreme Court that GuantanamoBay detainees may challenge the legality of their detention in U.S. federal courts through the time-honored writ of habeas corpus is indeed a landmark.   However, commentators have not grasped the full irony of the ruling, the lengths taken by the Bush administration to prevent the Supreme Court from addressing the issue, and the historic step taken by the Court to decide the case at all.  Indulge me in this lengthy summary.   
For years since the 9-11-01 terrorist killings in New York, Pennsylvania, and Washington, the Bush administration has asserted an absolute and unchallengeable right to sweep people it terms "enemy combatants" into U.S. custody and hold them at Guantanamo without access to independent judicial review concerning whether they are in fact enemy combatants and whether they are detained legally.  In 2006, the Supreme Court ruled that Salim Ahmed Hamdan, a Yemeni who served as a bodyguard and driver for Osama bin Laden, could not be tried by a military commission whose structure and procedures violated both the Uniform Code of Military Justice (UCMJ) and the Geneva Conventions.  The Hamdan decision came in a 5-3 ruling, because Chief Justice John Roberts did not participate, having been on the Court of Appeals for the District of Columbia Circuit which reversed a district court ruling granting Hamdan's habeas application.  Thus, the Hamdan decision invalidated the military commissions system developed by the Bush administration for prosecuting detainees.
The administration could have chosen to prosecute Hamdan and other detainees in federal court.  It did not.  It could have chosen to prosecute Hamdan and other detainees before courts-martial under the UCMJ, which would have also meant the detainees would have enjoyed procedural rights designed to provide fair trials (including the right to challenge coerced confessions, learn about coercive interrogations, identify exculpatory evidence beneficial to the detainees, have specific notice of the evidence upon which the enemy combatant designation was made, challenge hearsay evidence, and appeal adverse rulings in the federal court system.  Again, it did not.  
Rather, on the eave of the fall 2006 mid-term congressional elections, the Bush administration introduced, Congress enacted, and President Bush signed into law S. 3930, the Military Commisions Act of 2006, which denies federal courts jurisdiction over habeas corpus applications filed by "unlawful enemy combatants."   Democrats opposed that legislation, and were especially vehement in denouncing its habeas-stripping aspects.  Republican Senator Arlen Spector of Pennsylvania, who chaired the Senate Judiciary Committee at the time, publicly deemed the MCA unconstitutional, even while he voted for it.  Sadly, so did Senator Pryor of our state, as did Senator John McCain, the presumptive Republican nominee in the coming 2008 presidential election.   After the MCA was signed into law, the Bush administration immediately moved to have some 500 habeas corpus applications dismissed under that law, even as its constitutionality was being challenged in federal courts.  John Yoo called the MCA a "stinging rebuke" of the Supreme Court's Hamdan v. Rumsfeld ruling, which had invalidated the military commissions before which Hamdan and other detainees were to have been prosecuted. 
The federal court challenges to the MCA by Guantanamo detainees eventually made its way to the Supreme Court, but the Court, under Chief Justice John Roberts, refused to hear the challenges a year ago.  See Boumediene v. Bush, 127 S.Ct. 1478 (2007).  In what was clearly a prophetic and extraordinary statement issued with the denial, Justices Kennedy and Stevens emphasized that denial of review did "not constitute any opinion on the merits" of the dispute, and Justices Souter, Ginsberg, and Breyer joined in a dissenting opinion in which they contended that the Court should give its "immediate attention" to the controversy.  Last August, the Court reconsidered the matter and granted review of the constitutionality of the MCA and whether aliens held as enemy combatants in GuantanamoBay may challenge their detentions by habeas corpus applications in federal courts.  The decision announced yesterday by the Supreme Court says that they may do so.
The commentators thus far have not mentioned--perhaps because they have not studied the MCA--that the Court's ruling has far-reaching implications for the upcoming presidential elections as well as the constitutional legacy of the Bush administration.  After the MCA was enacted, President Bush linked that legislation with "a CIA program [under which] ... suspected terrorists have been detained and questioned about threats against our country."  In doing so, President Bush suggested that the CIA program, which included coercive interrogation tactics, helped result in detainees being designated enemy combatants by the Defense Department.  Thus, it is more than slightly ironic that Senator McCain, who was tortured while a prisoner of war during the Vietnam conflict, voted to enact legislation sponsored by the Bush administration that sought to prevent Guantanamo detainees who may have also been tortured from challenging their detention through habeas applications filed in federal courts.  
Senator McCain, like President Bush, criticized the Court's ruling in Boumediene v. Bush on yesterday.  Senator McCain, like President Bush, supported the legislation which the Court struck down as unconstitutional.  It remains to be seen whether political commentators will inform the American public about their common tie to the Military Commissions Act and the CIA coercive interrogation process that the MCA was intended to shield from judicial purview.

Finally, yesterday's ruling is a vindication for me on a personal level.  In October 2006, after the Hamdan ruling and after enactment of the MCA, I wrote an op-ed piece titled "Frustrated Presidents" that Max Brantley was kind enough to publish in the Arkansas Times.  In that piece, I argued that John Yoo was both historically and fundamentally wrong in contending that the Bush Administration's aspiration for unilateral power was consistent with American democracy.  My op-ed column became part of the charges I was forced to defend before the Judicial Discipline and Disability Commission.  The charges were dismissed after the JDDC finally decided to follow U.S. Supreme Court and other federal rulings on the First Amendment rights of judges to speak about disputed political and legal issues not pending before them.  
As I approach the end of my service on the Arkansas Court of Appeals, I take special pleasure in seeing the Supreme Court remind the Bush administration and reassure the rest of our nation and the world that the highest and first obligation of every public official, including the President of the United States, is to support and defend the Constitution.  As Justice Kennedy indicated in his majority opinion in Boumediene, if the government will not or cannot do that, none of us are safe from tyrannical government. In the first instance, it is the business of the executive branch to ensure that government does not conduct itself in tyrannical ways.  In the last instance, it is always the solemn and noble job of courts and judges to entertain and decide the merits of allegations of such executive misconduct, even when the allegations are made by non-citizens who have been detained outside the territorial borders of the United States in what appears to have been a deliberate effort to deny them access to due process of law.
I predict that the Bush administration will be remembered as the most disrespectful toward due process and the rule of law in modern U.S. history.  It remains to be seen whether Senator McCain will be remembered for having helped to enable the administration's disrespect for the rule of law and due process.

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