Supreme Court

9/11, Caitlin Halligan, detainee, Guantanamo, Military Commissions, Supreme Court

Senate should oppose D.C. Circuit Court of Appeals nominee Caitlin Halligan

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In 2009, current D.C. Circuit Court of Appeals nominee Caitlin Halligan donated her legal services pro bono and co-authored amicus brief which argued that the 2001 AUMF did not authorize indefinite military detention of captured unlawful enemy combatants.

The Honorable Senator Mitch McConnell
United States Senate
Washington, D.C.
March 4, 2013

Dear Senator McConnell,

We are writing today to express our strong opposition to the appointment of Caitlin J. Halligan to the D.C. Circuit Court of Appeals. We do so because we have seen, first hand, how judicial activism can thwart efforts by the executive and legislative branches of government to protect this nation in matters of national security. We have observed judges on the D.C. Circuit inexplicably dismiss compelling evidence in Guantanamo detainee habeas cases and order the detainees released, only to have those same cases overruled at the appellate level. As the threat of terrorism by groups and individuals inside the U.S. homeland continues to rise, it is essential that the American people continue to be protected through laws crafted and enacted by their sworn representatives, not by unelected judges who serve lifetime terms, accountable to no one.

The D.C. Circuit Appellate bench has jurisdiction over military commission appeals. Ms. Halligan has a public record dismissing military commission as inferior courts. Indeed, the New York City Bar Association Committee on Federal Courts, on which she served, published a report which she signed, describing military commissions as outside the “rule of law.” As you well know, the Detainee Treatment Act and the Military Commissions Act were nothing less than the result of a vigorous, hard-won bi-partisan effort to create a fair, reasonable, and effective legal framework within the confines of the Authorization for the Use of Military Force (AUMF) that dealt with an unconventional, asymmetrical existential threat to this nation. Despite the fact that the MCA and indefinite detention was upheld by the United States Supreme Court, Ms. Halligan, working pro bono, submitted an amicus curiae brief in the 2009 case of Ali Saleh Kahlah Al-Marri v. Spagone, arguing that the AUMF did not authorize the seizure and indefinite military detention, without criminal trial, of a resident alien who allegedly conspired with Al-Qaeda to execute terror attacks on the United States.

We regret that the Constitutionally-required process of Advice and Consent has become politicized, and that activist nominees to the bench try to thwart exposure of their legal philosophy through ambiguous or incomplete testimony. But Ms. Halligan has taken this to a whole new level. She has attempted to remake herself entirely. We believe that she has affirmatively misrepresented herself to the Judiciary Committee, thus lowering the bar on candor and honesty even further. If the Senate votes to affirm her nomination, in our view, it will be complicit in this deception. Worse, the American people, who count on our representatives to act on our behalf, will be even more discouraged. We are tired of political expediency in matters that affect our lives, and the lives of our children and grandchildren. When judges take these matters away from the people, where do we then go?

We urge you and your fellow senators not to allow President Obama to wear you down. As you have before, we urge you to vote “no” against cloture in the nomination of Caitlin Halligan.

Respectfully submitted,

Debra Burlingame
Tim Sumner
Co-founders, 9/11 Families for a Safe & Strong America

Related reading:

File – Caitlin Joan Halligan, Nominee, United States Court of Appeals for the District of Columbia Circuit, January 19, 2011 (document file)

THE INDEFINITE DETENTION OF “ENEMY COMBATANTS”: BALANCING DUE PROCESS AND NATIONAL SECURITY IN THE CONTEXT OF THE WAR ON TERROR The Association of the Bar of the City of New York Committee on Federal Courts February 6, 2004 (pdf)

Barack Obama, detainees, Gitmo, Guantanamo, Military Commissions, Richard Cheney, Supreme Court

Obama vs Cheney

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Last night, Mark Levin compared the speech of President Barack Obama to remarks made by former Vice President Dick Cheney yesterday. (Full audio of Cheney speech here.):

There are flaws within these passages from what President Obama said yesterday:

Indeed, the legal challenges that have sparked so much debate in recent weeks in Washington would be taking place whether or not I decided to close Guantanamo. For example, the court order to release seventeen Uighur detainees took place last fall – when George Bush was President. The Supreme Court that invalidated the system of prosecution at Guantanamo in 2006 was overwhelmingly appointed by Republican Presidents.
…
In 2006, I did strongly oppose legislation proposed by the Bush Administration and passed by the Congress because it failed to establish a legitimate legal framework, with the kind of meaningful due process and rights for the accused that could stand up on appeal.

First off, our Supreme Court has yet to afford Constitutional due process to foreign enemies; in 2006, it said Congress must create the Commissions for the President to use. In addition Tom Joscelyn, on The Blog at The Weekly Standard, points out that Judge Urbina’s order to bring the 17 Uighurs at Guantanamo into the United States and release them was invalidated in February by a higher court, “We are certain that no habeas corpus court since the time of Edward I ever ordered such an extraordinary remedy.” (also see this report)

As a friend put it yesterday:

They are hiding behind the courts. Obama again today made it sound like some flunky federal judge, some lower court judge ordered him to release Uihgurs into the US. As if a lower level judge can tell the president of the US what to do on matters of warfare and national security. Ridiculous. He pulled the same thing with the EIT memos … as if there is no right of appeal, as if there is no executive privilege, as if there is no national security argument. He hides behind the courts, as if they are superior to the Executive Branch. That’s how liberals think. It’s undemocratic … it’s how they circumvent the People.

White House Press Secretary Robert Gibbs twice this week said the Supreme Court has (Boumediene v Bush) “largely” found Military Commissions to be un-Constitutional. Yet Boumediene only invalidated the detention review provisions of the Detainee Treatment Act and Section 7 of the Military Commissions Act. In addition, some have stated that the Supreme Court ruled detainees cannot be held indefinitely. In fact, in its 2004 Hamdi v Rumsfeld decision, the Court expressly ruled enemy detainees could be held indefinitely; in Boumediene it only held that detainees must be granted a “meaningful opportunity” to challenge their detentions.