Another legal question of Con-Law interest from my 23-year-old engineer and MIT grad son.
During college he spent a semester abroad in a very foreign country, France, where he studied in a French engineering college in Toulouse, the home of cassoulet, stuffed goose, and Airbus.
While there, Jacques Le Pen, a conservative, some would say Fascist-minded, throwback to an earlier day, beat the modern liberal candidate for party leader, sparking demonstrations all over France, including Toulouse. One of Rick's friends told him, "I'm ashamed to be a Frenchman, today."
Rick found all of this mind-blowing as he'd had his mind into really important things like Mars missions and other really cool stuff like that. Rick knows a lot about Mars and how to rig up buggies that drive all over it.
The world around him here on Earth remained a mystery, however.
"Dad, what's a conservative? And a liberal," were two of the things I had to try to straighten out for him through the miracle of the Internet, when he had access. French universities don't seem to be as wired as ours.
This election Rick manned a Kerry (remember him?) desk at Newport Pier in Southern Cal, and feels lucky he wasn't thrown off. Newport, as Orange County, is conservative. John Wayne country, not John Kerry.
Now Rick cares about the world around him. He knows that engineering is politics. You can't do big engineering without a defense contract, and he works for the defense contractor which purchased the aircraft research and design company that hired him right out of school. He'd interned for a couple of summers at NASA Ames and is a good kid.
In paying attention to his political environment, Rich necessarily must notice the legal. This is a departure. I'd sent a subscription to the New York Times to his dorm, but he never even bothered to pick it up, which bothered me, except that I also understood that the workload was exceedingly heavy, leaving no time for frivolities like NYT.
Rick emailed (and okayed my posting the exchange):
> Hi Dad,
Two paragraphs, excerpts from an article in today's New York Times, regarding military commissions to try detainees in Guantanamo titled, 'Judge Halts War-Crime Trial at Guantã¡®mo'.
Judge Robertson ruled against the government in the case of Salim Ahmed Hamdan, a former driver for Osama bin Laden in Afghanistan who is facing terrorism charges. Mr. Hamdan's lawyers had asked the court to declare the military commission process fatally flawed.
. . .
Mark Corallo, a Justice Department spokesman, said in a statement, "The process struck down by the district court today was carefully crafted to protect America from terrorists while affording those charged with violations of the laws of war with fair process, and the department will make every effort to have this process restored through appeal."
-----------------------------
Why this apparent contradiction in the opinion between the federal judge and the department's spokesman?
If the spokesman speaks for the Justice Department, then is the department preemptively rendering opinion against the ruling of one of their own judges?
Thanks,
> Rick
Conlawprof dad's response:
Rick,
Your question reveals (since you haven't taken my course yet, and is therefore forgivable :) ) a fundamental misconception about the relationship between the Justice Department's lawyer and the judge.
You need to back up a step to here, and then you'll have it right:
The U.S. Government was so set up by the Constitution as to divide government power into three branches, Legislative, Executive, and Judicial. Articles I, II, & III, respectively.
The three branches may have a little meshing or cooperation, but not much, especially as to core functions. When one branch exercises a power that properly belongs to another, it is a "Separation of Powers" violation. (By contrast, but similarly, a State vs. Federal violation is called a "Federalism" issue.)
The Executive Department is headed by an elected president who has, since George Washington, set up government agencies such as Justice, War (now called Defense), Treasury (raises money to run government), State, and the rest of the so-called Cabinet level departments.
The Justice Department is a branch of government under the president in the Executive branch, not the Legislative or Judicial.
Congress enacts laws (with the cooperation of the president who must sign, an example of cooperation) which the president is duty bound to carry out, assuming he hasn't vetoed or his veto hasn't been overridden. Once it's law, he must carry it out by taking enforcement activity which results in a law case often being brought.
The president doesn't personally carry out or enforce, since he doesn't have the time and cannot be everyplace at once, so he has these various departments to do his fighting, enforcing, taxing, litigating, mediating, etc., whatever the federal government does, outside of the courts and congress, which have their own administrative bureaucracies.
The president's, the Executive Branch, consists of all the administrative agencies, hundreds, in a huge pyramid, down to where you post a letter. The military is under the president, too.
Today we have government by administrative agency. Congress sets up the agency, tells it what to do generally (i.e. collect taxes according to the statutory rules, and the agency enacts enabling regulations interpreting the rules).
Or the president has a war-making power that allows him to send troops to invade, emancipate slaves, blockade ports (JFK's Cuban missile crisis, Lincoln's blockade of southern ports during civil war, suspension of habeas corpus, & emancipation proclamation for slaves in the seceded states, but not those which didn't.).
In the case of the Guantanamo prisoners, the president asked Congress to pass legislation, the Patriot Act, to permit him to detain suspected terrorists and enemies. At least I THINK Pres. Bush was acting under legislation; he may have been acting in the belief that his INHERENT war-powers, as a "war-president," authorized him to detain indefinitely.
His policy was carried out by the Army, under the DOD (Dept of Defense, you know, where your company's government contracts come from). This is why the detentions exist.
Some of the detainees sued in federal court to challenge the legality of their detention under any theory the president might advance. They sue the detainor, the Army, and the president. The president's lawyer is the Attorney-General, John Ashcroft, who he appointed to head the Justice Department. Ashcroft assigns the case to the group of lawyers that works with the Pentagon, as opposed to the group assigned to State, Health, Treasury, etc.
A lawyer in this group responds to Mr. Hamdan's petition in federal court and appears in court to argue the government's position.
The Justice Dept is NOT a branch of the Judiciary, although I can see why, from the nomenclature, one might assume differently.
DOJ attorneys, like federal prosecutors in all federal jurisdictions (the eleven circuits - we're the 9th), at least one per state (I'm in the Northern District of California, you're in the Southern out of San Diego, I believe. LA is Central and Sacto is Eastern.) appear in court regularly, just as any other litigant.
So it's no problem for a federal judge to make a ruling against a federal official from a different branch. That's what the Judicial branch DOES.
That's the ho-hum no-big-deal part of the answer to your question.
But since you're a smart guy, you may be reaching toward asking an even more important question that, since you haven't taken my class yet, you probably don't have the legal language to formulate into a precise question that hits the point you are creeping up on, I suspect.
Would it be correct to ask whether you are wondering how a federal judge, i.e. the Judiciary, has the power to tell the Executive Department that it has not the power to detain prisoners caught on a battlefield in Afghanistan?
I.e. that the President of the U.S., who after all exercised the power, acted illegally through his agents, to detain indefinitely, these Guantanamo prisoners, and not lodge charges and bring them before a court like ordinary prisoners? Or in refusing to treat them as POWs under the Geneva Convention(s), which we signed?
That I suspect is your real question, to which I just happen to have the correct answer, since I teach this class that it is unfortunate you have not yet become well-acquainted with.
Some time ago, the Court took upon itself the duty and power to interpret the Constitution, although nowhere in the document is it given this power. I suppose that the president or congress could have grabbed it first, but they didn't. The Court did, in the famous case of Marbury v. Madison (1803), with the man they call the Great Chief Justice, John Marshall, doing the grabbing.
This is why they call him the Great Chief Justice. He gave the Court its great power. We don't call it Zeus's Thunderbolt for nothing.
Any court that is last in the line of appeals is powerful to that extent. But we're talking something a lot bigger. We're talking the power to declare the acts of the other departments of government, state and federal, from the president, to congress, to the governor, to the state legislatures and courts, down to the health inspector and cop on the beat, unconstitutional.
This is how we, meaning all branches, agencies, and the 50 states, plus the territories and Washington D.C., and all their subdivisions, stay coordinated in legal affairs. All must conform to one document, the Constitution as interpreted by one little group, the Supreme Court. The cerebellum, in other words.
This great power has a name.
It is called THE POWER OF JUDICIAL REVIEW.
The power of Judicial Review is to be distinguished from the mere power to entertain appeals. All appellate courts do that. But not all appellate courts have the ultimate power of JR the way the USSC (aka SCOTUS; the president is POTUS) does. Oh, they do to a certain extent.
If USSC has declared abortion legal, for instance, and a state purports to outlaw abortion, even a state appellate court, relying on USSC authority, can declare the state statute unconstitutional. But if a local appellate court breaks new constitutional ground, the USSC has ultimate power to correct its work and change its ruling. Reversed and remanded, for example, is a typical USSC ruling.
Back to your case from the news.
The U.S. District Court, or first level, or trial court, judge, relying on due process precedents, held unconstitutional the indefinite detention of the Gtmo prisoners, it seems. Also found a treaty violation. The prisoners won. The Justice Dept. lawyer lost and has vowed to appeal. That's what got you thinking, I believe.
Let's say the case goes all the way up. The next level, step two, is the U.S. Circuit Court for the circuit where the trial court is. Next is USSC. Step Two is sometimes skipped on order of USSC if it's a national emergency.
When Pres. Truman took over the nation's steel mills under his war powers to keep steel production up during the Korean War in 1952, the USSC told him he didn't have this power (since Congress had previously refused to grant it) and to give them back to their owners, which he immediately did.
This represents progress, for when John Marshall in 1832 ordered the Cherokees not to be removed (the "Trail of Tears) from their homes in Georgia and marched to Oklahoma, Pres. Andrew Jackson reportedly said, "John Marshall has made his order, now let him enforce it." The Indians were removed, and starved.
In the Hamdi case, the SC ordered hearings of some type, unspecified by the Court. That's why the hearing you've inquired about for all such prisoners. These have now been derailed pending further proceedings.
That's about it, in a nutshell, Rick.
Let me know if you have any more questions.
Love,
Dad
***
What would you have replied if it wuz your kid asking?
[Rick and his two older brothers never did like long explanations, but if you're gonna explain something, sometimes you have to give it a long running start. C'est la vie.]
This is how we Walk'n'Talk Con-Law.