[Mb-civic] "Illegal" Meetings Between Bush Team, Roberts Raise Ethical Concerns

[ean at sbcglobal.net]

http://newstandardnews.net/content/index.cfm/items/2247
‘Illegal’ Meetings Between Bush Team, Roberts Raise 
Ethical Concerns
by Jessica Azulay 

In what critics call a clear violation of the US Judicial Code, Supreme 
Court nominee John Roberts met with administration officials about the 
high court job while hearing a historic case on the fate of ‘unlawful 
combatants.’

Aug 19 - President Bush's Supreme Court nominee recently admitted 
that he was interviewing for a seat on the high court while hearing a 
case that called into question the president's authority to use a special 
military tribunal to try a so-called "enemy combatant." Some legal 
analysts not only say the apparent conflict of interest calls into question 
the impartiality of the Judge John Roberts's deliberations on that case, 
but argue that the nominee's failure to recuse himself from the 
proceedings was illegal.

"The news that
 Roberts was interviewed for the Court seat by 
Attorney General Gonzales, Vice President Cheney and others while 
he was deciding a case that went to the heart of the legality of the 
administration's so-called 'war on terror' should finish off his 
nomination," said Michael Ratner, president of the Center for 
Constitutional Rights (CCR), in a press statement. CCR has been at 
the forefront of litigating for the rights of the detainees held at the 
Guantánamo Bay prison camp in Cuba, though the group is not 
representing Hamdan personally.

As reported previously by The NewStandard, the US Court of Appeals 
for the District of Columbia Circuit handed down a decision authorizing 
the use of a controversial military tribunal system to try Guantánamo 
detainee Salim Ahmed Hamdan just days before Roberts, a judge on 
that court, was announced by Bush as his nominee to replace retiring 
Justice Sandra Day O'Connor.

"The central issue of Hamdan v. Rumsfeld was the application of the 
Geneva Convention to alleged terrorist detainees," said Ratner. "The 
policy was crafted by the very people who were interviewing Roberts 
for his new job. He would have every reason to make sure his decision 
did not disagree with the administration, and it did not."

But what was not known to the public at the time of Robert's 
nomination was that he had met with administration officials -- 
including the head of the Justice Department, which was arguing the 
Hamdan case on behalf of the White House -- several times both 
before and during the proceedings. These job interviews were taking 
place unbeknownst to Hamdan's lawyers and represent at least the 
appearance of impropriety on the part of the Bush administration and 
Judge Roberts.

The Judicial Code of Conduct explicitly requires judges to step down 
from cases in which they have real or perceived conflicting interests. 
"A judge is disqualified and shall recuse himself or herself in a 
proceeding in which the judge's impartiality might reasonably be 
questioned," reads the Code.

According to Robert's answers on a Judiciary Committee questionnaire 
in preparation for the upcoming Senate confirmation process, Attorney 
General Alberto Gonzales interviewed him about the Supreme Court 
position on April 1.

Roberts disclosed that he was subsequently interviewed on May 3 by 
Gonzales, Vice President Dick Cheney, Chief of Staff Andrew Card, 
Counsel to the President Harriet Miers and Deputy Chief of Staff Karl 
Rove, among others. Miers interviewed Roberts again on May 23, and 
again by telephone on July 8. Roberts also interviewed with President 
Bush on July 15.

The US Court of Appeals first began hearing the Hamdan case on 
April 7. The three-judge decision affirming the Bush administrations 
position was rendered on July 15.

"Did administration officials or Roberts ask whether it was proper to 
conduct interviews for a possible Supreme Court nomination while the 
judge was adjudicating the government's much-disputed claims of 
expansive presidential powers?" wrote three law professors in an 
opinion piece about the recent disclosure published in the online 
magazine Slate. "Did they ask whether it was appropriate to do so 
without informing opposing counsel?"

The commentary was authored by Stephen Gillers of the New York 
University School of Law, Steven Lubet, of the Northwestern University 
School of Law, and David J. Luban of the Georgetown University Law 
Center.

"If they had asked," the three continued, "they would have discovered 
that the interviews violated federal law on the disqualification of judges. 
Federal law deems public trust in the courts so critical that it requires 
judges to step aside if their 'impartiality might reasonably be 
questioned,' even if the judge is completely impartial as a matter of 
fact."

It is unclear how much of an effect the issue will have on Roberts's 
chances at confirmation.

The Bush administration is denying that any impropriety took place. 
"There was no conflict whatsoever," White House spokeswoman Dana 
Perino told Newsday.

Other law professors, interviewed by the Washington Post, 
downplayed the significance of Roberts not recusing himself from the 
case.

Monroe Freedman, a legal ethicist at Hofstra University School of Law, 
told the Post that requiring appellate court judges hoping for 
promotions from the White House to step down from cases like 
Hamdan would be too burdensome, even though such judges 
frequently hear cases to which the federal government is a party.

But Gillers, Lubet and Luban said the Hamdan case is unusual due to 
its central role in determining the limits of presidential authority in 
crafting detention and judicial policies for the people it arrests during its 
so-called "war on terror." They also noted the "spill-over effect" of that 
case "on the legality of controversial interrogation techniques used by 
the government at Guantánamo and elsewhere," as both issues are 
rooted in the same provisions of the Geneva Conventions.

Meanwhile, commentators are speculating about how the recent 
revelations might have an effect beyond Roberts himself. Gillers, Lubet 
and Luban wrote that the validity of the Hamdan ruling is now called 
into question.

"Although the procedural rules are murky," they wrote, "it may yet be 
possible for Judge Roberts to withdraw his vote retroactively. That 
would at least eliminate the [precedent-setting] effect of the opinion on 
whether the Geneva Conventions grant minimum human rights to 
Hamdan and others in his position."

Ratner, of CCR, said the situation implicates members of the Bush 
administration as well as Roberts. He said the job interview -- coming 
in the midst of a case with so much importance to the administration's 
detention policies -- could be construed as a "bribe."

© 2005 The NewStandard


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