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44th Street Notes

A Friend in Need

Oct 2003

While Congress and the Executive have ready access to the media and can effectively advocate for themselves, the judiciary is restrained by ethical codes, its inherent non-polemic nature and public expectations. Therefore, when actions are taken to diminish the authority of the courts and which threaten the delicate balance of power which is basic to our form of government, it is the important responsibility of our profession to step up and speak out.

And there is much to be concerned about. At the recent American Bar Association meeting in Chicago, there was extensive discussion of a provision, tacked on at the last minute to federal legislation ostensibly addressing crimes against children, that would sharply curtail federal judges’ discretion and authority to reduce sentences below the sentencing guidelines in all offenses. The Justice Department has announced that, to carry out provisions of the law, it will compile data on judges who give lesser sentences than the guidelines prescribe.

The explanation given for such a list is that it will help promote uniformity in sentencing among judges. (Indeed, the Attorney General, under cover of uniformity, has also intruded himself upon the authority of his own U. S. Attorneys in death penalty cases. All decisions, both to reject and pursue the death penalty, are now not made by the local U.S. Attorney but in Washington, by the Attorney General.) Others ascribe the motivation as seeking to curb a judge’s discretion to make decisions based on the specific case and circumstances of the defendant before them. After all, the judge handling the case should be in the best position to evaluate the scope of the crime and determine how a particular defendant should be treated. In fact, prosecutors appealed only a small percentage of downward departures, and many were arranged in plea bargains.

The guidelines were originally established as just that – guidelines. Their evolution into rules limiting judges, with those not fully toeing the line to be identified in a Justice Department database and reported to Congress, must be viewed as an attempt to intrude upon the most important element for insuring justice, a judge’s independent exercise of his or her discretion. Congress threatens to go a step further, to investigate (and intimidate) judges who impose sentences they deem too lenient.

This legislation is one of a number of measures taken by the President and Congress to limit judicial authority, and enhance the power of the Executive. Several of the post-September 11th actions reduce the role of judges. President Bush’s November, 2001 order establishing military commissions creates an entire framework for trying and punishing (including executing) persons the President identifies as enemy combatants, solely within the Executive Branch. There is no judicial review of the decisions of these commissions.

Also in the fall of 2001, the USA PATRIOT Act greatly expanded federal agencies’ ability to operate in the absence of judicial review. For example, agencies may collect information related to foreign intelligence without any judicial oversight. Notably, the FBI need not demonstrate probable cause before gathering “foreign intelligence information” using methods traditionally policed by the courts, but need only assert the information is needed for a foreign intelligence investigation. In addition, during that same period, the Attorney General issued an order providing that it may eavesdrop on conversations between a lawyer and client being detained in a federal prison, upon giving them notice, without judicial approval.

Early in 2003, proposed additional restrictions by the Justice Department on the courts’ role in protecting civil liberties were leaked to the public. The Department argued that the proposed Domestic Security Enhancement Act (DSEA, but popularly dubbed PATRIOT Act II”) was a draft and not yet a legislative proposal. But in recent weeks Attorney General Ashcroft has talked about introducing further legislation in this vein. If this legislation is consistent with the DSEA, it will contain new restrictions on the courts in overseeing federal agencies’ efforts to address not only terrorism, but drug and other criminal activity as well.

In addition, the Administration is attempting to diminish the authority of the judiciary in cases challenging the detention of U.S. citizens being held incommunicado as enemy combatants, and cases involving the use of secret proceedings for non-citizens detained for immigration violations. The Administration argues that these actions are essentially non-justiciable, that the President is acting pursuant to wartime conditions and may continue to do so until he declares the war at an end. According to the Justice Department, the courts have no role in these proceedings.

Fortunately, these issues are being argued in judicial forums and the courts should have the final word on the extent of their powers and on the crucial national security/civil liberties issues which they are addressing. We know our judges shall pass the only proper litmus test which should apply to them: that they will exercise their judgment with independence and fairness. They deserve and need our support in these historic times.

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