No Doubt Where Jeff Sessions Stands on Caitlin Halligan

Yesterday, Senate bellwether Jeff Sesssions delivered these remarks on the Senate floor regarding D.C. Circuit Court nominee Caitlin Halligan. His indictment of Halligan is scathing, but not intemperate: he cites chapter and verse and is, to my mind, utterly persuasive. Note that at one point Sessions quotes Andy McCarthy, another sign of good judgment:

Mr. President, I rise to express my opposition to the nomination of Caitlin Halligan to be a judge for the U.S. Circuit Court of Appeals for the D.C. Circuit. That is an important court, one of the most important courts, one step below the Supreme Court.

I would note that the Senate has already once rejected proceeding with consideration of this nomination and, in my opinion, for good reason. We do not do that lightly…. But it is an important question, and nominees do have to clear the Senate, and the Senate is not a rubber stamp.

Ms. Halligan has a well-documented record of advocating extreme positions on constitutional issues, pushing legal arguments beyond what I think is reasonable, including in cases involving Second Amendment gun rights, abortion, the death penalty, and others.

But one of the most troubling of her views pertains to the war on terror and the detention of enemy combatants. This is alarming not only because the arguments she has advanced in this regard are contrary to well-settled law, but because the court she seeks to join the—D.C. Circuit—has a critical role in national security matters, including deciding habeas petitions of terrorist detainees.

As a member of the Association of the Bar of the City of New York’s Committee on the Federal Courts, she joined a 2004 report, the self-described purpose of which was specifically to “address, in particular, the role the federal courts should play in striking [the] balance [between, in this case, national security and civil liberties concerns] with respect to the detention and trial of suspected terrorists or their accomplices designated as ‘enemy combatants’ by the executive branch.”

The report comes to the untenable conclusion that the congressional Authorization for Use of Military Force does not authorize the indefinite detention of enemy combatants.

These are prisoners of war. Not only did the Supreme Court hold that it does, in fact, authorize indefinite detention in Hamdi v. Rumsfeld, but the Obama administration has argued for a broad construction of that authority itself. And, in a series of rulings joined by judges across the ideological spectrum, the D.C. Circuit has adopted, itself, that broad definition. …

The report also adopts the unsupported view that the war on terrorism “seems closer to a law enforcement effort than to a military campaign.”

But I would say to that, the Congress voted and declared it to be a military effort. Tell that to the soldiers in Afghanistan chasing down al-Qaeda operatives, that it was not a war.

The report goes on. But this was part of the attempt at the time to undermine President Bush’s ability to effectively manage the war effort. The report argues vigorously against the use of military commissions—that is where you try prisoners of war for violations of the rules of war, in military commissions—and maintains that the preferred place to try them are Article III civilian courts, normal civilian courts, except in “exceptional circumstances.”

They say, of course, to try them in a civilian court would provide the terrorists—enemies of the United States, participating in a war against the United States—with all the same constitutional rights that a person who defrauded the IRS or robbed a bank would have. But it is a different situation. You do not give those kind of rights to people at war with the United States, whose goal is to destroy the United States and to replace the government. That has never been the position in our country, nor in any other nation in the world that I am aware of. But that is the position she signed on.

While Obama surrogates and supporters during the campaign often attacked Bush and made these kinds of allegations, the Obama administration, after taking office, has been forced to abandon those positions. They are untenable.

One of the report’s flawed arguments of why you should try unlawful enemy combatants—that is people at war against the United States in Article III civilian courts is as follows: “It seems self-evident that the same [constitutional] protections [afforded ordinary criminals] should presumptively extend to those individuals whom the government has seized and proposes to detain for an extended, and perhaps indefinite, period of time because they are suspected of having engaged in conduct intended to further terrorist aims, thus violating applicable criminal laws.”

Well, applicable criminal laws were violated, but it was an attack on the United States, not a normal crime. And the Nation made a very clear decision on which I thought all of us were in agreement that we had moved from a time of criminal activity to a time of war, and we acted in that fashion. So there is nothing self-evident about the position in the report that an unlawful enemy combatant whose only connection with the United States is his acts of war against it should be afforded the constitutional due process rights of an American citizen who committed a crime.

Andy McCarthy, a former longtime Department of Justice veteran prosecutor, who tried the Blind Sheik case, said this:

The only thing the framers might have found more appalling is the notion that the Constitution licenses lawfare – i.e., that it permits the American people’s courts (which, other than the Supreme Court, are creatures of statute not required by the Constitution) to be used by foreign enemies to put on trial the armed forces of the American people over the manner in which they conduct wartime combat operations that have been authorized by the American people’s representatives.

I think Andy McCarthy is right about that. I think that is basically what happened. I do not dispute it is fully acceptable for lawyers to defend unpopular clients. However, it is curious to me that while this Nation has hundreds of thousands of fine lawyers and thousands of proven prosecutors, the ones who seem to have a leg up—I am saying this carefully because I have observed this now for 4 years. I think it is significant. The ones who seem to have a leg up in this administration’s nomination process are those who have challenged the legal policies of the former President of the United States as he attempted to conduct a war to defend the United States against an enemy dedicated to its destruction.

Time and time again, these are the people who have been nominated for high Department of Justice offices and to the courts. The lifetime appointment, to which Ms. Halligan has been nominated, demands independence and a commitment to the rule of law and not to a political agenda.

At her hearing, she did attempt to distance herself from the report, variously claiming she had not seen it until just before the hearing and that she had not attended all the meetings at which the report was discussed. She admitted, however, that she could have requested that her name not be on the report, as did four other members of the committee, but she did not. She signed it.

In fact, according to her own testimony, she never took any action to repudiate the report or its contents before her nomination or even before her hearing. The first time she expressed any disagreement with the report, it seems, was at her confirmation hearing. Some call that a confirmation conversion. A serious attorney would have taken swift action to either remove their name from the report or to repudiate it. No serious attorney would affix their name to a report on such important matters in a time of war without studying it carefully, surely.

It can only be assumed the report represented her views on the role of a civilian Article III court with respect to detention and trial of enemy combatants. It would have done more for her credibility to own up to that fact, rather than paying lip service to what might be more helpful during the confirmation process.

The report continues its irresponsible description of the al-Qaeda supporter and convicted terrorist Ali al-Marri as a “civilian in this country legally, [who] seems suspected of providing logistical support for al-Qaeda sleeper cells: presumably criminal activity, if proven, but not ‘combatant’ activity under any likely definition of the term.” Al-Marri eventually pleaded guilty to providing material support to al-Qaeda and was sentenced to eight years in federal prison. In his guilty plea, he admitted that he attended terrorist training camps in the years prior to the 9/11 terrorist attacks; that he was instructed by Khalid Sheikh Mohammed, the mastermind of 9/11, to enter the U.S. just prior to 9/11 and await further instruction from al-Qaeda; and that while here, he researched chemical weapons and communicated with al-Qaeda members. Investigators also discovered that he had made several phone calls to Mustafa al-Hawsawi who had wired money to the 9/11 hijackers.

When al-Marri’s case came before the Supreme Court, Ms. Halligan, as a private practitioner, donated her legal services pro bono to co-author an amicus brief on his behalf. The brief argued the United States lacked the authority to detain al-Marri as an enemy combatant, and that the AUMF did not authorize his seizure and indefinite military detention, without criminal trial. At the hearing, Ms. Halligan claimed—unconvincingly in my view—that the brief did not represent her personal views. But the fact remains that she chose to donate her professional legal services to defend a radical Islamic terrorist instead of the millions of Americans who need legal representation, or victims of terrorism in this country and all over the world, or women in Afghanistan fighting for equal rights, or those suffering from religious persecution in Islamic countries. The fact that she would sign her name to the Bar report, and her decision to co-author and file an amicus brief in the al-Marri case, is a very serious matter. And those actions cast doubt on her testimony that she was not aware of the contents of the Bar report.

Much of Ms. Halligan’s testimony did not match up with her record as an attorney both in private practice and public service. During her testimony, she attempted to evade the activist views she spent her career advancing, claiming, for example, that she now embraces original intent as the preferred method of Constitutional interpretation. At the same time, however, she was forced to admit that, prior to her “confirmation conversion,” she had never once espoused such views. That is not surprising, given her well-documented record over the course of many years of advocating for the restriction of Second Amendment rights, including in favor of liability for gun manufacturers, for same sex marriage, for limiting the death penalty, for back pay for unauthorized illegal alien workers, and for affirmative action. All positions utterly unsupportable by an original intent approach to constitutional interpretation.

Her attempts to distance herself from her record were simply unconvincing. There is no question where she stands on these issues. She herself has said that the ‘courts are the special friend of liberty . . . the dynamics of our rule of law enables enviable social progress and mobility.’

Her testimony did nothing to convince me that her written record does not paint the accurate picture of what her tenure on the bench would look like if she were confirmed. We have judges who follow their oaths to serve under the Constitution and the laws of this country. They are never above it. They are never free to alter the meaning of words to advance a personal agenda.

We have written many times over the years about the Senate’s responsibility to advise and consent with respect to presidential nominees. My own view is that, while certainly there are limits, the Senate should be highly deferential to the president’s desire to staff his own administration with aides and officers of his choosing. But judicial appointments raise entirely different issues: a president’s cabinet is charged with executing the president’s policies, not designing its own, and it leaves office when he does. Judges, on the other hand, serve for life. They will be with us long after the president who appointed them has left office. More important, they are appointed not to carry out the president’s policies–for which the public presumably has voted–but rather to execute independent judgment as part of an independent and co-equal branch of government. For these reasons, judicial nominations are not entitled to the same degree of deference that the Senate rightly extends to the president when he is merely staffing his own administration. A nominee like Ms. Halligan, who is clearly out the mainstream and has shown poor judgment on some of the most critical issues that may come before judges of the D.C. Circuit, should be rejected.