Arkansas Blog: Judge Griffen's plans

I heard today from Court of Appeals Judge Wendell Griffen, in a letter about his reaction to yesterday's U.S. Supreme Court ruling in the case of detainees at Guantanamo. That was one of the subjects he touched in a guest column for the Arkansas Times that contributed to his long-running conflict with the Judicial Discipline and Disability Commission over efforts to curb his First Amendment rights.

Judge Griffen won the battle but lost a war. His notoriety undoubtedly was a factor in his defeat in a re-election bid this year.

In the course of getting permission to reprint his letter (on the jump), he told me what the future holds.

He'll join the faculty of the UALR Bowen School of Law as a visiting professor in spring 2009, teaching a pre-trial course in criminal procedure and leading a seminar on Cultural Competency, Inclusion and Law. He said: "The seminar will examine how cultural competency--and the absence of it--operates in the context of legal controversies, court decisions, and societal outcomes. "

He also has formed a consulting firm, Griffen Strategic Consulting, which will assist business, government, education and religious organizations "in achieving proactive success" in leadership development, organizational management, conflict resolution, team building and morale, diversity and inclusion, community relations, public affairs and legal affairs. His term on the court runs through the end of this year.

LETTER FROM JUDGE WENDELL GRIFFEN

The ruling yesterday by the Supreme Court that GuantanamoBay detainees may challenge the legality of their detention in U.S. federal courts through the time-honored writ of habeas corpus is indeed a landmark.   However, commentators have not grasped the full irony of the ruling, the lengths taken by the Bush administration to prevent the Supreme Court from addressing the issue, and the historic step taken by the Court to decide the case at all. Indulge me in this lengthy summary.

For years since the 9-11-01 terrorist killings in New York, Pennsylvania, and Washington, the Bush administration has asserted an absolute and unchallengeable right to sweep people it terms "enemy combatants" into U.S. custody and hold them at Guantanamo without access to independent judicial review concerning whether they are in fact enemy combatants and whether they are detained legally. In 2006, the Supreme Court ruled that Salim Ahmed Hamdan, a Yemeni who served as a bodyguard and driver for Osama bin Laden, could not be tried by a military commission whose structure and procedures violated both the Uniform Code of Military Justice (UCMJ) and the Geneva Conventions. The Hamdan decision came in a 5-3 ruling, because Chief Justice John Roberts did not participate, having been on the Court of Appeals for the District of Columbia Circuit which reversed a district court ruling granting Hamdan's habeas application. Thus, the Hamdan decision invalidated the military commissions system developed by the Bush administration for prosecuting detainees.

The administration could have chosen to prosecute Hamdan and other detainees in federal court. It did not. It could have chosen to prosecute Hamdan and other detainees before courts-martial under the UCMJ, which would have also meant the detainees would have enjoyed procedural rights designed to provide fair trials (including the right to challenge coerced confessions, learn about coercive interrogations, identify exculpatory evidence beneficial to the detainees, have specific notice of the evidence upon which the enemy combatant designation was made, challenge hearsay evidence, and appeal adverse rulings in the federal court system. Again, it did not.

Rather, on the eave of the fall 2006 mid-term congressional elections, the Bush administration introduced, Congress enacted, and President Bush signed into law S. 3930, the Military Commisions Act of 2006, which denies federal courts jurisdiction over habeas corpus applications filed by "unlawful enemy combatants."   Democrats opposed that legislation, and were especially vehement in denouncing its habeas-stripping aspects. Republican Senator Arlen Spector of Pennsylvania, who chaired the Senate Judiciary Committee at the time, publicly deemed the MCA unconstitutional, even while he voted for it. Sadly, so did Senator Pryor of our state, as did Senator John McCain, the presumptive Republican nominee in the coming 2008 presidential election.   After the MCA was signed into law, the Bush administration immediately moved to have some 500 habeas corpus applications dismissed under that law, even as its constitutionality was being challenged in federal courts. John Yoo called the MCA a "stinging rebuke" of the Supreme Court's Hamdan v. Rumsfeld ruling, which had invalidated the military commissions before which Hamdan and other detainees were to have been prosecuted.

The federal court challenges to the MCA by Guantanamo detainees eventually made its way to the Supreme Court, but the Court, under Chief Justice John Roberts, refused to hear the challenges a year ago. See Boumediene v. Bush, 127 S.Ct. 1478 (2007). In what was clearly a prophetic and extraordinary statement issued with the denial, Justices Kennedy and Stevens emphasized that denial of review did "not constitute any opinion on the merits" of the dispute, and Justices Souter, Ginsberg, and Breyer joined in a dissenting opinion in which they contended that the Court should give its "immediate attention" to the controversy. Last August, the Court reconsidered the matter and granted review of the constitutionality of the MCA and whether aliens held as enemy combatants in GuantanamoBay may challenge their detentions by habeas corpus applications in federal courts. The decision announced yesterday by the Supreme Court says that they may do so.

The commentators thus far have not mentioned--perhaps because they have not studied the MCA--that the Court's ruling has far-reaching implications for the upcoming presidential elections as well as the constitutional legacy of the Bush administration. After the MCA was enacted, President Bush linked that legislation with "a CIA program [under which] ... suspected terrorists have been detained and questioned about threats against our country." In doing so, President Bush suggested that the CIA program, which included coercive interrogation tactics, helped result in detainees being designated enemy combatants by the Defense Department. Thus, it is more than slightly ironic that Senator McCain, who was tortured while a prisoner of war during the Vietnam conflict, voted to enact legislation sponsored by the Bush administration that sought to prevent Guantanamo detainees who may have also been tortured from challenging their detention through habeas applications filed in federal courts.

Senator McCain, like President Bush, criticized the Court's ruling in Boumediene v. Bush on yesterday. Senator McCain, like President Bush, supported the legislation which the Court struck down as unconstitutional. It remains to be seen whether political commentators will inform the American public about their common tie to the Military Commissions Act and the CIA coercive interrogation process that the MCA was intended to shield from judicial purview.

Finally, yesterday's ruling is a vindication for me on a personal level. In October 2006, after the Hamdan ruling and after enactment of the MCA, I wrote an op-ed piece titled "Frustrated Presidents" that Max Brantley was kind enough to publish in the Arkansas Times. In that piece, I argued that John Yoo was both historically and fundamentally wrong in contending that the Bush Administration's aspiration for unilateral power was consistent with American democracy. My op-ed column became part of the charges I was forced to defend before the Judicial Discipline and Disability Commission. The charges were dismissed after the JDDC finally decided to follow U.S. Supreme Court and other federal rulings on the First Amendment rights of judges to speak about disputed political and legal issues not pending before them.

As I approach the end of my service on the Arkansas Court of Appeals, I take special pleasure in seeing the Supreme Court remind the Bush administration and reassure the rest of our nation and the world that the highest and first obligation of every public official, including the President of the United States, is to support and defend the Constitution. As Justice Kennedy indicated in his majority opinion in Boumediene, if the government will not or cannot do that, none of us are safe from tyrannical government. In the first instance, it is the business of the executive branch to ensure that government does not conduct itself in tyrannical ways. In the last instance, it is always the solemn and noble job of courts and judges to entertain and decide the merits of allegations of such executive misconduct, even when the allegations are made by non-citizens who have been detained outside the territorial borders of the United States in what appears to have been a deliberate effort to deny them access to due process of law.

I predict that the Bush administration will be remembered as the most disrespectful toward due process and the rule of law in modern U.S. history. It remains to be seen whether Senator McCain will be remembered for having helped to enable the administration's disrespect for the rule of law and due process.

Comments

Not relevant to this post, but Tim Russert is dead? http://www.nypost.com/seven/06132008/news/nationalnews/tim_russert_dies_from_apparent_heart_att_115384.htm

Posted by: Belinda | June 13, 2008 02:40 PM

WASHINGTON - Tim Russert, NBC News' Washington bureau chief and the moderator of "Meet the Press," died Friday, NBC News said. He was 58.

No further details were immediately available.

Posted by: Newspaperboy | June 13, 2008 02:43 PM

the highest and first obligation of every public official, including the President of the United States, is to support and defend the Constitution. <<

Forget the Ten Commandments. That phrase of Wendell's should be put on a flag and flown just below the U.S. flag. The Rwingnuts have done their damnest to trample our Constitutional provisions. I have little doubt the wingers would like to go back and repeal the Magna Carta.

Posted by: eLwood | June 13, 2008 03:05 PM

Best of luck Wendell. Now maybe the new judge will focus on her job instead of grandstanding for personal notoriety.

Posted by: Nemo | June 13, 2008 03:26 PM

Congratulations, Judge Griffen! One door closes, another one opens. I am so proud of you for taking a stand in what you believe. GOD BLESS!

Posted by: Poetry In Motion | June 13, 2008 03:31 PM

The UALR Bowen Law School will serve current and future legal minds well by offering you a permanent professorship. The students, faculty, and staff will benefit immensely from your superlative experience on the bench. your brilliant legal mind, and your courage in speaking truth to power at a time when tyranny threatens democratic space in various ways. Best wishes!

Posted by: Isaac Mwase | June 13, 2008 03:50 PM

Having heard him speak and talk to students about their future and about believing in yourself, standing up for yourself, and being accountable for yourself, the charge that Griffen spoke out for "personal notoriety" is bunkum and sophistry. It shows the commentator's prejudice and not his knowledge.
Griffen spoke out on issues he believed in strongly, not for personal gain or reward. It would be more honest to say that his actions were unpopular with some. However, they were ruled legal and protected by the Constitution and certainly not grandstanding for personal notoriety. What is correctly defined such a statement is that Nemo has engaged in "character assassination."

We could just as easily accuse Nemo of grandstanding for personal notoriety for speaking his opinions here. I'd prefer not to. He knows it's not true and he should learn from this example that it is not true of Griffen. It's just unpopular.

Posted by: Jake da Snake | June 13, 2008 04:44 PM

Amen bro Jake. Truer words never mentioned on this blog!

Posted by: eLwood | June 13, 2008 05:47 PM

I guess we can add Russert to the Clinton death list.

Posted by: Meet John Doe | June 13, 2008 07:04 PM

Yeah--support and defend the Constitution, not rewrite it. Maybe some day you will understand the difference.

Posted by: FromThePines | June 13, 2008 07:19 PM

Ummmm, yeah. Jake, your use of pretty words like "sophistry" don't make you credible or correct in your evaluation of the good Judge Griffen. Judge G. spoke out on issues he felt were important (and others though irrelevant) to his duties because he felt it important for the electorate to know his opinions so they could make an informed decision in voting for him (or other judges) for the bench. These are nearly his exact words used on more than two occasions when I listened to him talking to others (including students) about his approach to the judicial free speech issue. If arguing for the importance of telling people what you think on issues of the day to get elected isn't self-serving, I'm not sure what is.
Sure, he (and you) can make the argument that he also pursued the goal of ensuring the free speech of other judges, but you might bump into the glaring, inconvenient fact that there weren't exactly throngs of judges standing with or behind his "bold leadership" (ahem) on the issue and, in fact, he appeared to be a lone warrior for a cause about which most judges either didn't care or disagreed.
Further, there are plenty of others who spoke (and speak) on the very same issues Judge G. sought to "free" judges to speak on...the world was not at a loss without his judicial voice speaking on the same issue at the risk of potentially damaging the appearance of independence of the judiciary. He had a very directed and specific purpose for speaking on those issues...because HE wanted to. Because HE thought it was relevant to HIM. He didn't speak because others weren't, or because others couldn't. He spoke because HE wanted to.
I too wish him well. But lets not pretend that Judge G. wasn't in the Judge G. business in his pursuit of the judicial free speech issue. Please.

Posted by: MarvinG | June 13, 2008 08:03 PM

Can't really take you seriously Marvin. I believe more in free speech than the excuse you give. Besides, my point was over the words "grandstanding" and "personal notoriety" which in themselves are quite a stretch. It was unpopular sums it up best. If you want to make it into something worse, then go right ahead.

I'm sure Martin Luther King or Jesus or Gandhi or whomever has ever taken time to speak out had these cheap charges thrown at them.

Like I said, it says more about you than Griffen.

My character assassination charge still stands. When you use negatively-loaded words that portray rather than report the facts, then you are attempting to discredit and color another's actions. Spin is the current hot button term for such work.

Yeah, let's not pretend, as you say. Pretty please with sugar on it. Sure. Maybe some people ought to practice what they preach. At least you can say that's what Griffen did. Since when did Americans become so afraid of free speech and dissent? It was the foundation of our government and revolution many years ago. Seems to be crumbling nowadays by the way the current crop of Americans cringe when someone actually speaks their mind.

Posted by: Jake da Snake | June 13, 2008 08:43 PM

It does appear that the ones who want to rewrite the constitution are those who wish to deny someone else their freedom of speech.

The real debate lies on interpreting the phrase "independence of the judiciary." I think the American Bar Association presents a fine argument that supports Griffen's right to free speech and the dangers inherent in inhibiting such rights. Click on name.

Posted by: Jake da Snake | June 13, 2008 09:11 PM

If the Supreme Court is split over this issue (and remember that Judge Scalia wrote the piece supporting the decision to endorse free speech rights), then the issue probably has judges of all types split as well.
Although I cite the ABA piece, which strongly supports free speech rights, it is not necessarily what the ABA commonly holds. It appears that one can find quite a number of views no matter which way one turns.

The more I look into this matter, the more I see the term "impartiality" being the issue. Unfortunately, so many argue from imagined scenarios that it is hard to understand whether the arguments themselves are impartial.

Well, to heck with it. I simply hold the constitution should extend to all. It's the easiest and safest method to insure fairness.

Marvin, you made the best case and you still have me thinking. I can't accept the characterization issues but you presented the legal arguments quite well.

Posted by: Jake da Snake | June 13, 2008 09:30 PM

Jake, I'd go to the mat defending Wendel's 1st Amendment rights. But I supported his opponent. Just becasue his sometimes controversial speech is legal doesn't make it appropriate, and I prefer judges who maintain an impartial, reserved demeanor. I hope he'll continue to express his thoughtful views from some other venue.

Posted by: PVNasby | June 13, 2008 09:31 PM

So, let me get this straight: After once winning re-election, Judge Griffen opened himself up to attack in order to win re-election again?

Do folks really think Judge Griffen wasn't smart enough to realize this might not be so good for his career on the bench? If so, I think that's evidence that +someone+ isn't smart enough, but I don't think it's Judge Griffen.

Posted by: John A Arkansawyer | June 13, 2008 10:11 PM

Now that he has had is errsss handed to him, he needs to fade into obscurity. His grandstanding and personal agenda cost him re-election. He needs to just go away and become and answer to a trivial pursuit question.

Posted by: Catfish Eater | June 14, 2008 01:02 AM

Thanks Arkansawyer for adding to the debate with some keen insight. Catfish, do you speak from personal experience in making your recommendations?

The more I looked into this matter, the more confusing it got. 9 out of 10 judges are elected. Most claim political affiliations and go through a political process to get their job. The key law I cite gave far more leeway than Griffen ever exercised since it allowed the judge making the appeal the right to make his statements during a campaign. One of the key points about deciding impartiality is whether your comments are upon subjects are situations that come under your legal consideration as a judge. Even the United Nations has a clause about independence of the judiciary and impartiality. The ABA is staunchly adamant about free speech rights as necessary for an indepndent judiciary but likewise is concerned about the appearance of impartiality in exercising these rights. Toss in the scandal with the Bush administration and federal judge appointments/firings and it gets even murkier.

Opponents to the decision resorted to imagined scenarios to prove their contentions. I read a piece in the Jurist against the decision and not once did he mention any specific occurence thatproved his point. And this was from a professor of law.

The case polarizes, certainly. It is free speech vs restraining one's speech. It is a battle over definitions and whether they're too broad or too narrow. There are many jobs which the public want impartiality from the citizens performing them but which do not handicap your free speech rights outside of that job.

Anyway....it can be seen as a comparison to the story of Solomon and the baby decision. Just who the true mother is in this modern version remains to be seen.

Posted by: Jake da Snake | June 14, 2008 04:24 AM

Jake,
Thanks for keeping an open mind. This isn't an issue I personally care much about but it has been addressed here before and I found the exchange and comments of others fascinating. Someone pointed out (and I researched it and found it to be true) that after retiring, when asked by a reporter if there were any court decisions she regretted, Sandra Day O'Connor said she regretted being the swing vote in the case about judicial free speech (that Wendell hangs his hat on) because of the "dangerous" door it opens to making our courthouses more like the public square and less like independent halls of justice (where, famously, justice is blind, judges wear robes, courtrooms look the same, etc., etc. all because the courts and judges who preside over them are to be INDEPENDENT triers of fact and our society - our constitution - values that independent judiciary and has an interest in preserving it).
Now, of course, we all know judges are human and have beliefs, thoughts, feelings and politics of their own (goodness knows Scalia reminds us of that! But two wrongs don't make a right!). Of course. Nobody would deny that. The narrower issue is whether there is a legitimate state interest in the appearance (and we all recognize that it is only an appearance...but an important one) of an independent judiciary.
We want Joe Citizen to feel when he walks into the halls of justice that he is getting a judge who applies law to facts, nothing more or less. It doesn't matter what the judge's views are on a hot issue. Just need a good judge who applies law to facts and administers justice...his views on illegal immigration or abortion or gay marriage or the war, and the like notwithstanding. But if that judge runs his campaigns talking about those (irrelevant) issues, as if they are somehow relevant to his/her job (when in reality, only how good a judge he/she is should be relevant), when Joe Citizen walks into that court, he may not see the appearance of an independent judge, but instead sees the guy who ran for his seat based on his views on those hot topics of the day.
Now you or I might not care about it in this case because we identify with Judge G.'s politics and like the tune he whistles...but what if he, in all of his advocacy and outspoken lobbying on this issue held the complete opposite political views? We may see the other side of the argument more clearly and not be so quick to identify with those precious free speech rights.
Of course Judge G. and all other judges have free speech rights. The issue is how far they extend. Students, teachers and others in schools have limited free speech rights. That is a well settled issue. Now, of course we want students to speak their minds and be engaged in civic life, hot topics, etc. But there is still a limitation on free speech in schools because it is well recognized that there is a need for a controlled environment to achieve the objective of learning/teaching in schools and that unrestricted free speech (i.e. demonstrating in hallways, carrying signs, or wearing "disruptive" tshirts) isn't allowed...because there is a legitimate interest in restricting that speech so that the overall objective of the institution can be achieved...even though we all like free speech and know that students have their opinions. So students and teachers alike have their free speech rights limited in schools. Taking it further, we ALL have limited free speech rights. We can't falsely yell "fire" in a crowded theater, because there is a state interest in preventing unnecessary hysteria or danger when it doesn't exist.
And so there is a legitimate interest in limiting judge's ability to speak out on issues of the day for purposes of preserving the independence of the judiciary and ensuring that the courthouse remains (as much as it can be) a place that administers justice...not houses a bunch of "activist judges" who like to spout off about their views on hot issues just to get elected or because they want to. I think Judge G. is on the wrong side of the issue. I recognize others don't. I respect that. But it doesn't make either of us right or wrong. And ultimately, we all want our courthouses, and the judges in them, to be first and foremost, independent appliers of law to facts. That's the price they pay for being judges. And like somebody else said here once, if they don't like it, then they can go become a politician and talk about those issues all they want (and Judge G. should)! THAT is the beauty of our constitution and the freedoms it protects and affords.

Posted by: MarvinG | June 14, 2008 11:34 AM

But you and I aren't judges, Jake. We're just a couple goobers who can say what they want about whatever. Now Wendell can too. Get over it.

Posted by: Nemo | June 14, 2008 12:10 PM

Much obliged Marvin for the thoughtful response. I likewise read that about O'Connor in my pursuit of information on the topic last night. Nemo, I've got nothing to get over so no problems there. Like Marvin, this isn't a major hair shirt issue to suffer over and toss ashes upon myself about. Just wanted a little temperate judgment and Marvin and PV provided both in sufficient quantities. And, like Marvin said, I'm trying to keep an open mind about it.

Again, excellent arguments and you were very considerate in your response, Marvin. Likewise, kudos to PV for summing it up succinctly on his part. Both of you provided important points to think upon.

Posted by: Jake da Snake | June 14, 2008 01:00 PM

Arkansas Blog

Judge Griffen's plans

Comments

Post a comment