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Judge Heard Terrorism Case As He Interviewed for Seat

By Jim VandeHei
Washington Post Staff Writer
Wednesday, August 17, 2005

Judge John G. Roberts Jr. was interviewing for a possible Supreme Court nomination with top Bush administration officials at the same time he was presiding over a terrorism case of significant importance to President Bush.

Roberts recently released details of the months-long interviewing process showing that he met with Attorney General Alberto R. Gonzales and other administration officials about the Supreme Court job while sitting on the three-judge panel that eventually allowed Bush to resume the use of military officers to conduct trials of terrorist suspects held at Guantanamo Bay, Cuba. The "military commissions" are central to Bush's anti-terrorism strategy.

Roberts met with Gonzales on April 1, six days before hearing oral arguments in the case, which resulted in a unanimous decision in favor of the administration. Assistant Attorney General Peter D. Keisler, a top Gonzales deputy, argued the case on behalf of the administration.

One month later, with the case in progress, Roberts was summoned to the White House for a meeting with Vice President Cheney, White House Chief of Staff Andrew H. Card Jr. and Deputy Chief of Staff Karl Rove, among others. Bush conducted the final face-to-face interview on July 15 -- the same day Roberts and two other judges on the U.S. Court of Appeals for the District of Columbia Circuit issued the ruling in the case, Hamdan v. Rumsfeld .

With Roberts facing Senate confirmation to replace Sandra Day O'Connor on the Supreme Court, a top Democratic aide said Senate Democrats are likely to ask him if his involvement in the case creates the impression of a conflict of interest. Legal experts questioned about the matter were divided over the issue, underscoring the nebulous nature of conflict-of-interest standards for federal judges.

Nobody is alleging that Roberts sided with the administration to curry favor with Bush, but some academics say Roberts should have, at the very least, considered stepping aside to make sure there was not an appearance of conflict.

Stephen Gillers of the New York University School of Law said he and two colleagues plan to argue in a piece they have written for Slate, an online publication, that Roberts should have removed himself from the case once he entered into discussions with the White House about a Supreme Court appointment.

The U.S. code says only that judges should disqualify themselves from "any proceeding in which . . . impartiality might reasonably be questioned." Steve Schmidt, a White House spokesman, said "there was no conflict whatsoever" in Roberts's presiding over the Hamdan case.

A senior administration official, who would discuss Roberts's role in Hamdan only under the condition of anonymity, said the White House believes that as long as the case was not discussed in the secret interviews, there was no reason for Roberts to recuse himself. Moreover, the official said, it would be unwise and unworkable for all judges eyeing a promotion on the federal bench, whether it is to the Supreme Court or a lower one, to step aside from cases involving the federal government because that would cover virtually every judge. The official pointed out that most of the meetings, though not all, took place before O'Connor announced her retirement on July 1.

Monroe Freedman, a specialist in legal ethics at Hofstra University School of Law, said the White House is probably right that it would create an unwise burden if judges were required to recuse themselves in cases like this, especially when it comes to the D.C. Circuit, whose docket is full of matters involving the federal government heard by judges who would be eager to gain a Supreme Court appointment. "I don't think you can fault Roberts," he said, because he was selected to hear the Hamdan case and then approached about the possible Supreme Court opening.

"Does [Robert's involvement in the case] reflect best practices? No," said Deborah L. Rhode, a law professor at Stanford Law School. "Is it sufficient to raise to the level of ethical impropriety? Probably not, unless there is more we do not know."

What makes this case somewhat unique is that it involved the top contender for the Supreme Court presiding over a case at the heart of Bush's anti-terrorism strategy. A lower court had ruled last year the administration could not use a military commission to try Salim Ahmed Hamdan, who admitted to serving as the driver for Osama bin Laden. Hamdan, like many other suspected terrorists, was detained at the prison in Guantanamo Bay and accused of belonging to the al Qaeda terrorist organization.

Prisoners of war are historically tried in courts-martial rather than by commissions. But the Bush administration pushed hard for the military commissions, in part, to make it harder for defendants to ascertain the evidence against them. On the day of the ruling, Gonzales hailed the three-judge panel's ruling for reaffirming the president's "critical authority" to determine how to handle detainees.

Researcher Julie Tate contributed to this report.

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