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By Ruth Marcus
Wednesday, May 23, 2007
Patrick Philbin is an unlikely victim of the war on terror. In fact, he's one of its chief legal architects.
Philbin's conservative bona fides are unimpeachable. Law clerk for federal appeals judge Laurence Silberman, the ideological godfather of scores of conservative lawyers, then for Supreme Court Justice Clarence Thomas.
As a Justice Department official, he wrote a memo in November 2001 concluding that the president had the "inherent authority" to establish military commissions to try detainees. Wrong, the Supreme Court eventually said.
Philbin co-authored a memo the next month finding that federal courts had no power to hear habeas corpus petitions by Guantanamo Bay detainees. Wrong again, said the Supreme Court.
This wasn't merely a lawyer zealously representing a client. Philbin, now in private practice, urged Congress in March not to close Guantanamo and transfer detainees here. Prisoners then "arguably will have constitutional rights" that they will seek to assert in court, he warned.
Philbin seemed like a shoo-in to become deputy solicitor general. But even he was not a true enough believer for the administration's executive-power zealots, chiefly David S. Addington, then counsel and now chief of staff to Vice President Cheney.
His fault? Manning the legal barricades against the administration's efforts to coerce Attorney General John Ashcroft to approve its extralegal warrantless wiretapping. Philbin was in Ashcroft's hospital room in 2004 when Alberto Gonzales and then-White House chief of staff Andrew Card arrived for the Wednesday Night Ambush.
Former deputy attorney general James Comey referred to Addington's revenge in his Senate testimony last week by mentioning "one particular senior staffer of mine . . . had been blocked from promotion, I believed, as a result of this particular matter . . . That was Mr. Philbin."
Philbin's out of government now. So, too, aside from FBI Director Robert Mueller, are the rest of those who stood up to the administration.
Addington and Gonzales remain. That should chill anyone who believes in the rule of law, not rule by presidential fiat.
As Comey was testifying, another episode in the administration's assault on the rule of law was unfolding down the street, before the U.S. Court of Appeals for the D.C. Circuit. The issue in that case boiled down to just how limited will be the limited role that remains for Guantanamo detainees' lawyers and the courts, now that Congress has acceded to the administration's effort to strip the courts of habeas corpus jurisdiction.
When appearing before the Combatant Status Review Tribunal that decides whether they are enemy combatants, Guantanamo detainees don't have the right to a lawyer -- just a "personal representative" who isn't obliged to maintain client confidentiality. Detainees hear only a summary of the evidence against them, and rulings can be made on the basis of hearsay or evidence obtained through coercion. Detainees have the burden of proving they are not enemy combatants -- but have little practical ability to obtain helpful evidence. If, somehow, the tribunal finds in favor of the detainee, military authorities can call for a second or even a third "do-over."
The appeals court represents detainees' one, brief shot at a real legal process -- though just how real remains to be determined. Last week, the wrangling was partly over what material lawyers could examine in representing their clients. The detainees' lawyers are seeking access to all the information the government has collected about the detainees -- not just material selected for presentation to the tribunal.
The government contends that the lawyers need only the material actually shown to the tribunal. No need to look further, the government says, because if there were any "exculpatory" material helpful to the detainees, the rules would have already required that it be turned over.
This is so maddeningly circular, so Catch-22 meets George Orwell, that it provoked an outburst from Chief Judge Douglas Ginsburg, a conservative Reagan appointee. "How can they assert that something is missing if they don't know what's present?" he asked the government's lawyer, Douglas Letter.
"I don't see how there can be any meaningful review," Ginsburg said. "Maybe you can tell me. How we can [have] any meaningful review of the determination if we don't know what we don't know, but you know."
And later, "What you're describing is a complete, a wholesale complete departure from any kind of adversarial system."
"Yes," Letter replied.
It is a terrifying legal worldview that drives a Patrick Philbin out of government, and that leaves a Douglas Ginsburg sputtering in amazement at executive overreaching.
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