Saturday, March 14, 2009

Al Odah v. United States of America: The Judiciary’s Latest Nail in America’s Coffin

On March 6, 2009 a panel of the United States Court of Appeals for the District of Columbia Circuit rendered a decision in Al Odah v. United States of America—and dug yet deeper the grave into which American national security is being buried.

In the March 10, 2009 edition of National Review Online, NR Contributing Editor Andrew C. McCarthy has written a devastating critique of that decision, its implications, and its likely consequences: “The War is Over: Federal courts have just surrendered in the war against radical Islam.” (See

Mr. McCarthy’s article is required reading for every American who wants to understand just how imperial the Imperial Judiciary has become—and how persistently and successfully it is usurping control of our national security, thus seriously undermining our nation’s ability to defend itself against those bent on our destruction.

“Discovery,” in both civil and criminal litigation, is the process by which each side shares with the other factual material relevant to the issues in the case. The usual tools of discovery in civil cases are depositions, written interrogatories, and requests for admissions. In criminal cases, most discovery consists of the prosecution informing the defense of constitutionally-required information, such as exculpatory evidence.

As McCarthy explains in “The War is Over,” al Odah was “a mind-numbing technical dispute over ‘discovery’ in litigation . . . . But the discovery in question is the most vital kind, namely, that of classified national-defense information. What is in dispute is how much sensitive intelligence we must share with enemies bent on annihilating Americans . . . .” In other words, “[a]t issue was: In a challenge to the military’s designation of someone as an enemy combatant, what disclosures of classified information must the government make to the combatant about its basis for concluding that he is one of the enemy?”

The answer of the Court of Appeals panel that made this abominable decision was, in effect, that potentially quite a lot must be shared! As McCarthy says, the court held that “the government must surrender anything in its file that might be helpful [i.e., “material”] to an individual combatant’s case” in a proceeding to determine his status. (My emphasis.)

And who decides “helpful”/”material”?

Why, a judge, of course.

Wait a minute!

Did the United States Court of Appeals for the District of Columbia Circuit rule that the government must relinquish to a federal trial judge its entire file on an enemy combatant—including, presumably, information about intelligence “sources” and “methods”—and that a life-tenured, politically unaccountable jurist will decide how much of it to turn over to confessed 9/11 mastermind Khalid Sheikh Mohammed and his co-terrorists?

Sadly, yes. That’s exactly the meaning of the al Odah decision, the roots of which were planted in the Supreme Court’s earlier Boumediene decision (about which I have written previously; see

As Mr. McCarthy says, in the Boumediene decision “the U.S. Supreme Court ruled—against the weight of precedent, tradition, and common sense—that non-U.S. nationals, held by the military outside sovereign American territory (i.e., beyond the writ of American judges) as prisoners captured in a war authorized by Congress, are nevertheless vested with a constitutional right to challenge their detention as enemy combatants in our courts.”

And who was responsible for Boumediene? Associate Justice of the Supreme Court of the United States Anthony Kennedy. And who was responsible for Kennedy: President Ronald Reagan (who also gave us Sandra Day O’Connor.)

And who was responsible for al Odah?

In one sense, no one.

That’s because the opinion was per curiam—“By the court. A phrase used to distinguish an opinion of the whole court from an opinion written by any one judge” (Black’s Law Dictionary). Not one of the three members of the panel put their names to the opinion, let alone was there a dissent—not even by Judge Janice Rogers Brown, a darling of many conservatives (until now at least).

With Kennedy and four liberals on the Supreme Court, “conservatives” like Brown in the D.C. Circuit, Obama ruling (and appointing judges) from the White House, and Democrats controlling the Senate, Andrew C. McCarthy is likely correct: “The war is over, at least until the next 9/11.”

When that comes, it will be a loud wakeup call indeed.

We must not forget where the blame will lie.