Handpicked Judges

By JOANNE MARINER

Wednesday, Feb. 01, 2006

Last week, the Bush Administration lost an important legal battle. As if taking its cues from Fox News, the Justice Department had tried to oust a federal judge from hearing a terrorism-related perjury case. The judge had committed two unforgivable errors, in prosecutors' eyes: She ruled for the defendant on several points, and she publicly stated that the courts should protect individual rights in the wake of the September 11 terrorist attacks.

The U.S. Court of Appeals for the Second Circuit heard the case, United States v. Awadallah. Its decision roundly rejected the government's bid to have the case reassigned. Standing up for judicial independence, the court reminded prosecutors that justice does not mean that the government always wins.

It should go without saying - except that, these days, it obviously needs to be said -- that justice does not mean that when the government loses, it can choose a new judge.

The Government's Use of the Material Witness Statute

Like almost all recent cases touching on terrorism and individual rights, the case at issue has been controversial from the start. Osama Awadallah, the defendant, is accused of lying about his connection to two September 11 hijackers. A lawful permanent resident of the United States, Awadallah was first held as a material witness and later charged with perjury.

The New York federal district judge presiding over the trial, Shira Scheindlin, made several rulings in the defendant's favor. In 2002, most notably, Judge Scheindlin ruled Awadallah's prolonged detention illegal and suppressed his testimony - meaning that it could not be offered into evidence by the government. She found that the government had misused the material witness statute, and had committed an array of other violations in the course of the defendant's arrest and detention.

Although the Second Circuit ultimately disagreed with Judge Scheindlin's reasoning, reversing the decisions, there was nothing groundless or unreasonable about her arguments. As Human Rights Watch described in a powerful 2005 report, the government has been using the material witness statute to detain people without evidence.

By arresting people as material witnesses, it is able to bypass constitutional guarantees afforded to criminal defendants that protect against abuses of state power.

The O'Reilly Factor

Judge Scheindlin's 2002 rulings sparked a right-wing media uproar. Although Awadallah was not accused of involvement in terrorism, a Wall Street Journal editorial published in June branded Judge Scheindlin "Osama's Favorite Judge."

Bill O'Reilly, host of the Fox News program "The O'Reilly Factor," chimed in too. "Judge Scheindlin has to go," he told viewers, urging them to pressure Congress to remove her from office.

Senator Mitch McConnell, a Republican from Kentucky, made similarly ad hominem attacks from the Senate floor. In hearings in 2002 and 2003, he endorsed the Wall Street Journal's editorial on Scheindlin, asserting that the judge was wrongly protecting a "terrorist witness."

A "Rarely Made" Request to Switch Judges

While prosecutors have no power to impeach judges, they can, if a judge is shown to be biased, make a motion to the court - or attempt to convince an appellate court -- to order a switch of judges in a particular case. But as the Second Circuit, in reviewing Judge Scheindlin's rulings emphasized, "[r]emanding a case to a different judge is a serious request rarely made and rarely granted." Indeed, as the New York federal prosecutors acknowledged, they had not made such a request since 1973, and that request was unsuccessful.

In oral argument before the appellate court, assistant U.S. attorney Robin L. Baker criticized Judge Scheindlin's actions both on and off the bench. The prosecutor complained, among other things, that the judge had written a 2004 article for a legal publication asserting that judges had a duty to protect individual rights in the wake of the September 11 attacks.

But the appellate court's opinion, issued last Thursday, found that Judge Scheindlin had not been unfair and had not compromised the "appearance of justice." It pointed out that she had, in fact, ruled in favor of the government on several key issues, and it praised the "intellectual flexibility" she had demonstrated in her handling of the case.

Most importantly, the appellate court reminded prosecutors that justice, or even the appearance of justice, does not mean that the government always wins.

Judge Scheindlin was kept on the case, and hopefully was not intimidated. At a time when judicial independence and integrity are, more than ever, necessary, this is a heartening outcome.


Joanne Mariner is a human rights lawyer and FindLaw columnist. Her previous columns on legal issues related to terrorism and human rights are available in FindLaw's archive.

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