The role of federal courts in national security has expanded in recent years, thrust between Congress and the president, in ways judges never once imagined, Chief Judge David Sentelle of the U.S. Court of Appeals for the D.C. Circuit said today at an American Bar Association conference.
Sentelle, speaking at an ABA conference on national security, recited the recent history of how Guantanamo Bay military camp detainees won the right to challenge detention in federal district court. Sentelle was careful about his words, saying he did not want to “go too far behind the curtain” because the D.C. Circuit is likely to review district court decisions in habeas cases. A federal district judge this week began holding the first wave of habeas hearings.
“But I do assert we in the judiciary are now involved in the conflict between the president … on the one hand and enemy combatants on the other in ways that most of on the court would not have supposed we would ever be in,” Sentelle said in the 45-minute lunchtime speech today. “It may be a good thing. It may be a bad thing.”
Sentelle talked about the plight of the Uighurs, the Chinese Muslims taken into custody in Afghanistan and held at Guantanamo as one-time enemy combatants. U.S. District Judge Ricardo Urbina has ordered the government to release the Uighurs—a decision Justice Department lawyers have appealed to the D.C. Circuit.
“I have no doubt that the executive and Congress are going to do something. The new president and the new Congress are going to have to find out something to do with the Uighurs,” Sentelle said. “There are some very difficult problems that don’t look like those kinds of problems that have readily definable judicial solutions. So we do hope that the political branches can get together and find something without us having to undertake chores for which we are unsuited.”
Sentelle said he is generally not in favor of increasing the use of special courts that are closed to the public. “One of the problems of specialized courts is that they don’t always go away when they’re not needed anymore,” Sentelle said.
Sentelle provided a light moment when he offered an explanation for his pronunciation of the last name of Lakhdar Boumediene, the detainee whose name appears in the landmark Supreme Court decision in June. Sentelle said the first time he heard a lawyer say the last name, it was pronounced “Boo-mah-deen”—compared to the oft-used “Boo-med-e-ehn."
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