ABC and CBS on Monday night led by celebrating a 2-to-1 federal appeals court ruling against the Bush administration's policy of holding a sleeper cell suspect at a military brig without redress in civilian courts, but in eagerly quoting from the ruling neither bothered to mention that the two judges in the majority were Clinton appointees. “Tonight,” Charles Gibson teased at the top of World News, “a stinging rejection for the President.” Gibson set up his lead story by marveling at how “it is not often you will see a federal court call a policy of the President's 'disastrous.'” Gibson recited how the appeals court “says the President 'claims power that far exceeds that granted him by the Constitution,' a strong rebuke of the administration,” a characterization soon repeated by ABC legal reporter Jan Crawford Greenburg: “The language in this decision is almost indignant, it's a sharp rebuke to these policies of President Bush...” ABC also featured the suspect's attorney, who asserted: “The court is warning is that if they can do that to Mr. Al Marri, they can do it to you, they can do it to your mother.”
With “Bush Setback” on screen, CBS anchor Katie Couric trumpeted “a big defeat for President Bush." Reporter Wyatt Andrews relayed how “the ruling bluntly tells President Bush he has gone too far arresting civilians as enemy combatants,” but he at least quoted a clause from the dissenting judge before concluding by describing the ideology of the court circuit without regard for who nominated the two judges who issued the ruling: “This is a case the White House lost in the appeals court in Richmond, Virginia, perhaps the nation's most conservative. And while the President is still arguing he has unquestioned authority to detain terror suspects, the courts are now firmly saying he does not.”
Oddly, the NBC Nightly News folded the court ruling news into its lead story about the lawsuit alleging a connection between autism and vaccines.
The lengthy ruling (PDF of it) was written by Judge Diana Gribbon Motz and joined by Judge Roger L. Gregory, with the dissent from Bush appointee Judge Henry Hudson. The federal judiciary page bio of Motz, based in Maryland, reports: “Nominated by William J. Clinton on January 27, 1994, to a new seat created by 104 Stat. 5089.” Gregory was part of a big showdown with the Republican-controlled Senate and President Bill Clinton made him a recess appointment in late 2000. President Bush later re-nominated him so he could remain on the bench. The federal judiciary bio recounts: “Received a recess appointment from William J. Clinton on December 27, 2000, to a new seat created by 104 Stat. 5089; nominated on May 9, 2001; Confirmed by the Senate on July 20, 2001, and received commission on July 25, 2001.”
A December 28, 2000 Washington Post article by Dan Eggan began:
President Clinton, complaining that Republicans have stymied his attempts to diversify the federal bench, bypassed the Senate yesterday to appoint the first black judge to the all-white 4th U.S. Circuit Court of Appeals in Richmond.
The temporary appointment of Richmond lawyer Roger Gregory lasts only a year, but Clinton said he will also formally nominate Gregory to the seat for a second time in January, when the new Congress convenes.
The dramatic gesture marks the first time in 20 years that a president has filled a judicial opening with a recess appointment, which allows him to seat a candidate while Congress is out of session.
Clinton had nominated Gregory for the slot in June, but the recommendation languished without hearings or a vote in the Senate Judiciary Committee.
The famously conservative appellate court--which serves Maryland, Virginia, West Virginia and the Carolinas--has a larger minority population than any other circuit but has no minority judges. It was the first court in the country to strike down college scholarships reserved exclusively for blacks. Last year, the court also ruled that Arlington and Montgomery counties could not consider a student's race as a basis for admission to a particular school...
Al Kamen reported in the January 31, 1994 Washington Post:
The Clinton administration made judicial history last week by proposing the first (within recent memory) husband-wife team to the federal judiciary. Clinton nominated Diana Motz, now an associate judge on the Maryland Special Court of Appeals, to the 4th U.S. Circuit Court of Appeals, which covers Maryland, Virginia and three other states.
Her husband, former Baltimore U.S. attorney J. Frederick Motz, is a Reagan-appointed federal district judge in Maryland, which means she could reverse his opinions.
Diana Motz told the White House, however, that she will not sit on appeals from her husband's rulings.
Transcripts of the June 11 ABC and CBS stories:
ABC's World News. The tease from Charles Gibson: “Tonight, a stinging rejection for the President. A federal court rules the government cannot hold terrorism suspects in this country indefinitely.”
THOMAS: Ali al Marri has been in solitary confinement in this South Carolina naval brig for four years. Al Marri was arrested in December 2001, suspected of being an al Qaeda sleeper agent who was preparing to launch a second wave attack after 9/11.
JOHN ASHCROFT, June 24, 2003: Al Marri was sent to the United States as a facilitator for other al Qaeda individuals who would come in to conduct follow-on attacks.
THOMAS: Although al Marri is not a U.S. citizen, he's from Qatar, he was in the U.S. legally. Today a federal appeals court told the Bush administration al Marr is being held illegally and should set free or tried in criminal court.
JONATHAN HAFETZ, al-Marri's attorney: The court is warning is that if they can do that to Mr. Al Marri, they can do it to you, they can do it to your mother.
THOMAS: Using often piercing language, the court wrote: “The President cannot eliminate constitutional protections with the stroke of a pen by proclaiming” a U.S. citizen an enemy combatant. "Continuing this policy," the court said, "would have disastrous consequences for the Constitution and the country."
PROFESSOR MICHAEL GRENBERGER, Center for Health and Homeland Security at the University of Maryland: The court today told the President that his unilateral attempt to wage the war on terror goes way beyond that which the Constitution allows.
THOMAS: Reporter: Since 9/11, the Bush administration has argued the President has the authority to immediately and indefinitely detain suspected terrorists who may pose an imminent threat.
PROFESSOR STEPHEN SALTZBURG, George Washington University Law School: Their point of view is that people who are conspiring with al Qaeda, who may be sleepers in the United States, pose a danger that can't adequately be dealt with through normal criminal law proceedings.
THOMAS: The Justice Department said today the President intends to use all available tools at his disposal to protect Americans. It said it would appeal this ruling. Pierre Thomas, ABC News, Washington.
GIBSON: So, how important is this decision today from the appeals court? Our legal correspondent Jan Crawford Greenburg is joining me now. Jan, as I read this decision the court said, in effect, that no matter how bad a guy this may be, even if he was here to set off a second wave of the terrorism after 9/11, you've either got to try him or let him go, correct?
JAN CRAWFORD GREENBURG: That's right, Charlie. They said even if were a dangerous enemy of the nation working with a secret group, the President does not have the power to detain him indefinitely without charging him.
GIBSON: So, Pierre says the government will appeal, they can continue to hold him for now?
GIBSON: So, what's the overall impact of this?
JAN CRAWFORD GREENBURG: Well, this ruling focuses on suspected terrorists here in the United States. But it also could affect all those detainees being held at Guantanamo Bay, those prisoners who were picked up on the battlefield or in Pakistan. Lawyers for those detainees believe language in this decision could strengthen their arguments that they, too, cannot be held indefinitely without being charged, so that's another reason why the Bush administration will move very quickly to get this decision overturned if possible.
GIBSON: And the Bush administration, then very upset with today's decision?
JAN CRAWFORD GREENBURG: No question, the language in this decision is almost indignant, it's a sharp rebuke to these policies of President Bush and a long line, the latest in a long line of legal setbacks for the administration.
GIBSON: Alright, Jan Crawford Greenburg reporting from Washington, thanks.
CBS Evening News. With “Bush Setback” on screen Katie Couric teased: “Tonight, a big defeat for President Bush. A federal appeals court strikes down a key element of his war on terror, saying he can't hold civilian suspects like this man without charges.”
WYATT ANDREWS: The ruling bluntly tells President Bush he has gone too far arresting civilians as enemy combatants. In the case of Ali al Marri, a legal U.S. resident who has been held without charge in a South Carolina naval brig for four years, a federal appeals court said the President may not do that to a civilian in America. [With text on screen credited to Judge Diana Gribbon Motz] “The Constitution,” the court said, “does not allow the President...to seize civilians in the U.S. and detain them indefinitely...even if he calls them 'enemy combatants.'” Civil liberties groups, and al-Marri's attorney, called it a victory for all Americans.”
JONATHAN HAFETZ, al-Marri's attorney: In America, we don't lock people up and jail them based on allegations. If we detain people, we present evidence in a court, we charge them, and we convict them.
ANDREWS: Al Marri may be protected as a U.S. civilian, but to the FBI, he's the enemy. In court filings, al Marri was described as a sleeper agent, sent to the United States by Osama bin Laden to “disrupt the American financial system through computer hacking.” In a dissent, one appeals court judge said al Marri's detention was justified because he's a “stealth warrior, used al Qaeda to perpetrate terrorist acts against the United States.” The decision has no legal bearing on detainees at Guantanamo, but it is another hurtle for an administration that has yet to try a single enemy combatant. It will also add to demands in Congress to grant Guantanamo prisoners access to U.S. courts.
ANDREW COHEN, CBS News legal analyst: This gives ammunition to Democrats in Congress who already were looking for ways to sort of tweak that new military commissions act so that it would better affect the Guantanamo Bay detainees.
ANDREWS: This ruling does not free al Marri, instead it just transfers him to the normal federal courts. But this is a case the White House lost in the appeals court in Richmond, Virginia, perhaps the nation's most conservative. And while the President is still arguing he has unquestioned authority to detain terror suspects, the courts are now firmly saying he does not. Wyatt Andrews, CBS News, Washington.
