I had a friend in my class at Princeton from Ohio that everyone called Jimbo. His real name was Jim Robertson and his goal in life was to be a judge. Tall and gangly with a funny crew cut that caused the front of his hair to look like bangs, Jimbo was a believer in an Ivy-covered island of cynics. In our last year, 1959, he was for John F. Kennedy for president and, for our graduating yearbook, he wrote a long essay that derided political extremism.
Jimbo was on a Naval ROTC scholarship, so after graduating and marrying his Swedish girlfriend, Birit, he did his tour of duty with the navy before entering George Washington University Law School. He became the editor of the law review and then joined Wilber, Cutler and Pickering, a prestigious D.C. firm made up of Beltway power brokers.
But Jimbo was not on a typical career path. He took a couple of years leave of absence to be a pro bono lawyer in Mississippi to work for civil rights. He returned to his firm and rose to partner. Then, President Clinton appointed him to a federal district court judgeship in Washington and he began deciding mundane cases, giving up his lucrative partnership for the life of a modestly paid federal judge. But 911 changed everything and he found himself presiding over Hamdan v. Rumsfeld.
Afghani militia forces captured Salim Ahmed Hamdan, Osama bin Laden’s driver, in November of 2001, and turned him over to the Americans, who held him in captivity for several years in Camp Delta at the Guantanamo Naval Base in Cuba, while the military decided what to do with him. In 2003, President Bush determined that "there was reason to believe that Hamdan was a member of Al Queda or was otherwise involved in terrorism against the United States Hamdan." Scheduled to be tried before the Military Commission that President Bush had created, and placed in solitary confinement at Camp Echo, he petitioned in 2004 for habeas corpus on the grounds that he was entitled to a hearing before a tribunal under the Third Geneva Convention to determine if he had the right to be treated as a prisoner of war and thus, entitled to a trial by court martial, where he could, amongst other things, confront the witnesses against him. (He had no such right before the Military Commission. Indeed, the military had appointed his lawyer for the purpose solely of plea negotiations.)
Jimbo, who had been in the Woodrow Wilson School at Princeton and honored its motto, "In the nation’s service" (which was also the title of an address by Wilson as president of the university), concluded that the president, who was responsible for having him named an "unprivileged belligerent," was not a tribunal under the Geneva Convention, which applied to the case, and that, therefore, Hamdan was entitled to his writ.
The federal court of appeals in Washington, overruled Jimbo in an opinion joined by now Chief Justice Roberts. No, the court, held, the Geneva Convention is not enforceable in the federal courts, notwithstanding the fact that treaties are part of federal law, as Jimbo had pointed out in his lengthy and scholarly opinion. Because of this opinion, Bush supporters labeled Jimbo a "left-wing" judge," a charge that is laughable to anyone who knows him. Almost painfully patriotic, Jimbo does not have a left-wing bone in his body. Had that been the case, Chief Justice Rehnquist would never have appointed him to the eleven member United States Foreign Intelligence Surveillance Court, which is authorized to expedite requests for court orders to wiretap suspected enemy agents.
Serving on both courts simultaneously, Jimbo was, indeed, in the nation’s service, believing, as he did, that for the rule of law to exist, it must apply to the government. Otherwise, what did Marbury v. Madison mean? Chief Justice Marshall did not exempt the executive branch from the doctrine of judicial review just because Article II of the constitution is vague.
One morning, Jimbo woke up to find he had been hoodwinked. The NSA had, with orders from President Bush, been snooping on American citizens, monitoring their phone calls and e-mails without even consulting the Foreign Intelligence Surveillance Court, even though Bush had publicly said that all wiretaps required a court order. What did this all mean? Was Bush concerned with sleeper cells or with doing away with dissent, as Richard Nixon had attempted to do with his infamous Huston plan to spy on everybody in the country, in search for subversives? Had J. Edgar Hoover not nixed it, Nixon would have had his way. As it is, the Pentagon has put the Quakers on a list of potential terrorists. That ought to give one pause for thought. Did they then bug the entire Swarthmore campus?
St. Thomas Aquinas wrote that a judge faced with upholding laws or actions that violated natural law had only one choice. He had to resign. And so Jimbo, the true believer, sent a letter to Chief Justice Roberts, resigning from the Foreign Intelligence Surveillance Court without further comment. The next day, he was back at work as a district court judge. Senator Specter has pledged to hold hearings on Bush’s actions, and Bush has countered by getting the Justice Department to order an investigation into who leaked the details of the NSA’s actions, which included monitoring who was visiting which websites, to the press. And the Supreme Court has granted certiorari to review the decision of the court of appeals in Hamdan v. Rumsfeld.
The irony is that to win the hearts and minds of the Moslem world, Bush has pledged his support for democracy in Iraq and elsewhere. The leaders of Al Queda mock him. They say American democracy is a hoax. Their propaganda is consistently reinforced by Bush’s own actions. We now know that Bush gave George Tenet, as head of the C.I.A., the authority to decide whom the Agency should kill. Bush’s lawyers have told him this was not unlawful assassination because it was self-defense. Using legalistic arguments instead of legal ones, what Bush has done is turn the C.I.A. into Murder Incorporated and the NSA into the KGB. We even have gulags and torture to complete the picture. (Bush’s lawyers told him that was lawful, too.) So much for the rule of law, without which there can be no democracy.
All of this is precisely what Osama bin Laden had wanted. He has managed to paint Bush as the villain, as Bush turned American democracy into a hoax. No one in his right mind wants to let the terrorists get off so they can strike again. But the great American intelligence system blew it in the first place, notwithstanding a $40 billion a year budget, and failed to head off the 911 attacks, and they have yet to find bin Laden, even though Porter Goss says he knows where he is. If Bush thought the Foreign Intelligence Surveillance Act (FISA), which created the surveillance court, was outmoded, he could have said so and asked Congress to fix it. But he didn’t. He took Article II of the Constitution and decided it made him King George. Not to Jimbo, though. He had enough and resigned. For that, I pay him homage.
Richard Cummings [send him mail] taught international law at the Haile Selassie I University and before that, was Attorney-Advisor with the Office of General Counsel of the Near East South Asia region of U.S.A.I.D, where he was responsible for the legal work pertaining to the aid program in Israel, Jordan, Pakistan and Afghanistan. He is the author of a new novel, The Immortalists, as well as The Pied Piper — Allard K. Lowenstein and the Liberal Dream, and the comedy, Soccer Moms From Hell. He holds a Ph.D. in Social and Political Sciences from Cambridge University and is a member of the Association of Former Intelligence Officers. He is writing a new book, The Road To Baghdad — The Money Trail Behind The War In Iraq. He is a contribution editor for The American Conservative.