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Obama’s Supreme Court Nominee Has Mixed Record on Civil Liberties

President Barack Obama’s United States Supreme Court nominee, Merrick Garland, has a mixed record when it comes to civil liberties and national security-related cases. He also often opposes criminal defendants, who appeal their convictions.

Garland currently serves as the chief judge for the D.C. Circuit Court of Appeals. He was previously considered for one of the two openings on the Supreme Court in 2009 and 2010. He has a solid reputation within the Washington legal establishment and is known for his centrist or moderate opinions.

The judge joined a panel opinion in 2007 that ruled prisoners at Guantanamo Bay had no constitutional right to habeas review of their detention. The appeals court believed the Military Commissions Act had eliminated their access to the courts.

The Center for Constitutional Rights (CCR) represented the father of Guantanamo prisoner, Fawzi al-Odah, who challenged the lack of due process for his son. CCR argued the military prison was “an international symbol of the executive branch’s contempt for the rule of law and a deep stain on the reputation of the United States at home and abroad.” The group also maintained the military tribunal system established by the Military Commissions Act did not protect due process rights.

In 2008, the Supreme Court ruled prisoners at Guantanamo Bay had a constitutional right to habeas corpus.

The Obama administration won its appeal in 2014 after the D.C. District Court ruled a genital search policy at Guantanamo was excessive and clearly intended to deter the prisoners from talking to their attorneys. Garland supported the appeals court decision, believing there was “tenuous evidence” genital searches were being used to “obstruct access to counsel.”

But Garland wrote a decision [PDF] in 2008, which determined the Combatant Status Review Tribunal had wrongly classified a Uighur detainee, Huzaifa Parhat, as an “enemy combatant.”

He challenged the government’s classified information, even invoking Lewis Carroll, by arguing just because the government “‘said it thrice’ does not make an allegation true.” “To affirm the Tribunal’s determination under such circumstances would be to place a judicial imprimatur on an act of essentially unreviewable executive discretion,” Garland concluded.

Outside of Guantanamo prisoner cases, Garland ruled against the CIA’s Glomar response, when the agency refused to confirm or deny the existence of records on the agency’s drone program in 2013. Garland wrote, “The CIA asked the courts to stretch [the Glomar] doctrine too far—to give their imprimatur to a fiction of deniability that no reasonable person would regard as plausible.”

The judge dissented when the appeals court ruled against Iraqis, who brought claims of abuse and torture against private contractors from CACI and Titan Corp.

“No act of Congress and no judicial precedent bars the plaintiffs from suing the private contractors—who were neither soldiers nor civilian government employees,” Garland asserted. “Indeed, the only statute to which the defendants point expressly excludes private contractors from the immunity it preserves for the government. Neither President Obama nor President Bush nor any other Executive Branch official has suggested that subjecting the contractors to tort liability for the conduct at issue here would interfere with the nation’s foreign policy or the executive’s ability to wage war.”

Garland added, “To the contrary, the Department of Defense has repeatedly stated that employees of private contractors accompanying the Armed Forces in the field are not within the military’s chain of command, and that such contractors are subject to civil liability.”

According to a summary of Garland’s record from SCOTUSBlog written in 2010, “Judge Garland has tended to take a broader view of First Amendment rights.”

Garland has a fairly decent record when it comes to First Amendment rights. He dissented in 2007 when the appeals court ruled Representative Jim McDermott had no First Amendment right to disclose a conference call recording of a conversation with members of the Republican Party leadership.

When the Department of Energy scientist Wen Ho Lee, who was accused of mishandling computer files, pursued a lawsuit under the Privacy Act and sought to have journalists subpoenaed, Garland dissented from the appeals court opinion. Garland believed the decision diminished reporter’s privilege and ran counter to the intent of the First Amendment to protect the press so they may “bare the secrets of government and inform the people.”

In a case in 2005 involving the District of Columbia Lottery and Charitable Games Control Board, Garland supported the claims of James A. Thompson, the chief of security, who argued he was fired in violation of his First Amendment rights after he investigated misconduct at the Lottery Board.

However, according to SCOTUSBlog, in a number of cases Garland has been unwilling to allow constitutional rights to be asserted. He rejected a claim that a person had a constitutional right to “unapproved drugs.” He upheld restrictions on licenses for low-power radio stations, believing the restrictions did not violate the First Amendment. He rejected a case arguing juvenile curfew was unconstitutional.

Garland is a judge with a background as a prosecutor. He was involved in the Oklahoma City bombing prosecutions and sought the death penalty for Timothy McVeigh and Terry Nichols. As a supervisor at the Justice Department, he was involved in the prosecutions of Theodore J. Kaczynski, the “Unabomber,” and Eric Robert Rudolph, who was behind the bombings of the 1996 Olympics in Atlanta.

Obama’s nominee is also someone, who will tolerate a certain level of what one could call gray-area police tactics.

The New York Times suggested in 2010, Garland “can be somewhat more sympathetic to prosecutors” than “other Democratic appointees.” The media organization referenced cases from 2003 and 2007, where courts were divided on “whether to suppress certain evidence on the grounds that police officers had obtained it as a result of an allegedly unconstitutional search. In both cases, another Democratic appointee sided with the defendant, while Judge Garland voted to allow prosecutors to use the evidence.”

As SCOTUSBlog assessed when looking at multiple criminal cases, Garland has “disagreed with his more-liberal colleagues” and favored the government or declined to decide in favor of criminal defendants, when key matters were at stake.

An image of CBU-105 cluster bomb. (YouTube)
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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof Press. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."