SharksWithLasers -- Seth Cooper

A CUTTING-EDGE BLOG FOR THE WORLD OF THE 21st CENTURY, Currently operated by Seth L. Cooper, a 27 year-old attorney in Seattle (sethlcooper at comcast dot net)

Tuesday, November 09, 2004

KLIENFELD ON THE COURTS IN WARTIME. Last Thursday evening, Judge Andrew Klienfeld of the Ninth Circuit Court of Appeals delivered an address to the Puget Sound Chapter of The Federalist Society, at its Annual Dinner in downtown Seattle.

Judge Klienfeld, who keeps chambers in Fairbanks, Alaska, entitled his talk “You Can’t Count on the Courts to Protect Civil Liberties During Wartime – and Maybe That’s Not All Bad.” In Judge Klienfeld’s view, the judiciary has been operating with a degree of “unearned public relations” in the protection of civil rights, particularly in wartime. The Executive and Legislative branches have a role to play—especially during a time of war, he noted.

The Judge provided a brief summary of the actions of courts during war in American history. He began with a discussion of the Alien & Sedition Act (not during a time of war, per se), and continued by discussing the actions of the courts during the Civil War, World War I and World War II. Judge Klienfeld described President Abraham Lincoln’s actions in suspending the writ of habeas corpus and in other matters as the most defensible, given the fact that the Union was clearly on the ropes, in the midst of a terrible civil war. He even read the famous “all the laws but one” passage.

Judge Klienfeld described President Lincoln’s actions as the polar opposite of those undertaken during WWII with the internment of Japanese Americans on the West Coast. He even went so far as to say that his readings of the internment cases before the U.S. Supreme Court helped to spark his interest in the law and motivate him to attend law school.

The cases and concepts Judge Klienfeld discussed during his talk were much more developed in his actual address than they are in my belated summary here, to be sure. But it worth nothing Judge Klienfeld’s description of the judiciary as being the branch furthest removed from the people and therefore the one least likely to be able to effectively deal with issues of national security. He described the judges themselves who comprise our judiciary as being removed from everyday life and limited in their contact to other promulgators of elitist opinion. Indeed, Judge Klienfeld did not completely exempt himself from this description, either. He stated that he was much better connected and informed about the goings-on in the community and with those around him when he had a law practice and talked freely with clients and others, before he received his appointment to the federal bench.

Having studied the military tribunal issue in law school, I was generally pleased with the Judge’s talk and thanked him afterward. There really are Ninth Circuit Judges who make sense.

(Downtown Seattle, WA)

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