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Pro Publica

Gitmo Judge Urged to Recuse Himself After ProPublica Interview

Chisun Lee

Chief Judge Royce Lamberth of the U.S. District Court in Washington, D.C

A federal judge who spoke at length with ProPublica about his
experience working through about a dozen constitutional challenges
mounted by Guantanamo prisoners is being asked by a detainee's lawyer
to remove himself from a pending case based on quoted portions of his interviews [1].

In one comment, Chief Judge Royce Lamberth of the U.S. District
Court in Washington, D.C said, "How confident can I be that if I make
the wrong choice that he won't be the one that blows up the Washington
Monument or the Capitol?" In a recusal motion (PDF) [2]
filed Friday, lawyer H. Candace Gorman said this statement suggests the
judge's personal fears - not just the facts of the case - will drive
his decision whether to order the release of her client.

Sticky situations like this are one reason the vast majority of
judges avoid talking to the press about pending cases. That means the
public rarely sees their deliberative process - the thoughts they
wrestle with, the ideas they discard - and is left only with their
final written opinions, if they choose to write at all. In the
Guantanamo cases these decisions [3] are literally opaque - they're heavily blacked out for security reasons.

Lamberth and two of his colleagues gave detailed interviews for our article [1],
which aimed to shed light on the usually obscure workings of the third
branch of government in an area of unusually great public interest.
Their comments lent fresh perspective to a long-running debate,
recently chronicled at Scotusblog [4],
about whether a law establishing a new preventive detention process
would better protect public safety and detainees' rights in the battle
against terrorist forces.

They also ventured to sound human - not the first quality typically
associated with the federal bench - by speaking of struggles not just
of intellect but also of conscience.

For instance, Lamberth said, under the current system the judges are
grappling with the prospect of keeping detainees in prison most likely
for life based on far less evidence than the "beyond a reasonable
doubt" proof that is required in ordinary criminal cases.

Were the judges too human? In Lamberth's case, Gorman argues, yes.
"[W]ill this Court hold Petitioner indefinitely in fear that it might
make a mistake?" her motion asks. This fear, she claims, makes the
judge improperly partial to the government's position that he should
deny the habeas petition of Abdal Razak Ali [5], an Algerian captured in Pakistan in March 2002, and endorse his continued detention.

There are different ways to look at all this. Most judges probably
worry about making mistakes -perhaps the more troubling scenario is a
judge who believes himself infallible - and it may be better to know
they worry than to pretend they don't. But what is good for the public
to know could be prejudicial to a litigant - we'll just have to see how
this one plays out - and that's what matters in court. Which brings us
back to the general tendency of judges to stay mum. And which may
explain why Gorman, who writes a blog about Guantanamo [6]
where she frequently criticizes government secrecy, believed she had
the duty to press this unusual motion on behalf of her client against
one of the few judges who has been transparent.

Both Gorman and Lamberth politely declined to comment on the pending motion.

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