Fox's O'Brien falsely defended Luttig as "taking issue with the administration" on enemy combatants


On Fox News' The O'Reilly Factor, Fox News Supreme Court analyst Tim O'Brien falsely claimed that 4th U.S. Circuit Court of Appeals Judge J. Michael Luttig had challenged the Bush administration's authority to detain so-called "enemy combatants" indefinitely, incommunicado, and without judicial review in a 2003 case. In fact, in Hamdi v. Rumsfeld, Luttig argued in a dissent that the majority ruling had not shown sufficient deference to the administration. He echoed the administration's position that even though Yaser Esam Hamdi is a U.S. citizen, the government need only present some "factual basis" for holding him as an enemy combatant and that Hamdi need not be allowed to challenge the veracity of the government's claims or present contrary evidence. In Hamdi's case, Luttig wrote that a simple statement from a government official detailing those facts would "likely" have sufficed.

Luttig's name is one being floated as a possible replacement for retiring Supreme Court Justice Sandra Day O'Connor.

On the July 1 edition of The O'Reilly Factor, O'Brien defended Luttig against charges "by some" that he is "too conservative" by falsely claiming that Luttig "was one of the judges who said that the White House exceeded its authority in its treatment of enemy combatants," apparently referring to Hamdi. But Luttig's July 9, 2003, dissent in Hamdi strongly supported the administration's argument that the court should employ an extremely deferential "some evidence" standard to rule on habeas corpus petitions -- i.e., claims that the government is imprisoning someone illegally -- from anyone detained as an "enemy combatant" by the military in the "war on terror."

U.S. forces in Afghanistan captured Hamdi in November 2001. Upon discovering that Hamdi was a U.S. citizen, the military transferred him to a naval brig in Virginia, where he was held incommunicado as an "enemy combatant." Hamdi's father challenged his detention in federal court [The Washington Post, 8/12/04, 8/13/04; O'Connor's plurality opinion in Hamdi].

Luttig criticized the 4th Circuit majority opinion for failing to decide the question of what evidentiary standard federal courts should apply when considering habeas petitions from U.S. citizens held as "enemy combatants. But, he explained, if the court had taken up this question, he probably would have decided that the government's proposed "some evidence" standard -- that the Pentagon merely be required to show some "factual basis" for detention as an enemy combatant, even if the prisoner has no opportunity to challenge it -- is the proper one. From Luttig's dissent:

I believe, as to the standard of review, that the government may be correct that ... "a court's proper role in a habeas proceeding such as this would be to confirm that there is a factual basis supporting the military's determination that a detainee is indeed an enemy combatant." ... That is, I believe that the President of the United States may well be entitled under the Constitution to receive from the Judiciary the deference afforded by a standard selected from those along this continuum, when, in exercise of the powers conferred upon him by Article II of the Constitution, he designates a person as an enemy combatant against this Nation.

In Hamdi's case, Luttig suggested that a sworn affidavit from Michael H. Mobbs, special adviser to the undersecretary of defense for policy, would meet the standard he supports:

As to the application of the standard to the facts proffered by the government in support of the Executive's designation of Hamdi as an enemy combatant, I reserve ultimate judgment for the same reasons. I am prepared to say, however, that I would likely conclude, as argued by the United States, that the facts recited in Special Advisor Mobbs' affidavit, as to which there is not even hint of fabrication, are sufficient to satisfy the constitutionally appropriate standard for the President's designation of an enemy of the United States. ...

In addition to these declarations made under penalty of perjury by the appointed representative of the government, the President of the United States, through his Solicitor General, has represented to this court that in his judgment Hamdi is indeed an enemy combatant, detention of whom is warranted in the interests of national security. The panel's contrary holding notwithstanding, I suspect that more than this would be unnecessary to affirm the President's decision to designate Hamdi an enemy of the United States.

Ultimately, the U.S. Supreme Court did take up question of the proper evidentiary standard federal courts should use to rule on executive detentions of U.S. citizens and found that the administration's proposed "some evidence" standard, which Luttig supported, is unconstitutional. In O'Connor's plurality opinion in Hamdi, the court ruled:

At most, the Government argues, courts should review its determination that a citizen is an enemy combatant under a very deferential "some evidence" standard. Id., at 34 ("Under the some evidence standard, the focus is exclusively on the factual basis supplied by the Executive to support its own determination" (citing Superintendent, Mass. Correctional Institution at Walpole v. Hill, 472 U. S. 445, 455-457 (1985) (explaining that the some evidence standard "does not require" a "weighing of the evidence," but rather calls for assessing "whether there is any evidence in the record that could support the conclusion")).


Because we conclude that due process demands some system for a citizen detainee to refute his classification, the proposed "some evidence" standard is inadequate. Any process in which the Executive's factual assertions go wholly unchallenged or are simply presumed correct without any opportunity for the alleged combatant to demonstrate otherwise falls constitutionally short.

Justices Anthony M. Kennedy and Stephen G. Breyer and Chief Justice William Rehnquist joined O'Connor's plurality, while Justice David H. Souter, joined by Justice Ruth Bader Ginsburg, concurred with the passage quoted above in an opinion that concurred in part and dissented in part from the plurality. Justice Antonin Scalia's separate dissent, joined by Justice John Paul Stevens, went even further, insisting that Hamdi must be tried for war crimes in a U.S. civilian court or released. Only Justice Clarence Thomas followed Luttig in supporting the administration's position. The government released Hamdi in October 2004.

From the July 1 edition of Fox News' The O'Reilly Factor:

O'BRIEN: Michael Luttig -- it's an interesting kind of problem for Mr. Luttig. He's been on the court of appeals more than any of these other nominees -- potential nominees. He has a very long track record. So there's a lot to pick at, and it does cut both ways. Some of it is going to help him, some of it won't.

The fact is, we might remember, when being criticized by some as too conservative, he was one of the judges who said that the White House exceeded its authority in its treatment of enemy combatants once they were removed from the battlefield. So he has no problems taking issue with the administration on serious issues.

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