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Cases Hint at Sotomayor’s Views on Executive Power


Judge Sonia Sotomayor (Zuma Press)

Most commentators and reporters have assumed that when it comes to Judge Sonia Sotomayor’s record, there’s little to suggest how she might rule on critical matters of executive power and national security that are sure to be among the most controversial issues before the court in the next few years.

One exception to that is a Fox News report on Tuesday, which cites Sotomayor’s March 2003 lecture to a class at Indiana University Law School, where she said, “We have suspected enemy combatants detained in secret and given different process than criminals. One can certainly justify that type of detention under precedents and current law.”


Illustration by: Matt Mahurin

To Lee Ross at Fox News, this was a pronouncement “that could draw criticism from liberal groups.” But in the context of the entire lecture, which Sotomayor provided, along with a mass of other materials, to the Senate Judiciary Committee on Monday evening, the statement appears to be simply an explanation to law students of where the courts had come down on the issue so far. The issues would eventually reach the Supreme Court, which would affirm the government’s right to detain certain enemy combatants indefinitely. But at that time only a district court from the Southern District of New York and the U.S. Court of Appeals for the Fourth Circuit had addressed the questions.

Notably, The New York Times on Wednesday focuses on a different part of the lecture in which Sotomayor expresses skepticism about the government’s authority under the USA Patriot Act “to impose nationwide wiretaps with little judicial supervision” and to monitor use of the Internet.

While reporters and bloggers have noted that Sotomayor has never worked in the federal executive branch and has sat on courts that don’t hear many executive power challenges, her record from the bench is not a blank slate. In fact, just last year, she joined two other judges in ruling that sections of the USA Patriot Act regarding national security letters are unconstitutional. And in the case of the Canadian former detainee Maher Arar, arrested while changing planes at John F. Kennedy airport and rendered by U.S. authorities to Syria to be tortured, he claims, Judge Sotomayor played an active role in a heated two-hour argument before the full 2nd Circuit Court of Appeals in December. (The court has not yet issued its opinion.) Both of those cases — largely overlooked by the media as indicators of Sotomayor’s inclinations on executive power — suggest that Sotomayor will be no wallflower in cases challenging unchecked executive authority in matters of national security.

What Judge Sotomayor actually believes the law is when it comes to the treatment and detention of suspected terrorists, and the type of justice they’re afforded, is critically important to how the Supreme Court will rule on these issues in the coming years, however. As Charlie Savage wrote recently in The New York Times, the impact of a new justice on presidential power could make all the difference. “Important rulings on executive authority — striking down military commissions and upholding habeas corpus rights for Guantanamo detainees — have been decided by a five-vote majority, including Justice Souter, on the nine-member court,” Savage explained. Justice Souter was a strong proponent of limits on executive power, voting to strike down the first incarnation of military commissions created by President Bush, and voting in favor of providing Guantanamo detainees’ habeas corpus rights. A new judge could swing the majority the other way. And both of those issues — the new Obama military commissions and habeas rights for detainees at other U.S. prisons abroad, such as Bagram — are likely to reach the Supreme Court in the next few years.

“To my mind, this is the most significant issue for the court, especially given the radicalism of Roberts and Alito on presidential supremacy,” wrote Andrew Sullivan on his blog at The Atlantic recently.

In the 2008 ruling Doe v. Mukasey, Judge Sotomayor joined an opinion written by Judge Jon Newman that struck down parts of the USA Patriot Act. The law put a “gag order” on companies that received a National Security Letter from the FBI requiring the company to turn over information about their customers, and required the recipient of the letter to go to court to have the gag order lifted. The three-judge panel of the 2nd Circuit, including Sotomayor, ruled that it was the government’s burden to justify to a court why it had to silence an NSL recipient. The court also invalidated sections of the Patriot Act that required judges to assume as true the FBI’s claims about what would harm national security.

As the court wrote: “There is not meaningful judicial review of the decision of the Executive Branch to prohibit speech if the position of the Executive Branch that speech would be harmful is ‘conclusive’ on a reviewing court, absent only a demonstration of bad faith. … The fiat of a governmental official, though senior in rank and doubtless honorable in the execution of official duties, cannot displace the judicial obligation to enforce constitutional requirements. ‘Under no circumstances should the Judiciary become the handmaiden of the Executive.’”

While it’s hardly a radical position for a federal court to reject a government’s arguments that its positions are unreviewable by any court, it does suggest that Sotomayor is willing to stand up to broad executive claims of unreviewable power in matters of national security. That’s likely to come up in cases raising the matter of state secrets, “preventive detention” of suspected terrorists and the creation of military commissions.

Sotomayor herself was explicit about her suspicion of the government’s assertion of unreviewable power in the national security context during the argument in Arar v. Ashcroft. Sotomayor wasn’t physically present in the courtroom, but her larger-than-life image was beamed on a screen via satellite teleconferencing technology, giving her what one blogger called “a Star Trek immensity.”

The government’s lawyer, Jonathan Cohn, was attempting to argue that the case is so “inextricably bound” with matters of foreign policy and national security that the courts should just stay out of it, since those are the exclusive domains of the executive branch.

Sotomayor, like many of her colleagues, was skeptical. In her most striking exchange with the government’s lawyer, she asked, “are you saying that there should be no Bivens action [a right to sue federal officials] for any torture by a federal agent?”

Cohn quickly said no, that’s not the government’s position, unless the issue is “fraught with national security implications.”

Sotomayor pressed the point: “So the minute the executive raises the specter of foreign policy or national security, it is the government’s position that that is a license to torture anyone, a U.S. citizen or a foreign citizen? License meaning you can do so without any financial consequence. That’s your position?”

Although Cohn claimed again that he was not saying that, Sotomayor had correctly seized upon the implication of his argument — that the government cannot be sued for torture so long as it claims that the suit raises foreign policy or national security concerns. And the nature of her questioning suggested strongly that she did not agree.

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