Judge Clark Attracts Attention With War on Terror Comments

Judge Leif Clark is a frequent source of colorful commentary. Whether he is skewering BAPCPA or illustrating the difficulty with multi-prong tests, his opinions make for interesting reading. He has even garnered the attention of NPR by quoting Adam Sandler in a footnote. He has been featured on NPR again, but this time, the subject is the war on terror. Judge Clark recently sent an email critical of comments by a Bush administration spokesman discussing enemy combatant rules. http://www.npr.org/templates/story/story.php?storyId=6195853. Now, according to an article carried in the Austin American Statesman, some are questioning whether Clark's comments went too far. See "Judge likens U.S. policy to that of Soviet Union," Austin American Statesman, October 10, 2006, p. B3.

The following email appears on NPR's web site:

'Can This Be America?'

Listening to John Yoo talk about this new legislation was chilling. I'm a federal judge, and have taught constitutional law for 16 years. The very idea of holding anyone without trial, without the right to see the evidence that was used to justify naming them an "enemy combatant," and depriving them of the ability to challenge why they are even there is so repugnant to a constitutional democracy that I am shocked that this man actually claims to be defending American values. These are the tactics of the old Soviet Union, not of a country that stands for freedom and the rule of law.

I also quibble with his contention that U.S. citizens still have the right to habeas review. I've read the law. The president can form his own tribunal, which can determine who is an "enemy combatant" (not just an alien enemy combatant), and the decision of that tribunal would not be subject to habeas review. Moreover, persons targeted by this tribunal would not even have access to the military tribunal trial created under this law.

How easy it would be for a president to use such a law to make his political enemies simply disappear. Can this be America? -- Leif Clark, San Antonio, Texas

According to the article carried in the American Statesman, some unnamed lawyers think that Judge Clark's "outburst" could subject him to discipline. Chief Judge Edith Jones of the Fifth Circuit acknowleged that "This is a very novel situation." Judge Jones said that she didn't know how the situation would be handled or if it would be handled at all.

A quick review of the Code of Conduct for United States Judges appears to support the judge's ability to speak out on legal issues. Canon 4(A) states that "A judge may speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, and the administration of justice." To continue the theme, Canon 5(A) states that, "A judge may write, lecture, teach, and speak on non-legal subjects, and engage in the arts, sports, and other social and recreational activities, if such avocational activities do not detract from the dignity of the judge's office or interfere with the performance of the judge's judicial duties." Thus, the canons seems to protect the ability of a judge to write, lecture, teach or speak on legal or non-legal topics.

The canons which might limit judicial speech are more oblique when applied to this situation. Canon 1 requires a judge to uphold the "integrity and independence" of the judiciary, while Canon 2 requires a judge to obey the law and to "act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." Canon 7 states that a judge should refrain from political activity. However, the specifically prohibited conduct does not address speaking out on politically charged topics.

Thus, with all due respect to the anonymous lawyers quoted in the newspaper, and regardless of whether you agree with the substance of Judge Clark's statements, the judicial canons allow him to speak on both legal and non-legal topics so long as his comments do not detract from the dignity of his office. Unless it is considered just plain unseemly for a member of the judicial branch to criticize the executive branch, then it is hard to see how Judge Clark's comments detract from the dignity of his office.

The interesting thing here is because he is a bankruptcy judge, Judge Clark is unlikely to have these issues arise in his court. His email identified himself as a federal judge and constitutional law professor. However, because he is a very specialized federal judge, he has no jurisdiction over and thus no special expertise with respect to writs of habeas corpus. As a result, his status as a federal bankruptcy judge may be more of a red herring. Instead, his real standing to speak on the issue arises from his status as a private citizen and constitutional law professor. These are both capacities in which he should be free to speak his mind.