James Robertson Fifth Interview: November 15, 2006

ORAL HISTORY OF JUDGE JAMES ROBERTSON
This interview is being conducted on behalf of the Oral History Project of The Historical
Society of the District of Columbia Circuit. The interviewer is Ann Allen, and the interviewee is
James Robertson. The interview took place at at the offices of JAMS, 555 13th Street, N.W., in
Washington, D.C., on November 15, 2006. This is the fifth interview.
MS. ALLEN: Judge Robertson, you were talking about Judge Oliver Gasch and
George Washington night school.
MR. ROBERTSON: Judge Gasch. As I think I’ve said elsewhere, what we had in common was
that we had both gone to Princeton and had both been night students at
GW law school. I had known Judge Gasch slightly because he came over
and talked at the law school either shortly before or shortly after he was
appointed to the bench. A former associate of his was an associate of
mine on the Law Review and we got connected in that way. For some
reason, Judge Gasch was kind enough to pay attention to me. In fact, I use
Judge Gasch as an example a lot when I talk to young lawyers today about
mentors, because in a very real sense, Judge Gasch was a mentor of mine.
Not a day-to-day mentor. I didn’t go to him for advice about much, but I
tried to stay in touch with him a little bit. I tried a couple of cases before
him, so we knew each other in that way, and so Judge Gasch paid
attention.
I think it was Judge Gasch – in fact, I know it was Judge Gasch –
who put me up for membership in the American College of Trial Lawyers,
which was a huge benefit to me and a great thing he did. He didn’t have
to do that. He was just looking out for the next generation. That’s the
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kind of fellow he was. Gasch kept track of me when I went off to
Mississippi. I would hear from people that Judge Gasch had asked about
me. He asked somebody, “What’s a nice fellow like him doing in a place
like that?” [Laughter].
At any rate, back to the night school. At some point, and I don’t
remember exactly when it was, I think it was after I had left the Lawyers’
Committee and was back at Wilmer Cutler Pickering, the dean of the GW
Law School got the idea of getting rid of the night school. He felt that
night school was beneath the dignity of George Washington University
Law School, and he thought that you couldn’t be a great law school if you
had a night school. A lot of the faculty thought that was right. They
wanted to upgrade the law school by getting rid of the night school. Judge
Gasch went to the barricades and solicited support from former night
students, including myself. We went to a couple of meetings, and I wrote
a letter. Judge Gasch did most of the work. I wasn’t literally at the
barricades with him – it was he who went to faculty meetings and did the
work. But ever after, Judge Gasch was grateful to me for my support, and
I was an admirer of his for making the effort.
I don’t know whether I previously said this in this interview, but at
least in my day, the night school had more committed, substantive
students than the regular school. Why? Because in the mid-1960s, many
of the day students – I won’t say all of them; obviously, I don’t want to
characterize them – but many of the day students were there not so much
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for the law school as for the draft deferment. The night students were
there because they really wanted to be lawyers. They had incentives.
They had to work during the day and go to law school at night. It was a
tough slog, but they were focused and committed people. And, my view
then, and it may have just been chauvinistic because I was a night student
myself, but my view then was that the night school was a much better,
much better, venue than the day school.
MS. ALLEN: I think you said you transferred over to the day school. When did you
make that transfer?
MR. ROBERTSON: I spent two years at night school, and then I got out of the Navy and
finished up my third year of law school as a day student. I was also
editor-in-chief of the law review, and frankly, I spent most of my time in
the law review office. That’s just the way it was.
MS. ALLEN: Right. So you didn’t really see the classroom that much?
MR. ROBERTSON: Not much, not from the Law Review I didn’t. I didn’t have that study
group experience that everybody talks about that happens mostly in the
first two years.
MS. ALLEN: Right. I hadn’t thought of that difference. You wouldn’t have an
opportunity to be in a study group.
MR. ROBERTSON: You go from work to law school then home. And if you’re lucky enough,
as I was lucky enough, to be married, you’d go home, your wife would
have dinner for you, and you’d start studying until you had to go to sleep.
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And that was five days a week. It was a rough deal. But it was
purposeful, really purposeful. And, I think that made a big difference.
So that was Judge Gasch. And then I think we were also talking
the about D.C. Bar.
MS. ALLEN: We were. And the formation of the D.C. Bar and your election as
president.
MR. ROBERTSON: Well, there are two threads of that. I think the formation of the D.C. Bar
occurred really just about the time that I was in Mississippi. I wasn’t
present at the creation of the D.C. Bar. It was all of a piece with the
reorganization of the District of Columbia courts in 1970. Other people
who had done oral histories have commented more knowledgeably or
extensively than I will or could comment on that period of time. But,
suffice it to say, the D.C. Bar was mandated by the Reorganization Act.
The Bar was to be an organ of the District of Columbia Court of Appeals,
formed under orders of the District of Columbia Court of Appeals. It was
to be a so-called “integrated bar.” That has some irony in the District of
Columbia. In bar speak, an “integrated bar” is a bar that everybody has to
join, a mandatory bar. But in the District of Columbia, it had historic
resonance because the Bar Association that existed before the D.C. Bar –
the old original Bar Association of the District of Columbia – was
decidedly not an integrated bar. It was open only to white lawyers. The
Bar Association of the District of Columbia maintained the library that
was in the Federal Courthouse, the old bar library.
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There was a time when black lawyers were not welcome to use that
library. Other oral histories by Judge Bryant, by Judge Aubrey Robinson,
and probably by John Pickering will tell that story. Aubrey Robinson
integrated the bar library by going in and sitting down. It was almost like
a sit-in or like a lunch counter sit-in. He wasn’t a judge then, he was a
lawyer. And that ended the segregation of the bar library.
When the time came for the D.C. Superior Court to establish the
integrated bar, the mandatory bar, the old bar association wanted to be that
bar. It wanted to phase itself in and become the institution that was
recognized by the D.C. Courts as the official bar. But a number of bar
leaders like John Pickering – that’s the one I know most about, but there
are a number of others probably all of whose oral histories have been
recorded here – put their feet down and said, “No way is that Bar
Association going to be an integrated bar. We’ll start a new one.” That
was the beginning of what is now the District of Columbia Bar, not to be
confused with the Bar Association of the District of Columbia. The
District of Columbia Bar now I think has something like 60,000 or 70,000
members. It’s a huge bar. It’s very well-established, very well-run. In its
early days, it was kind of a hotbed of disputatiousness among various
elements of the bar who were fighting about what shape this bar
association – not an association, I don’t want to use that word – what
shape this mandatory bar would take.
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I was fairly uninvolved with the bar for quite some time. I did do
some work with the Litigation Section, but there was a time early in the
life of the Bar when lawyers of the big firms didn’t pay any attention to it.
When John Pickering became president of the D.C. Bar and had his
inaugural dinner or investiture or whatever they called it, not a single
lawyer from his own law firm was in attendance. It was a bitter moment
for John Pickering, who never forgot it and never let me forget it when I
became President of the Bar. It’s as if the big firms had turned their noses
up at it, like we didn’t have to do this.
Well, I didn’t feel that way about it. I thought that the Bar was an
interesting organization, possibly an important organization, and one that I
wanted to know more about. But I never really was very active until one
day, almost out of the blue, I got a call from Ann Macrory. Ann was a
member of the Board of Governors, and she probably was a member of the
Nominating Committee that year. Ann and I had known each other for
years because we had been involved together in the Lawyers’ Committee
for Civil Rights. Ann was this absolutely wonderful, gregarious lawyer.
She’s now married to Ralph Temple, and they live out in the northwest
someplace.
MS. ALLEN: I remember her name. Did she work for the bar for a while or was she just
active?
MR. ROBERTSON: You know, I can’t remember that. I know she was active. She may have
– it’s coming back to me now. I think Ann did work for a segment of the
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Bar. I think she had something to with the creation of a program called
Open Door, which had to do with mediation. But I’m not too clear about
that. At any rate, Ann called me and said, “How would you like to be
president of the D.C. Bar?” I said, “What are you talking about? I’ve
never been active in the D.C. Bar.” She said, “Well, I think you’d make a
good president of the D.C. Bar” [laughter]. I said, “Well, that’s pretty
flattering, Ann. If you think so, and if you think it’s important to proceed,
yeah, you could say that I would be interested.” Well she called back a
month or two later and said, “Uh, sorry, sorry,” she said, “Bob Jordan is
going to be the one that they consider.” Well, Bob Jordan was supremely
qualified to be president of the bar. Bob was older than I was and was
much better established. He was a partner at Steptoe and Johnson. And I
said, “Wonderful. Good luck to him.” And she said, “But would you like
to be a member of the Board of Governors?” And, I thought to myself,
well that’s a bait-and-switch [laughter]. But the long and short of it is —
MS. ALLEN: You said yes?
MR. ROBERTSON: I said “Yes,” and became a candidate for the Board of Governors, and was
elected, and served on the Board of Governors for several years. And then
when I had gone through the chairs, at some point I was put up as a
candidate for President. But what you and what historians need to
understand about the D.C. Bar is that leadership in the D.C. Bar doesn’t
just happen because people decide to run for office. The leadership of the
D.C. Bar, for at least the last twenty years, has been managed by the
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Executive Director of the Bar, who is Katherine Mazzaferri, who is one of
the great kingmakers of Washington. She will never acknowledge it, and
never admit it, but it’s Katherine Mazzaferri who basically picks the
presidents of the D.C. Bar. That’s an overstatement, of course, but not
much of one. She is a very fine invisible hand. She makes people aware
of opportunities and makes the opportunities aware of people, and
somehow it all works out. Katherine sees to it that the right people get to
be president of the D.C. Bar. It’s quite fascinating to watch. And I was
the beneficiary of that process. Katherine doesn’t really select the
president of the D.C. Bar, but she makes it happen.
The year I ran for President, my opponent was Jim Schaller, a
wonderful guy and a wonderful lawyer. But Jim Schaller didn’t have the
big firm backing, and at that time, a lawyer from a big firm would win
every time. There wasn’t any campaigning. A letter would go out, signed
by somebody like John Pickering. It was a little like high school. John
Pickering would send a letter to Stanley Temko at Covington & Burling,
and Bob Jordan at Steptoe and Johnson, and Stuart Land at Arnold &
Porter and Dan Gribbon at Covington & Burling, and say, “My partner
Jim Robertson is running for President of the Bar. If you can get some
votes from your firm, it would be useful.” And they would send
memoranda around the firm. The big firms may have kept their distance
from the Bar, but they voted as a block. It’s different today. And that’s
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the way I got to be President of the D.C. Bar. It was quite simple,
wonderful for me, and unfair to Jim Schaller.
MS. ALLEN: What years were you in office?
MR. ROBERTSON: I have the certificate around here somewhere. I was President 1991 to
1992. I was president-elect the year before that, and immediate past
president the year after that. Now you will ask me why I did that.
MS. ALLEN: So why did you?
MR. ROBERTSON: I’ll give you the idealist answer and then another answer. As Maureen
Dowd of the New York Times reminds us, morality without realism is
naiveté. Realism without morality is just cynicism [laughter]. So, there
was an idealist reason to seek the presidency of the D.C. Bar. It was much
more intense than practical. I was interested in the Bar. I thought the
change in the practice in law over the then-twenty-five years that I had
been in it was so dramatic, and there was so much going on in the life of
lawyers, that I wanted to learn more about it. There were changes in
concepts of ethics, in size of firms, and the way people related to their
work and billable hours and all of these issues that have afflicted the legal
profession over the last fifteen to twenty years. I wanted to kind of jump
in and muck around and talk to other lawyers about it and think about it
and have the occasion to work on issues involving lawyers. So I did it
because I was interested in it. I also did it, frankly, because at some point
in the late 1980s, I had concluded that it would not be any fun to grow old
in a big law firm and that I’d like to be a judge some day. And if I was
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going to be a judge, if I had any shot at being a judge, it would be
enhanced by my having and demonstrating community involvement, and
the Bar presidency would be a very, very good way to do that.
The legal profession had changed so dramatically. My own law
firm, which from the time I’d been a partner beginning in 1973 until the
late 1980s, had been one of these completely egalitarian, one-for-all, allfor-one, everybody makes the same amount of money, we’re all in this
together kind of a place. It was in the process of becoming quite a
different kind of a place. I wasn’t quite eager to change, but there was
much, much more emphasis being placed on business-getting and who
was the top dog and that sort of thing. That was not an environment that I
thought I was going to continue to thrive in. So I said, well, if I can be
President of the Bar, that’s a good thing all by itself. It’ll add something
to the firm, and it will enhance my own chances if there’s ever – if a
Democrat ever gets elected again.
MS. ALLEN: At this point, the Carter Administration was a thing of the far past?
MR. ROBERTSON: At this point, it had been ten or eleven years since there was a Democrat in
the White House. The Reagan-Bush judicial appointment thing was
intensely political. No Democrat need apply, that was very clear. So there
was this great pent-up demand among Democrats who might be interested
in the bench. I don’t know whether I said this already, but I had never
really thought I wanted to be a judge because I didn’t think I could afford
it.
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MS. ALLEN: I think you may have mentioned that.
MR. ROBERTSON: But some time around the mid-1980s, judges were given a very substantial
pay raise, up to a point where it made some sense, some economic sense,
if you were to consider being a judge. That probably was the last major
pay raise the judiciary ever got [laughter].
MS. ALLEN: Was the law firm supportive of your running for the presidency of the
D.C. Bar? Had large-firm attitudes changed towards the bar?
MR. ROBERTSON: Yes. Well, I realized that as I was talking about large firm attitudes
towards the bar, I wasn’t being quite clear. It was actually more subtle
than that. It wasn’t that the big firms didn’t support the bar. They did
support the bar and actually wanted to control it. It was just that it was the
kind of support you give to a charity or something. You want to be known
as supporting the bar, but most of the lawyers in the firm had nothing to do
with it. So the firm was very proud of the fact that we already had two
presidents in the bar by the time I was president. John Pickering and
Louis Oberdorfer had both been presidents. The firm was proud of that,
and proud of the fact that I was going to run for President and very
supportive of me and completely understanding of the fact that I billed
about half as many hours that year as I ordinarily would have because of
the Bar. But it wasn’t as if thirty members of the firm were really anxious
to get involved with me. It was, well, that’s Jim’s thing. It’s good for us
and I’m glad he’s doing it. He’s doing it, but we don’t need to do it
[laughter]. And the D.C. Bar, then and now I think, probably has 300
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really active members. People who are really into it. “Bar junkies,” as I
call them, or “bar groupies.”
MS. ALLEN: It’s a small percent, a very small percent.
MR. ROBERTSON: It’s like any institution. A few people make it go. Just like very few
people vote in this country and make the decisions, very few people run
the D.C. Bar. They’re active in it, and they’re interested it, and they’re
interested in the American Bar Association, and they go to meetings and
they go to conventions. But it’s not the daily fare of most lawyers. And
for me, I spent three years, maybe five years, on the Board of Governors,
and then three more for the presidency. I got really into Bar issues. But as
soon as you leave, you’re gone. You forget about the Bar. I read the
magazine every month. I’m glad to know what’s going on, but it’s out
there now. I’m not involved in it. In fact, I can’t even vote. As a judge, I
can’t vote on Bar elections.
MS. ALLEN: Does the D.C. Bar have much interaction with the judges? Do they come
to you?
MR. ROBERTSON: They would like to have more. The D.C. Bar has always had a weaker
relationship with the federal courts than it would like to have. It is, after
all, a creature of the local courts. I mean, part of my duty when I was
President of the Bar was to go over periodically and make reports and
have meetings with the bench. My wife and I went to see Helen Mirren in
The Queen last night.
MS. ALLEN: I saw it a couple of weeks ago.
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MR. ROBERTSON: When I saw Tony Blair going to meet the Queen, for some reason, my first
thought was of my meetings with Judith Rogers when I was President of
the Bar and she was Chief Judge of the D.C. Court of Appeals. It was
something like that kind of relationship [laughter].
So there is that formal relationship with the local courts. But a
relationship with the federal courts is something the Bar would like to
have more of, and our court, and the Court of Appeals always sort of
brushed it off. We do get asked to serve on panels occasionally and get
invited to meetings of sections. The president of the D.C. Bar is an exofficio member of the Circuit Judicial Conference and attends its annual
meetings. There was a time when the president-elect of the D.C. Bar was
a member of the Arrangements Committee for the Judicial Conference and
was given the privilege of selecting or helping to select or at least having
an important role in selecting who would be invited to the Judicial
Conference meeting. That lasted for some years, maybe ten years. I don’t
think it happens any more. A different group of people took over the
Court of Appeals and said, “We don’t need this anymore,” so the Bar no
longer had a role to play.
MS. ALLEN: Which sounds like not that great a role.
MR. ROBERTSON: Not that great a role. But you know, oddly enough, it had its uses. It
meant that the Bar had – being invited to the Judicial Conference is a big
deal for lawyers.
MS. ALLEN: I know.
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MR. ROBERTSON: To give the Bar that role, being chief inviter, added a cache to the Bar with
the people the conference attracted.
MS. ALLEN: I want to ask you about the Hamdan decision, both your decision and the
opinion, and what happened. Since you issued that, it’s now been a year.
MR. ROBERTSON: Yes. Well, the problem with talking about a case like Hamdan is that it is
now being recognized by some scholars as an important case. It’s been
studied and re-studied and counter-studied, and there’s a lot of really
authoritative information about it. And of course there is the actual record
of the case, which I don’t have before me, so I’m not going to talk about
the details of the case. What you’re getting here is memory impressions,
which should all be taken with a grain of salt unless you have the actual
record before you. But here’s my take on the Hamdan case.
After Guantanamo Bay, after the government began taking
hundreds of people over to Guantanamo Bay, habeas corpus petitions
began to be filed in this court and in other courts around the country, and
for a long time, there was uncertainty about how we were going to deal
with them. Most of the petitions were being filed in this court, so the
judges of this court came together to try to decide whether one judge
should handle all these cases. Fifteen judges handing down fifteen
different kinds of opinions on essentially the same case was silly, and we
all knew it was silly. And besides that, it would be much more efficient if
one judge handled all of these opinions. Well, I should say here that the
actual lineup of events I’m a little uncertain about, but I think that the
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Supreme Court had just decided the two cases of Hamdi and Rasul. Those
cases were decided in June of 2004, I think.
MS. ALLEN: Right. They were.
MR. ROBERTSON: In one of those cases, Hamdi, the Supreme Court said yes, there is
jurisdiction in federal district courts to deal with habeas petitions from
Guantanamo Bay. Guantanamo Bay may be outside the territory of the
United States, but it’s land that is controlled by the United States. Rasul
said the government can hold detainees at Guantanamo Bay indefinitely,
or it implied that they could be held indefinitely, but not without doing a
combatant status review – what became known as a CSRT, or Combatant
Status Review Tribunal  to determine that these people are unlawful
enemy aliens or alien combatants. Those two decisions left a huge
number of unknowns. And they also left hundreds of detainees at
Guantanamo Bay with rights to sue for habeas corpus – rights not to be
held there unless they had been found to be unlawful combatants by
CSRTs.
It was after that that we began to be flooded by these petitions.
And it was after that that this court decided that we would find a judge to
turn over all of our cases to, and that judge was Joyce Hens Green, who
had retired, although she was in a status called inactive senior status. The
Chief Judge invited her back, and she accepted the assignment. All the
judges except one decided that they would transfer their cases to Judge
Green for uniform handling. But I had already been assigned the Hamdan
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case, and Hamdan was not like the other cases. The other cases were all
either challenging detention without yet having had the Combatant Status
Review Tribunals, or they were challenging the findings of the Combatant
Status Review Tribunal, which had been held, or they were challenging
something else, like conditions of their detention or they didn’t have a
Koran, or something else about their detention. Hamdan, unlike all the
rest of them, had already had his combatant status review and was being
teed up for the first trial before the Military Commission. The Military
Commission that had been cobbled together by the president without
asking for Congressional approval.
Judge Green and I had a discussion about Hamdan. She said, “I
know you’d like to do this one yourself, wouldn’t you?” And I said, “Yes,
frankly, I would.” So Judge Green, really quite generously, said, “Well
that’s an interesting case, it’s a different case, it’s a special case, you do
that one. I don’t need to do that one.” Then she took all the rest of the
cases – except one. The one that she didn’t take was assigned to Judge
Leon. Judge Leon, exercising his Article III independence, declined to
transfer the case to Judge Green. Judge Leon and Judge Green wound up
issuing two diametrically opposed decisions on what powers they had over
the detainees at Guantanamo. Judge Leon said, “I have no constitutional
power to do anything with them.” Judge Green said, “I do have the
constitutional power, and I will exercise it here.” Both of those cases were
appealed to the Court of Appeals on the question of whether there was
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jurisdiction in this court to do anything. That was the internecine dispute
that eventually led to the Supreme Court’s Boumediene decision.
MS. ALLEN: What do I do after I have the habeas petition?
MR. ROBERTSON: What can we do after, that’s right. Now, set those two cases aside for a
moment. The Hamdan case had been filed originally in the District of
Oregon. A very good judge in the District of Oregon had been instructed
by the Ninth Circuit that all these cases belonged in Washington, D.C. So
with understandable reluctance, he transferred the case to Washington,
D.C., and it wound up on my desk. It got here in September, late August
or early September, of 2004. I had two brand new law clerks. They both
pitched in on this case, and we had a decision on, I think around
November 7.
The threshold question that I confronted in Hamdan was, did the
President have the power to have these people tried before a military
commission at Guantanamo Bay. And for me, the case was primarily,
almost exclusively, about the allocation of powers between Congress and
the Presidency. There were sensational amicus briefs filed in this case.
You don’t normally see amicus briefs in district court, but they were filed
in this case. An amicus brief filed on behalf of a hundred members of the
British Parliament. There were a number of other amicus briefs, but the
most influential amicus brief, the one that I paid the most attention to, was
one filed on behalf of nine or twelve retired general and flag officers in the
Armed Services, who argued that these military commissions were in
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violation of the Geneva Conventions, and if we permit people to be tried
under these conditions by military commission, we will have no right to
expect our own military people to be treated any differently if they are
captured on enemy battlefields. That brief had a profound impact on me.
The petitioner was represented by Lieutenant Commander Swift,
the Navy JAG lawyer now assigned the case of representing Hamdan, and
[laughter] who I read not long ago is not going to be promoted to
Commander. I was not surprised. He will end his military career and
probably make a lot of money as a private lawyer. He was nothing if not
dashing. And by Neal Katyal of Georgetown University, a very gifted
young professor, who was the constitutional brains in petitioner’s camp.
The case was argued before me by a young Justice Department lawyer
named Jonathan Marcus. Jonathan is the son of my former partner, Dan
Marcus. It’s a small world [laughter]. I remember Jonathan as a very tiny
baby, and here he was arguing the government’s position before me, and
arguing it powerfully and very well. You’re not supposed to pay attention
to things like this when you’re a judge, but I did that day. The courtroom
was full of people, the case was already famous. On one side of the
courtroom, there must have been twenty or thirty military officers in
uniform. I assumed, and as far as I could tell by looking at them sitting
there, that they were all JAG officers from the various branches of the
service. Every time the petitioner’s – Hamdan’s – lawyers, made some
point, they would be nodding their heads. And when Jonathan Marcus
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was making points, they were shaking their heads no [laughter]. I had
spent five years in the military. I knew something about the military
mind. I knew, or thought I knew, that a lot of what was happening at
Guantanamo Bay was being done over the objection of the military, and so
these officers were more or less demonstrating. A very, very quiet, subtle
demonstration, but a demonstration nonetheless.
In order to decide Hamdan the way I did, it was kind of a thread
the needle decision, because the first and one of the most powerful
questions presented by the government was whether I should abstain.
There was a long line of cases that say you have no business dealing with
this case, let it go through the trial there, and then come with a habeas
petition. Well, I decided for reasons set forth in my opinion that I would
not abstain. Then there was the issue of whether the Geneva Conventions
were self-executing or not, that is, whether or not they could be used as a
basis for action in our court or whether they were simply something to be
debated between governments. In other words was there any such thing as
a right of action. I said yes, there was a right of action. Before I got to the
Geneva Conventions, I had to deal with what I thought was the core of the
case, which was the President’s power and authority as Commander-inChief. And for that, I had to go back and deal with cases like Yamashita
and Quirin.
I decided the President had not been given plenary power by
Congress. Then I had to deal with the Geneva Conventions. Were they,
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could they, provide a cause of action or not. I said yes. Or could they be
the basis of a cause of action, and I said yes. And then there was a good
deal of conflict here in chambers about whether I would add the last
section dealing with the actual rules that had been adopted by the Defense
Department in its trials.
The petitioners had attacked the rules across the board and wanted
a lot of rulings about confrontation, cross examination, secrecy, rules of
evidence, you name it. The whole structure of the Military Commission –
appeal rights, who would be appointed to the commission, who would
hear the appeals – it was all bad as far as they were concerned. My
conclusion was that almost all of that I really should abstain from, but that
one aspect of it in particular needed to be dealt with, and that was the
provision of the Military Commission rules that the detainee would not be
able to listen to some of the evidence against him, couldn’t be in the
courtroom when the evidence was put on. His lawyer could hear it, but he
couldn’t, and his lawyer would be told that the lawyer couldn’t tell his
client. That I found troubling, and I found it to be in violation of the
Geneva Conventions and the laws of war and every other law I could think
of. I was going to leave that part of it out, but one of the law clerks talked
me into doing it.
I don’t think I was quite prepared for the publicity that that opinion
generated. It was huge. For the second time since I came on the bench, I
was on the front page of every paper in the country for a day. I got calls
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and letters from all over the country. It was quite a heady experience. But
I knew that my decision had very little chance in the Court of Appeals
[laughter]. How little a chance I didn’t quite appreciate until I saw Judge
Randolph’s opinion. He just shot me down in an opinion written with
typical Randolph sarcasm. He couldn’t believe that I had not even
mentioned the Eisentrager case, which he thought was pivotal. John
Roberts, a new judge on our Court of Appeals, concurred. And that was
that.
Katyal and Swift went to the Supreme Court, and to my surprise,
cert was granted. The new Chief Justice of the United States recused
himself, and the Court of Appeals was reversed five to three in an opinion
by Justice Stevens that came about as close as a trial judge could ever
dream of to a complete vindication of what I did.
I have to tell you. I had a call from a judge I know in Iowa who
said, “G[expletive] it, Robertson,” he said, “All I ever wanted out of this
job was to make a decision, get reversed by the Court of Appeals, and get
affirmed by the Supreme Court. Why can’t I have that? Why can’t I?”
And it is true that for a trial judge there is no sweeter day than the day in
which something you decided has been vindicated by the Supreme Court
after being reversed by the Court of Appeals. It is a beautiful, beautiful
day. And it’s a sin to be so vainglorious about that, but I am a sinner.
MS. ALLEN: [Laughter] Were you really surprised that cert was granted?
– 160 –
MR. ROBERTSON: Yes. I was a little surprised that cert would be granted because as
Mr. Dooley says, the Supreme Court reads the newspapers. And, I
thought, I suppose naively, that the Supreme Court would say hey, we’re
in the middle of this war. The Supreme Court has done a lot of strange
things in the middle of war, and they have refused to do things they should
have done in the middle of a war. And I thought the Supreme Court
would simply adopt one of the major premises of the Randolph opinion,
which was abstention. Randolph didn’t abstain. He didn’t abstain
because he wanted to write the opinion [laughter]. So he didn’t want to
stop with an abstention. He had a few things to say too. But I thought the
Supreme Court might say now let’s find out what happens after the trial.
Because I thought abstention was a pretty powerful argument.
MS. ALLEN: You did?
MR. ROBERTSON: I did, which they continued to make in the Court of Appeals and in the
Supreme Court. But, the Supreme Court jumped into it with both feet, and
that ringing opinion by Justice Stevens is of course history now.
There is a program being put on by the American Constitutional
Society tomorrow or the next day called, “The Fallout from Hamdan.”
And there has been some fallout. The Military Commission Act is fallout
from Hamdan, a serious fallout. A couple of little asides if I may on the
case. First, this was the second time that I have been vindicated by the
Supreme Court. I can die now. The first time was the Webster Hubbell
– 161 –
decision, which I think I probably talked about at some point. The second
time was this. Justice Stevens wrote both opinions. So he’s my guy.
MS. ALLEN: He’s your guy.
MR. ROBERTSON: He’s my guy. Another thing about this Hamdan opinion is there was a
little bit of a dissent in the Court of Appeals, and that was by Steve
Williams, who said, “I don’t think the Geneva Convention’s article” – I’ve
lost track of that. There were two Geneva Conventions at play here. The
one that I relied on said that Hamdan had not been properly determined
not to be a prisoner of war and that it was necessary to have a
determination as to whether he should be treated as a prisoner of war.
Until they had made the determination as to whether he should be a
prisoner of war, he could not receive the military commission. That was
shot down by the Court of Appeals.
There was also Common Article 3 of the Geneva Conventions, the
earlier Geneva Conventions Article 3 which had said nothing about
treatment of prisoners of war, but which simply provided that judgment
should not be passed except by a “regularly constituted court, affording all
the judicial guarantees which are recognized as indispensable by civilized
peoples.” That’s all Common Article 3 says. Judge Williams agreed with
me that Common Article 3 applied. That’s all he agreed to at that time.
But my opinion had said, it had turned almost completely on the other
Geneva Convention, on the prisoner of war point. I believed that
Common Article 3 applied, but I also thought that Common Article 3 did
– 162 –
not have specific enough normative content to use to evaluate these
procedures at Guantanamo, so if Common Article 3 were applied, I would
have abstained. I would have to abstain, until I saw the results.
MS. ALLEN: I see what you’re getting at.
MR. ROBERTSON: Well, Justice Stevens jumped completely over the prisoner of war thing,
completely over that, and went straight to Common Article 3. The
Supreme Court decided that Common Article 3 was what they would hang
their hat on. And they decided that it did have normative content and that
the normative content made it unlawful, among other things, to have a trial
in which people could not confront the evidence against them. So, I was
vindicated, but not perfectly vindicated. The Supreme Court really had a
quite interesting and different rationale ultimately than mine about which
Geneva Convention applies and what it meant. Steve Williams was the
only Court of Appeals judge who spotted that Common Article 3 point.
Now he, like I, didn’t think that anything would come of it.
MS. ALLEN: You certainly thought that there was an issue. You cited it.
MR. ROBERTSON: Oh yes. I thought it applied. I just didn’t know what it meant.
MS. ALLEN: Right.
MR. ROBERTSON: I didn’t know how to apply it, or what it would – and maybe having
already decided that there’s no war issue, I felt I didn’t need to. But, the
point is that, as vindicated as I felt, it wasn’t perfect vindication – although
I won’t have to explain that to anybody but a historical writer [laughter].
MS. ALLEN: So Hamdan today is back to you?
– 163 –
MR. ROBERTSON: Back to me. Congress responded to Hamdan by enacting the Military
Commission Act, which is exactly what I said in my opinion Congress
needed to do. If Congress authorizes these things, then the president has
the power to do them. If Congress doesn’t, which it hadn’t then, he
doesn’t. That was the thrust of my basic Hamdan decision. So, Congress
basically did what I said they had to do, and what the Supreme Court
always said they had to do, and passed this Military Commission Act.
Now the matter is back before me because the Court of Appeals – the case
came out of the Court of Appeals – remanded from the Supreme Court to
the Court of Appeals. The Court of Appeals passed it off to me with no
instructions. “Here, take it. Back to you.” And there is now pending
before me what I have deemed to be a motion to dismiss Hamdan on
jurisdictional grounds. Even if this oral history is going to be locked up, I
don’t think I should say where it’s coming out.
MS. ALLEN: Should this have gotten a lot of attention?
MR. ROBERTSON: It remains to be seen. The petitioner’s brief is due next week, and the
government will file a couple of weeks after that. I don’t know if there’s
going to be a lot of amicus briefs this time around or not. I frankly rather
doubt it. It’s a much purer legal question today than it was then. And the
Court of Appeals, who set aside the Green and Leon opinions, we talked
about that, they set them aside. They are still pending before the court.
The petitioner’s brief will be filed within ten days or two weeks. The
– 164 –
Court of Appeals should decide that case before I get a chance to decide
this one. They should decide the jurisdictional question.
MS. ALLEN: The Green-Leon jurisdictional question?
MR. ROBERTSON: The Green-Leon question, which has now morphed into a much different
question because of the Military Commissions Act.
MS. ALLEN: Right. And the Military Commissions Act, I believe, says that the district
courts don’t have jurisdiction and they did it retroactively.
MR. ROBERTSON: Yes, ousts the district courts of all jurisdiction of any cases that have to do
with detention at Guantanamo Bay. There is a huge fight about how
constitutional that is. I expect that the Court of Appeals will hold that
there is no jurisdiction in either one of those cases, either in the Green case
or the Leon case. Hamdan would be a different situation because
jurisdiction was already asserted and confirmed by the Supreme Court of
the United States. The question is I suppose whether Congress can undo
something the Supreme Court has done quite that directly. But I don’t
know. That’s all that is up in the air. It’ll be unfolding in the next couple
of weeks.
MS. ALLEN: That’s quite a case for new law clerks.
MR. ROBERTSON: Oh, man. Rob Ditzion and Mona Sahaf, brand new law clerks, did a good
job. I got tickets for them to hear the argument at the Supreme Court. It
was a real kick for them. I should have gone over to hear it myself
actually. There is some dispute among judges about whether it’s “done”
– 165 –
for judges to go to the Supreme Court and listen to argument in their
cases.
MS. ALLEN: But some judges do go?
MR. ROBERTSON: I think some judges go.
MS. ALLEN: Have you ever gone?
MR. ROBERTSON: Never even in the Court of Appeals. I do set spies at the Court of Appeals.
We all do that. I send my law clerks when they’re arguing my cases. And
they come back and handicap the results.
MS. ALLEN: Predictable?
MR. ROBERTSON: Absolutely predictable.
MS. ALLEN: So did your two clerks go to the argument in Hamdan? There was an
argument I assume in the Court of Appeals.
MR. ROBERTSON: I can’t remember.
MS. ALLEN: Might not have been?
MR. ROBERTSON: I can’t remember whether they did or not. They must have. Oh, of course
they did. The Hamdan Court of Appeals argument was held in the
Ceremonial Courtroom. It was a packed house. I’m just trying to
remember whether it was Rob and Mona or whether it was the next year’s
law clerks. I think it was the next year’s law clerks. But whoever it was,
they came back and said, “You’re toast” [laughter]. This is not good.
This isn’t going to last long.
MS. ALLEN: The great legal prediction, you’re toast.
MR. ROBERTSON: Toast [laughter].
– 166 –
MS. ALLEN: Wow. What a satisfying Supreme Court ruling.
MR. ROBERTSON: Yes. It’s stunning really. Just stunning.
MS. ALLEN: Any more comments on Hamdan or follow-up questions? If not I’d like to
ask you about the FISA Court, resignation from that, if that’s something
you think you could talk about.
MR. ROBERTSON: Yes. I am going to talk about this. I was trying to think if there’s
anything more that I had to say about Hamdan. I feel very good about
Hamdan to be honest with you. I feel like I made some real contribution
to the issue of presidential authority. And a lot of my interest in this job
has to do with separation of powers and checks and balances and balance
of powers between the President and Congress. And I am appalled really
at how weak Congress has become in the American constitutional balance.
The chief executive of a company or the chief executive of the nation or
the chief magistrate as the Constitution calls the President of the United
States, doesn’t have to be power hungry in reaching for power. But it’s
kind of in the nature of the beast to reach out for as much power as you
can get. And that’s what our presidents have done, particularly in the last
fifty years. Congress has become more and more and more complacent
and less and less willing to take him on. But the Supreme Court’s opinion
in Hamdan really awakened a lot of people in Congress and a lot of
scholars to believe that Congress has to assert itself. So I feel like I’m part
of history. It’s great fun.
– 167 –
MS. ALLEN: Was it a hard opinion to reason through and then set down on paper in the
order that you did? I don’t have it in front of me, but it seemed very
logical and very, very carefully thought out, reduced to a clear logical
explanation.
MR. ROBERTSON: Well, I hope it was clear and logical. I sort of pride myself on that. I
pride myself on writing as short and succinctly as I can. But I have to tell
you that, as I think I said earlier, I felt like I was threading a needle. I
knew what I wanted to do in Hamdan. The question was could I do it.
Would the law permit me to do it.
MS. ALLEN: Right.
MR. ROBERTSON: And I had to get over abstention and whether the Geneva Conventions
provided a cause of action, specifically those two questions. They were
serious obstacles to any ruling. Now, of course, we have a third problem,
which is jurisdiction.
MS. ALLEN: Right.
MR. ROBERTSON: And yes, it was hard to write, and I struggled with whether I had the
power to do it. But I kept remembering something Bill Bryant said. He
said, “You know, we’re just judges, and we can’t go out gunning for
whatever we want to gun for. We can’t go out gunning for cases.” He
says, “It’s more like we’re a stationary cannon sitting on the mountain
overlooking the harbor. Every once in a while something comes within
range, and, boom! You pull the trigger.” I thought that was such a
beautiful metaphor for the role that a judge plays. You can’t call that
– 168 –
activist. I mean, I didn’t go looking for this case. It wound up on my
docket. It presented itself. I didn’t go looking for it, but it came within
range [laughter].
MS. ALLEN: That was the boom.
MR. ROBERTSON: So, enough about Hamdan.
FISA?
MS. ALLEN: FISA.
MR. ROBERTSON: What I’m about to tell you I’ve never told anybody outside my family and
my law clerks. But I think I can tell it to you, for whatever historical value
it may have. Some time in December of 2005, I think it was, I woke up in
the morning and read in the newspaper that the President had been for
years authorizing NSA surveillance of telephone calls, both inside and
outside the country, and didn’t do any of it with a FISA warrant. Within
24 hours, I had resigned from FISA Court. My resignation from FISA
Court took the form of a letter to the Chief Justice, whose predecessor had
appointed me to the FISA Court. I said, “I hereby tender my resignation
from the FISA Court.” I didn’t say why, didn’t add any of the old grace
notes, like, “I have been honored to serve, blah blah blah.” I just resigned.
Never got an acknowledgment, never got an acceptance, it was just done.
Before I resigned, I sought the advice of two of the judges in this
Courthouse, whom I don’t think even for the historical record I’m going to
name, who are people I’m close to and people I respect, and told them the
story. I told them I think I have to resign, what do you think? And one of
– 169 –
them said do it. And the other one said, “How is anybody going to know
why?” I said, “I don’t think it’s appropriate for me to explain.” He said,
“Well why don’t you find somebody who could tell the press what they
think your reasons are.” I said, “Well that’s a good idea.” And so I called
Jamie Gorelick. And then when the reporters got wind of the resignation,
I wouldn’t talk. I’ve got a file that thick of telephone messages, letters,
emails, faxes, asking me for interviews, to go on “Sixty Minutes,” to every
major news outlet, “Nightline,” – people wanted to talk to me about it. I
didn’t choose to talk to any of them.
The only person who ever talked to anybody who knew anything
about it was when Carol Leonnig, I think with The Washington Post,
somebody told her Jamie Gorelick might know. In fact, one of these two
judges I told you about is the person that told Carol that Jamie Gorelick
might know. And Jamie did know. And what Jamie said was that the
resignation was in protest of what the President did and also because the
judge felt like he was being compromised into a position in which he
didn’t think he could do his job properly. And that’s all the press ever got.
Well, I walked out the door of my house in Georgetown the next
morning and there was a CBS cameraman with his camera in my face. He
followed me all the way to the car, and that was on the evening news. The
next morning, I looked out the window. It was cold. It was December, I
think. I looked out the window and there was another cameraman on the
sidewalk. I said to my wife, “Would you go out and get the newspaper?”
– 170 –
She said, “Get the newspaper yourself.” So I, in my slippers, opened the
front door and went out and this camera came at me. He looked at me, he
took one look at me, and said, “I can’t do this to you.” I said thank you. I
said, “I’ll make a deal with you. It’s cold. It’s 7:00. I’m not going to
leave here until a little before 9:00. There’s no point in you standing out
here on the sidewalk for two hours. I promise you, I will not go out the
back door. Why don’t you go and get a cup of coffee and be back here
about a quarter to nine, if you still want to film me.” He said, “Okay.” I
was hoping he’d get another call and have to go someplace else, but he
didn’t. He was there at a quarter to nine.
After Hubbell and Hamdan, that was my third fifteen minutes of
fame. And this one was really intense. I suppose the reason it was so
sensational for the press was that nobody would tell about what the story
was. They all had to write it off The Post’s story because nobody had any
other confirmation of the reason that I had resigned. Oh my God, I got
hate mail. It was just amazing the stuff that poured in. Just amazing.
MS. ALLEN: Just from members of the public?
MR. ROBERTSON: Oh yes. Members of the public from all over the country. There were
about 200 or 300 letters. I said I had hate mail, but frankly, I think the
mail was ninety-five percent favorable. Now, here’s the real scoop. This
NSA surveillance program had been going on for three or four years. The
Administration had briefed the presiding judge of FISA Court, who had
been Royce Lamberth until May of 2002 and then Colleen Kollar-Kotelly
– 171 –
after that, and had instructed them that they couldn’t tell anybody else. So
they were in the compromised position of having the information, but
being forbidden to tell the other judges on the FISA Court. That was
completely unacceptable to me. It was unacceptable to me first of all that
they had put Judge Lamberth and Judge Kollar-Kotelly in that position. It
was unacceptable to me that either of those judges had accepted being put
in that position. And it was unacceptable to me that we were being
presented with FISA warrant applications that may have contained
information that came from those, that surveillance program, without our
knowing about it.
The basic FISA warrant process involves the presentation to the
FISA judge of a warrant application. Sometimes it’s 50, 60, 70 pages
long, a lot of which is boilerplate, but which also contains the recitation of
facts that the applicant for the warrant thinks gives rise to probable cause
to believe that the target of the proposed surveillance is an agent of an
enemy power and that they, whatever is going to be surveilled, is of
interest to the intelligence community. Those statements of facts are
annotated with footnotes that explain where the information came from.
When it comes from a confidential informant, we’re told, it comes from a
person who has himself been under surveillance or has a criminal record
or something like that or it comes under circumstances that are
questionable so we can evaluate that information and decide whether
probable cause has been properly established. If I’m reading one of those
– 172 –
applications and it has information in it that was obtained by NSA, by
warrantless NSA surveillance of telephone calls under a special program
that I’ve never heard of and don’t know about, there’s no way for me to
ask the questions I need to ask in order to make an informed evaluation of
whether probable cause exists. And so I decided that I was being denied
the tools I needed to do the job and that the only correct thing to do was to
resign. That’s the whole story, it’s as simple as that. Again, I had no idea
what kind of a bombshell that was going to be.
MS. ALLEN: Were you ever inclined to give a reason, to claim publicly and make
people think about the ramifications of the eavesdropping program?
MR. ROBERTSON: I think I got wrapped up in the “Judges don’t talk” mythology. There are a
lot of reasons why judges don’t choose to talk. For one thing, if you talk
but don’t answer questions, then you don’t give satisfaction to the press or
anybody else who wants to listen. If you start to answer questions, there’s
no end to the questions you’re going to be asked. We are not by training,
by tradition, by culture, by any other measure you can think of, equipped
to talk to the press. Judges don’t do it. Some, a few.
MS. ALLEN: Right, they don’t.
MR. ROBERTSON: They just don’t do it. When Senator Specter started putting legislation
together to turn this NSA surveillance program over to the FISA Court, he
wanted me to come testify up on Capitol Hill. I said, “No.” “Oh, yes,
come up and have lunch with me in the Senate Dining Room.” So, I went
up and I have great respect for Senator Specter, a very nice guy. I said to
– 173 –
him, “Senator, you don’t really want me to testify up on Capitol Hill about
this because it would be kind of a feeding frenzy because the press has
been after me, and I would become the story and not your bill and that’s
not what you want.” By the way, an enormous number of people think
what I resigned was my judgeship. My God, how principled could you be
to resign your judgeship.
MS. ALLEN: They think you resigned the federal judgeship?
MR. ROBERTSON: I hope I’m principled, but I’m not stupid. Lately I’ve taken to answering
people’s questions about the FISA Court. I’ve done this a few times in the
last few weeks, and people kind of walk away shaking their heads. I tell
them this. I say, “I’ve never told anybody why I quit the FISA Court.” I
say, “Do you read poetry?” “Well, sometimes.” “How about Emily
Dickinson?” “Well, I don’t—.” “Well, here’s an Emily Dickinson
thought. Here’s my complete answer to your question. “The thought
beneath so slight a film is more distinctly seen, as laces just reveal the
surge, or mists the Appenine.” Then people walk away and shake their
heads and say that’s interesting.
MS. ALLEN: And my reaction is I need to get a copy of the poem and ponder it
[laughter].
MR. ROBERTSON: I think you can ponder it. It is beautiful. I think I gave Jamie the
Potemkin village language for this. Do you know what a Potemkin village
was? I’m not sure I have these historical facts quite accurate, but
Potemkin was Catherine the Great’s prime minister, who in order to
– 174 –
convince the empress that he had the country under control, that
everything was going well in the country, built this whole village on the
banks of the Dnieper River. It was nothing but facades. And there were
cheerful peasants walking their animals and carrying milk and doing their
daily chores and waving gaily as the empress rode by on her boat out on
the river. And part of the whole nuance of this FISA thing was, the FISA
Court is a Potemkin Village, being held up to show everybody what a
great system we have protecting everybody’s civil liberties, but it’s being
ignored when the President wants to ignore it.
MS. ALLEN: I think the attention that it got revealed people’s heightened sensitivity to
privacy interests. Well, thank you very much. I don’t think I have any
further questions.
MR. ROBERTSON: I don’t think I have any further answers.
MS. ALLEN: Thank you sir.
Except poetry, oral history.