[JURIST] A three-judge panel of the US DC Circuit Court of Appeals Friday rejected [order, PDF] an amicus brief [text, PDF] filed [JURIST report] by seven retired judges who argued that portions of the new Military Commissions Act [JURIST news archive] affecting Guantanamo detainees were unconstitutional on the grounds that the brief's description of the amici as "judges" was inappropriate. Citing Advisory Opinion No. 72 [text] issued by the Committee on Codes of Conduct of the Judicial Conference of the United States, a majority of the panel said that the term should not be used in legal proceedings to describe former judges. The Advisory Opinion says, in part:

Judges should insure that the title ‘judge’ is not used in the courtroom or in papers involved in litigation before them to designate a former judge, unless the designation is necessary to describe accurately a person’s status at a time pertinent to the lawsuit.

A third judge, Clinton appointee Judith W. Rogers, dissented:

Federal Rule of Appellate Procedure 29(a) provides that “[a]ny [non-governmental] amicus curiae may file a brief only by leave of court or if the brief states that all parties have consented to its filing.” (emphasis added)… The unopposed motion for leave to file states (at pages 1-2) that counsel for both sides have consented to the filing of this amicus brief.

Advisory Opinion No. 72 of the U.S. Judicial Conference Committee on Codes of Conduct, which addresses the situation when a former judge appears as counsel, does not instruct that granting the motion would create an appearance of partiality or otherwise implicate the Canons on Judicial Conduct. Amici former federal judges are
represented by private counsel. Briefs by former judges and other such amici can be of assistance to the courts… The federal rule and this court’s practice (including in the instant cases) of accepting amici briefs present every reason to allow the retired judges, no less than law professors, public interest groups and associations, retired members of the military, scientists, and other interested persons, to file an amici brief…Indeed, denying the unopposed motion for leave to file may itself create an appearance of partiality. As then-Judge Alito observed in granting a motion for leave to file an amicus curiae brief without the consent of the parties:

A restrictive policy with respect to granting leave to file may also create at least the perception of viewpoint discrimination. Unless a court follows a policy of either granting or denying motions for leave to file in virtually all cases, instances of seemingly disparate treatment are predictable. A restrictive policy may also convey an unfortunate message about the openness of the court. Neonatology Assocs., P.A. v. Comm’r, 293 F.3d 128, 133 (3d Cir. 2002).

In the rejected brief, judges from both political parties said the MCA's prevention of civil courts from hearing cases brought by uncharged detainees "challenges the integrity of our judicial system" and added that the Act does not adequately prevent the military's use of torture since there is no "check" on suspect methods of interrogation without prisoners having the opportunity to use the courts to challenge alleged torture. The Washington Post has more.