Friday, June 11, 2010
The Federal District Court for the District of Columbia this week released Judge Kennedy's May 26 opinion granting Guantanamo detainee and Yemeni citizen Mohamed Mohamed Hassan Odaini's habeas corpus petition. Odaini has been detained at Guantanamo Bay since June 2002, when he was 18 years old. He was seized along with 15 others in a Pakistani police raid of the Issa House, a guesthouse believed to be connected to Abu Zubaydah. Odaini, a student at Salafia University in Faisalabad at the time, visited the house at the invitation of another student, stayed for dinner, and decided to stay the night. Pakistani police raided the house that night, detained Odaini, and transferred him to U.S. custody.
Judge Kennedy's opinion details just how Odaini was recommended or cleared for release at least three times since 2002, but never released, and then how he got caught in President Obama's 2010 ban against transferring detainees to Yemen.
What the opinion doesn't tell us is this: Why did the Obama administration pursue this case so vigorously this spring, rearguing official conclusions that the government lacked a reason to detain Odaini and adding an argument that Odaini must be lying about his association with al Qaeda? The government didn't have to present these spurious substantive arguments on Odaini's habeas petition. Instead it could have either repatriated him to Yemen, or argued that such a repatriation would violate foreign policy and national security interests and that it must hold him until it can find another home for him. The foot-dragging recalls the government's treatment of the Uighurs.
Judge Kennedy's opinion details the repeated recommendations for release, starting with a determination that Odaini was not affiliated with al Qaeda soon after his arrival at Guantanamo. That's when an interrogator's report stated that Odaini "appeared to be telling the truth," recommended Odaini "to be utilized to identify individuals at [Issa House], and "[p]ending [redacted], [Odaini] should be considered for repatriation."
Then in 2004 the Department of Defense Criminal Investigation Task Force wrote that "[t]here is no information that indicates [Odaini] has clear ties to mid or high level Taliban or that he is a member of Al Qaeda" and "in the absence of further information" recommended "release . . . under a conditional release agreement."
Also in 2004 the Department of Defense Joint Task Force Guantanamo concluded that "[t]here is no information to confirm Taliban or Al Qaeda on his part" and that Odaini "may be transferred to another country or released."
In February 2007 a Staff Judge Advocate for the Department of Defense, Office for the Administrative Review for the Detention of Enemy Combatants, wrote an e-mail to Odaini's attorney stating that "[t]hrough either the Administrative Review Board (ARB) process or the process DOD had in place prior to ARBs, your client has been approved to leave Guantanamo, subject to the process for making appropriate diplomatic arrangements for his departure.
And in June 2009 a government attorney sent an e-mail to Odaini's attorney indicating that "[a]s a result of [the Guantanamo Review Task Force review of Odaini's case], [Odaini] has been approved for transfer from Guantanamo Bay."
In response to this last e-mail, the court stayed the case, Odaini stayed at Guantanamo, and in January 2010 President Obama barred the transfer of any detainee to Yemen.
Despite Odaini's repeated clearances for release, the government continued to press a very weak substantive case against him. Judge Kennedy's ruling shows just how weak. He wrote in his ruling that the evidence "overwhelmingly supports Odaini's contention that he is unlawfully detained," and that the government went so far as to "distort the evidence" to paint Odaini as unreliable and as covering up his connections to al Qaeda.
A congressional staffer wrote to Chief Justice Rehnquist soon after October 2001 to ask him to review the Bush administration's warrantless wiretapping program, according to an eye-popping report in the NYT. But more: The staffer sent the letter through Rehnquist's daughter, who at the time was serving as the Inspector General of the Department of Homeland Security. (One of the staffer's contacts at the NSA was a high-school acquiatance of the IG, thus giving the staffer an in.)
So here's a Hill staffer, on the House Intelligence Committee, who sent a request through the Inspector General at an administrative agency (by way of an acquiatance at the NSA, which the staffer's Committee oversees) to the Chief Justice asking for review of a secret administration program. This raises just a dizzying number of separation-of-powers problems--to say nothing of ethical problems--worthy of the most diabolical law school exam (whatever one thinks about the underlying wiretapping program).
Start with the exploitation by the Hill staffer of her acquiatance at an administrative agency her Committee oversees. Then consider a letter from a Hill staffer directed through an agency IG, who happens to be the daughter of the Chief Justice, complaining about a secret wiretapping program involving the NSA and other agencies. Next consider a letter from a Hill staffer to the Chief Justice, the head of the Article III courts, complaining about a secret administration program that may become--and since has become--the subject of any number of federal suits against the government.
And here's the most surprising part: The Chief Justice couldn't have done anything about it, anyway. The Supreme Court has interpreted the cases and controversies requirement of Article III to prohibit advisory opinions--opinions by the federal courts that advise another branch on the constitutionality of a proposed action--let alone an advisory opinion, or other action, by a single justice.
According to the article, there's no indication that the Chief Justice ever received or responded to the letter.
Here's the final act:
In what the employees saw as retaliation, the F.B.I. in 2007 raised the homes of Ms. Roark and the three workers whose complaints started the investigation into the security agency. None have been charged with a crime.
Thursday, June 10, 2010
The D.C. Circuit on Tuesday released an opinion rejecting the claims of Adham Mohammed Ali Awad, a Yemeni detainee at Guantanamo Bay who was surrendered to Afghan forces in 2001, and immediately turned over to U.S. forces in Afghanistan, after a two-month allied siege of a hospital occupied by al Qaeda fighters.
The D.C. Circuit ruled in Awad v. Obama that the government satisfied due process by proving its authority to continue to detain Awad with a mere preponderance of the evidence--not requiring the higher standard of clear and convincing evidence, as Awad argued. The D.C. Circuit wrote that this holding reaffirms its January 2010 ruling in Al-Bihani v. Obama, which followed the plurality decision in Hamdi v. Rumsfeld. The court also rejected Awad's arguments that the government failed to show that he would continue to pose a threat if released and that he was in the "command structure" of al Qaeda. The court ruled that under Al-Bihani and the Authorization for Use of Military Force (AUMF), the government need not show either. Instead, under Al-Bihani the government satisfied its burden by showing continued hostilities, and under the AUMF the government satisfied its burden by showing that Awad was "part of" al Qaeda.
The Office of Legal Counsel yesterday released an opinion (dated April 27, 2010) concluding that the criminal provisions in the Violence Against Women Act (VAWA) apply when the victim and offender are the same sex.
The opinion evalutes VAWA's provisions on interstate domestic violence, interstate stalking, and interstate violation of a protection order. Each provision applies to a "spouse, intimate partner or dating partner" (or some close variation to this phrase). The OLC thus opined in a largely textual analysis that "intimate partner," "dating partner," and other such non-marital relations include same-sex partners every bit as much as opposite-sex partners.
But the OLC also opined that the term "spouse" cannot apply to a same-sex partner, even if the partners are married under state law, becuase the federal Defense of Marriage Act (DOMA) forbids such an interpretation. The DOMA provides that for all federal purposes--including "determining the meaning of any Act of Congress"--"the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife."
The conclusions are not surprising. But the memo is noteworthy: This is only the third 2010 opinion that the OLC has released--certainly a busy year for the Office, in an administration with a stated commitment to transparency.
Wednesday, June 9, 2010
The Supreme Court on Tuesday issued an order reinstating the trial court's injunction against Arizona's campaign finance law and staying the Ninth Circuit's mandate overturning that injunction. Tuesday's order means that Arizona's law will not apply until the Supreme Court grants cert. (as is now likely) and rules on the case--almost certainly sometime after the mid-term elections in November. We posted on the Ninth Circuit case, McComish v. Bennett, here.
The Arizona law, a voter initiative enacted in the wake of a rash of political scandals in the state, allows any candidate to participate in the state's public campaign finance scheme and receive a state grant for campaign expenditures. Participating candidates relinquish their right to raise and spend private donations. But when a participating candidate faces a non-participating candidate who spends more than a threshold amount under the law, the participating candidate qualifies for additional state matching funds.
The law moves to equalize--or at least control inequalities in--campaign expenditures between participating candidates and non-participating candidates.
The trial court ruled that the law violated the First Amendment and issued an injunction, but the Ninth Circuit overruled in the third significant circuit court decision applying Citizens United v. FEC. The Supreme Court's order today seems to suggest Supreme Court review next term, but probably not in time for November's elections. In the meantime, Arizona may not grant matching funds to candidates who participate in the program and who are outspent by the threshold amount by non-participating candidates.
The case will give the Court a chance to rule on several issues, including the treatment of expenditures (which were the subject of Citizens United) versus contributions (to which the D.C. Circuit already extended Citizens United), the appropriate level of scrutiny for public campaign finance laws like Arizona's (the Ninth Circuit applied intermediate scrutiny), acceptable state interests (the Ninth Circuit ruled Arizona's interests in preventing corruption and the appearance of corruption and encouraging participating in the public funding scheme sufficient), and whether Arizona's law is appropriately tailored to meet these interests.
Monday, June 7, 2010
The Supreme Court on Monday dismissed the appeal of a foreign service officer who challenged Secretary of State Hillary Rodham Clinton's appointment under the Ineligibility Clause. Article I, Section 6, Clause 2, of the Constitution reads:
No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time . . . .
Then-Senator Clinton's appointment as Secretary of State would have violated the Clause. But Congress, in a time-honored move, rolled back the Secretary's salary to its level of January 1, 2007, thus negating any increase for the office during Clinton's time in the Senate. The move, known as the "Saxby fix" after President Nixon's pick for AG, Senator William Saxby, is widely regarded as an effective--and legal--dodge of the Ineligibility Clause, and President Obama's OLC opined early in the administration that the fix was fully effective here.
But Congress nevertheless provided for judicial review of Congress's Saxby fix for Secretary Clinton before a three-judge panel of the U.S. District Court for the District of Columbia. That court ruled in October 2009 that a foreign service officer who filed suit against Secretary Clinton under the act lacked standing. The officer appealed directly to the Supreme Court (as authorized under the act), and the Court in a two-sentence order on Monday dismissed the appeal.
Why? The act, Pub. L. 110-455, authorizes direct appeal to the Supreme Court, but only "from any interlocutory or final judgment, decree, or order upon the validity of the appointment and continuance in office of the Secretary of State under article I, section 6, clause 2, of the Constitution, entered in any action brought under this subsection." Because the district court dismissed for lack of standing, "it did not enter 'any interlocutory or final judgment, decree, or order,'" Rodearmel v. Clinton; therefore, no jurisdiction.
The American Constitution Society last week hosted a panel discussion on Reflections on the Legacy of Justice John Paul Stevens.
Moderator Adam Liptak, NYT
James Liebman, Simon H. Rifkind Professor of Law, Columbia Law School; Stevens clerk, 1978-79
Cliff Sloan, Partner, Skadden, Arps, Slate, Meagher & Flom, LLP; Stevens clerk, 1985-86
Melissa Hart, Associate Professor of Law, Colorado University Law School; Stevens clerk, 1996-97
Deborah Pearlstein, Associate Research Scholar, Woodrow Wilson School; Stevens clerk, 1999-2000
Amanda Leiter, Associate Professor of Law, Columbus School of Law; Stevens clerk, 2003-04
Jamal Greene, Associate Professor of Law, Columbia Law School; Stevens clerk, 2006-07