February 11, 2010
Times Profiles Fertig, of Holder v. Humanitarian Law Project
Adam Liptak in today's NYT profiled Ralph Fertig, the president of the Humanitarian Law Project and the moving force behind Holder v. Humanitarian Law Project, the case challenging portions of the Anti-Terrorism and Effective Death Penalty Act under the First Amendment now before the Supreme Court.
The case involves a section of the Act, 18 U.S.C. Sec. 2339B(a)(1), that outlaws the "knowing" provision of "material support or resources" to a "foreign terrorist organization," as determined by the Secretary of State, in exceptionally vague terms. Thus that section defines "material support or resources" as follows:
any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials.
18 U.S.C. Sec. 2339B(a)(1) (emphasis added).
As Liptak quotes a DOJ attorney in a 2007 oral argument in the case, "Congress wants these organizations to be radioactive."
The Humanitarian Law Project argues in its brief that this provision is unconstitutionally vague and that it is a content-based restriction in violation of the First Amendment. (The government's brief is here; the Humanitarian Law Project's reply brief is here.) Oral argument in the case is scheduled for February 23.
February 10, 2010
State Secrets, UK Style
A three-judge panel of the British Court of Appeal today ordered the release of a seven-paragraph summary of U.S. intelligence information about the treatment of Binyam Mohamed, the detainee who was subject to extraordinary rendition, torture, and detention at Guantanamo under U.S. control with UK assistance.
The British Foreign Office fought for over a year to keep the paragraphs secret, asserting national security concerns--a kind of state secrets privilege--and worries that release would impact the government's relationship with U.S. intelligence agencies.
The British Court of Appeal ruled against the Foreign Office, however, in a lengthy judgment (link above) citing, among other considerations, government openness, accountability, and journalists' right to obtain information as bases for rejecting the Foreign Office's claim that release would damage national security. The Court also recognized that Mohamed's assertions were already released in a federal court opinion in the D.C. District in December 2009 in another case.
The Court of Appeal approach is a far cry from the sweeping approach to the state secrets privilege by the Fourth Circuit in El-Masri and by the Bush and Obama administrations. (Our state secrets posts analyzing the scope of the privilege in recent cases and in administration arguments are collected here.) The Guardian summed it up:
Three of the country's most senior judges today shattered the age-old convention that the courts cannot question claims by the government relating to national security, whatever is done in its name, in an unprecedented ruling that is likely to cause deep anxiety among the security and intelligence agencies.
The Foreign Office elected not to appeal the ruling, because it says that the court, even while ruling against it, validated the "control principle." That principle holds that only those who create or give intelligence--and not those who receive it--can be ordered to release it. The Foreign Office web-site says that the court ordered the release of the summary because its substance had already been released by the D.C. District.
This overstates the role that the control principle and the D.C. District played in the decision. In fact, the court ruling goes to great lengths to discuss values related to government openness and accountability. The fact that the D.C. District validated some of Mohamed's claims played only one part in the court's final judgment.
But for the Fourth Circuit and for both the Bush and Obama administrations, none of these concerns plays a role. Government openness and accountability are easily trumped by national security concerns, and prior release of the underlying information--even by the administration itself--is no bar to an assertion of the state secrets claim. Thus the Fourth Circuit and both the Bush and Obama administrations have claimed a sweeping state secrets privilege that allows little role for the courts in judging the validity of the administration's national security claim.
February 9, 2010
Competing Claims for Second Amendment Incorporation
Robert Barnes reported yesterday in the Washington Post on the competing claims for Second Amendment incorporation in McDonald v. City of Chicago, the Second Amendment case now before the Court (and scheduled for argument on March 2). The article is a nice overview of the constitutional claims on incorporation and the politics of the case.
As Barnes reports, the NRA "was on the outside looking in" in D.C. v. Heller, the OT 07 case that held that the Second Amendment protects an individual right to bear arms, but left open the question whether that right extends to the states (or is "incorporated"). Barnes reports that the NRA was unhappy being left outside that case and thus filed to participate in oral argument in McDonald.
On January 25, the Court granted the NRA's motion, no doubt in large part because of who would argue on its behalf: Paul Clement. (Clement, of course, was the Bush administration's Solicitor General and, as Barnes writes, "a favorite of the court.")
In moving for time at oral argument, the NRA claimed that McDonald's attorney, Alan Gura (who also argued Heller), gave insufficient attention to the argument that the Due Process Clause incorporates the Second Amendment. (As we reported, Gura pressed harder on his claim that the Privileges or Immunities Clause incorporates the Second Amendment. He all but ignored the Due Process argument.) The NRA apparently wanted to press the Due Process claim--the path of lesser resistance (because it wouldn't require overturning The Slaughter-House Cases, among others). Gura's brief is here; the NRA's brief is here.
It's hard to know what, or how much, (if anything) to make of the Court's decision to grant time to the NRA and Clement. It could simply be a move to include an obviously interested party with a popular attorney. Or it could signal the Court's desire to consider more seriously the Due Process claim (and less seriously the Privileges or Immunities claim).
February 8, 2010
Mayer on KSM's Trial
Jane Mayer, author of The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals, wrote an excellent piece in the New Yorker detailing Attorney General Eric Holder's decision to try Khalid Sheikh Mohammed in the regular federal courts (and not before a military commission).
Mayer's article comes as the administration is more aggressively defending its decision to deal with some alleged terrorists through the regular criminal justice system and in Article III courts. (We posted on Holder's letter to Senator McConnell outlining the reasons for dealing with the December 25 would-be bomber through the regular criminal justice system last week.)
A good part of the administration's case is based on the prior administration's practices: The Bush administration similarly treated a number of terrorist suspects through the regular criminal justice system.
February 8, 2010 in Due Process (Substantive), Executive Authority, Foreign Affairs, Fundamental Rights, International, Jurisdiction of Federal Courts, News, Procedural Due Process, Recent Cases, War Powers | Permalink | Comments (0) | TrackBack