October 8, 2011
A New Face of Guantanamo Military Commission Trials?
Chief Prosecutor Army Brig. General Mark Martins announced this week that military commission trials at Guantanamo Bay will resume, with changes designed to increase transparency and fairness.
General Martins mentioned three changes. First, there are new restrictions on the use of evidence obtained by torture (although the exception--"in the interest of justice"--may well swallow the rule). Second, relatives of victims will be able to view the proceedings by a video feed in the U.S. And third, the Pentagon set up a new web-site with case information, FAQs for detainees' representatives, case files, and more. (The site even has a "legal system comparison," illustrating in a chart the different features of military commissions, courts martial, and Article III courts.)
First up under the revamped proceedings: Al Nashiri's arraignment on November 9 for his alleged role in bombing the USS Cole and planning attacks on the USS The Sullivans and the MV Limburg.
Al Nashiri's arraignment is on the new web-site's calendar, and his case file is up, with links. But as of today, even the Defense Request for Continuance of Arraignment and the following Order were not available. The link said they were undergoing a security review.
October 6, 2011
In Memoriam: Derrick Bell
ConLaw Prof Derrick Bell died yesterday at the age of 80. As the NYT obit reports, Bell was known for his scholarly works, for his pioneering of critical race theory, for storytelling as scholarship, for being ethical, and for leaving a position at Harvard Law. While the obit certainly does mention that Bell was a law professor, it does not emphasize that he was also a teacher.
Bell's writing on Constitutional Law pedagogy deserves continuing attention. Here is an excerpt from his 1998 essay published in Seattle University Law Review, Constitutional Conflicts: The Perils and Rewards of Pioneering in the Law School Classroom:
By departing from the norm in constitutional casebooks and giving priority to "learning by doing" simulations, students mimic the kind of process that an attorney, researching an unfamiliar area of law, might utilize to investigate prior decisions. In practice, lawyers are called to research and to write; to comprehend legal arguments; to guess at the probable effect of and interaction between judicial, statutory, legal and policy arguments in court; to argue, persuade and debate; to work cooperatively with colleagues; and for some, to judge those arguments and decide cases and issues of law. This is as true in the practice of constitutional law as in any other. Once their research skills are in place, most students are aware that they have the capacity to learn, relatively quickly, whatever they need or want to know regarding any legal question.
For some law professors putting together such material and assessing the student products would deflect from their scholarly agenda. But Derrick Bell took pedagogy as seriously as he took his many scholarly projects and his lecturing schedule. Or maybe not so seriously: One of my fondest memories of him was as a co-panelist on an AALS Teaching section plenary, when he replied to a question by saying that teaching was fun. And then he whispered to me that perhaps we'd better not tell everyone how much fun it really is.
[image: Derrick Bell via]
Is the United States Constitution Worthy of Emulation?
It may not be, at least to the extent that it is considered a model worth emulation by other constitutional democracies. In their important forthcoming article, David Law and Mila Versteeg argue that the United States Constitution has lost its stature - - - indeed, its hegemony - - - as a global influence on constitutional democracies. The title of their article, The Declining Influence of the United States Constitution, says it all.
But what is exceptional about their article is that they set out to prove their thesis with statistical analysis. They explain their quantative analysis with precision and care, achieving an admirable level of transparency. One might not agree with a particular detail (or as they say, coding decision) but their explanations (including those in previous articles) are revealing. Their analysis of "rights-related provisions" includes enforcement mechanisms, such as judicial review. They also analyze judicial review in their structures discussion, as well as federalism and "presidentialism." Their "waning influence" argument is given graphic illustration in a series of maps in which darker shades of blue represent closer similarity to the U.S. Constitution, while darker shades of red indicate greater dissimilarity:
The increasing atypicality of the United States Constitution is attributable to a few factors that their statistical analysis reveals. In terms of rights, the United States Constitution has fewer rights (while the trend has been toward more), some of the rights that it does have are rare (e.g., the right to bear arms), and some of the rights that it omits are "generic building blocks of global rights constitutionalism" (e.g., women's rights. positive socio-economic rights). The difficulty of amending the Constitution and the age of the Constitution also contribute.
So if the United States Constitution's influence is waning, are there other constitutions that have gained prestige? The top candidate is Canada. Indeed, they come close to arguing that Canada is the new constitutional "super power." (Canadian scholars may be particularly interested in this section, as well as in the maps similar to those above that illustrate their statistical findings). Other candidates are Germany, South Africa, and India. On the international level, they also examine human rights instruments, although they conclude that the results of their regression analysis offers little or no support for the notion that any of the three leading international human rights instruments have been widely emulated by constitution-makers.
This an essential article for anyone teaching Comparative Constitutional Law, especially for those trained in the United States Constitutional paradigm. It's also a great article for ConLawProfs doing comparative work, or indeed anyone teaching constitutional law. There is a great deal of "data" and charts as well as maps, but there is also a solid writing style and accessible interpretations. There is also some speculation - - - and the implicit invitations to readers to contribute their own explanations.
And it does provide a different slant on the question of American exceptionalism and whether United States constitutional interpretation should ever consider foreign or international perspectives.
Occupy Wall Street, Zuccotti Park, and the First Amendment
With the burgeoning protests of "Occupy Wall Street" including a packed (and permitted) march yesterday at Wall Street and the federal courthouses (photo below), there is an increasing focus on the First Amendment status of Zuccotti Park, once known (and by some renamed) Liberty Park. As the name change hints, Zuccotti Park was once public, but is now owned by a private corporation and named after its chairperson.
The publicly accessible but privately owned "park" causes some First Amendment ambiguity, although not one without precedent. Indeed, the "Plaza" outside Lincoln Center was the site of such a dispute involving a planned union rally. In a 2002 Second Circuit opinion written by a panel that included now-Justice Sotomayor, the court in Hotel & Rest. Employees Union v. New York Dep't of Parks, found that the Plaza was not a traditional public forum and the policy limiting organized public expression in the Plaza to "artistic and performance-related events" was viewpoint neutral and reasonable in relation to the forum's function and purpose.
Having used this case as the basis for an in-class discussion in First Amendment, I can attest to the difficulties it poses, especially since it bans public speech.
In an excellent and succinct piece in the NYLJ yesterday, Christoper Dunn examines the Lincoln Center Plaza precedent as it would apply to Zuccotti Park. Dunn writes:
If the Occupy Wall Street protest turns into a legal confrontation, the first step for the courts will be to sort out whether Zuccotti Park qualifies as a traditional public forum, an exercise that will entail a detailed examination of the unusual history and use of the space. Assuming, as seems evident, that the public's free access to the space imbues it with the qualities of a normal park for First Amendment purposes, there then would be questions about what rules actually apply to the space and whether they square with the First Amendment.
Dunn then turns to the "rules" that might apply and the protesters' actions, including "sleeping in the park." For those familiar with First Amendment doctrine, this immediately raises Clark v. Community for Creative Non-Violence, the 1984 Supreme Court case involving what we might now call the "occupying" of the National Mall to protest homelessness. Dunn's discussion of Clark as well as other precedent is again cogent and succint.
For those wishing to use Occupy Wall Street in First Amendment this term, this could be the basis of a great problem mixing forum doctrine and symbolic speech, and Dunn's brief article would be a terrific model answer.
October 5, 2011
Oral Argument Review: Reynolds and Sex Offender Standing
On Monday the Court heard oral argument in Reynolds v. United States on whether a sex offender convicted, sentenced, and released before the federal Sex Offender Registration and Notification Act passed had standing to challenge the Attorney General's interim rule under SORNA that SORNA's registration requirements applied to pre-enforcement offenders. The following argument review is cross-posted at SCOTUSblog; the argument preview on SCOTUSblog is here.
We knew going into oral argument this week that the statute at issue in Reynolds v. United States was hazy. After all, what does it mean for Congress to authorize the Attorney General to “specify the applicability of” the registration requirements for pre-enforcement sex offenders under the federal Sex Offender Registration and Notification Act (SORNA)? There seems to be no precedent for this kind of delegation, and any interpretation raises significant problems. But even as the argument on Monday highlighted these ambiguities and problems, it also revealed the factors that the Court will balance to navigate them, and suggested the likely result.
On the one side, the Court seemed acutely aware that Reynolds’s preferred interpretation – that as a pre-enforcement offender, he was subject to SORNA’s registration requirements only after the Attorney General issued regulations – raised serious potential constitutional problems. In particular, the Court recognized that Reynolds’s interpretation means that SORNA delegates to the Attorney General the complete and awesome authority to determine whether registration applies at all to pre-enforcement offenders. Counsel for the government put it this way: According to Reynolds, the Attorney General has complete control over the light switch. Thus by Reynolds’s reckoning, SORNA veers toward a violation of the non-delegation doctrine and separation-of-powers principles. Chief Justice Roberts and Justice Ginsburg both raised this issue, but Justice Scalia put perhaps the finest point on it:
My problem is that it’s very strange. I find it very strange to leave it up to the Attorney General whether something will be a crime or not. It will be a crime if the Attorney General says so and it won’t be a crime if he doesn’t. I mean, especially leave it up to the Attorney General, for pete’s sake; he’s the prosecutor. You know, it will be a crime if the prosecutor thinks it is and it won’t be a crime if the prosecutor thinks it isn’t. I don’t know of any parallel, and I think it’s sailing close to the edge of constitutionality.
And there’s another, practical problem: Under Reynolds’s interpretation, SORNA would create a registration vacuum for pre-enforcement offenders, at least until the Attorney General “specified the applicability of” its registration requirements. That’s because, according to Reynolds, state registration doesn’t satisfy SORNA registration, and SORNA itself does not require pre-enforcement offenders to register. Thus SORNA wouldn’t touch pre-enforcement offenders until the Attorney General acted. But some Justices suggested that this kind of vacuum would frustrate congressional purpose – to unify the national registration of sex offenders and to re-locate and register those many offenders that were lost under previous state and national registration schemes. Counsel for the government argued that this approach unnecessarily and wrongly complicates registration; instead, state registration (which was mandatory for Reynolds himself, and which he skipped) also satisfies SORNA’s requirements for pre-enforcement offender registration. There was some sympathy for this more simple approach on the bench, underscoring this practical problem with Reynolds’s position.
But on the other hand, the government’s position – that SORNA itself requires pre-enforcement offenders to register, irrespective of any regulation from the Attorney General – has its own problems. For one, it would have been easy for Congress to do this with plain language in the statute; but it didn’t. In fact, as Justice Sotomayor pointed out, Congress rejected an alternative version of the bill that would have plainly required pre-enforcement offenders to register. (Justice Sotomayor was careful to remind us that not all of her colleagues would be persuaded by this kind of legislative history.)
Moreover, the government’s understanding of the Attorney General’s authority – the “safety valve,” as counsel called it – may have gone too far. Justices Scalia and Kagan both seemed taken aback by the government’s claim that the Attorney General’s authority to “specify” the requirements would allow the Attorney General to entirely exempt all pre-enactment offenders from SORNA’s registration requirements. This seems to swing from Reynolds’s position too far the other way.
Finally, and perhaps most importantly, the government’s interpretation leads to confusion, even incoherence, between SORNA’s requirement for initial registration and its requirement for keeping registration current for pre-enforcement offenders. In a lengthy exchange between Justice Breyer and counsel for the government, sometimes joined by Justices Scalia and Kagan, the Justices suggested that the government’s position could leave some pre-enforcement offenders without any idea what the law required and no way to comply. Counsel for the government, assisted at one point by Chief Justice Roberts, argued that SORNA’s structure suggested otherwise and that its criminal provision was tailored around these problems.
If the argument is any prediction, the Court will likely balance worries about an unconstitutional construction that undermines legislative purpose (if it adopts Reynolds’s interpretation) against concerns that SORNA’s registration requirements are incoherent for some pre-enforcement offenders and that SORNA gives too much power to the Attorney General to nullify registration (if it adopts the government’s understanding). For a majority on this Court, this balance probably favors the government: the government’s position both avoids a constitutionally questionable interpretation of the statute and would read SORNA to sweep in all pre-enforcement offenders – a read that seems more natural in light of SORNA’s overall structure, and a read that is consistent with a plausible understanding of congressional purposes.
But even this wouldn’t necessarily close the case. Reynolds raised an alternative argument that he still would have standing to challenge the Attorney General’s interim rule, even if SORNA itself required him to register. This is because the Attorney General issued the rule without notice and comment, which would have allowed Reynolds to persuade the Attorney General why he should be exempted from the registration requirements under the rule. Because the interim rule did not exempt him, he has standing to challenge it. This seems a too-clever turn to have any real traction, but it serves as a useful final reminder that this is one dodgy statute.
October 4, 2011
The Brennan Center on Voting Law Changes
The Brennan Center at NYU recently released a report on the many changes to voting laws that we're seeing in the states--everything from voter ID requirements to cutting back on early voting to beefed up registration requirements. The results are sobering, with restrictions "fall[ing] most heavily on young, minority, and low-income voters, as well as on voters with disabilities."
The Supreme Court made challenges to voter ID laws much more difficult in 2008 in Crawford v. Marion County. In Crawford, the Court upheld Indiana's voter ID law against a facial equal protection challenge. The Court said that the law was a neutral voting regulation designed to ensure the integrity of the process, not an infringement on the fundamental right to vote. When the plaintiffs refiled in state court, an Indiana intermediate appellate court overturned the law under the state constitution, but the Indiana Supreme Court reversed, more-or-less tracking the reasoning in Crawford. The latest chapter came in Stewart v. Marion County, filed in federal court in the Southern District of Indiana. But the court dismissed Stewart for lack of standing. The problem? Stewart had an ID.
Under Crawford's approach, challenges to any of the restrictions surveyed by the Brennan Center would likely face an uphill battle in court.
October 3, 2011
Alston on Targeted Killings
Philip Alston (NYU) recently posted his now-even-more-timely article The CIA and Targeted Killings Beyond Borders late last month on SSRN. In it, Alston argues that there's no effective check on CIA targeted killings, and that this undermines the international rule of law. From the abstract:
The CIA's internal control mechanisms, including its Inspector-General, have had no discernible impact; executive control mechanisms have either not been activated at all or have ignored the issue; congressional oversight has given a "free pass" to the CIA in this area; judicial review has been effectively precluded; and external oversight has been reduced to media coverage which is all too often dependent on information leaked by the CIA itself. As a result, there is no meaningful domestic accountability for a burgeoning program of international killing. This in turn means that the United States cannot possibly satisfy its obligations under international law to ensure accountability for its use of lethal force, either under IHRL or IHL. The result is the steady undermining of the international rule of law, and the setting of legal precedents which will inevitably come back to haunt the United States before long when invoked by other states with highly problematic agendas.
Supreme Court October 2011 Term
Watch a video of the annual Supreme Court portrait on the Washington Post site here.
And thanks to all our commentators and readers as we celebrate our blog's 3rd anniversary and over a half-million hits.
October 2, 2011
Florida Prison Privatization: Allowable but State Constitutional Process Must be Followed
In an order Friday, Judge Jackie Fulord held unconstitutional a statute ordering the privatization of 29 South Florida prisons in Baiardi v. Tucker. The suit was filed by the correctional officers union.
The judge stated that there was no question that Florida could privatize prisons under Florida Stat. §944.105, which gives authprity to the Department of Corrections (DOC) to "outsource" correctional functions based on DOC expertise. But the problem here was that the Florida Legislature was now mandating DOC privatize the 29 prisons - - - and this mandate occurred not in an ordinary statute (a general law) but in the "hidden recesses" of a General Appropriations Act.
In her brief order, Judge Fulord relied upon the very simple provisions of Florida Constitution Article III §6 and §12:
SECTION 6. Laws.—Every law shall embrace but one subject and matter properly connected therewith, and the subject shall be briefly expressed in the title. No law shall be revised or amended by reference to its title only. Laws to revise or amend shall set out in full the revised or amended act, section, subsection or paragraph of a subsection. The enacting clause of every law shall read: “Be It Enacted by the Legislature of the State of Florida:”.
SECTION 12. Appropriation bills.—Laws making appropriations for salaries of public officers and other current expenses of the state shall contain provisions on no other subject.
The ruling reportedly caused the stock of a Florida-based private prison operator to fall.