Friday, March 9, 2012
Attorney General Eric Holder earlier this week outlined the administration's legal case for surveillance and intelligence-gathering, trials, and targeted killings to an audience at Northwestern University. Here's the transcript.
In all, Holder's message was that the government approached these decisions with balance and care, making efforts to ensure that its actions comport with U.S. law and international law, and that its efforts are transparent and checked by the other branches, even if only minimally. He also emphasized the government's inter-agency coordination on these and other, related measures. But at the same time, Holder didn't back down from defining sweeping government authority in these areas.
And in the end, a good part of the government's case, especially with regard to targeted killings, amounts to this: Trust us.
As to surveillance and intelligence-gathering, Holder pointed to the administration's on-going efforts under section 702 of the FISA, which authorizes the AG or the DNI to authorize annually, through the FISA court, collection directed at identified categories of foreign intelligence targets without a warrant. Holder said that the executive branch has three checks on this power--an internal check within the executive branch, reporting to Congress and the requirement for reauthorization by Congress, and the FISA court.
As to trying alleged terrorists, Holder made a strong case for executive discretion to try alleged terrorists in a regular Article III court or a military tribunal. How to decide which?
- "First of all, commissions only have jurisdiction to prosecute individuals who are part of al Qaeda, have engaged in hostilities against the United States or its coalition partners, or who have purposefully and materially supported such hostilities."
- "Second, our civilian courts cover a much broader set of offenses than the military commissions, which can only prosecute specified offenses, including violations of the laws of war and other offenses traditionally triable by military commission."
- "Third, there is the issue of international cooperation." Without it, military commissions are tougher.
As to targeted killings of enemies, including American citizen enemies, Holder's speech didn't really have any surprises. He said that a combination of the AUMF and Article II authorities, plus the exectuive's inherent power to protect the nation and self-defense, gave the President power to engage in targeted killings with minimal, and apparently all internal, due process. Holder did say that the administration would respect the counter-veiling values in the constituiton (like due process) and international law. And he elaborated on what we've seen with regard to international law:
The principle of necessity requires that targets have definite military value. The principle of distinction requires that only lawful targets--such as combatants, civilians directly participating in hostilities, and military objectives--may be targeted intentionally. Under the principle of proportionality, the anticipated collateral damage must not be excessive in relation to the anticipated military advantage. Finally, the principle of humanity requires us to use weapons that will not inflict unnecessary suffering.
The order now enjoins:
H.B. 56 § 27, which bars Alabama courts from enforcing a contract to which a person who is unlawfully present in the United States is a party. This section does not apply to contracts for lodging for one night, contracts for the purchase of food, contracts for medical services, or contracts for transportation for an alien to return to his or her country of origin.
H.B. 56 § 30, which makes it a felony for an alien not lawfully present in the United States to enter into a “business transaction” with the State of Alabama or any political subdivision thereof.
Thus, the only two subsections that seem to remain in effect are:
H.B. 56 § 12(a), which requires a law enforcement officer to make a reasonable attempt, when practicable, to determine the citizenship and immigration status of a person stopped, detained or arrested when reasonable suspicion exists that the person is an alien who is unlawfully present in the United States.
H.B. 56 § 18, which amends Ala. Code 32-6-9 to include a provision that if a person is arrested for driving without a license, and the officer is unable to determine that the person has a valid driver’s license, the person must be transported to the nearest magistrate; a reasonable effort shall be made to determine the citizenship of the driver, and if found to be unlawfully present in the United States the driver shall be detained until prosecution or until handed over to federal immigration authorities.
Judge Rosemary Barkett had dissented from the opinion concluding that these subsections should remain in effect.
Thursday, March 8, 2012
As the Supreme Court continues to contemplate Florence v. Board of Chosen Freeholders (Burlington), argued in October on the constitutionality of arrestee strip-searches on admission to jail without reasonable suspicion, the Ninth Circuit has remanded a case involving the policies of the controversial sheriff Joe Arpaio in its opinion in Wagner v. County of Maricopa.
Underlying the case is the color pink.
At issue in the case is the County of Maricopa's practice of dressing-out pretrial detainees in prison garb that includes pink underwear. The now-deceased prisoner, Eric Vogel, was mentally disturbed and apparently reacted quite negatively to the pink underwear. A divided panel reversed on the evidentiary issues, including hearsay and expert testimony regarding the prisoner's reactions to the pink underwear.
However the Ninth Circuit also commented on the constitutional contours of the case. It stated that while certain procedures, including a strip search, may be necessary to "secure the safety on an institution" even though it may impinge upon the dignity of innocent inmates, the procedures "should reasonably related to a legitimate governmental objective, it does not, without more, amount to “punishment.”" Quoting Bell v. Wolfish, 441 U.S. 520, 539 (1979), the panel continued that "if a restriction or condition is not reasonably related to a legitimate goal—if it is arbitrary or purposeless—a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees."
Thus, the Ninth Circuit stated:
Unexplained and undefended, the dress-out in pink appears to be punishment without legal justification.
It added that it appeared that this question was
still open for exploration at trial on remand. Alternatively, the plaintiff may prevail on the narrower proposition that to apply this procedure automatically to a man known by his jailors to be in need of psychiatric treatment was itself a violation of due process. Because of the evidentiary rulings of the trial court neither issue was presented to the jury.
On March 8, 1957, the Georgia legislature argued that "the continued recognition of the 14th and 15th Amendments as valid parts of the Constitution of the United States is incompatible with the present day position of the United States as the World's champion of Constitutional governments resting upon the consent of the people given through their lawful representatives," and passed a MEMORIAL TO CONGRESS -- FOURTEENTH AND FIFTEENTH AMENDMENTS TO U.S. CONSTITUTION BE DECLARED VOID.
The remainder of the Memorial can be read here.
(h/t Diane Marie Amann via)
Wednesday, March 7, 2012
On Thursday, May 31, 2012, the Widener Environmental Law Center (WELC) in Wilmington, Delaware, will host a one-day scholar workshop on recent developments in the growing field of global and domestic constitutional environmental rights. Workshop organizers Professors Erin Daly and Jim May invite you to attend to present a work in progress, to comment, or to observe.
The program is open to (1) scholars who are interested in sharing significant works-in-progress, such as books, articles, advocacy and constitutional amendments, and (2) scholars who would be interested in providing comments to a work in progress, (3) observers.
The workshop is limited to 50 participants.
The deadline is March 31, 2012.
More information here.
Tuesday, March 6, 2012
This year's topic of Drake University Law School Annual Constitutional Law Center Symposium is Constitutionalism and the Poor and it will be held April 14, 2012.
Here's the line-up:
9:00 a.m. Keynote Address: "Dandridge v. Williams Redux: A Look Back From the 21st Century"? - Peter Edelman, Professor of Law, and Faculty Director of the Center on Poverty, Inequality, and Public Policy at Georgetown University Law Center
9:45 a.m. “Occupy Pennsylvania Avenue: How the Government’s Unconstitutional Actions Harm the Poor” - Ilya Shapiro, Senior Fellow in Constitutional Studies and Editor-in-Chief of Cato Supreme Court Review at the CATO Institute
10:30 a.m. “Whither the Canaries?” - Julie Nice (pictured left) Herbst Foundation Professor of Law at University of San Francisco School of Law
11:00 a.m. “Constitutional Essentials” - Frank Michelman, Robert Walmsley University Professor at Harvard Law School
11:30 a.m. “Implicit Bias: Structural Racialization and a New Constitution” - john powell (pictured right) Director, Haas Diversity Research Center and Robert D. Haas Chancellor’s Chair in Equity and Inclusion, University of California, Berkeley
12:00 p.m. “State Constitutions and Poverty” - James Gardner, Vice Dean for Academic Affairs and Joseph W. Belluck and Laura L. Aswad SUNY Distinguished Professor of Civil Justice at SUNY Buffalo Law School, State University of New York
More information here.
Monday, March 5, 2012
In its opinion in Hayes v. State of New York Attorney Grievance Committee, the Second Circuit declared Rule 7.4 of the NY Rules of Professional Conduct unconstitutional under the First Amendment. Hayes, a New York attorney, was awarded Board Certification in Civil Trial Advocacy by the National Board of Trial Advocacy. Hayes' attempts to advertise this fact, including on his letterhead and billboards, are the crux of the problem.
Rule 7.4, now codified at N.Y. Comp. Codes R. & Regs. tit. 22 § 1200.10(c)(1), provides:
A lawyer who is certified as a specialist in a particular area of law or law practice by a private organization approved for that purpose by the American Bar Association may state the fact of certification if, in conjunction therewith, the certifying organization is identified and the following statement is prominently made: “The [name of the private certifying organization] is not affiliated with any governmental authority. Certification is not a requirement for the practice of law in the State of New York and does not necessarily indicate greater competence than other attorneys experienced in this field of law.”
In litigation that started more than a decade ago, the rule has been renumbered, but not changed. The panel noted that New York's rule differs from the model ABA rule and the majority of other states in requiring disclosure statements attached to board certification statements.
Essentially the rule requires a prominently made disclosure statement that includes three statements:
- The [name of the private certifying organization] is not affiliated with any governmental authority.
- Certification is not a requirement for the practice of law in the State of New York
- and does not necessarily indicate greater competence than other attorneys experienced in this field of law.
The panel considered both Peel v. Attorney Registration and Disciplinary Commission, 496 U.S. 91 (1990) (finding unconstitutional a total ban on an attorney advert including a mention of Board certification), and Ibanez v. Florida Dep’t of Business and Professional Regulation, 512 U.S. 136 (1994) (finding unconstitutional a censure of an attorney for listing herself as also being credentialed as a CPA and CFA). Both of these cases, in turn, incorporate the test for commercial speech from Central Hudson.
The panel found the first required disclosure statement untroubling, but the latter requirements unconstitutional. As to the "certification is not a requirement for the practice of law," the court found that the state did not demonstrate any harm, and that no harm is self evident: "It is difficult to imagine that any significant portion of the public observing the thousands of lawyers practicing in New York without certification believe that all of them are acting unlawfully." As to "no greater competence" the panel essentially found it was simply not true given the certifying process, and therefore the required disclosure statement, "does not serve a substantial state interest, is far more intrusive than necessary, and is entirely unsupported by the record."
Additionally, Hayes argued that the rule's requirement that the disclaimer be "prominently made" was vague. This would seem to be a weak argument, but the court found it a close question and ultimately ruled that "prominently made" was unconstitutionally vague, at least as applied to Hayes. This conclusion that seems quite correct given the context that the court provides:
Hayes advertised on billboards that set forth the disclaimer in lettering six inches high, one inch larger than the lettering required by the federal government for health warnings on similar cigarette advertising. It is not our role to assess whether such a disclaimer does or does not comply with the New York rule, and this case does not require us to opine on whether a clear and specific rule that required even larger lettering would comport with the Constitution. We find ourselves unable to conclude, however, that a lawyer of average intelligence could anticipate that lettering of that dimension could be construed as not “prominently made” . . . .
Our concern is only exacerbated by the inability of the Committee’s representatives to clarify the content of the rule. A former principal counsel to the Committee acknowledged that his successor would likely apply a different standard of “what constitutes prominently made.” He also testified that he did not think “there’s an obligation to set forth an objective standard” as to how long the Disclaimer would be displayed in a television commercial, and as to whether his successor would use the same objective standard he used, answered, “I doubt it. [I]t’s a different person.” He also said he could not tell if the Disclaimer was prominently made on a billboard or a TV commercial unless he had seen them. With respect to the size of lettering of the disclaimer on a Hayes billboard, the attorney for the Grievance Committee at one time indicated that letters must be six inches in height, but the Committee apparently accepted four-inch letters. At trial he could not state whether placing the disclaimer in a footnote on the last page of a Hayes document would satisfy the prominence requirement.
Although the uncertainties as to how the prominence requirement will be enforced could be alleviated if the Grievance Committee would give pre-enforcement guidance to inquiring attorneys, such guidance was not available to Hayes. The former principal counsel to the Grievance Committee was asked at trial, “[I]s there a way that you would assist the attorney if there were not a grievance file pending?” He replied, “The short answer is, no.” He added that the Committee did not provide advisory opinions because, in part, “it would probably take up most of our work.” Because the prominence requirement is not clear to those who sought to enforce it against Hayes’s billboards, let alone to Hayes as a lawyer of ordinary skill and intelligence attempting to comply with it, it cannot validly be enforced against him in this context.
It does seem as if the NY grievance officials were quite cavalier, certainly contributing to a finding of the rule's constitutional infirmities in its application.RR