Monday, October 21, 2013
A few Power Point slides are published in Le Monde. But Journalist Glenn Greenwald and Edward Snowden have also released additional Power Point Slides that are worth a look. A set of eleven slides have some redactions, but will also seem eerily familiar to anyone who has ever prepared or seen a Power Point presentation:
Wednesday, October 16, 2013
Jeffrey Toobin writes in the Daily Comment at The New Yorker that the Noel Canning case on recess appointments, now before the Supreme Court, could lead to an entirely new level of dysfunction in Washington--putting the current crisis to shame. That is, if the Court strikes President Obama's recess appointments to the NLRB. (Our latest post on Noel Canning, with links to earlier posts and lower court rulings, is here.) Toobin explains:
If the ruling by the D.C. Circuit [striking President Obama's recess appointments to the NLRB] is upheld, the result will be a massive shift of power from Presidents to Senate minorities. Forty senators will have the power to stop an agency from functioning. Given the general political inclinations of the contemporary G.O.P., this would be a tremendous victory. They don't want an N.L.R.B. at all, and they don't care for most other regulatory agencies, either. The D.C. Circuit decision is more than a gift of a minority veto on individual members of a commission; it's a minority veto on the very existence of vunerable federal agencies.
The Canning case brings together several themes of recent political life: fierce congressional obstruction of President Obama, aggressive use of the courts by conservative activists, precedent-shattering rulings by conservative judges to undo the work of the democratically elected branches of government. As with so many of these struggles during the Obama era, the outcome is far from certain.
Monday, October 7, 2013
What newspapers does he read? Is he softening on his views of homosexuality? Does he believe in hell and the devil? Are women protected by the Fourteenth Amendment? What are his hobbies other than hunting? His television viewing? Favorite novels?
Most wrenching decision?:
Probably the most wrenching was Morrison v. Olson, which involved the independent counsel. To take away the power to prosecute from the president and give it to somebody who’s not under his control is a terrible erosion of presidential power. And it was wrenching not only because it came out wrong—I was the sole dissenter—but because the opinion was written by Rehnquist, who had been head of the Office of Legal Counsel, before me, and who I thought would realize the importance of that power of the president to prosecute. And he not only wrote the opinion; he wrote it in a manner that was more extreme than I think Bill Brennan would have written it. That was wrenching.
But later, he comes back to the opinion:
As to which is the most impressive opinion: I still think Morrison v. Olson. But look, we have different standards, I suppose, for what’s a great opinion. I care about the reasoning. And the reasoning in Morrison, I thought, was devastating—devastating of the majority. If you ask me which of my opinions will have the most impact in the future, it probably won’t be that dissent; it’ll be some majority opinion. But it’ll have impact in the future not because it’s so beautifully reasoned and so well written. It’ll have impact in the future because it’s authoritative. That’s all that matters, unfortunately.
It's not what he terms his most "heroic" decision, however, reserving that for a very different sort of opinion.
I mean the most heroic opinion—maybe the only heroic opinion I ever issued— was my statement refusing to recuse.
From the case involving Vice-President Cheney, with whom you’d gone hunting?
I thought that took some guts. Most of my opinions don’t take guts. They take smarts. But not courage. And I was proud of that. I did the right thing and it let me in for a lot of criticism and it was the right thing to do and I was proud of that. So that’s the only heroic thing I’ve done.
Given the standards of recusal - - - despite continuing controversies - - - there is little reason that Scalia or any other Supreme Court Justice should not give as many interviews as possible, even if they might reveal "bias."
Dahlia Lithwick over at Slate has an excellent analysis of the interview, including asking for the interviewer's perceptions about the interview: Are Jennifer Senior and Justice Scalia as far apart as they seem?
I asked Senior whether this [perception] felt accurate. She replied, “It's embarrassing, but the overlap between our worlds is almost nonexistent. It explains why the left and the right both responded so enthusiastically to this piece. Each side sees its own view, affirmed. One sees a monster and the other sees a hero. It's extraordinary, actually. The O'Reilly constituents think he's speaking sense; the Jon Stewart vote thinks virtually everything the guy says is nuts.”
October 7, 2013 in Books, Courts and Judging, Current Affairs, Equal Protection, Executive Authority, Fourteenth Amendment, Interpretation, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Friday, September 6, 2013
Garrett Epps writes over at The Atlantic that the Senate's Syria Resolution contains a huge give-away to the President: congressional recognition of inherent executive authority to use the military to defend the national security interests of the United States--independent of any AUMF.
The give-away comes in the last "Whereas" of the Senate's Syria Resolution. It reads:
Whereas the President has authority under the Constitution to use force in order to defend the national security interests of the United States . . . .
The only problem is it's not true, and it represents a two-century high-water mark in claims of executive power. Having been consulted by the president, Congress is poised to respond by throwing back at him not only the current decision but sweeping new powers he didn't have before.
Tuesday, August 27, 2013
Several media and legal outlets are running impressive commentaries on this fiftieth anniversary of the March on Washington for Jobs and Freedom led by Martin Luther King, Jr.
Over at ACS blog, Law Prof Atiba Ellis writes on "The Moral Hazard of American Gradualism: A Lesson from the March on Washington." Ellis states, "the question we must confront in 2013 is whether we have been tranquilized into the lethargy of gradualism concerning the work that needs to be done." Ellis highlights the Court's decisions last term in Shelby and in Fisher as examples of "the new American gradualism – retrogressive action under the cover of apathy, spurred by the myth of post-racialism and the supposed fear of constitutional overreach."
And on NPR's Morning Edition, journalist Michele Norris profiles Clarence B. Jones as an attorney and "guiding hand" behind the "I Have a Dream" speech, including the famous "promissory note" metaphor. However, Norris also highlights Jones' memoir Behind The Dream, which had "some unlikely source material." Indeed, Jones' memoir may be more accurate than most, since his memory was augmented by transcripts of every single phone conversation he had with King, courtesy of the FBI, in a wiretap authorized by Robert Kennedy as Attorney General. The NPR story has a link to the FBI archive on King.
August 27, 2013 in Affirmative Action, Books, Current Affairs, Executive Authority, Federalism, Fifteenth Amendment, Fourteenth Amendment, News, Race, Recent Cases, Scholarship, Theory, Thirteenth Amendment | Permalink | Comments (0) | TrackBack (0)
Sunday, August 18, 2013
Mark Bowden writes in the current issue of The Atlantic about the moral, military, and legal aspects of U.S. drone strikes against alleged terrorists. The article came out just as U.N. Secretary General Ban Ki-Moon criticized the use of armed drones and argued that they must be controlled by international law. We posted most recently on drones here--on the Al-Awlaki case, with links to the leaked DOJ white paper providing the legal justification for drone attacks.
Bowden surveys some of the legal landscape and concludes that drone attacks are legal. But:
Once the "war" on al-Qaeda ends, the justification for targeted killing will become tenuous. Some experts on international law say it will become simply illegal. Indeed, one basis for condemning the drone war has been that the pursuit of al-Qaeda was never a real war in the first place.
He also quotes John Yoo on the relative legality of drone attacks:
I would think if you are a civil libertarian, you ought to be much more upset about the drone than Guantanamo and interrogations. . . . Because I think the ultimate deprivation of liberty would be the government taking away someone's life. But with drone killings, you do not see anything, not as a member of the public. You read reports perhaps of people who are killed by drones, but it happens 3,000 miles away and there are no pictures, there are no remains, there is no debris that anyone in the United States ever sees. It's kind of antiseptic. So it is like a video game; it's like Call of Duty.
Friday, August 9, 2013
President Obama said that he directed his national security team "to review where our counterterrorism efforts and our values come into tension," and "to be more transparent and to pursue reforms of our laws and practices." He said he'd work with Congress to reform Section 215 of the Patriot Act, the statutory authority for the Foreign Intelligence Surveillance Court to order the release of telephone records (and which came under fire with Snowden's release of the FISC order doing just that), and to reform the FISC, in particular, by appointing a civil liberties advocate at the court. He also said he'd work to be more transparent about surveillance and appoint an independent group "to step back and review our capabilities, particularly our surveillance technologies, and . . . how we can maintain the trust of the people . . . ."
As to the legal authority, the administration gave a broad read to the term "relevant" in Section 215--the issue that EPIC pressed in its recent suit challenging the program. That is, the administration takes the position that Section 215's requirement that FISC production orders be supported by "reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation" gives very broad sweep to the FISC's authority. The administration also focused on controls over abuse of the authority under Section 215.
The document argues that the program violates neither the Fourth Amendment nor the First Amendment. As to the Fourth, the document claims that surveillance of telephony metadata doesn't even qualify as a "search" under Smith v. Maryland (1979), and, even if it did, the "search would satisfy the reasonableness standard that the Supreme Court has established in its cases authorizing the Government to conduct large-scale, but minimally intrusive, suspicionless searches" under Maryland v. King (2013).
As to the First Amendment, the document argues that the program authorizes the collection of only metadata, not content. Moreover, it says that as a lawful investigative activity, can't violate the First Amendment, and that there's no chilling of protected speech.
August 9, 2013 in Congressional Authority, Courts and Judging, Executive Authority, First Amendment, Fourth Amendment, News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)
Tuesday, July 23, 2013
The D.C. Circuit struck a congressional act that required the State Department to include "Israel" on the passport of any U.S. citizen born in Jerusalem. The court in Zivotofsky v. Secretary of State ruled that the law interfered with the President's exclusive power to recognize foreign countries.
The case will likely go (back) to the Supreme Court, this time on the merits. This is a significant separation-of-powers case, with important implications, and even if the Court ultimately agrees with the D.C. Circuit, it'll almost certainly want to put its own stamp on the substantive questions.
The problem was that long-standing State Department policy and practice did not recognize Jerusalem as part of Israel. The Foreign Affairs Manual, the State Department regs, reflected this, saying that passports issued to U.S. citizens born in Jerusalem should use just "Jerusalem" as the place of birth, not "Jerusalem, Israel," or "Israel."
Congress moved to direct the State Department to use "Israel," however, as part of its broader effort in 2002 to change U.S. foreign policy and identify Jerusalem as the capital of Israel. President Bush signed the larger bill, but issued a signing statement on those portions of the bill, including the portion that required the use of "Israel" on passports of U.S. citizens born in Jerusalem, saying that those portions interfered with the President's foreign affairs powers.
Zivotofsky was born in Jerusalem to U.S. citizens. His parents sought to designate his place of birth as "Jerusalem, Israel," on his passport, but the State Department refused. The Zivotofskys sued, and after going up and back to the Supreme Court, the case landed again in the D.C. Circuit.
The D.C. Circuit started with the so-called recognition power--the power to recognize foreign countries. The court reviewed the original intent, early and later practices, and Supreme Court rulings on the recognition power and found that it belonged to the President alone. (It found original intent inconclusive, however.)
It said that Congress's attempt to require the use of "Israel" interfered with that power and thus struck the provision.
The court rejected Zivotofsky's argument that Congress has a "passport power" that it properly exercised here. The court said that, whatever the extent of its passport power, Congress was quite obviously trying to do more than just regulate the contents of passports here: it was trying to set U.S. foreign policy. The court said that this interfered with the President's power to recognize foreign countries.
The court also rejected Zivotofsky's argument that the use of "Israel" didn't affect foreign affairs or recognition, because the State Department used the country-of-birth simply to identify the passport holder. The court said that the State Department said that this would affect foreign affairs, and that it's not the court's place to second-guess the executive branch on this.
(The court also said that President Bush's signing statement was irrelevant to its analysis, and that Zivotofsky's argument that the State Department policy discriminates against supporters of Israel was waived.)
Judge Tatel, concurring, came to the same conclusion, but started with the passport power. Judge Tatel argued that the passport power, whatever it is, can't interfere with the President's recognition power.
July 23, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Foreign Affairs, International, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0) | TrackBack (0)
Thursday, July 18, 2013
Judge Rosemary M. Collyer (D.D.C.) earlier this week rejected hunger-striking Guantanamo detainees' suit for an injunction against the government to stop it from force-feeding them. The ruling in Aamer v. Obama is the second recent case coming out of the federal courts rejecting an anti-force-feeding claim. Here's our post on the first.
Judge Collyer, like Judge Kessler in the earlier case, ruled that the court lacked jurisdiction under 28 U.S.C. Sec. 2241(e)(2), which deprives courts of jurisdiction to hear an action related to "any aspect of the detention, transfer, treatment, trial, or conditions of confinement" of an alien detainee at Guantanamo.
Judge Collyer went on to address the merits, too. She wrote that the government is "responsible for taking reasonable steps to guarantee the safety of inmates in their charge," that there is no right to suicide or assisted suicide, and that the government has a legitimate penological interest in preventing suicide. Moreover, she wrote that the government has put controls in place so that the procedure really isn't so bad, and that the government made adjustments to the force-feeding schedule for the Ramadan fast.
July 18, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Fundamental Rights, Habeas Corpus, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)
Wednesday, July 17, 2013
Scott Bombay, over at Constitution Daily, reports on a recent order of the Foreign Intelligence Surveillance Court, or FISC, directing the Justice Department to conduct a "declassification review" of a April 25, 2008, ruling and legal briefs involving Yahoo! The move could lead to release of documents that reveal some of the FISC's secret workings--in particular, according to Yahoo!, "how the parties and the Court vetted the Government's arguments supporting the use of directives" to gather information about subscribers without their knowledge. (Yahoo!'s interest is in showing that it vigorously defended its users' privacy.)
But Bombay notes that when the Justice Department finishes its classification job, there may not be much left of the ruling or the briefs to help us understand much of anything.
FISC Presiding Judge Reggie Walton ordered the Justice Department to report back to him by July 29 about when the documents could be ready for public inspection.
Lazarus says, referencing Assistant Secretary for Tax Policy Mark Mazur's letter to Congressman Fred Upton, that delayed enforcement, or temporary postponements, of tax reporting and payment requirements are routine across Republican and Democratic administrations. Moreover, the administration's delay is well within the courts' zone of tolerance under the Administrative Procedure Act:
To be sure, the federal Administrative Procedure Act authorizes federal courts to compel agencies to initiate statutorily required actions that have been "unreasonably delayed." But courts have found delays to be unreasonable only in rare cases where, unlike this one, inaction had lasted for several years, and the recalcitrant agency could offer neither a persuasive excuse nor a credible end to its dithering.
In other words, the courts give the administration some room, and the administration's delayed enforcement of the employer mandate, just one year while the administration gears up for it, is well within that space.
Mazur's letter also cites the IRC:
The Notice [of delayed enforcement] is an exercise of the Treasury Department's longstanding administrative authority to grant transition relief when implementing new legislation like the ACA. Administrative authority is granted by section 7805(a) of the Internal Revenue Code.
This authority has been used to postpone the application of new legislation on a number of prior occasions across Administrations.
In response to the White House announcement that it will delay enforcement of the so-called employer mandate in the Affordable Care Act, House Republicans introduced two bills, H.R. 2667 and H.R. 2668, that would amend the ACA to delay the effective date of the employer mandate and the individual mandate, respectively.
The White House promised a veto, saying that legislation authorizing a delay for the employer mandate is unnecessary (because according to the White House it can do this unilaterally) and that legislation authorizing a delay for the individual mandate would raise health insurance premiums and result in fewer insured.
The bills were clearly designed to highlight the Republicans' complaint that the administration is treating businesses more favorably than individuals and to force the administration to own up to its more favorable treatment of businesses. The White House didn't bite. (The Hill covered the politics here.)
But there's still this problem: It's not at all clear on what authority the administration can delay the enforcement of the employer mandate. As we wrote earlier, the ACA says that the employer mandate "shall apply to months beginning after December 31, 2013." That doesn't leave much wiggle room.
If the administration doesn't enforce the employer mandate until later, it's not clear that anyone could complaint (that is, that anyone would have standing to sue in federal court to compel enforcement). So the administration, as a practical matter, may not need a legal theory for delayed enforcement.
Thursday, July 11, 2013
Representative Scott Garrett (R-NJ) introduced a resolution, H. Con. Res. 45, saying that President Obama violated Article II, Section 3 of the Constitution by postponing the requirement that employers with more than 50 employees provide health insurance or pay a fine. (Article II, Section 3 says that the President "shall take Care that the Laws be faithfully executed.") The Hill reports here; we posted on Michael McConnell's piece in the WSJ here.
According to the resolution, the Affordable Care Act sets a specific date, December 31, 2013, after which the employer mandate "shall" take effect:
Whereas section 1513(d) of such Act states that the employer mandate "shall apply to months beginning after December 31, 2013";
This is right, and it seems pretty firm.
Lyle Denniston argues (correctly) over at Constitution Daily, the blog of the U.S. Constitution Center, that administrative agencies enjoy some flexibility in enforcing federal law. In particular, agencies may sometimes require time to be able to write regs to effectively enforce the law.
But here the language of the ACA is clear on the date of its application, and the administration's delay doesn't seem to have anything to do with its ability to enforce the employer mandate. Instead, the delay seems designed to meet the concerns of business owners--a policy consideration, not an administrative one.
The best way for the two ends of Pennsylvania Avenue to work this one out would be to amend the ACA, to give employers another year--simply change that date to December 31, 2014. This is a simple step, but an unlikely one in the current political climate, where pols can score points instead of making policy.
Wednesday, July 10, 2013
Here's Michael McConnell's piece in the WSJ arguing that the White House's decision to defer the implementation of the employer mandate in the Affordable Care Act violates the President's duty to "take Care that the Laws be faithfully executed." No word yet from the White House on the legal basis for deferring what appears to be a mandatory start-date in the Act: the employer mandate and penalty "shall apply" after December 31, 2013.
Monday, July 8, 2013
The Electronic Privacy Information Center, or EPIC, today asked the Supreme Court to vacate the order of the Foreign Intelligence Surveillance Court, or FISC, compelling the disclosure of domestic phone records by Verizon. We previously posted on the FISC order here.
EPIC filed a petition for a writ of mandamus directly with the Supreme Court, bypassing the usual route through the lower courts, because of the unique nature of the FISC order. EPIC claims that FISC Judge Roger Vinson ordered the disclosure of domestic phone records in violation of the FISC's statutory authority under the Foreign Intelligence Surveillance Act, or FISA. But EPIC says that under the FISA, the only court that can reverse Judge Vinson's order is the Supreme Court. Moreover, the order creates exceptional circumstances relating to the invasion of privacy, privileged communications, and the First Amendment that warrant mandamus relief. Thus, the mandamus petition.
On the merits, EPIC argues that Judge Vinson exceeded his authority under FISA:
[T]he FISC issued an order requiring disclosure of records for all telephone communications "wholly within the United States, including local telephone calls." The Business Records provision does not enable this type of domestic programmatic surveillance.
Specifically, the statute requires that production orders be supported by "reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation. . . . ." 50 U.S.C. Sec. 1861(b)(2)(A). It is simply unreasonable to conclude that all telephone records for all Verizon customers in the United States could be relevant to an investigation. Thus, the FISC simply "ha[d] no judicial power to do what it purport[ed] to do."
Petition at 18.
EPIC also argues that the order violates the separation of powers, insofar as it compels the disclosure of phone records of the judicial and legislative branches to the executive branch.
July 8, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)
Thursday, July 4, 2013
Jonathan Hafetz (Seton Hall), author of Habeas Corpus After 9/11: Confronting America's New Global Detention System, wrote at Al Jazeera that "there appears to be real momentum behind new efforts to reform Guantanamo policies."
In particular, Hafetz points to loosened restrictions on the administration's transfer of detainees at Guantanamo Bay in the National Defense Authorization Act of 2014, approved last week by the Senate Armed Services Committee. Still, the bill has to clear the full Senate, where it will surely meet some resistance, and, as Hafetz points out, the House version contains the old restrictions.
Tuesday, July 2, 2013
Illinois Governor Pat Quinn today issued an "amendatory veto" on Illinois HB 183, the state legislature's effort to provide for lawful concealed carrying of handguns, after the Seventh Circuit earlier this year ruled that Illinois's ban on concealed carry violated the Second Amendment.
Governor Quinn's amendatory veto sends HB 183 back to the legislature, along with his recommended changes to the bill. The legislature can override the veto as to the original HB 183 by a 3/5 vote in both houses; it can approve Governor Quinn's recommendations, however, by a bare majority in both houses. If the legislature so approves, and if the Governor certifies that the approval meets his recommendations, the amendatory-vetoed-bill becomes law.
The Governor may return a bill together with specific recommendations for change to the house in which it originated. The bill shall be considered in the same manner as a vetoed bill but the specific recommendations may be accepted by a record vote of a majority of the members elected to each house. Such bill shall be presented again to the Governor and if he certifies that such acceptance conforms to his specific recommendations, the bill shall become law. If he does not so certify, he shall return it as a vetoed bill to the house in which it originated.
Governor Quinn objected to the very loose standards for concealed carry in HB 183. In particular, the bill allows people to carry guns into establishments serving alcohol and into the workplace, and it contains no cap on the number of guns or the size or amount of ammunition clips that may be carried. Governor Quinn also objected to the bill's override of local authority to ban assault weapons--a provision not required by the Seventh Circuit's ruling (which went only to concealed carry).
The Seventh Circuit gave the state until July 9 to write a concealed carry law. According to the Chicago Tribune, "Quinn's move also raises the possibility that the General Assembly could fail to agree on either option and leave Illinois with a wide-open gun law that even sponsors of the concealed carry law have sought to avoid."
Monday, July 1, 2013
The Alabama Constitutional Revision Commission is considering a proposal to rewrite a section of the state constitution that allows racially segregated schools. The provision is an embarrassment (to say the very least), but state voters can't seem to vote it out of the state constitution. (Voters failed to strike it twice in the last 10 years. The latest vote, in 2012, likely failed because some argued that the amendment didn't go far enough--because it wouldn't have repealed the provision saying that there's no constitutional right to a public education.)
This, the week after the Supreme Court struck the coverage formula for the preclearance provision in the Voting Rights Act--a case brought by Alabama's own Shelby County.
The provision, Section 256, as amended by Amendment 111, approved by voters in 1956, reads:
It is the policy of the state of Alabama to foster and promote the education of its citizens in a manner and extent consistent with its available resources, and the willingness and ability of the individual student, but nothing in this Constitution shall be construed as creating or recognizing any right to education or training at public expense . . . .
To avoid confusion and disorder and to promote effective and economical planning for education, the legislature may authorize the parents or guardians of minors, who desire that such minors shall attend schools provided for their own race, to make election to that end, such election to be effective for such period and to such extent as the legislature may provide.
The Commission today considered a new Section 256, deleting the reference to segregated schools and the lack of right to education, and stating simply that "The legislature shall establish, organize and maintain a system of public schools throughout the state for the benefit of children thereof." But the Commission couldn't agree on final language and sent the revision to a subcommittee.
The Commission also rejected a provision that would have provided a stronger veto for the governor. (The legislature can currently override a veto with a bare majority in both houses. The proposal would have required a 3/5 vote in both houses.)
Friday, June 21, 2013
The Newseum will host a special program NSA Surveillance Leaks: Facts and Fiction on Tuesday, June 25, 2013, at 4:00 p.m., at the Knight TV Studio in Washington, D.C. More information is here; the program will be streamed live online at newseum.org.
The program includes an introduction by ABA President Laurel Bellows and a panel of experts on national security law, free speech, and the press. Harvey Rishikof, chair of the ABA Standing Committee on Law and the National Security Advisory Committee, will moderate. James Duff, president and CEO of the Freedom Forum and CEO of the Newseum, will deliver welcoming remarks.
Thursday, June 20, 2013
The D.C. Circuit this week denied a habeas petition of a Yemeni detained at Guantanamo Bay. The ruling in Hussain v. Obama is unremarkable, given the lower courts' approach in these cases. But a concurrence in the case sheds light on a problem: the lower courts are in fact applying the wrong standard.
If that's right--and the concurrence makes a good case that it is--then the courts are denying habeas petitions that shouldn't be denied. The solution, according to concurring Judge Edwards: "The time has come for the President and Congress to give serious consideration to a different approach for the handling of the Guantanamo detainee cases." Indeed.
The majority in the case applied the now-settled test for habeas petitions coming out of Guantanamo Bay: Whether the government has shown, by a preponderance of the evidence, that the detainee was "part of" al Qaeda, the Taliban, or associated forces at the time of capture. (The test purports to apply the government's detention authority under the AUMF, which permits the president to detain individuals who "planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such . . . persons.") The majority rejected Hussain's arguments to adjust and tighten the test and concluded that it was easily met here.
But concurring Senior District Judge Edwards argued that the court actually and wrongly applied a lower "substantial evidence" test, not the more rigorous preponderance-of-evidence test that the court said it applied. Judge Edwards argued that the evidence in this case--or lack thereof--only supported a conclusion that Hussain fell into the covered group by a substantial evidence standard, not by a preponderance of the evidence, even though the majority held that it met that higher standard. Moreover, Judge Edwards wrote that the court implicitly shifted the burden from the government to Hussain in showing that he continued to affiliate with enemy forces after leaving Afghanistan.
Despite these problems, Judge Edwards concurred in the result, because, he said, the law of the circuit compelled it.
Still, Judge Edwards concluded with a call for change: "The time has come for the President and Congress to give serious consideration to a different approach for the handling of the Guantanamo detainee cases." Conc. at 5.