Constitutional Law Prof Blog

Daily Read: Reporting the MSK Trial at Guantanamo

In an excerpt published in Slate this morning, from his e-book, Camp Justice, journalist Mattathias Schwartz writes compellingly of covering the ongoing trial United States v. Khalid Sheikh Mohammed, et al.  We most recently discussed Khalid Sheikh Mohammed (KSM), the so-called "mastermind" of 9-11 and the onlgoing legal proceedings, when KSM was arraigned.  

Recall that whether or not KSM would have a trial - - - and where - - - were hotly contested matters.  Now, Schwartz states that although the KSM trial at Guantanamo is an “open” and “public” proceeding [his quotes], accepting the Pentagon’s “invitation” to cover the proceedings, meant signing the 13-page Media Ground Rules document:

Among other things, I agreed not to disclose any Protected Information. The definition of Protected Information makes ample use of the word includes and sets no upper limit on what Protected Information might be.

The geographical restraints also limit reportial opportunities:

For the most part, News Media Representatives are confined to a few acres of Guantánamo, an area known as Camp Justice. Cut off from the town and the detention camps, Camp Justice is carved up into a jigsaw of designated zones by every conceivable type of wall: interlocking traffic barriers, chest-high, made of orange plastic; chains hanging between yellow stanchions; retractable fabric bands stretched airport-style between flimsier black stanchions; chain-link fences veiled in black tarps and topped with spools of concertina wire; chain-link blocks wrapped in green tarps and filled with rubble; “no photography” signs; “restricted area” signs; gates that swing on hinges; gates that pop up from the ground.

And then there is the trial itself, with the imposition of a 40 second sound delay.

This first hand journalistic account provides a useful context for any constitutional analysis of a "public trial," as well as for the ongoing discussions of national security and constitutionalism.

RR

D.C. District Says Habeas (Still) Doesn't Extend to Bagram

Chief Judge Royce C. Lamberth (D.D.C.) ruled today in Amantullah v. Obama that a Bagram detainee does not enjoy the privilege of habeas corpus, despite new evidence that wasn't before the D.C. Circuit when it similarly ruled in Al Maqaleh v. Gates.  This ruling comes on the heels of a series of like rulings in the D.C. Disrict and shows that the courts aren't open to efforts to side-step Al Maqaleh.  In short: Habeas does not, and will not, extend to detainees at Bagram.

Here's our post on the D.C. Circuit's Al Maqaleh, with background and links; here's our most recent post on habeas at Bagram.

Amantullah, a Bagram (Afghanistan) detainee, argued that he had new evidence that should alter the jurisdictional analysis in the D.C. Circuit's Al Maqaleh case, holding that habeas doesn't extend to Bagram.  He argued several points:

• The commencement of full-blown civilian trials of Afghan detainees at Bagram" "belies any previously articulated claim that proximity to the battlefield renders Article III judicial review impracticable."
• The government intends to detain him indefinitely.
• The government's new procedures, under the Detainee Review Board, are only marginally better than its procedures under the old system, but they're still flawed.
• His own DRB found him eligible for release.
• The government is using Bagram to evade judicial review.

The court didn't buy it.  Judge Lamberth wrote that the new evidence didn't alter the Boumediene factor analysis, and that under Al Maqaleh Amentullah's petition must be denied.

Amentullah's most compelling new evidence may have been his claim that his DRB found him eligible for release.  Here's what the court had to say about that:

But this is irrelevant to the Boumediene analysis.  As Judge Bates noted [in his most recent ruling], "whether a detainee has been cleared for release is irrelevant to whether a petitioner may be detained unlawfully."

Op. at 15.

SDS

Court Rejects Bagram Detainees' Habeas Claims

Judge John D. Bates (D.D.C.) dismissed the habeas corpus claims of detainees at Bagram Airfield (Afghanistan) last week in Al Maqaleh v. Gates.  The ruling is the latest chapter in the detainees' quest to challenge their detentions by way of habeas in federal court, just as Guantanamo detainees won the right to challenge their detention by way of habeas in Boumediene v. Bush.  The detainees may appeal, but their chances seem slim, at best, especially given the history of the case.

Recall that Judge Bates originally ruled that Bagram detainees enjoyed the privilege of habeas in 2009.  Judge Bates wrote that with technology the courts could hear Bagram detainees' habeas claims just as easily as they could hear Guananamo detainees' claims, and that habeas claims wouldn't unduly disrupt the government's prosecution of the war.  But the D.C. Circuit reversed, saying that Bagram was fundamentally different than Guantanamo.  The D.C. Circuit ruled that Bagram was in an active war zone, that the government didn't have the kind of control over Bagram that it had over Guantanamo, and that habeas claims risked interfering with the government's prosecution of the war.

This latest case arose when the same Bagram detainees argued that certain developments at Bagram undermined the D.C. Circuit's ruling.  In particular, the Bagram detainees argued that new evidence showed that the government intends to stay at Bagram indefinitely; that recent criminal trials at Bagram showed that practical obstacles to litigation are far less serious than the D.C. Circuit believed; that the government was attempting to avoid habeas jurisdiction by detaining prisoners at Bagram; and that procedures used to determine the detainees' status are unacceptable.

Judge Bates rejected these claims, in short disagreeing with the detainees' interpretation of their new evidence, or saying that their "new" evidence wasn't new at all--that it was fully available to the D.C. Circuit when the D.C. Circuit issued its earlier ruling.

Judge Bates also rejected the habeas claim in a companion case brought by a minor, Hamidullah v. Obama.  Hamidullah argued that his age set him apart from the others, because habeas is "somewhat more robust" for minors.  Judge Bates ruled that he failed to support this argument.

The case likely marks the end of the line for Bagram detainees.  Even if they appeal, given the D.C. Circuit's ruling and Judge Bates's most recent ruling, they're likely to lose.

SDS

D.C. Circuit Rejects Guantanamo Detainee Habeas Claim

A three-judge panel of the D.C. Circuit today reissued a ruling rejecting the habeas claim of a detainee at Guantanamo Bay.  The case, Alsabri v. Obama, affirms the lower court's dismissal. 

Here's the court's summary of facts:

Alsabri is a Yemeni citizen who was born and raised in Saudi Arabia.  He lived in Saudi Arabia until he was deported to Yemen in 1998, following an arrest for allegedly harboring an individual wanted for passport forgery.  In Yemen, he associated with veteran jihadist fighters, including members of al Qaeda, and decided to travel to Afghanistan to fight with the Taliban or al Qaeda.  In the summer of 2000, he traveled to Afghanistan by way of Pakistan, assisted by the Taliban and in the company of several men who expressed a desire to become martyrs.  Once in Afghanistan, Alsabri stayed at several guesthouses affiliated with the Taliban and al Qaeda.  He actively sought out and received military training from the Taliban or al Qaeda, and thereafter--with the authorization of one of Osama bin Laden's lieutenants--traveled to the front lines of the Taliban's fight against the Northern Alliance.

The court rejected Alsabri's claim that the lower court erred in finding certain facts and in concluding that he was part of the Taliban, al Qaeda, or associated forces.  It also rejected his claim that the lower court wrongly admitted certain pieces of evidence of his objection.  Finally, it rejected his claims that the district court wrongly limited his discovery, that the court wrongly admitted hearsay evidence, and that the lower court wrongly applied a preponderance-of-evidence standard instead of a clear-and-convincing-evidence standard.

There's really nothing new here, and the case is hardly a surprise.  As the court said in regard to Alsabri's legal arguments: "As is apparent, all of Alsabri's legal arguments are foreclosed by Circuit precedent, a point his counsel forthrightly acknowledges.  As is appropriate, counsel notes his disagreement with our rulings and includes the arguments in order to preserve the issues."  Op. at 22.

SDS

D.C. Circuit: No Federal Court Jurisdiction for Alien Detainee Constitutional Torts

The D.C. Circuit ruled today in Al-Zahrani and Al-Salami v. Rodriguez that the Military Commissions Act revoked federal court jurisdiction over Guantanamo alien detainees' damages claims for constitutional torts.  The ruling means that the fathers of two deceased Guantanamo detainees cannot pursue their federal court cases against government officials for their sons' deaths.  They have no judicial remedy in U.S. courts for any violation.

Section 7 of the MCA reads as follows:

(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

(2) Except as provided in [section 1005(e)(2) and (e)(3) of the Detainee Treatment Act of 2005], no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

28 U.S.C. Secs. 2241(e)(1) and (2).

The court held that subsection (2) revoked federal court jurisdiction over the fathers' claims under the Alien Tort Statute, the Federal Tort Claims Act, and the Fifth and Eighth Amendments to the Constitution. 

The court distinguished Boumediene v. Bush, the 2008 case holding that subsection (1) unconstitutionally revoked the writ of habeas corpus in violation of the Suspension Clause.  The court said that while the Boumediene Court didn't distinguish between subsections (1) and (2), its reasoning, based on the Suspension Clause, only applied to subsection (1), not subsection (2) (which doesn't implicate the Suspension Clause).  So subsection (2) is still valid; and it bars the fathers' suit here.

The court rejected the fathers' argument that subsection (2) unconstitutionally deprived them of a remedy for a violation of a constitutional right.  The court said that the Supreme Court's Bivens jurisprudence, which rejects claims for money damages when certain immunities apply or when "special factors" counsel against such claims, supports the idea that "Not every violation of a right yields a remedy, even when the right is constitutional."  Op. at 7 (quoting Kiyemba v. Obama, 555 F.3d 1022, 1027 (D.C. Cir. 2009)).

Here, it means that Congress can validly revoke jurisdiction for this class of claims, and that the detainees' fathers--and any other alien detained at Guantanamo and claiming a violation of right--are out of luck.

SDS

D.C. Circuit Rejects Detainee Habeas Claim

A three-judge panel of the D.C. Circuit rejected Guantanamo detainee Abdul-Rahman Abdo Abulghaith Suleiman's habeas claim earlier this week.  The case is just the latest from the D.C. Circuit on habeas claims of a Guantanamo detainees.

The court applied its familiar "part of" standard and concluded that Suleiman was part of the Taliban.  The panel upheld the district court's findings based on Suleiman's own testimony, an FBI report summarizing an interview, and a DOD record of an interview. 

According to the court,

There is no dispute that Suleiman's travel was initiated at the suggestion of and facilitated by a Taliban recruiter, and that he traveled a well-worn path to Afghanistan frequently used by Taliban recruits. . . .

He lived at the Al-Qa'eity guesthouse for seven months. . . .  His Taliban fighter housemates used it as a base to travel to and from the battlefront during the time Suleiman was there. 

Op. at 5-6.

SDS

Court Dismisses Guantanamo Detainee's Torture Claims

Judge Richard Leon (D.D.C.) today dismissed the torture claims of Abdul Rahim Abdul Razak Al Janko, a Syrian national detained at Guantanamo Bay and the first detainee released on habeas to seek damages for actions taken while he was in custody.

Al Janko sued the U.S. government, 20 high level officials, and 100 Jane and John Does for 18 counts of torture and civil conspiracy under the Constitution, the Alien Tort Statute, and the Federal Tort Claims Act.  Judge Leon dismissed all his counts under the jurisdisction-stripping provision of the Military Commissions Act of 2006, 28 U.S.C. Sec. 2241(e), which says:

[N]o court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention . . . treatment . . . or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

(Judge Leon's emphasis.)

Judge Leon rejected Al Janko's argument that he won his habeas case and therefore wasn't "determined by the United States to have been properly detained," because "United States" here refers to the executive, not the judiciary.

Judge Leon wrote that Al Janko's claims against the government would have failed under the ATS and FTCA even absent the MCA's jurisdiction-stripping provision, because the government didn't waive sovereign immunity for this kind of claim.

SDS

The National Defense Authorization Act

There's quite a bit of confusion and argument about what exactly the National Defense Authorization Act, or NDAA, does.  (The Conference Report is here; the relevant Title, Subtitle D, Counterterrorism, begins on page H8436.)  On one side, detractors claim that it expands government authority to detain aliens and even U.S. citizens.  Glenn Greenwald does a nice job setting out the case at salon.com.  On the other side, supporters say that it only codifies the government's authority under existing law.  Benjamin Wittes and Bobby Chesney carefully make this argument in their thorough examination at lawfare.

It turns out, both sides are right.  In short, the plain language of the NDAA expands detention authority beyond the plain language of the Authorization to Use Military Force, P.L. 107-40, but it only codifies the authority already claimed by President Obama and granted by the D.C. Circuit under the AUMF.  Here are some of the highlights:

• Indefinite Detention.  Section 1021(c)(1) says that "[t]he disposition of a person under the law of war as described in subsection (a) may include . . . [d]etention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force."  (Emphasis added.)  This is the definition of indefinite detention.  But it's also an authority that President Obama claimed from the early days of the administration.  In fact, the definition of a "covered person" in Section 1021(b)(2) almost exactly tracks the administration's proposed definition of a "detainable person" under the AUMF in its March 13, 2009, filing in a Guantanamo habeas case in the D.C. District.  (More below.)  So while this authority in the NDAA is significant for representing clear congressional support for indefinite detention, and while it's deeply troubling, it also merely reflects the administration's long-standing position.
• Detainable Persons.  Section 1021(b)(2) says that the government can detain (indefinitely) "[a] person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces."  This is new, and adds to the definition of detainable person under the AUMF (and tracked in Section 1021(b)(1)) that allows detention of "[a] person who planned, authorized, committed, or aided the terrorist attacks that occured on September 11, 2001, or harbored those responsible for those attacks."  Moreover, Section 1022(a) requires military detention for anyone who is "a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda" and anyone who "participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners."  (Section 1022 covers a subset of detainable persons in Section 1021.  U.S. citizens and resident aliens are excepted from the requirement; more below.)  In short, the NDAA authorizes indefinite detention, and in some cases requires military detention, for those who not only participated in the 9/11 attacks or harbored those who did (as under the AUMF), but also for those who currently attack the United States or its partners.  But again, this is an authority that the administration claimed from its early days.  Thus the NDAA tracks almost exactly the adminsitration's proposed definition of a detainable person in Guantanamo habeas cases.  And it seems congruent with the D.C. Circuit's "part of" test--that under the AUMF the government can detain anyone who is "part of forces associated with Al Qaeda or the Taliban."  So here, too, the plain language of the NDAA seems to expand authority beyond the AUMF, but it also seems consistent with the government's long-standing position and the courts' interpretation of the government's authority under the AUMF.
• Detainability of U.S. Citizens.  Section 1022(b) says that the military detention requirement in Section 1022 does not apply to U.S. citizens and lawful resident aliens for conduct within the United States.  This means that the NDAA does not require the military and indefinite detention of U.S. citizens who are "covered persons" under Section 1022(a)(2) (see above), but it also seems to permit such detention of U.S. citizens.  The Act is deliberately ambiguous on this point and seems to punt to the courts.  But in any event, it doesn't obviously add anything to the administration's position on detention or to what the courts would permit under Hamdi.
• Guantanamo Transfers.  Section 1027 unequivocally denies funds for transfers of Guantanamo detainees to the United States.  This restriction means that the administration can't transfer detainees for civilian criminal trials.  The administration previously objected to this restriction (among others), even threatening a veto over this and other measures in the bill, but apparently dropped its objection.
• Civilian Trials.  In addition to the restrictions in Section 1027, which prevent transfers of Guantanamo detainees to the United States for civilian trials (or for any other reason), Section 1029 requires the Attorney General to consult with the Director of National Intelligence and the Secretary of Defense about civilian trials for anyone held under Sections 1021 and 1022, discussed above.

These provisions in the NDAA represent significant and explicit congressional approval of government detention authority.  But they also only represent the administration's long-standing positions, and they're not obviously out of line with the courts' approaches.  In short, the codification of these authorities is significant--because it means that Congress is explicitly signing onto them--but they also only represent the creep of authority claimed by the administration and reflected in the courts under the AUMF.

SDS

Federal Judge Declares Florida Drug Statute Lacking Intent Requirement Unconstitutional

In Criminal Law courses throughout the common law world, students learn that a criminal law offense generally requires an actus reus and a mens rea, an act and an intent.  In 2002, however, the Florida legislature amended its Drug Abuse Prevention and Control Law, Fla. Stat. §893.101, to seriously curtail the mens rea requirement for drug crimes.

In her opinion and order granting a petition for habeas corpus in Shelton v. Secretary Department of Corrections, Florida District Court Judge for the Middle District of Florida, Judge Mary S Scriven, declared  Fla. Stat. § 893.13, as amended by Fla. Stat. § 893.101, unconstitutional.

Judge Scriven found that although a government may fashion some criminal laws that do not have a mens rea requirement, this ability is limited by the constitutional contraints of the due process clause. The judge credited the amicus brief filed by Amici Curiae that included 38 law professors (and listed the signatories in footnote 7) that elimination of mens rea is "atavistic and repugnant to the common law."  

{Update by request: Amicus Brief here, via}

The judge applied the tripartite analysis for evaluating strict liability crimes by considering the penalty imposed; the stigma associated with conviction; and the type of conduct purportedly regulated.  On the first prong, the judge found that sentences of fifteen years, thirty years, and life imprisonment under the Florida Statute are too severe to pass constitutional muster.  On the second prong, the judge concluded that a felony conviction certainly carries a stigma, especially given felony disenfranchisement, exclusion from juries, gun licenses, and student loan assistance.  Regarding the last prong considering the type of conduct regulated, the judge noted that without knowledge of the substance one possessed, one could be engaging in behavior that would be innocuous. 

This last point is the most difficult to grasp.  Judge Scriven provided this analysis:

          the State argues that FLA. STAT. § 893.13 does not regulate innocuous conduct since “the possession of cocaine is never legal,” and the imposition of harsh penalties without proof of mens rea is simply a risk drug dealers undertake for selling or delivering cocaine. (Id. at 18) By this assertion, the State confirms Professor Sanford H. Kadish’s hypothesis that the basis for strict liability crimes is often simply a backhanded retort - - “tough luck” to those who engage in criminal activity. Sanford H. Kadish, Excusing Crime, 75 Cal. L. Rev. 257, 267-68 (1987).

But, in this suggestion, the State ignores that Florida’s statute is not a “drug dealer beware” statute but a “citizen beware statute.” Consider the student in whose book bag a classmate hastily stashes his drugs to avoid imminent detection. The bag is then given to another for safekeeping. Caught in the act, the hapless victim is guilty based upon the only two elements of the statute: delivery (actual, constructive, or attempted) and the illicit nature of the substance. See FLA. STAT. §§ 893.02(6), 893.13(1)(a). The victim would be faced with the Hobson’s choice of pleading guilty or going to trial where he is presumed guilty because he is in fact guilty of the two elements. He must then prove his innocence for lack of knowledge against the permissive presumption the statute imposes that he does in fact have guilty knowledge.

The judge noted that the Florida Statute is unique amongst all the drug laws in the United States.  Now, it has been declared unconstitutional.

RR
[image via]

D.C. Circuit Rejects Omar's "Refashioned" Habeas Claim

A three-judge panel of the D.C. Circuit ruled Tuesday in Omar v. McHugh that an American citizen held in military custody in Iraq has no right to judicial review of conditions in Iraq, the country where he is to be transferred.  The majority thus rejected his habeas petition; Judge Griffith, in concurrence, would have reached the merits and rejected them.

Petitioner Omar is the same Omar who was part of Munaf v. Geren, the 2008 Supreme Court case holding that federal courts may not exercise habeas jurisdiction to enjoin the government from transferring individuals alleged to have committed crimes and detained within the territory of a foreign sovereign for criminal prosecution.  In Munaf, Omar argued that he would be tortured if transferred to Iraqi authorities, that he therefore had a right under "the substantive component of the Due Process Clause" against transfer, and that the courts had the authority and duty to enforce that right by inquiring into his likely treatment if transferred.  The Court rejected these arguments.

Omar came back with new statutory and constitutional arguments, but the D.C. Circuit rejected them, as well.  Omar argued the Foreign Affairs Reform and Restructing Act of 1998 (FARR), which implements Article 3 of the Convention Against Torture, granted him a right to judicial review.  But the court ruled that the FARR provides judicial review of conditions in the receiving country only in the immigration context, for aliens seeking judicial review of removal, and not for military transferees like Omar.  (The REAL ID Act of 2005 made the limited scope of judicial review even clearer.)  The majority thus ruled that neither the FARR nor the REAL ID Act provided for judicial review here.

As to the Constitution, Omar argued that habeas alone gave him the right to judicial review (whereas the Munaf Court held only that he had no right under habeas and due process), and that he has a substantive due process right to judicial review (whereas the Munaf Court held only that he had no procedural due process right), among other arguments.  The court rejected them all, writing that his attempts to distinguish Munaf failed, that his attempts to craft a right out of constitutional and statutory combinations failed, and that the tradition of habeas in like circumstances cut against him.  ("Those facing extradition traditionally have not been able to block transfer based on conditions in the receiving country. . . .  Similarly, military transferees traditionally have not been able to raise habeas claims to prevent transfer based on conditions in the receiving country."  Op. at 11.)  The majority thus rejected Omar's habeas claim (although it reminded us that Congress could extend habeas and craft judicial review of conditions in a receiving country for military transferees (in addition to the already existing right for alien transferees), if it wanted).

Judge Griffith would have granted habeas and heard the merits, because "the FARR Act 'trigger[s] constitutional habeas' by giving Omar a colorable claim that his transfer to Iraqi authorities would be unlawful.  When an American citizen is in U.S. custody, the Constitution's guarantee of habeas corpus entitles him to assert any claim that his detention or transfer is unlawful."  Griffith, concurring, at 1.  But Judge Griffith nevertheless would have denied relief:

Omar cannot be "return[ed]" to Iraq for a simple reason: "he is already there."  The U.S. military arrested him in Iraq, and he was subsequently convicted in an Iraqi court for violating Iraqi law.  He now seeks to use the FARR Act to prevent the Iraqi authorities from bringing him to justice, which would effectively "defeat the criminal jurisdiction of a foreign sovereign."  Because there is nothing in the FARR Act to suggest that Congress could have intended such a result, I concur in the majority's judgment.

Griffith, concurring, at 8 (citations to Munaf omitted).

SDS

D.C. Circuit Reverses Habeas for Guantanamo Detainee

A three-judge panel of the D.C. Circuit on Friday unanimously reversed the district court's decision granting Guantanamo detainee Hussain Salem Mohammad Almerfedi's petition for a writ of habeas corpus.

The case, Almerfedi v. Obama, is a relatively close case for the D.C. Circuit.  It turned on three pieces of evidence: (1) Almerfedi's acknowledgment that he stayed for two-and-a-half months at Jama'at Tablighi, an Islamic missionary organization that is a Terrorist Support Entity "closely aligned" with al Qaeda (although he refused to join the organization and barely talked to anyone there); (2) Almerfedi's circuitous route to his stated destination, Europe, which took him closer to the Afghan border; and (3) his unexplained possession of $2,000.00 in cash when he was captured.  The three together, wrote the court, demonstrated by a preponderance of the evidence that Almerfedi was "part of" al Qaeda.

But still the panel emphasized the minimal preponderance-of-the-evidence standard when evaluating the government's case--and suggested that this was the first time it had evaluated a case so close.

The panel split on one issue (even as they agreed on the evidence above and on the outcome): whether to credit the statements of another detainee, al-Jadani, that Almerfedi stayed at a guesthouse in Tehran maintained by al Qaeda in 2002 or 2003.  (The district court found that al-Jadani's statements were not credible.)  Judges Silberman and Kavanaugh credited al-Jadani's statements; Judge Rogers did not.  Judge Rogers wrote that "[t]he record evidence does not lead to a 'firm conviction' that the district court's analysis of al-Jadani's statements was mistaken, much less implausible." 

SDS

Obama Made His Guantanamo Bed . . .

Owen Fiss (Yale) argues in the Boston Review that President Obama's pickle--caught between his former policy to close Guantanamo and his desire to try KSM and others in Article III courts, on the one hand, and the congressional ban on using appropriated funds to transfer Guantanamo detainees to the U.S., on the other--is of his own creation.

Fiss argues that President Obama's May 2009 speech at the National Archives (in which he announced that some detainees would get Article III trials while others would get military commissions while yet others would get indefinite detention) and his support for the Military Commissions Act of 2009 (which revised military commission procedures, but still fell short of Article III trials) lined up such that "the Guantanamo closure ceased to be of much importance."  According to Fiss, President Obama's resistance to extending habeas to detainees at Bagram in the Al Maqaleh litigation only underscores this conclusion.

With a Guantanamo closing all but off the table (by the President's own actions), congressional restriction on the use of appropriated funds to transfer Guantanamo detainees to the U.S. was only the final straw.  After the ban,

[t]he options that then remained for Obama were: (a) the continued imprisonment of Khalid Sheikh Mohammed without trial (he had already been incarcerated for more than seven years) or (b) trial before a military commission.  Given the alternative options, Obama chose the one that is, in my judgment, the less constitutionally offensive.  Sympathy for Obama's choice, however, should not obscure his complicity in constructing the alternatives he confronted.

In truth, there was (is) a third option, the one that the administration adopted: Sign the legislation banning the use of funds for transfer, but issue a signing statement that claims that such a ban unconstitutionally encroaches on a core executive function, and move to overturn it.

This third way is emblamatic of President Obama's approach to so many of these issues--detention, military trial, habeas, state secrets, even signing statements: He's made some constitutionally significant changes to Bush administration positions around the edges on each of these, but in the end the refined positions only result in more-or-less the same policies.

But with regard to KSM and some others, President Obama once seemed truly committed to moving forward in Article III courts.  And with regard to Guantanamo, he once seemed truly committed to closing.  Sure, his positions and policies may have contributed to a larger political environment in which closing Guantanamo "ceased to be of much importance."  (And maybe he could have (should have) spent even more political capital in seeking closure and Article III trials.) 

But in the end the congressional ban on transfers was a congressional ban.  (And the most recent version came in the eleventh-hour spending bill negotiated between the White House and Congress to avoid a shut-down, presenting President Obama with no practical option but to sign the measure.)  The ban entirely foreclosed even any marginal change that President Obama might have made (e.g., an Article III trial for KSM) using his third way. 

SDS

Footnote of the Day: The Satisfaction of Michigan v. Long?

The footnote from the Tennessee Supreme Court seems rather innocuous:

The decision in Middlebrooks was required by Art. I, § 16 of the Tennessee Constitution. We reviewed federal constitutional law in our analysis to determine whether the duplication also violated the Eighth Amendment to the United States Constitution, but Middlebrooks was decided on separate and independent state constitutional grounds. See Middlebrooks, 840 S.W.2d at 346; Zant v. Stephens, 462 U.S. at 877.

State v. Howell, 868 S.W.2d 238, 259 n.7 (1993).  But the footnote is a dramatic one, as Neil Colman McNabe demonstrated in his article, A Rescue From The Jaws Of The Crocodile: The Post-Certiorari Plain Statement Footnote, 59 Albany Law Review 1737 (1996).  

The Middlebrooks case in the footnote was Middlebrooks v. State, in which the Tennessee Supreme Court vacated Donald Ray Middlebook's death sentence.  The state sought certiorari to the United States Supreme Court, which was granted, oral argument was heard, and then certiorari was dismissed as improvidently granted.  The reason for the dismissal of certiorari was that footnote 7 in Howell, rendered 9 days after the oral argument in Middlebrooks.  The footnote  was deemed to satisfy the rule of Michigan v. Long.  

The Court in Michigan v. Long, 463 U.S. 1032 (1983), enunciated its rule of judicial review for state decisions involving federal constitutional matters: the state court must include a "plain statement" that the decision rests on adequate and independent state grounds.  Otherwise, the Court will assume that the state court decided the way it did because it felt compelled to do so by federal constitutional law.  Interestingly, Michigan v. Long involved the state executive branch attempting to overrule its own state high court by seeking review from the United States Supreme Court.  Many other cases followed a similar pattern, as was the situation in State v. Middlebrooks.

However, as the Sixth Circuit opinion affirming a denial of habeas to Middlebrooks decided in September 2010 makes clear, the dismissal of certiorari did not end the matter.  After the Tennessee Supreme Court vacated the death sentence, "In 1995, a jury again sentenced Middlebrooks to death after finding that the murder was especially heinous, atrocious, or cruel and after weighing the aggravating and mitigating circumstances."   Middlebrooks then raised a number of constitutional claims in state postconviction proceedings, including ineffective assistance of counsel, and in the subsequent habeas petition in federal district court which was denied, and which the Sixth Circuit affirmed.

Meanwhile, Tennessee is one of several states that have turned over their supplies of sodium thiopental, a sedative widely used in lethal injections, to the federal drug enforcement officials because of controversies regarding the drug.

RR
(H/T J. Zak Ritchie)

Court Declines to Hear Uighur Case (Again)

The Supreme Court today denied cert. in Kiyemba v. Obama, the case involving the Chinese Muslims held without lawful cause for seven years at Guantanamo Bay.

The petitioners sought release into the United States.  The district court ordered release, but the D.C. Circuit reversed.  The Supreme Court first granted cert. on the question whether a district court may order release into the United States where no other remedy is available. 

But the Court remanded after learning that other remedies were available--that the government offered, and the petitioners rejected, at least two offers of resettlement.  The D.C. Circuit reinstated its original opinion as modified, and the petitioners again sought cert.

The Court today declined to take the case.  Justice Breyer issued a statement, joined by Justices Kennedy, Ginsburg, and Sotomayor, concluding:

the lack of any meaningful challenge as to [the appropriateness of the Government's resettlement offers], and the Government's uncontested commitment to continue to work to resettle petitioners transform petitioners' claim.  Under present circumstances, I see no Government-imposed obstacle to petitioners' timely release and appropriate resettlement.  Accordingly, I join in the Court's denial of certiorari.  Should circumstances materially change, however, petitioners may of course raise their original issue (or related issues) again in the lower courts and in this Court.

(The statement appears at the end of today's order list.)

The denial today ends this chapter (and perhaps the entire book) on the Uighurs' judicial challenges to their confinement at Guantanamo Bay.

SDS

Footnote of the Day: Separation of Powers and Military Commissions in Hamdan

Writing for the Court in Hamdan v. Rumsfeld, 548 U.S. 557 (2006), Justice Stevens included footnote 23:

Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 637 (1952) (Jackson, J., concurring). The Government does not argue otherwise.

In his article, Congress, the Commander-In-Chief, and the Separation of Powers After Hamdan,  16 Transnational Law & Contemporary Problems 933 (2007), draft available on ssrn, Professor Stephen Vladeck argues - - - in a footnote - - - that "To say that “[t]he Government does not argue otherwise” is entirely misleading, for the government’s entire theory of the case was that the UCMJ procedures were not exhaustive."  Id. at 959 n. 141.  

Vladeck later expands on the relevance of the footnote in Hamdan and its relationship to the famous concurrence of Justice Robert Jackson (pictured right) in Youngstown:

In the crucial footnote 23, the only part of the majority opinion where Justice Stevens even attempted to recognize the existence of a significant constitutional question in Hamdan, the sole citation is to Justice Jackson’s Youngstown concurrence, and to page 637—where Jackson outlines all of the second category and the beginnings of the third. It is an odd choice, though, given that even in category three cases, where the President’s power was to be at its “lowest ebb,” there remained a residual question about “disabling” Congress, the very question raised by the Commander-in-Chief override.

Indeed, through the lens of Justice Jackson’s Youngstown concurrence, the logic of Hamdan grows only more obfuscated. Was the majority  disavowing any and all claims to inherent executive power in the field of trying enemy combatants by military commission? If so, was it overruling a series of cases upholding such tribunals even where congressional authorization was questionable?  Was it reading the UCMJ as manifesting clear (and valid) congressional intent to oust independent executive regulation? Suffice it to say, if Justice Stevens meant to decide Hamdan on the strength of Justice Jackson’s Youngstown concurrence, he skipped a few steps, for he did not even attempt to undertake the question (to which Jackson had devoted over a dozen pages) of whether the President’s inherent constitutional authority might trump congressional restrictions in such a case.

Id. at 960.

RR

[image: Justice Robert Jackson, circa 1945, via]

D.C. Circuit Rejects Guantanamo Habeas Petition

A three-judge panel of the D.C. Circuit today upheld the District Court's denial of Guantanamo detainee Yasein Khasem Mohammad Esmail's habeas corpus petition.  The panel, in a per curiam opinion, wrote, "Because we agree with the district court's ultimate determination that Esmail was more likely than not 'part of' al Qaeda at the time of his capture in December of 2001, we affirm."

The decision is unremarkable--it applies the "part of" and preponderance tests, and deals unsurprisingly with the evidence--with one notable exception: Judge Silberman's concurrence.

Judge Silberman took issue with everything from the standard in habeas cases, to the dangers that released detainees pose, to the challenges that lower courts face in implementing Boumediene v. Bush, and even to the "charade" when the administration declines to release winning petitioners.  It's worth a read:

[T]he government at oral argument agreed that even if petitioner could show he resolutely declined to "join" al Qaeda or the Taliban, and thus could not be said to be a part of either, so long as evidence showed he fought alongside of al Qaeda, the Taliban, or with associated forces he would be covered by the Authorization for Use of Military Force.  District courts, in that sort of case, need not strain to find a petitioner is "a part of al Qaeda." . . .

When we are dealing with detainees, candor obliges me to admit that one can not help but be conscious of the infinitely greater downside risk to our country [than when our criminal justice system releases likely criminals when a conviction is based on insufficient evidence], and its people, of an order releasing a detainee who is likely to return to terrorism.  One does not have to be a "Posnerian"--a believer that virtually all law and regulation should be judged in accordance with a cost/benefit analysis--to recognize this uncomfortable fact.

That means that there are powerful reasons for the government to rely on our opinion in Al-Adahi v. Obama, which persuasively explains that in a habeas corpus proceeding the preponderance of evidence standard that the government assumes binds it, is unnecessary--and moreover, unrealistic.  I doubt any of my colleagues will vote to grant a petition if he or she believes that it is somewhat likely that the petitioner is an al Qaeda adherent or an active supporter.  Unless, of course, the Supreme Court were to adopt the preponderance of the evidence standard (which it is unlikely to do--taking a case might obligate it to assume direct responsibility for the consequences of Boumediene). . . .

Of course, if it turns out that regardless of our decisions the executive branch does not release winning petitioners because no other country will accept them and they will not be released into the United States, see Kiyemba v. Obama, then the whole process leads to virtual advisory opinions.  It becomes a charade prompted by the Supreme Court's defiant--if only theoretical--assertion of judicial supremacy, see Boumediene, sustained by posturing on the part of the Justice Department and providing litigation exercise for the detainee bar.

SDS

No "Constitutional Tort" for Brady Violation by Prosecutors in Connick's New Orleans Office: Connick v. Thompson Opinion Analysis

What are the consequences of a violation of Brady v. Maryland, 373 U. S. 83, 87 (1963), which requires the prosecution to disclose evidence favorable to the accused and material to his guilt or punishment?    If it comes to light while the case is on direct appeal, it may require reversal of a conviction.  If it comes to light later, it may be the subject of a post-conviction relief.   And if it comes to light much later, after a person has spent 18 years incarcerated of which 14 years are on death row it does not merit civil damages.

In a 5-4 opinion reversing the Fifth Circuit and authored by Justice Thomas, the Court in Connick v. Thompson held that the state district attorney's office cannot be held liable for a failure to train the assistant district attorneys regarding compliance with Brady unless there was evidence that there was a need for "more or different Brady training."  Opinion at 7.  Although Connick conceded that there was a Brady violation and the jury found a lack of training on Brady, the Court essentially concluded that there must be a pattern or practice of Brady violations before such training would be warranted under a constitutional "deliberate indifference" standard.  The Court distinguished the role of attorneys from those of law enforcement officers who must make "split-second decisions with life-or-death consequences" as in Canton v. Harris, 489 U. S. 378 (1989).

Instead,

Attorneys are trained in the law and equipped with the tools to interpret and apply legal principles, understand constitutional limits, and exercise legal judgment. Before they may enter the profession and receive a law license, all attorneys must graduate from law school or pass a substantive examination; attorneys in the vast majority ofjurisdictions must do both. [citations to Louisiana bar requirements omitted].  These threshold requirements are designed to ensure that all new attorneys have learned how to find, understand, and apply legal rules. Cf. United States v. Cronic, 466 U. S. 648, 658, 664 (1984) (noting that the presumption “that the lawyer is competent to provide the guiding hand that the defendant needs” ap-plies even to young and inexperienced lawyers in their first jury trial and even when the case is complex). Nor does professional training end at graduation. Most jurisdictions require attorneys to satisfy continuing-education requirements.

The dissenting opinion, authored by Justice Ginsburg and joined by Breyer, Sotomayor and Kagan, provides a different picture:

 From the top down, the evidence showed, members of the the District Attorney’s Office, including the District Attorney himself, misperceived Brady’s compass and there-fore inadequately attended to their disclosure obligations. Throughout the pretrial and trial proceedings against Thompson, the team of four engaged in prosecuting himfor armed robbery and murder hid from the defense and the court exculpatory information Thompson requestedand had a constitutional right to receive. The prosecutorsdid so despite multiple opportunities, spanning nearly twodecades, to set the record straight. Based on the prosecu-tors’ conduct relating to Thompson’s trials, a fact triercould reasonably conclude that inattention to Brady was standard operating procedure at the District Attorney’s Office. What happened here, the Court’s opinion obscures, was no momentary oversight, no single incident of a lone officer’s misconduct. Instead, the evidence demonstrated that misperception and disregard of Brady’s disclosure requirements were pervasive in Orleans Parish.

The case seems to set a new standard for recovery for Brady violations - - - and perhaps other constitutional violations - - - by prosecutors. 

Connick, the district attorney of New Orleans from 1973 - 2003, is no stranger to important constitutional cases.  This is the same Harry Connick of Connick v. Myers, in which assistant district attorney Sheila Myers, complained about morale in the office, was terminated, and brought a First Amendment claim. 

And this is Harry Connick, Sr.  It is his son, Harry Connick, Jr. who is the singer, although Sr. also did his share of entertainment.

RR

[image: entrance to Louisiana State Penitentiary, Angola, via]

District Court Denies Habeas for Guantanamo Detainee

The U.S. District Court for the District of Columbia yesterday released a redacted version of Judge Leon's November 2010 opinion denying habeas relief for Guantanamo detainee Obaydullah.  Judge Leon today rejected Obaydullah's motion for reconsideration.

The government argued that Obaydullah was "part of" an al Qaeda "bomb cell" based upon evidence it obtained during a raid of Obaydullah's home and its own pre-raid intelligence.  (The government declined to disclose the source of the intelligence.)  Evidence included 23 anti-tank mines, a notebook with instructions and wiring diagrams for how to build a remote-control IED, and an automobile that contained dried blood and Taliban propaganda.  Information based upon pre-raid intelligence was largely, if not entirely, redacted from Judge Leon's opinion. 

Judge Leon ruled that the evidence corroborated pre-raid intelligence and that it was more likely than not that Obaydullah was part of an al Qaeda bomb cell:

However, the combination of the explosives, the notebook instructions and the automobile with dried blood all fit together to corroborate the intelligence sources placing both the petitioner and Bostan at the scene aiding fellow bomb cell members who had been accidentally injured while constructing an IED.  Additionally [redacted] serve to further corroborate the credibility of the government's intelligence source linking Obaydullah to the al Qaeda bomb cell.  Thus, combining all of this evidence and corroborated intelligence, the mosaic that emerges unmistakenly supports the conclusion that it is more likely than not that petitioner Obaydullah was in fact a member of an al Qaeda bomb cell committed to the destruction of U.S. and Allied forces.  As such, he is being lawfully detained under the AUMF and this Court must, and will, therefore DENY his petition for a writ of habeas corpus.

SDS

President Orders Review of Guantanamo Detainees

President Obama today issued an executive order providing for "periodic review of individuals detained at Guantanamo Bay Naval Station pursuant to the Authorization for Use of Military Force."

The move suggests that the White House won't achieve its goal to close down Guantanamo anytime soon.

The new periodic review process applies only to those 172 individuals currently detained at Guantanamo and subject to the interagency review process in 2009.  Under the process, detainees may present a written or oral statement to the review board, introduce relevant information including written declarations, answer any questions posed by the review board, and call witnesses who are reasonably available.  Each detainee gets a "personal representative" and a right to independent counsel (not at government expense).

The EO explicitly grounds authority for the new process in the Authorization for Use of Military Force and explicitly subjects detention at Guantanamo to the Convention Against Torture, Geneva Conventions Common Article 3, the Detainee Treatment Act of 2005, "and other laws relating to the transfer, treatment, and interrogation of individuals detained in armed conflict."  It also explicitly recognizes detainees' right to habeas corpus.

The EO sets this standard for continued detention:

Continued law of war detention is warranted for a detainee subject to the periodic review . . . of this order if it is necessary to protect against a significant threat to the security of the United States.

Emphasis added.

SDS

Government Likely to Detain KSM Indefinitely

The Washington Post reported this weekend that the Obama administration is unlikely to push for federal trial for Khalid Sheik Mohammed (because it would anger lawmakers in Congress and in New York) and unlikely to push for trial in a military tribunal (because it would alienate liberal supporters).

The result?  It looks like indefinite detention.

The administration has long claimed that indefinite detention is authorized under the AUMF and legal under international law, although it hasn't given us its precise reasons.  (We posted on indefinite detention here and here.) 

The AtlanticWire collects reactions--from a critique that this means we're in a "forever war" to glee that Obama seems to be following the Bush administration's approach (but without also offering the aggressive legal claims).

SDS