Saturday, March 4, 2017
In his opinion in LaCroix v. Junior, Florida state judge Milton Hirsch confronted the constitutionality of the Executive Order threatening to revoke federal funding for sanctuary cities which as we previously predicted "overreaches."
The judge granted the petition for writ of habeas corpus by a man "incarcerated in the Miami-Dade County correctional system." Although there were no state charges against him, LaCroix had "no prospect of imminent release," because as "often happens" Immigration and Customs Enforcement (“ICE”), the federal agency "responsible for the deportation of those whose presence in this country is unlawful, had filed a detainer or lodged a request with the corrections department, seeking to have the department retain an inmate whom would otherwise be released, because ICE has a basis to inquire further as to the status of the person sought.
Judge Hirsch identified "two inequities" of this practice. First, until ICE takes custody of the person, the county must "house, oversee, and control" people in which it has no ongoing interest and to do so at county expense. Second, "it results in the continued incarceration in county jails of persons neither charged with, nor sentenced for violating, any state or county law, and whose ongoing incarceration by the county is therefore difficult to justify."
Judge Hirsch's opinion outlines the controversies surrounding the county's changing practices, noting that while there had been county detention on behalf of ICE, in 2013 the Dade County Commission changed its policy to effectively ban county jails from honoring ICE requests. However, after the President "threatened to cut federal grants for any counties or cities that don’t cooperate fully with Immigration and Customs Enforcement," Miami-Dade Mayor Carlos Gimenez immediately reversed county policy and ordered county jails to comply with ICE requests.
Judge Hirsch finds that the federal government cannot constrict or commandeer state officials largely relying on Printz v. United States (1997), which held the Brady Handgun Violence Prevention Act's requirement of background checks by state officials unconstitutional pursuant to the Tenth Amendment. Quoting from Justice Scalia's opinion for the Court in Printz, Judge Hirsch concluded that the present situation was "actually easier" to decide: Printz involved something that local law enforcement is often called to do as a matter of local law, but here
however, we deal with an area of the law – the regulation of immigration and deportation – reserved exclusively to the federal government. See U.S. Const. Art. I § 8, clause 4. The Department does not, and as a matter of constitutional law cannot, act in this federal bailiwick. According to its “mission statement,” see http://www.miamidade.gov/corrections/about-corrections.asp, the Department, “serves our community by providing safe, secure and humane detention of individuals in our custody while preparing them for a successful return to the community.” (Emphasis added.) This is wholly unrelated, arguably antithetical, to the mission of ICE, see https://www.ice.gov/overview, which is “to protect America from the cross-border crime and illegal immigration that threaten national security and public safety.” Yet by operation of the recent change in county policy, and the presidential order upon which it is based, county correctional officers and county correctional facilities are made appendages of ICE, obliged to imprison and maintain Petitioner for ICE –
Petitioner and others, perhaps many others, similarly circumstanced. If the use made of local governmental resources in Printz was constitutionally proscribed, the use made of local governmental resources here is surely constitutionally proscribed.
Moreover, although LaCroix is not a government official, the Tenth Amendment's reservation of rights to "the people" is one that can be raised by an individual, as the Court unanimously held in Bond v. United States (2011). (Recall that Carol Anne Bond was similarly successful in her second trip to the United States Supreme Court when it held that the federal government had essentially overreached in prosecuting her for violation using "chemical weapons.")
Judge Hirsch's analysis of Tenth Amendment precedent is on solid ground. The opinion is carefully crafted and closely reasoned. But Judge Hirsch does evoke the larger political contexts in at least two respects.
First, Judge Hirsch raises and discounts the term "sanctuary city." He writes that although the term has a "Biblical sound to it" (explaining in a footnote the more precise Biblical meaning), and thus has some rhetorical force,
Miami is not and never was a “sanctuary city,” and the issue raised by the petition at bar has nothing to do with affording “sanctuary” to those unlawfully in this country. It has everything to do with the separation of powers between the state and federal governments as reflected in the Tenth Amendment to, and in the very structure of, the United States Constitution.
Nevertheless, near the end of the opinion, Judge Hirsch repeats his conclusion that "Miami is not, and has never been, a sanctuary city," and then adds:"But America is, and has always been, a sanctuary country." He quotes one of his own previous opinions and includes a footnote quoting Emma Lazarus, The New Colossus and discussing the dedication of the Statue of Liberty.
Second, Judge Hirsch raises the specter of unbridled Executive power. He notes that although the "presidential edict at issue here seeks to bring about the conscription of the corrections department, and employs powerful financial pressure to do so," the Spending Power is vested in Congress under Art. I §8 cl. 1 rather than the Executive. Additionally:
No doubt the limitations imposed by the Tenth Amendment, like so many limitations imposed by the Constitution, are a source of frustration to those who dream of wielding power in unprecedented ways or to unprecedented degrees. But America was not made for those who dream of power. America was made for those with the power to dream.
It does not seem too far of a stretch to read this as a critique of the current President.
The case is sure to be appealed. But whatever happens on appeal in this case, there is similar litigation throughout the nation, including the lawsuit by San Franscisco.
Friday, December 18, 2015
Judge Royce Lamberth (D.D.C.) ruled yesterday that the district court lacked jurisdiction over a Guantanamo detainee's habeas claim seeking his periodic review, as ordered by President Obama.
The ruling in Salahi v. Obama leaves Guantanamo detainees without a way to enforce the Periodic Review Board process set by executive order by President Obama.
Recall that President created an interagency process in 2011 to periodically review whether continued detention of certain Guantanamo detainees was "necessary to protect against significant threat to the security of the United States." Under EO 13567, every detainee was to get a full hearing every three years from a PRB, plus interim review under certain circumstances.
Salahi has been detained at Guantanamo since 2002, without charges, and has yet to have a PRB hearing (or even have one scheduled). He filed a habeas claim in the D.C. District seeking, among other things, a scheduled PRB hearing.
The court rejected his claim. The court said that "probabilistic" claims--that is, claims that only might lead to release--don't fall within habeas, and that in any event the EO didn't create any substantive rights that a Guantanamo detainee might actually enforce in court.
The upshot is that while the President may order periodic review, that doesn't mean that detainees can actually get it.
Tuesday, May 26, 2015
The United States Supreme Court granted certiorari today in Foster v. Humphrey to the Georgia Supreme Court denying post-conviction relief.
According to the petition, in 1987, an all-white jury convicted Timothy Tyrone Foster, a "poor, black, intellectually compromised eighteen year old" of the murder of an elderly white woman. At trial, one black potential juror was removed for cause, and the prosecutors removed all four of the remaining black prospective jurors by peremptory strike, and proffered race-neutral reasons when defense counsel raised a challenge under the then-recent case of Batson v. Kentucky (1986). The judge rejected defense counsel's argument that the race-neutral reasons were pretexual and denied the Batson challenge. The Georgia courts affirmed.
Almost twenty years later, pursuant to a request under the state open records act, Foster gained access to the prosecution team's jury selection notes, which included highlighting the black potential jurors (image at right), circling the word "black" as an answer to the race question on the juror questionnaire, identifying the black potential jurors as B#1, B#2, and B#3 in the notes, and a draft affidavit by the prosecution investigator stating "“if we had to pick a black juror then I recommend that [Marilyn] Garrett be one of the jurors; with a big doubt still remaining.” (The affidavit was originally submitted to the court with all mentions of race excised).
In the post-conviction proceeding, the court held that "[t]he notes and records submitted by Petitioner fail to demonstrate purposeful discrimination on the basis that the race of prospective jurors was either circled, highlighted or otherwise noted on various lists." The Georgia Supreme Court declined review.
In granting certiorari, the United States Supreme Court could certainly agree with the Georgia courts and simply affirm. Assuming the Court granted certiorari because of some disagreement with the conclusions, the Court might take a broader approach. According to the petition in Foster, the prosecution "proffered a combined forty reasons for striking" the four black potential jurors. Because there are almost always "neutral" reasons for exercising a peremptory challenge - - - given that it can be based on essentially a "hunch" - - - proving racial motivation and discrimination can be difficult. The Court has the opportunity to revisit Batson and the problem of distinguishing between race-neutral and pretextual reasons, perhaps providing a more workable and fair rule.
May 26, 2015 in Courts and Judging, Criminal Procedure, Equal Protection, Federalism, First Amendment, Fundamental Rights, Habeas Corpus, Race, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Sunday, March 29, 2015
The Supreme Court will hear oral arguments tomorrow in Brumfield v. Cain, the case testing how state courts must consider evidence of mental retardation in death penalty sentencing proceedings. Here's my argument preview, from the ABA Preview of United States Supreme Court Cases, with permission:
1. Is a state post-conviction court’s decision “based on an unreasonable determination of the facts,” when the court relied only on evidence that the petitioner submitted at his sentencing hearing (and refused to allow the petitioner to submit additional evidence of his intellectual disability)?
2. Did a state post-conviction court violate a clearly established constitutional right when it declined to provide funds to the petitioner to help him establish his intellectual disability?
On January 7, 1993, at about 12:10 a.m., Corporal Betty Smothers, a 36-year-old off-duty police officer, escorted Kimen Lee, assistant manager of a Piggly Wiggly grocery store in Baton Rouge, Louisiana, to a bank to make the store’s nightly deposit. As the police car pulled into the night depository lane at the bank, two individuals appeared on opposite sides of the car and fired shots at Smothers and Lee. Smothers was pronounced dead at 12:42 a.m. (Despite being hit four times, Lee managed to drive the car half a mile to a convenience store. She survived.)
Kevan Brumfield initially denied any involvement in the crime. But later, after police interrogation, he confessed to driving the car, and later still, to shooting the victims. A jury convicted Brumfield of first-degree murder, and the state sought the death penalty.
At the sentencing hearing, Brumfield’s mitigation case focused on his abusive childhood and the mental and emotional difficulties he had throughout his life. In addition to family members and Brumfield’s fourth-grade teacher, Brumfield produced two experts. One of those, Dr. Cecile Guin, testified to Brumfield’s developmental issues, literally from birth. She testified that Brumfield weighed only 3.5 pounds at birth, that he “was born with slower responses than normal babies,” and that “there is definitely a[n] indication that when he was born they knew that something was wrong at that point.” She also explained that by the third grade Brumfield’s teachers “knew that there were problems,” and that they referred him for a special education evaluation. Dr. Guin described Brumfield as having “intellectual problems,” and testified that he appeared to have “learning problems” that were misdiagnosed as behavioral problems. She said that “Kevan’s basic problem is that he – he could not process information.”
The other expert, Dr. John Bolter, gave similar testimony about Brumfield’s developmental issues starting at birth. Dr. Bolter also testified that he administered a Wechsler IQ test to Brumfield, and that Brumfield scored 75, which Dr. Bolter described as “borderline general intelligence” and “on the low end of intelligence.” Dr. Bolter explained that Brumfield was “reading at about the fourth grade level, and that’s simple word recognition. That’s not even comprehension . . . .” Dr. Bolter testified that Brumfield’s math and spelling skills were at about a sixth-grade level.
Despite the expert testimony, Brumfield is adamant that “[h]e did not put on a case that he was clinically intellectually disabled.”
The sentencing hearing lasted just one day, and the jury recommended a death sentence. The Louisiana Supreme Court affirmed Brumfield’s conviction on direct appeal, and the United States Supreme Court denied review. On March 25, 2000, Brumfield filed a post-conviction petition in state court. While that petition was pending, the Supreme Court ruled in Atkins v. Virginia, 536 U.S. 304 (2002), that the Eighth Amendment prohibits the execution of intellectually disabled individuals. Soon thereafter, the Louisiana Supreme Court adopted the clinical definition of intellectual disability in Atkins. State v. Williams, 831 So. 2d 835 (La. 2002). Brumfield then amended his state petition to assert that he is intellectually disabled and that his execution would violate the Eighth Amendment. Brumfield submitted the evidence he produced at his sentencing hearing in support of his amended petition. But because he argued that the court could not determine his intellectual disability on this evidence alone, Brumfield also asked for an opportunity to present additional evidence of his intellectual disability and funding to obtain expert assistance in producing this additional evidence.
The state court declined Brumfield’s request for an opportunity to present additional evidence and dismissed Brumfield’s petition. (The court did not specifically address Brumfield’s request for funding.) The court explained that
Dr. Bolter in particular found he [Brumfield] had an IQ of over – or 75. Dr. Jordan [whose report was referenced by Dr. Guin] actually came up with a little bit higher IQ. I do not think that the defendant has demonstrated impairment based on the record in adaptive skills. The doctor testified that he did have an anti-social personality or sociopath, and explained it as someone with no conscience, and the defendant hadn’t carried the burden placing the claim of mental retardation at issue. Therefore, I find he is not entitled to that hearing based on all of those things that I just set out.
Brumfield filed an application for supervisory writs with the Louisiana Supreme Court, but the court denied the application without an opinion.
On November 4, 2004, Brumfield filed a petition for a writ of habeas corpus in federal district court. He argued, among other things, that the state court’s dismissal of his Atkins claim without a hearing and without funding violated federal law. The district court appointed counsel, and the Federal Public Defender Board provided expert funding. In 2007, Brumfield amended his petition to incorporate the expert findings.
A magistrate judge issued a Report and Recommendation, which found that the state court’s refusal to grant an Atkins hearing based only on the evidence that Brumfield submitted to the state court was “reasonable and in accordance with clearly established law.” But the Report also concluded that the state court should consider the additional evidence that Brumfield presented in his amended habeas petition. The magistrate judge concluded that Brumfield had established a prima facie case of intellectual disability such that he was entitled to an Atkins hearing. The district court adopted the magistrate’s Report and Recommendation and held an Atkins evidentiary hearing. On February 22, 2012, the district court granted Brumfield’s petition for a writ of habeas corpus on the ground that he is intellectually disabled and therefore ineligible for execution. The district court issued a permanent injunction, prohibiting the state from executing Brumfield. The state appealed, and the United States Court of Appeals for the Fifth Circuit reversed. The appeals court ruled that the state court did not violate federal law denying Brumfield a hearing and funding to establish his intellectual disability. This appeal followed.
The Antiterrorism and Effective Death Penalty Act (AEDPA) prohibits a federal court from granting a prisoner’s writ of habeas corpus unless the state court’s ruling:
(1)resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2)resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. Sec. 2254(d). In this case, the parties dispute two independent issues. First, the parties dispute whether the state court, in denying Brumfield’s request for an opportunity to present additional evidence of his intellectual disability, and relying only on evidence that Brumfield produced at his sentencing hearing, based its decision on “an unreasonable determination of the facts” in violation of Section 2254(d)(2). Second, they dispute whether the state court’s denial of funding was an “unreasonable application” of federal law, as “determined by the Supreme Court,” in violation of Section 2254(d)(1).
I. State Post-Conviction Court Process and Section 2254(d)(2).
Brumfield argues that the state post-conviction court’s ruling denying him an opportunity to present additional evidence of his intellectual disability was “patently unreasonable” in violation of Section 2254(d)(2). Brumfield says that the state court’s refusal to grant him a hearing was based solely on the court’s review of his sentencing record, which was developed well before Atkins held that the Eighth Amendment prohibits the execution of an intellectually disabled person, and well before the Louisiana Supreme Court adopted its own definition of intellectual disability. In other words, Brumfield claims that he made his mitigation case at sentencing before the Court rejected the death penalty for intellectually disabled persons and before the Louisiana courts defined the clinical standards for intellectual disability—without an eye to his intellectual disability (because his intellectual disability wasn’t determinative at the time). He contends that the state post-conviction court, in relying only on his sentencing record alone, therefore could not have considered whether he was intellectually disabled, because the sentencing record contained no evidence of it.
But even so, Brumfield argues that his sentencing record nevertheless supports a finding of intellectual disability. That’s because the record reflects an IQ score of 75, a score consistent with intellectual disability. He says that other evidence, too, supports a finding of intellectual disability: the expert’s testimony that “something was wrong” with Brumfield at birth, that he was recommended for special education programs, that he could not process information, and that he could read only at a fourth-grade level and do math and spell at only a sixth-grade level. Brumfield argues that this “evidence presented in the State court proceeding” (in the language of Section 2254(d)(2)) should have prompted the state post-conviction court to conduct a hearing. He says that its determination otherwise was “patently unreasonable,” and that the federal district court was justified in conducting such a hearing.
The state argues that the federal courts (the district court and the Fifth Circuit) were right to find that the state post-conviction court reasonably denied Brumfield’s Atkins claim based on the record before it. That evidence, presented by expert witnesses, said that Brumfield had an IQ of at least 75, had adaptive skills inconsistent with intellectual disability (as evidenced by his orchestration of this crime and other crimes), and had not manifested any signs of neuropsychological disorder before the age of 18. The state contends that this evidence was sufficient for the state post-conviction court to reasonably conclude that Brumfield was not intellectually disabled.
The state argues further that Brumfield’s claim that the state post-conviction court should have given him an opportunity to present additional evidence lacks merit. The state points to the plain language of Section 2254(d)(2), which limits the judicial inquiry to the “evidence” that was “presented in the State Court proceeding”—exactly the evidence that the state post-conviction court considered. The state says that the Court’s ruling in Cullen v. Pinholster, 131 S. Ct. 1388 (2011), confirms its reading. The state contends that the Court in Pinholster ruled that a Section 2254(d)(1) challenge is strictly limited to “the record that was before the state court,” and that both the majority and dissent agreed in that case that this reading applies even more forcefully to Section 2254(d)(2) challenges. The state concludes that Brumfield’s argument that the state post-conviction court violated Section 2254(d)(2) by failing to give him an opportunity to develop his claim of intellectual disability simply lacks merit.
II. Denial of Funding and Section 2254(d)(1).
Brumfield argues that the state post-conviction court’s denial of funding to develop his intellectual disability claim was contrary to, and an unreasonable application of, the Court’s clearly established law in violation of Section 2254(d)(1). Brumfield points to two cases. In the first, Ake v. Oklahoma, 470 U.S. 68 (1986), the Court held that, when an indigent capital defendant shows that his mental condition will be a “significant factor” at trial or sentencing, the state must assure access to a mental health expert, given the importance of expert evaluation in evaluating insanity. Brumfield argues that the Ake principle applies here. (Ake itself is not squarely on point. Brumfield relies instead on its animating principle.) He says that because his post-conviction proceeding was his first opportunity to raise his Atkins claim (because Atkins came down only after his sentencing), the Ake principle required the court to assure access to an expert to assess his intellectual disability. Brumfield contends that the state post-conviction court failed this test.
In the second case, Ford v. Wainwright, 477 U.S. 399 (1986), the Court held that capital defendants asserting an insanity defense had a due process right to present expert testimony in opposition to the state’s evidence on insanity. Without that right, he says, the state denies the defendant his constitutionally guaranteed “opportunity to be heard” and “invites arbitrariness and error.” Brumfield contends that the Ford principle applies here, too. He says that the state post-conviction court denied his claim for funding only after it denied his Atkins claim altogether. Brumfield contends that this deprived him of any opportunity to obtain an expert any other way, and thus deprived him of his rights under Ford.
Finally, Brumfield appeals to language in the Court’s latest ruling on the death penalty, Hall v. Florida. 134 S. Ct. 1986 (2014). Brumfield quotes the Hall Court: “The death penalty is the gravest sentence our society may impose. Persons facing that most severe sanction must have a fair opportunity to show that the Constitution prohibits their execution.” Brumfield argues that the state post-conviction court’s denial of funding to develop his intellectual disability claim violates that principle.
The state argues that Brumfield’s claim for funding under federal law must fail, because he neglected to exhaust that claim. The state says that Brumfield never actually sought funding from the state post-conviction court or asked for time to find pro bono expert assistance under federal law; his request came only under state law. The state claims that Brumfield’s failure to assert a claim for funding under federal law means that the Court can either decline to reach this question or to reject his claim on the merits.
The state argues next that Brumfield’s Section 2254(d)(1) claim must fail on the merits. The state claims that no decision of the Court clearly establishes a due process right to state-funded expert assistance on state post-conviction review. The state says that Atkins itself did not establish such a right (and instead left it to the states to develop their own procedures); Ake has not been extended to state post-conviction review (Ake applies only at trial); and Ford does not guarantee a right to funding. Without clear support from the Court, the state contends that Brumfield cannot show that the state post-conviction court violated a “clearly established” right.
The state argues that Brumfield’s contention that the state post-conviction court’s simultaneous denial of his funding request and his request for a hearing violated due process is without merit. The state says that this argument presumes that Brumfield had a clearly established right to submit expert testimony “at the threshold stage of his Atkins claim.” But the state contends that Brumfield had no such clearly established right. The state says that neither Atkins nor Ford established such a right. (The state says that the due process rights in Ford arose only after a threshold showing had been made.) In any event, the state argues that this claim is not properly before the Court. The state says such a claim must be decided on direct review, and that Brumfield forfeited that chance when he declined to seek an appeal to the Supreme Court after the Louisiana Supreme Court declined review.
Finally, the state argues that if Brumfield wins on either claim (Section 2254(d)(2) or Section 2254(d)(1)), the Court should remand the case to the Fifth Circuit (and not decide it itself). According to the state, that’s because the Fifth Circuit “has not issued a decision as to whether the district court correctly granted the writ.” But whichever court makes the final decision, the state claims that Brumfield cannot establish that he is intellectually disabled, even with additional evidence.
This case will fill some of the gaps left open by the Court’s two recent principal decisions on the death penalty and intellectual disability. That is, the case will tell us more about how state courts must go about determining whether a person is intellectually disabled and thus exempt from the death penalty.
The Court’s seminal ruling on the issue came in Atkins v. Virginia. As described above, the Court in that case ruled that the Eighth Amendment prohibited the execution of an intellectually disabled person. But Atkins left significant questions open, especially about process. In particular, Atkins left the states to “develop [an] appropriate way to enforce the constitutional restriction upon its execution of [death] sentences” against intellectually disabled persons.
The Court partially answered one of those questions last Term in Hall v. Florida. The Court ruled in that case that a state’s practice of requiring a person to show an IQ score of 70 or below before being able to present additional evidence of an intellectual disability was unconstitutional.
Still, the Court left open significant procedural questions, including the questions in this case. This case may answer some of those procedural questions and may give clues as to how the Court will view others.
But the answers we get might not be entirely clear. That’s because the underlying substantive issues in this case (how a person can show that he is intellectually disabled, and the assistance from the court that he is entitled to) are complicated by the AEDPA standard of deference. In other words, the Court need only determine whether the state post-conviction court’s rulings were reasonable or consistent with clearly established law—and not (necessarily) the precise metes and bounds of Brumfield’s underlying claims (whether the law required that he receive an opportunity to present additional evidence and receive funding).
One final point. Brumfield’s case is highly unusual, in that he apparently fell through the cracks during the time after Atkins came down but when Louisiana was still crafting its Atkins procedures and simultaneously dealing with a crisis in indigent defense. As explained by a retired Chief Justice of Louisiana, the Louisiana Association of Criminal Defense Lawyers, and the Promise of Justice Institute, together as amicus curiae,
In each of the [other eighteen cases of defendants prosecuted prior to Atkins], it is shown that the Atkins claimants were provided an opportunity to present and litigate their claims via [state-funded capital defender offices]. In Louisiana’s chaotic effort to enforce the protections of Atkins, Petitioner Brumfield appears to be the only condemned prisoner who did not receive state resources to develop his claim.
Amicus states further that “[i]t is unquestionable, that if tried today, or even any period after 2004 . . . [Brumfield] would have had access to state funded resources to prepare and present a claim of intellectual disability.”
While this doesn’t necessarily alter the legal landscape of the case, it could be a factor in the Court’s ruling.
Sunday, March 23, 2014
Jon B. Eisenberg, counsel, along with Reprieve US, for Shaker Aamer and Emad Hassan, Guantanamo detainees, writes over at Jurist.org that force-feeding detainees at Guantanamo is akin to the medieval form of torture called "pumping," or the water cure. Eisenberg makes the case that force-feeding is not "reasonably related to legitimate penological interests," the standard under Turner v. Safley, because the government force-feeds prematurely, long before detainees are at risk of death or great bodily harm. He writes that there are "obvious, easy alternatives," and that force-feeding is an "exaggerated response."
Recall that the D.C. Circuit ruled earlier this year that federal courts could hear Aamer's habeas claim--a claim not for release, but rather against his conditions of confinement. This was a huge victory for Guantanamo detainees: it was the first time the court said that they could bring a habeas claim challenging their conditions of confinement.
But the court also ruled that Aamer was not likely to succeed on the merits of his claim. Eisenberg explains why that was wrong.
The government hasn't said whether it'll appeal the Aamer ruling. In the meantime, Eisenberg and Reprieve US are going forward with another claim against force-feeding, Hassan's.
Tuesday, February 11, 2014
A divided panel of the D.C. Circuit ruled today in Aamer v. Obama that Guantanamo detainees may bring a habeas corpus claim in federal court challenging their forced-feeding by the government, but that that claim is not likely to succeed.
The ruling is notable, because it's the first time a federal appellate court ruled that Guantanamo detainees could bring a habeas claim to challenge their conditions of confinement (as opposed to the fact of their confinement).
The ruling is likely to bring a host of new habeas claims from detainees at Guantanamo--challenging not just the fact of their detention (the kind we've already seen) but also the conditions of their confinement. It may also bring a congressional response--to foreclose those claims.
The court also ruled that the detainees' challenge to their forced-feeding was not likely to succeed.
Some background: Congress enacted two provisions in the MCA designed to strip federal courts of jurisdiction over Guantanamo detainees' claims. The first, at 28 U.S.C. Sec. 2241(e)(1), purports to strip federal courts of jurisdiction over Guantanamo detainees' habeas claims challenging the fact of their detention:
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.
The Supreme Court struck the provision in Boumediene v. Bush (2008), holding that Congress couldn't eliminate habeas jurisdiction over Guantanamo detainees without complying with the requirements of the Suspension Clause (which it had not).
The second provision, at 28 U.S.C. Sec. 2241(e)(2), purports to strip courts of jurisdiction over Guantanamo detainees' "other" claims challenging the conditions of their confinement:
Except as provided [in section 1005(e) of the DTA], 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 determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
The D.C. Circuit previously confirmed that this latter section continued in force after Boumediene (because Boumediene dealt only with the habeas-stripping Section 2241(e)(1)), and lower court judges have ruled that it bars Guantanamo detainees from bringing habeas claims challenging their conditions of confinement (because those habeas claims were "other" claims challenging the conditions of confinement).
The D.C. Circuit ruled that it does not bar detainees' habeas claims, and that detainees may bring statutory habeas claims challenging the conditions of their confinement.
In answering the question, the court said that the two different parts of Section 2241(e) meant that Congress attempted in the MCA to bar (1) habeas claims and (2) "other" claims (i.e., non-habeas claims). It said that Section 2241(e)(2), in barring "other" claims, had no impact on habeas claims. And it said that Boumediene struck Section 2241(e)(1).
So, if the detainees brought a habeas claim, it would have been covered by Section 2241(e)(1), and because that provision was struck, their habeas claim survives.
The core question, then, is whether habeas (any habeas, at Guantanamo or not) extends not only to the fact of confinement (everyone agrees it does) but also to the conditions of confinement (that's where the parties disagreed). The court said that the Supreme Court left this question open, and that there is a split among the circuits. Still, it said that in the D.C. Circuit habeas extends both to fact-of-confinement and to treatment claims:
The availability of habeas for both types of challenges simply reflects the extension of the basic principle that "[h]abeas is at its core a remedy for unlawful executive detention." Munaf v. Geren. The illegality of a petitioner's custody may flow from the fact of detention . . . the duration of detention . . . the place of detention . . . or the conditions of detention. In all such cases, the habeas petitioner's essential claim is that his custody in some way violates the law, and he may employ the writ to remedy such illegality.
Because the detainees' claim was a habeas claim that would have fallen under Section 2241(e)(1), and because Section 2241(e)(2) bars only with "other" (non-habeas) claims and therefore doesn't affect the detainees' habeas claim at all, and because the Supreme Court struck Section 2241(e)(1), the detainees' habeas claim can go forward.
The court noted that Congress has been entirely silent on this--and has not acted to strip courts of jurisdiction over this kind of claim.
Judge Williams dissented, arguing that the detainees' claim does not sound in habeas and therefore is barred under Section 2241(e)(2).
The court also ruled that the detainees failed to show a likelihood of success on the merits of their force-feeding claims. The court said that there were valid penological interests in force-feeding hunger-striking detainees that outweighed the detainees' liberty interest. The court also said that the Religious Freedom Restoration Act does not extend to Guantanamo detainees, who, as nonresident aliens, do not qualify as protected "person[s]" under the RFRA.
The court affirmed the lower court's denial of a preliminary injunction, sending the case back for more on the merits.
February 11, 2014 in Cases and Case Materials, Congressional Authority, Due Process (Substantive), Executive Authority, Fundamental Rights, Habeas Corpus, Jurisdiction of Federal Courts, News, 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)
Monday, July 15, 2013
Judge Royce C. Lamberth (D.D.C.) ruled last week in In re Guantanamo Bay Detainee Litigation that Joint Detention Group, or JDG, restrictions on Guantanamo detainees' access to counsel violated the detainees' right to habeas proceedings in federal court. The ruling was the second last week that invoked an increasingly personal challenge to President Obama and his policies on detention at Guantanamo Bay. We posted on the other case, involving forced-feeding, here.
The court struck new and invasive search protocol for detainees before and after they meet with counsel; restrictions on the locations within the facility where certain detainees can meet with counsel; and even the new vans that guards use to transport detainees to meetings with counsel. (The new vans are designed such that detainees have to sit in stress positions while traveling to their meetings with their attorneys.) The court struck the restrictions under Turner v. Safley (1987), which set out factors to balance the interests in prison administration against the prisoners' fundamental rights. In short, the court held that the restrictions had no "valid, rational connection" to the legitimate government interest of security, and that the government could serve that interest in other ways without unduly affecting the prison.
The case is notable for its close oversight of the conditions at Guantanamo that interfere with the detainees' access to their attorneys, and thus their access to habeas. It's also notable for the courts increasingly personal appeals to, and critiques of, President Obama, his announced policies, and the way those policies play on the ground. Judge Lamberth started the opinion with this:
On May 23, 2013, President Obama promised, concerning detainees held at Guantanamo Bay, that "[w]here appropriate, we will bring terrorists to justice in our courts and our military justice system. And we will insist that judicial review be available for every detainee." This matter concerns whether the President's insistence on judicial review may be squared with the actions of his commanders in charge of the military prison at Guantanamo Bay. Currently, it cannot.
Wednesday, July 10, 2013
Judge Gladys Kessler (D.D.C.) this week reluctantly denied a Guantanamo detainee's plea to stop his force-feeding. Detainee Jihad Dhiab requested expidited consideration because of the risk that force-feeding during the day will deprive him of the Ramadan fast, which started July 8.
Dhiab is an 11-year detainee at Guantanamo who has received no habeas or military commission proceeding to determine the merits of his case. He was cleared for release two years ago.
Judge Kessler wrote that the court lacked jurisdiction to hear Dhiab's petition, because 28 U.S.C. Sec. 2241(e)(2) 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. She wrote that "the Court feels just as constrained now, as it felt in 2009, to deny this Petitioner's Application for lack of jurisdiction."
Judge Kessler went on to address the merits, though, and to urge President Obama to stop the force-feeding:
The Court also feels constrained, however, to note that Petitioner has set out in great detail in his papers what appears to be a consensus that force-feeding of prisoners violates Article 7 of the International Covenant on Civil and Political Rights which prohibits torture or cruel, inhumane, and degrading treatment. . . .
Even tough this Court is obligated to dismiss the Application for lack of jurisdiction, and therefore lacks any authority to rule on Petitioner's request, there is an individual who does have the authority to address the issue. . . .
Article II, Section 2 of the Constitution provides that "[t]he Preisdent shall be the Commander in Chief of the Army and Navy of the United States . . ." It would seem to follow, therefore, that the President of the United States, as Commander-in-Chief, has the authority--and power--to directly address the issue of force-feeding of the detainees at Guantanamo Bay.
The White House responded at the daily press briefing yesterday that the President doesn't want these detainees to die, and that he maintains his position that Guantanamo should close.
July 10, 2013 in Cases and Case Materials, Congressional Authority, Habeas Corpus, Jurisdiction of Federal Courts, News, Opinion Analysis, 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.
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.
Tuesday, November 20, 2012
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.
Thursday, November 15, 2012
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.
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.
Monday, October 22, 2012
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.
Thursday, May 3, 2012
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.
Tuesday, February 21, 2012
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.
February 21, 2012 in Cases and Case Materials, Congressional Authority, Courts and Judging, Fifth Amendment, Fundamental Rights, Habeas Corpus, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0) | TrackBack (0)
Thursday, February 9, 2012
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.
Thursday, December 22, 2011
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.
December 22, 2011 in Cases and Case Materials, Congressional Authority, Courts and Judging, Habeas Corpus, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (1) | TrackBack (0)
Tuesday, December 20, 2011
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.
Wednesday, July 27, 2011
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."
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.