Tuesday, April 12, 2011
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.
[image: Justice Robert Jackson, circa 1945, via]
Friday, April 8, 2011
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.
Tuesday, March 29, 2011
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).
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.
[image: entrance to Louisiana State Penitentiary, Angola, via]
Thursday, March 24, 2011
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.
Monday, March 7, 2011
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.
Monday, November 15, 2010
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).
Friday, November 12, 2010
The D.C. Circuit last week remanded a Guantanamo petitioner's habeas corpus case to the district court for a determination whether the petitioner was "part of" al Qaeda under the Circuit's refined standard for detention.
The case, Salahi v. Obama, tests the government's authority to detain Mohammedou Ould Salahi as "part of" al Qaeda based on his 1991 oath of allegiance to the organization, his association with its members, and his support for the organization. (The government has not criminally indicted Salahi for providing material support to al Qaeda, and it does not seek to detain him on the ground that he aided the 9/11 attacks or the ground that he supported al Qaeda in hostilities against the U.S. or its partners.) The district court granted the writ and ordered Salahi released.
The D.C. Circuit ruled that the district court applied the "part of" test without the benefit of the D.C. Circuit's more recent rulings in Al-Adahi v. Obama, Bensayah v. Obama, and Awad v. Obama. The D.C. Circuit ruled that those cases require a more flexible, case-by-case evaluation of a "part of" claim that looks at the evidence against a detainee in its totality. The D.C. Circuit thus rejected the district court's formalist approach that looks at evidence piece-by-piece, and only in isolation.
Here the D.C. Circuit ruled that the district court erred in finding that Salahi was not part of the command structure of al Qaeda, because there was no evidence that he received and executed orders from al Qaeda. The D.C. Circuit ruled that the "command structure" test was relevant to the "part of" test, but alone not dispositive of it. In short, the district court "did not make definitive findings regarding certain key facts necessary for us to determine as a matter of law whether Salahi was in fact 'part of' al-Qaeda when captured."
The circuit court also ruled that the government did not shift the burden to Salahi to prove that he was not "part of" al Qaeda at the time of capture merely by showing that he swore an oath in 1991. The court pointed out that at the time of Salahi's oath, al Qaeda and the United States shared a common objective: to topple Afghanistan's Communist government. Bin Laden didn't directly turn on the United States until 1992, when he issued his first fatwa against U.S. forces. But Salahi declared that he severed ties to al Qaeda that same year. Moreover, over 10 years passed between Salahi's oath and his capture. The court ruled that Salahi's oath was relevant to determining whether he was "part of" al Qaeda, but under the circumstances it couldn't shift the burden to Salahi. (The court ruled that an oath might shift the burden under different circumstances, e.g., if the oath occurred closer to the time of capture.)
The court gave a sense of the kinds of questions it'd like answered under the broader "part of" approach:
[D]oes the government's evidence support the inference that even if Salahi was not acting under express orders, he nonetheless had a tacit understanding with al-Qaida operatives that he would refer prospective jihadists to the organization? Has the government presented sufficient evidence for the court to make findings regarding what Salahi said to bin al-Shibh during their "discussion of jihad and Afghanistan"? Did al-Qaida operatives ask Salahi to assist the organization with telecommunications projects in Sudan, Afghanistan, or Pakistan? Did Salahi provide any assistance to al-Qaida in planning denial-of-service computer attacks, even if those attacks never came to fruition? May the court infer from Salahi's numerous ties to known al-Qaida operatives that he remained a trusted member of the organization?
Op. at 14.
These questions instruct the government and lower court to press harder in putting the evidence together and drawing inferences that Salahi was "part of" al Qaeda. The ruling thus not only reaffirms the broader approach to the "part of" test in its most recent cases; it also puts that approach into sharper focus. Particularly, Salahi illustrates that this case-by-case, totality-of-circumstances approach can make the government's job much easier: The government can (and the courts must) put the disparate pieces of evidence together and draw inferences to create a larger picture of a detainee who was "part of" al Qaeda at the time of capture.
Friday, November 5, 2010
Linda Greenhouse has a worth-reading column that begins by referencing the revelation of ConLawProf Larry Tribe's initial dismissal of Sotomayor in a letter to Obama but soon rises to an insightful analysis of Sotomayor's career as a Justice so far.
Greenhouse focuses on the Court's criminal docket, noting that so far Sotomayor "was second only to Justice Stevens in voting on the side of the criminal defendant." Of course, Sotomayor's dissent last term in Berghuis v. Thompkins merits a mention. And unspoken is the departure of Stevens, which presumably makes Sotomayor the most sympathetic Justice to claims by criminal defendants.
But it is Sotomayor's dissent from a denial of a certiorari grant - - - in the context of such dissents - - - that proves most interesting. Greenhouse contends that the Roberts Court has seen the revival of individual justices issuing dissenting opinions from the Court’s denials of certiorari, a practice that had shriveled under Rehnquist but which has been embraced by Roberts himself. Greenhouse highlights Sotomayor's dissent in Pitre v. Cain, a prisoner's pro se petition. While Sotomayor's dissent seems compelling, Greenhouse concludes it is the kind of case which the Court usually does not hear because it would simply correct the error of the Fifth Circuit and be dispensing "retail justice."
Lest this be interpreted as implying Sotomayor is a "retail Justice" herself, Greenhouse quickly compares Sotomayor's dissent to a dissent issued Monday by Alito, Roberts, and Scalia, from the denial of certiorari in Wong v. Smith, the grant of a habeas petition by the Ninth Circuit. The Court, the dissenters wrote, should hear the case to "correct the Ninth Circuit’s error."
"Error-correction to the left, error-correction to the right," Greenhouse writes, which is accurate Court-wise, if not reflective of a wider Left/Right politics in which describing Sotomayor, a former federal prosecutor, as "left" seems odd. But what is certainly true, as Greenhouse reminds us, is that ConLawProfs should be paying attention to those dissents from denial of certiorari.
Wednesday, August 18, 2010
Federal district court judges have ruled against the government in 8 of 15 Guantanamo detainees' habeas cases because of interrogations of detainees and witnesses under "questionable circumstances," ProPublica reports in its latest installment in its ongoing investigation of detention at Guantanamo Bay, The Detention Dilemma.
ProPublica reviewed 31 published decisions involving 52 detainees who claimed they were wrongfully detained. Fifteen of those involved detainee claims that they or witnesses were "forcibly interrogated."
Judges rejected government evidence because of interrogation tactics ranging from verbal abuse threats to physical abuse they called torture. Even in the seven cases the government won, the judges didn't endorse aggressive methods. In six, they decided the detainees' stories of abuse simply weren't credible or were irrelevant to the outcome. In one, the prisoner had repeated self-incriminating statements in military hearings, which the judge viewed as less intimidating than the interrogations he found unacceptable.
And the "clean evidence" strategy doesn't seem to be working:
In most of the cases the government lost, the judges rejected statements even from the "clean" sessions that the Bush administration began administering in 2002 to collect evidence to use in court. The fear prisoners experienced during improper interrogations bled over to corrupt those statements too, the judges said.
The government has now lost 37 of the 53 habeas cases decided. Fifty more cases are pending. And the Obama administration has designated at least 48 of the remaining 176 prisoners at Guantanamo Bay for indefinite detention "because they're too dangerous to release but can't be prosecuted successfully in military or civilian court. . . . [C]oercion tainted evidence is one obstacle," according to the report.
This problem explains in part why the government isn't pursuing these cases in criminal courts: "The rules for excluding tainted evidence are stricter in [both civilian and military criminal courts], yet the government's need to marshal evidence is greater."
ProPublica's The Detention Dilemma project includes dozens of other outstanding reports--essential reading for anyone teaching or studying Guantanamo detention. We've posted most recently on detainee habeas cases here and here.