Wednesday, June 29, 2011
State Department Legal Adviser Harold Koh on Tuesday gave the administration's case for why U.S. operations in Libya are not "hostilities" under the War Powers Resolution, and therefore why the administration is not violating the WPR in not either gaining congressional authorization or withdrawing U.S. forces after the WPR's 60-day deadline passed. Koh testified along with Louis Fisher and Prof. Peter Spiro (Temple) before the Senate Foreign Relations Committee.
Koh relied on the administration's understanding at the time of enactment of the WPR and subsequent practice to make his case:
In this case, leaders of the current Congress have stressed this very concern in indicating that they do not believe that U.S. military operations in Libya amount to the kind of "hostilities" envisioned by the War Powers Resolution's 60-day pullout provision. The historical practice supports this view. In 1975, Congress expressly invited the Executive Branch to provide its best understanding of the term "hostilities." My predecessor Monroe Leigh and Defense Department General Counsel Martin Hoffmann responded that, as a general matter, the Executive Branch understands the term "to mean a situation in which units of the U.S. armed forces are actively engaged in exchanges of fire with opposing units of hostile forces." . . . In the third-six years since Leigh and Hoffmann provided their analysis, the Executive Branch has repeatedly articulated and applied these foundational understandings.
Testimony, at 6-7. Koh went on to argue that the mission is limited, the exposure of U.S. armed forces is limited, the risk of escalation is limited, and military means are limited. Together, these mean that the operations are not "hostilities" under the WPR, and the President isn't violating the pull-out provision by failing to gain congressional approval and yet continuing the engagement.
Koh urged the Senate to adopt Senate Joint Resolution 20, the Kerry-McCain bill authorizing limited use of U.S. forces in Libya, but only so that the U.S. Government could show a united front--and not because it's constitutionally necessary.
Fisher responded point-by-point to the administration's claims (or "doubletalk") throughout the Libyan debates, including the OLC's conclusion that the operations are not a "war" under the Declaration of War Clause and the administration's conclusion that the operations are not "hostilities" under the WPR.
Spiro found a middle ground, focusing less on the constitutionality of the pull-out provision and ultimately on the political and pragmatics of it:
Does this mean that section 5(b) is unconstitutional? That question may better be left to the court of history. Although presidents may not declare the Act unconstitution, from the Reagan Administration onward they have been careful not to concede the point. They have good cause to avoid the distraction of constitutional confrontation where a more minimalist argument will serve the same end.
On the other hand, Congress has no real need of the provision, lack of respect for which reflects poorly on the institution. Congress has ample tools with which to control presidential deployments of U.S. armed forces. . . . In coming years we may well witness a trend towards greater congressional participation in decisions relating to the use of U.S. armed forces.
In any event, devising a position of the Congress with respect to the operatiosn in Libya should be the primary task at hand. Disputes relating to the War Powers Resolution are likely to distract from that undertaking. I believe we would be having the same sort of discussion today even if the War Powers Resolution had not been enacted. The persistent cloud over the Act underlines the perception of some that Congress is ill-equipped in this realm. Congress would be better served by focusing on other institutional tools for participating in the full spectrum of use-of-force decisions.
Spiro Testimony, at 5.
For some, even many, however, the issue now is less whether the administration has a plausible claim that U.S. operations in Libya are not WPR "hostilities," and more why the President seemed to cherry-pick advice from his legal advisors. There's nothing unconstitutional about this kind of cherry-picking, but it smacks of the kind of decision-making that led to opinions in the Bush administration relating to, among other things, torture.
Monday, June 27, 2011
Saturday, June 18, 2011
In addition to its expanded coverage--up from 35 countries in the 2010 Index--the 2011 Index includes some methodological changes and new data on transition of power, civil conflict, freedom of assembly and association, due process in administrative proceedings, and criminal recidivism. The four "universal principles," however, remain (predictably) unchanged from the 2010 Index:
- The government and its officials and agents are accountable under the law.
- The laws are clear, publicized, stable, and fair, and protect fundamental rights, including the security of persons and property.
- The process by which the laws are enacted, administered and enforced is accessible, fair, and efficient.
- Access to justice is provided by competent, independent, and ethical adjudicators, attorneys or representatives, and judicial officers who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.
Here's the Index's summary on the United States:
The United States obtains high marks in most dimensions of the rule of law. The country stands out for its well-functioning system of checks and balances and for its good results in guaranteeing civil liberties among its people including the rights of association, opinion and expression, religion, and petition. The civil justice system is independent and free of undue influence, but it remains inaccessible to disadvantaged groups (ranking 21st). Legal assistance is expensive or unavailable (ranking 52nd), and the gap between rich and poor individuals in terms of both actual use of and satisfaction with the civil court system remains significant. In addition, there is a general perception that ethnic minorities and foreigners receive unequal treatment from the police and the courts.
Friday, June 17, 2011
The Kenyan Judicial Service Commission this week selected five candidates to serve on the country's first Supreme Court. But the Federation of Women Lawyers and five other women lobby groups moved to halt the appointments because they violate the new Constitution's requirements for gender balance.
Kenyans approved their new Constitution last August in order to rein in historically expansive and abusive presidential authority through separation of powers, checks and balances, and other progressive rights-protecting features. Chapter 10 sets up an independent judiciary, including, under Article 163, a Supreme Court comprised of seven members (a Chief Justice, a Deputy Chief Justice, and five other judges) with exclusive original jurisdiction to hear disputes related to presidential elections and mandatory appellate jurisdiction over all cases involving the interpretation of application of the Constitution. (The Court also has discretionary appellate jurisdiction over other matters.)
The President appointed Dr. Willy Mutunga as Chief Justice and Ms. Nancy Baraza as Deputy Chief Justice. The JSC selected the five other judges--four men and one woman.
The Federation of Women Lawyers filed an application to halt the JSC-approved appointments, however, because they violate the Constitution. In particular, the Federation argues that the appointments violate Article 27(8), which requires the State to "take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender." The Federation also argues that the appointments violate Article 172(2)(b), which says that the JSC "shall be guided by . . . the promotion of gender equality."
Wednesday, June 15, 2011
A bipartisan group of House lawmakers led by Rep. Dennis Kucinich (D., Ohio) today sued the President and Secretary of Defense to stop U.S. military operations in Libya. The complaint in Kucinich v. Obama alleges that the President exceeded his authority under Article II, violated congressional power to declare war under Article I, violated the War Powers Resolution, and misused federal funds in violation of Articles I and II. The Plaintiffs seek declaratory relief that the President's actions are unconstitutional and injunctive relief to stop the U.S. military operations in Libya. Here's the press release. We previously posted on constitutional issues involved in U.S. military efforts in Libya here, here, and here.
In related news, the White House today released a Letter from the President on the War Powers Resolution. The Letter, which updates Congress on a variety of different engagements, sets out the administration's position on the Libyan campaign--that this isn't a "war." Check it out:
As I reported on March 21, and at my direction, consistent with a request from the Arab League, and as authorized by the United Nations Security Council . . . U.S. military forces commenced operations on March 29, 2011, to prevent a humanitarian catastrophe and address the threat posed to international peace and security by the crisis in Libya and to protect the people of Libya from the Qadhafi regime. . . . By April 4 . . . the United States had transferred responsibility for the military operations in Libya to NATO and the U.S. involvement has assumed a supporting role in the coalition's efforts. . . . With the exception of operations to rescue the crew of a U.S. aircraft on March 21, 2011, the United States has deployed no ground forces to Libya.
Here's what the complaint says about some of these points, including the U.N. Security Council resolutions, which were a large part of the OLC's analysis on why the President had authority to wage the Libyan campaign:
74. A U.S. resolution does not abrogate or change the obligation of President Obama to obtain a declaration of war under Article I, Section 8, Clause 11 of the Constitution.
75. The Obama administration has denied that the Libyan operations aare at a war and, on March 24, 2011, White House Spokesman Jay Carney stated that the administration had defined these combat operations as "a time-limited, scope-limits military action."
76. "Time-limited, scope-limited" military actions are not referenced in the U.S. Constitution or the constitutional convention debates.
June 15, 2011 in Congressional Authority, Foreign Affairs, International, Interpretation, Jurisdiction of Federal Courts, Opinion Analysis, Recent Cases, Separation of Powers | Permalink | Comments (0) | TrackBack (0)
"Do Not Cease from Exploration: A Report at the Nexus of Mental Health and the Criminal Justice System," is the just published "jot" by Dean Kim Brooks (pictured right) of Dalhousie University in Canada.
And, as Dean Brooks notes, the piece she has selected, Judge Anne Derrick’s In the Matter of a Fatality Inquiry Regarding the Death of Howard Hyde, Report Pursuant to the Fatality Investigations Act (2010), "pushes at the boundaries of what most of us would consider scholarship." However, Brooks contends that it is "the most interesting piece of scholarly work motivated by equality considerations that has crossed my desk in the last several months." Indeed, Brooks argues that "the report’s 80 recommendations are essential ground for equality scholars with an interest in policy-relevant scholarship."
With this selection, Brooks addresses aspects of equality that tend to be side-lined and in a form that is often neglected. It's a fitting start for the new section on Equality from Jotwell: The Journal on Things We Like (Lots). Brooks' co-editor of the Equality Section is Professor Sonia Lawrence, Director, Institute for Feminist Legal Studies York University – Osgoode Hall Law School. They've assembled a crew of contributing editors (and I feel humbled to be included) from around the globe, so the work highlighted is sure to transcend the usual "equal protection doctrine revisionings" that have become ubiquitous in US scholarship. The Equality "jots" will run monthly, but in the interim Jotwell has a great sections on Constitutional Law, Jurisprudence, and other areas of law.
Sunday, June 12, 2011
Turkish Prime Minister Recep Tayyip Erdogan's ruling Justice and Development party (AKP) won nearly 50% of votes in Sunday's election, giving the party 325 seats in Parliament. The Guardian reports here.
One of the first orders of business will be to rewrite the Constitution.
But the AKP's take in the election--less than the super-majority needed to pass amendments to the Constitution or to submit them to referendum--means that the party alone cannot muscle through changes to the Constitution. (See Article 175 for amendment procedures and requirements.)
Turkey's Constitution is in need of revision. Its current Constitution, written in 1982 (but amended here and there since), has not kept pace with the country's social, economic, and political developments. A referendum last fall on amendments to 26 articles of the Constitution, which passed with 58% of the vote, was seen as a signal that the country is ready for comprehensive constitutional change.
For more on background, check out Steven Cook's blog at the Council on Foreign Relations and Sinan Ulgen's commentary at the Carnegie Endowment for International Peace.
Friday, June 10, 2011
Iceland is crowdsourcing the drafting of its new constitution, using a web-site and social media to allow Icelanders to see--and comment on--the emerging and evolving text. Here's an explanation, courtesy of CNN:
Iceland's current Constitution was written in 1944, when it gained independence from Denmark. The effort to rewrite it comes in the wake of the country's bank collapse.
The Constitutional Council posted the web-site for the project here, but, alas, it's in Icelandic.
Tuesday, May 24, 2011
Since President Obama blew by the 60-day restriction in the War Powers Resolution, 50 U.S.C. Sec. 1544(b), on unauthorized troop commitments in Libya on Friday, a spate of legislation has appeared authorizing, de-authorizing, or otherwise expressing the sense of Congress on Libyan operations.
The WPR states:
Within sixty calendar days after a report is submitted or is required to be submitted [on a Presidential commitment of U.S. troops], whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States. . . .
Friday was the 60-day deadline.
In reaction, Rep. Dennis Kucinich yesterday introduced House Concurrent Resolution 51, directing the President, pursuant to Section 5(c) of the WPR, to remove U.S. forces from Libya. Section 5(c), 50 U.S.C. Sec. 1544(c), reads:
Notwithstanding subsection (b) of this section [quoted above], at any time that United States Armed Forces are engaging in hostilities outside the territory of the United States, its possessions and territories without a declaration of war or specific statutory authorization, such forces shall be removed by the President if the Congress so directs by concurrent resolution.
Senator Rand Paul took a different tack in his Senate Joint Resolution 13, "declaring that a state of war exists between the Government of Libya and the Government and people of the United States, and making provisions to prosecute the same." And Senator John McCain introduced Senate Resolution 194, "expressing the sense of the Senate on United States military operations in Libya."
Earlier bills include Senator John Cornyn's Senate Resolution 148, calling on the President to report to Congress on matters related to the Libyan operation and calling on the President to seek congressional authorization for the use of force in Libya. Senate Resolution 146 expresses the sense of the Senate that it's not in the vital interest of the U.S. to intervene in Libya and urging others to step up. Other resolutions call on the administration to report to Congress on the Libyan operation and to comply with the WPR.
Indeed, Congress itself has implicitly recognized this presidential authority. The [WPR], a statute Congress described as intended "to fulfill the intent of the framers of the Constitution of the United States," provides that, in the absence of a declaration of war, the President must report to Congress within 48 hours of taking certain actions, including introductions of U.S. forces "into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances." The Resolution further provides that the President generally must terminate such use of force within 60 days (or 90 days for military necessity) unless Congress extends this deadline, declares war, or "enact[s] a specific authorization." As this Office has explained, although the WPR does not itself provide affirmative statutory authority for military operations, the Resolution's "structure . . . recognizes and presupposes the existence of unilateral presidential authority to deploy armed forces" into hostilities or circumstances presenting an imminent risk of hostilities. That structure--requiring a report within 48 hours after the start of hostilities and their termination within 60 days after that--"makes sense only if the President may introduce troops into hostilities or potential hostilities without prior authorization by the Congress.
Memo at 8 (citations omitted).
The memo thus recognizes the limits in the WPR as valid authority for the President. If so, the legislation introduced yesterday seems to say, the President must also recognize these limits in the WPR as restrictions.
Friday, May 20, 2011
President Obama this week expanded his recent executive order blocking the property of certain Syrian officials responsible for human rights abuses in the recent crackdowns against protestors and political activists. The new EO expands the list of persons whose property is and may be blocked.
The new EO, issued Wednesday, blocks the property of President Al-Assad, VP Al-Shara, PM Safar, the Interior and Defense Ministers, the Head of Syrian Military Intelligence, and the Director of Political Security Directorate. It also authorizes the Treasury Secretary, in consultation with the Secretary of State, to block property of others determined to have assisted in the crackdowns, including any "senior official of the Government of Syria." (The earlier EO blocked property of three lower level officials and two groups, the Syrian General Intelligence Directorate and the Islamic Revolutionary Guard Corps, and included an authorization to block property of a narrower group.)
Wednesday, May 4, 2011
The re-election this week in Canada of PM Harper and a decisive victory for his Conservative party was presumably not cause for celebration for Craig Scott, Professor of Law at Osgoode Hall. Scott's article, Will Canada Be an Open Democracy after May 2?, available on ssrn, posits there is a "threat to open democracy in Canada posed by the nearly pathological extent to which secrecy and manipulation of access to the truth has taken over Ottawa and Parliamentary affairs in Canada" under Harper.
Scott's specific concern should be of great interest to US constitutional scholars. Scott questions the Canadian government's "policy of transferring detainees in Afghanistan to Afghan intelligence services (notably, the National Directorate of Security or NDS) in full knowledge of the torture practices of those agencies and thus of the risks faced by each transferred detainee."
Tuesday, May 3, 2011
Owen Fiss (Yale) argues in the Boston Review that President Obama's pickle--caught between his former policy to close Guantanamo and his desire to try KSM and others in Article III courts, on the one hand, and the congressional ban on using appropriated funds to transfer Guantanamo detainees to the U.S., on the other--is of his own creation.
Fiss argues that President Obama's May 2009 speech at the National Archives (in which he announced that some detainees would get Article III trials while others would get military commissions while yet others would get indefinite detention) and his support for the Military Commissions Act of 2009 (which revised military commission procedures, but still fell short of Article III trials) lined up such that "the Guantanamo closure ceased to be of much importance." According to Fiss, President Obama's resistance to extending habeas to detainees at Bagram in the Al Maqaleh litigation only underscores this conclusion.
With a Guantanamo closing all but off the table (by the President's own actions), congressional restriction on the use of appropriated funds to transfer Guantanamo detainees to the U.S. was only the final straw. After the ban,
[t]he options that then remained for Obama were: (a) the continued imprisonment of Khalid Sheikh Mohammed without trial (he had already been incarcerated for more than seven years) or (b) trial before a military commission. Given the alternative options, Obama chose the one that is, in my judgment, the less constitutionally offensive. Sympathy for Obama's choice, however, should not obscure his complicity in constructing the alternatives he confronted.
In truth, there was (is) a third option, the one that the administration adopted: Sign the legislation banning the use of funds for transfer, but issue a signing statement that claims that such a ban unconstitutionally encroaches on a core executive function, and move to overturn it.
This third way is emblamatic of President Obama's approach to so many of these issues--detention, military trial, habeas, state secrets, even signing statements: He's made some constitutionally significant changes to Bush administration positions around the edges on each of these, but in the end the refined positions only result in more-or-less the same policies.
But with regard to KSM and some others, President Obama once seemed truly committed to moving forward in Article III courts. And with regard to Guantanamo, he once seemed truly committed to closing. Sure, his positions and policies may have contributed to a larger political environment in which closing Guantanamo "ceased to be of much importance." (And maybe he could have (should have) spent even more political capital in seeking closure and Article III trials.)
But in the end the congressional ban on transfers was a congressional ban. (And the most recent version came in the eleventh-hour spending bill negotiated between the White House and Congress to avoid a shut-down, presenting President Obama with no practical option but to sign the measure.) The ban entirely foreclosed even any marginal change that President Obama might have made (e.g., an Article III trial for KSM) using his third way.
May 3, 2011 in Congressional Authority, Executive Authority, Foreign Affairs, Fundamental Rights, Habeas Corpus, International, News, Scholarship, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)
Monday, May 2, 2011
The Supreme Court today agreed to hear a case involving the justiciability of a dispute over the administration's non-recognition of Jerusalem as the capital city of Israel. But the Court also instructed the parties to brief the scope of Presidential power to recognize foreign sovereigns. (See page 3 of the May 2 Order List.) The case thus gives the Court a rare opportunity to explore the contours of separation-of-powers in foreign affairs and the President's foreign affairs power.
The case arose out of a dispute over a the recorded birthplace of a U.S. citizen born in Jerusalem. Petitioner's mother asked the State Department to record the birthplace as "Jerusalem, Israel" on the petitioner's Consular Report of Birth Abroad and U.S. passport. But the State Department regs and policy required it to record merely "Jerusalem" as the birthplace.
The State Department's long-running policy not recognizing Jerusalem as Israel's capital (or even as a city within Israel's sovereign territory) is designed to preserve U.S. neutrality on state sovereignty over Jerusalem, leaving that issue to be decided by negotiation between the parties to the Arab-Israeli dispute. According to the State Department's assessment, "[a]ny unilateral action by the United States that would signal, symbolically or concretely, that it recognizes that Jerusalem is a city that is located within the sovereign territory of Israel would critically compromise" the peace process.
In 2002, however, Congress enacted, and the President signed, legislation that specifically required the State Department to list "Israel" as the birthplace of any citizen born in Jerusalem, upon the parents' request. President Bush issued a signing statement construing the provision, Section 214 of the Foreign Relations Authorization Act, Fiscal Year 2003, as advisory, not mandatory, because it "impermissibly interfere[s] with the President's constitutional authority to formulate the position of the United States, speak for the Nation in international affairs, and determine teh terms on which the recognition is given to foreign states."
The petitioner sued, but both the district court and D.C. Circuit dismissed the case as a nonjusticiable political question.
The Supreme Court today agreed to hear the case, with this further instruction:
In addition to the question presented by the petition [whether the case presents a nonjusticiable political question], the parties are directed to brief and argue the following question: "Whether Section 214 of the Foreign Relations Authorization Act, Fiscal Year 2003, impermissibly infringes the President's power to recognize foreign sovereigns."
The case thus puts front-and-center the question of Presidential authority over foreign affairs when executive policy and action violate plain law. The case is unusual in that executive action and the law directly and obviously conflict, pitting one source of authority (the President's Article II powers) immediately against another (Section 214) and thus bringing Presidential foreign affairs power into particularly sharp focus.
We might also look for anything the Court has to say about Presidential signing statements that decline to enforce a law based on its intrusion into core areas of executive responsibility.
The administration argued against review. In its view, the lower courts properly dismissed the case as a nonjusticiable political question, because under the recognition or nonrecognition of foreign sovereigns is textually committed to the executive branch (under Article II, Section 3, the power to "receive Ambassadors and other Public Ministers."). Baker v. Carr.
May 2, 2011 in Congressional Authority, Executive Authority, Foreign Affairs, International, Jurisdiction of Federal Courts, News, Political Question Doctrine, Separation of Powers | Permalink | Comments (0) | TrackBack (0)
Friday, April 29, 2011
President Obama today issued an Executive Order blocking U.S.-based property of certain persons and entities responsible for human rights abuses in Syria.
The EO cites as authority the Constitution, the International Emergency Economic Powers Act (IEEPA) and the National Emergencies Act. It expands the national emergency declared in EO 13338 (May 11, 2004), and relied upon for additional steps taken in EO 13399 (April 25, 2006) and EO 13460 (February 13, 2008), finding that the Syrian Government's human rights abuses "constitute an unusual and extraordinary threat to the national security, foreign policy, and economy of the United States . . . ."
The EO also prohibits donations to persons and entities whose property is blocked under the Order and prohibits transactions or conspiracies to violate the Order.
Section 7 of the Order implements the freeze without prior notice to those in the U.S. whose property is covered. The stated purpose is to capture the property before the owner can transfer it electronically:
For those persons whose property and interests in property are blocked pursuant to this order who might have a constitutional presence in the United States, I find that because of the ability to transfer funds or other assets instantaneously, prior notice to such persons of measures to be taken pursuant to this order would render those measures ineffectual. I therefore determine that for these measures to be effective in addressing the national emergency declared in Executive Order 13338 and expanded in this order, there need be no prior notice of a listing or determination made pursuant to section 1 of this order [which authorizes the blockage of covered property].
The EO also lists three current and former Syrian Government officials by name and two entities by name.
Wednesday, April 20, 2011
The Index defines "rule of law" around four "universal principles":
1. The government and its officials and agents are accountable under the rule of law;
2. The laws are clear, publicized, stable, and fair, and protect fundamental rights, including the security of persons and property.
3. The process by which the laws are enacted, administered, and enforced is accessible, fair, and efficient.
4. Access to justice is provided by competent, independent, and ethical adjudicators, attorneys or representatives, and judicial officers who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.
The Index measures "rule of law" by way of 10 factors (more information on how each is measured in the report):
1. Limited government powers.
2. Absence of corruption.
3. Clear, publicized, and stable laws.
4. Order and security.
5. Fundamental rights.
6. Open government.
7. Regulatory enforcement.
8. Access to civil justice.
9. Effective criminal justice.
10. Informal justice.
Among 11 countries designated "high income," the United States ranked best (3 out of 11) in open government and worst (11 out of 11) in access to civil justice. It ranked somewhere in the middle of this group in the other 8 categories. Other high income countries in the Index include Australia, Austria, Canada, France, Japan, the Netherlands, Singapore, South Korea, Spain, and Sweden.
Agree or disagree with the conclusions, the Index is certainly worth a look. The World Justice Project put it together based on interviews with over 35,000 people and 900 experts in the 35 countries studied. There's a good deal of data here, and the Index only promises to improve with future versions.
Saturday, March 12, 2011
The keynote lecture Friday evening at this year's conference of the Association for the Study of Law, Culture and the Humanities was Anatomies of Torture: CIA Black Sites and Redacted Bodies, delivered by Joseph Pugliese (pictured) of Macquarie University in Australia.
In his examination of the so-called "black sites," secret prisons located outside U.S. jurisdiction in which a range of state-sanctioned practices of torture have transpired, Pugliese focused on the death of a young Afghan man, Gul Rahman, who died on 20 November 2002, in the CIA black site prison known as the Salt Pit, located in northern Kabul, Afghanistan. While Rahman's body has never been recovered, Pugliese argues that Rahman is nominally buried within the Classified Response to the U.S. Department of Justice Office of Professional Responsibility Classified Report Dated July 29, 2009. This document, prepared by Counsel for Judge Jay S. Bybee, is a detailed repost to the accusation made by the Office of Professional Resposibility (OPR) that Bybee committed professional misconduct in light of Bybee’s memo (August 1, 2002) to Alberto Gonzales, Counsel to the President, which authorised some forms of torture.
Yet portions of the memos are redacted. Pugliese displayed the memos and examined the legal process that edits and censors a document of any secret or sensitive information through the application of a black marker over designated text. In the context of the CIA "black sites" and the Salt Pit in particular, Pugliese argues that the process of redaction must be seen as producing its own discursive black sites of silence, loss and death.
Pugliese's presentation was spell-binding and an excellent capstone to a conference in which the critical tools of humanities scholars and legal scholars were so often combined.
Tuesday, March 8, 2011
As the centenary of international women's day, March 8, arrives, the end of combat restrictions on women in the United States military also seems to be ending.
In Rostker v. Goldberg, 1981, the United States Supreme Court upheld the Congressional decision to exempt women from registration for the military. The challengers argued that the gender classification of the Congressional statute violated equal protection as embodied in the Fifth Amendment's Due Process Clause. The Court opined that the Congressional exempt was not an "accidental by-product of traditional ways of thinking" about women, but instead was permissible because men and women were not similarly situated given the combat restrictions on women. That these combat restrictions were legal (rather than natural) did not seem important to the six Justices in the majority.
Today, according to the United States Department of Defense, a
commission established to study diversity among military leaders is recommending that the Defense Department rescind its policy that prevents women from being assigned to ground combat units below the brigade level.
In a report issued today, the Military Leadership Diversity Commission recommends that the department and the services eliminate combat exclusion policies for women, as well as other “barriers and inconsistencies, to create a level playing field for all qualified service members.”
The Military Leadership Diversity Final Report, From Representation to Inclusion: Diversity Leadership for the 21st-Century Military, considers a range of diversity, including racial and ethnic diversity. The final report, at 162 pages, contains 20 broad recommendations, discussed in the shorter Executive Summary. The exclusion of women from combat is specifically linked to career advancement. The Press Release, dated March 8, provides an interesting connection to International Women's Day.
March 8, 2011 in Cases and Case Materials, Congressional Authority, Current Affairs, Equal Protection, Fifth Amendment, Gender, History, International, News, Race, War Powers | Permalink | Comments (2) | TrackBack (0)
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.
Tuesday, March 1, 2011
Article 21, Protection of life and personal liberty, provides:
No person shall be deprived of his life or personal liberty except according to procedure established by law.
The Court described Article 21 as the "heart and soul" of fundamental rights and "the most important feature of our Constitution." But the Court also cited Article 22(1), Protection against arrest and detention in certain cases; U.S. Supreme Court cases Powell v. Alabama, Gideon v. Wainwright, and Brewer v. Williams; its own precedent; and a treatise.
The Court even drew on its own brand of originalism:
The Founding Fathers of our Constitution were themselves freedom fighters who had seen civil liberties of our people trampled under foreign rule, and who had themselves been incarcerated for long periods under the formula Na vakeel, na daleel, na appeal (No lawyer, no hearing, no appeal). Many of them were lawyers by professor, and knew the importance of counsel, particularly in criminal cases. It was for this reason that they provided for assistance by counsel under Article 22(1), and that provision must be given the widest construction to effectuate the intention of the Founding Fathers.
The Court extended the right to appeals, even though the case involved only the right to counsel at trial. In the U.S., it took a second case, Douglas v. California, to extend the right to counsel to appeals. Douglas and Gideon came down the same day, March 18, 1963, but Douglas was announced from the bench first. As Anthony Lewis wrote in Gideon's Trumpet:
A fourth state criminal case came from California, and Justice Douglas for a six-three majority said poor prisoners were entitled to free counsel for their appeals. To any informed listener it was obvious that the same rule must apply at trials . . . . Those who had before them the printed opinions in the California case--page boys bring them around to a few newspaper reporters and the Solicitor General as they read--knew from the text that they were about to hear the Gideon case decided, because there was a reference to "Gideon v. Wainwright, decided today."
But unlike Gideon and Ali, which both sounded in process, Douglas sounded in equal protection. Citing and quoting Griffin v. Illinois, the Court in Douglas wrote:
In either case, the evil is the same: discrimination against the indigent. For there can be no equal justice where the kind of an appeal a man enjoys "depends on the amount of money he has."
March 1, 2011 in Comparative Constitutionalism, Criminal Procedure, Equal Protection, International, News, Opinion Analysis, Procedural Due Process, Sixth Amendment | Permalink | Comments (0) | TrackBack (0)
Friday, February 18, 2011
In Citizenship and its Exclusions: A Classical, Constitutional, and Critical Race Critique, Professor Ediberto Román offers a highly readable and trenchant discussion of historical and contemporary citizenship.
Román begins by discussing the cases of three "terrorists": John Walker Lindh, Yaser Esam Hamdi, and Jose Padilla. He argues that while they were all U.S. citizens, they were "treated in dramatically different
Lindh, a Caucasian, was not treated as a terrorist and was characterized as merely a misguided young man. Hamdi, an Arab American, was effectively forced to renounce his American citizenship and was expatriated to the land of his parents, even though he was born and raised in the United States. Padilla, of Puerto Rican descent, was immediately treated as an enemy combatant and terrorist, with the limited rights associated with such labels. The stark differences in their treatment illustrate the dichotomous and confounding nature of citizenship, particularly when applied to favored versus disfavored groups.
Román thus argues that citizenship is "confounding," but he helpfully considers both dejure citizenship and defacto citizenship, exploring how formal and informal citizenship both contradict and reinforce each other. His last chapter, “A New Vision of Citizenship,” articulates a coherent vision of constitutional citizenship that values inclusion rather than exclusion.
Román will be speaking about the book tonight at Books & Books in Miami, Florida.