Wednesday, June 25, 2014

Federal Judge Declares No-Fly List Process Unconstitutional

In her  opinion in Latif v. Holder, Judge Anna Brown of the District of Oregon concluded that the "no-fly list" violates the Fifth Amendment's guarantee of due process.

Judge Brown's well-crafted 65 page opinion applies the well-established "balancing test" for  procedural due process first articulated by the United States Supreme Court in 1976 in Mathews v. Eldridge.  Under this test, a court weighs several factors to determine "how much process is due":

  • the interests of the individual and the injury threatened by the official action;
  • the risk of error through the procedures used and probable value, if any, of additional or substitute procedural safeguards;
  • the costs and administrative burden of the additional process, and the interests of the government in efficient adjudication
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After analyzing the factors and weighing the government's interest in preventing terrorism heavily, Judge Brown considered similar "terrorism" cases and noted that the

Plaintiffs in this case were not given any notice of the reasons for their placement on the No—Fly List nor any evidence to support their inclusion on the No—Fly List. Indeed, the procedural protections provided to Plaintiffs through the DHS TRIP process fall substantially short of even the notice that the courts found insufficient [in another case].

Moreover, the government's failure to provide any notice of the reasons for Plaintiffs’ placement on the No—Fly List

is especially important in light of the low evidentiary standard required to place an individual in the TSDB in the first place. When only an ex parte showing of  reasonable suspicion supported by "articulable facts . . . taken together with  rational inferences” is necessary to place an individual in the TSDB, it is certainly possible, and probably likely, that “simple factual errors” with “potentially easy, ready, and persuasive explanations” could go uncorrected.

[ellipses in original].  Thus, she concludes that "without proper notice and an opportunity to be heard, an individual could be doomed to indefinite placement on the no-fly list."

In granting partial summary judgment in favor of the Plaintiffs, Judge Brown directed the government defendants to "fashion new procedures" that provide the Plaintiffs with the requisite due process "without jeopardizing national security."

Certainly this litigation, which already has an extensive history, is far from over, but Judge Brown's finding of a lack of procedural due process in the government's no-fly lists is exceedingly important.

 

June 25, 2014 in Fifth Amendment, Opinion Analysis, Procedural Due Process, State Secrets, Travel | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 24, 2013

Tweet by University of Kansas Professor Results in Suspension: First Amendment Ramifications

According to a report in the Kansas City Star, David Guth, a journalism professor at University of Kansas has been placed on "administrative leave" for his tweet about after last week's shooting leaving 13 dead at the DC Navy Yard. 

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Guth tweeted:

"The blood is on the hands of the #NRA. Next time, let it be YOUR sons and daughters. Shame on you. May God damn you.”

While there is an implication that some in the KU Administration might believe this constitutes advocacy of violence, it's doubtful that the tweet would rise to this level. It certainly does not rise to the level of a threat: Compare the Ninth Circuit in United States v. Bagdasarian and a finding of true threats in a blog post by the Second Circuit in United States v. Turner.

There is also the question of  the lack of due process accorded to Professor Guth, as some have noted.

But perhaps most relevant is the Ninth Circuit's recent opinion in Demers v. Austin.  Certainly Guth's tweet is a matter of public concern and he was speaking as a private citizen rather than as a public employee.  On this view, his speech should be protected under the First Amendment.  Moreover, Guth's tweet does not present the kind of close case presented in Demers and there should be little credit to claims of qualified immunity.

Guth's "personal blog" (as the blog itself proclaims) deserves similar First Amendment protection. (The blog entry for September 16, 2013 entitled "Where Do You Stand?" discusses the Navy Yard incident).

Like the so-called "political rant" last week by another academic, this would make a terrific in class exercise for those teaching First Amendment.

 

 

 


Read more here: http://www.kansascity.com/2013/09/19/4494140/ku-rebukes-journalism-professor.html#storylink=cpy
The blood is on the hands of the #NRA. Next time, let it be YOUR sons and daughters. Shame on you. May God damn you.” - See more at: http://apicciano.commons.gc.cuny.edu/2013/09/23/u-of-kansas-professor-is-placed-on-leave-after-a-scathing-tweet-denouncing-the-nra/#sthash.I2Xy3vF7.dpuf
The blood is on the hands of the #NRA. Next time, let it be YOUR sons and daughters. Shame on you. May God damn you.” - See more at: http://apicciano.commons.gc.cuny.edu/2013/09/23/u-of-kansas-professor-is-placed-on-leave-after-a-scathing-tweet-denouncing-the-nra/#sthash.I2Xy3vF7.dpuf
The blood is on the hands of the #NRA. Next time, let it be YOUR sons and daughters. Shame on you. May God damn you.” - See more at: http://apicciano.commons.gc.cuny.edu/2013/09/23/u-of-kansas-professor-is-placed-on-leave-after-a-scathing-tweet-denouncing-the-nra/#sthash.I2Xy3vF7.dpuf
The blood is on the hands of the #NRA. Next time, let it be YOUR sons and daughters. Shame on you. May God damn you.” - See more at: http://apicciano.commons.gc.cuny.edu/2013/09/23/u-of-kansas-professor-is-placed-on-leave-after-a-scathing-tweet-denouncing-the-nra/#sthash.I2Xy3vF7.dpuf

September 24, 2013 in Current Affairs, First Amendment, Fourteenth Amendment, News, Procedural Due Process, Second Amendment, Speech, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Sunday, September 1, 2013

Federal Judge Allows Lawsuit for Unconstitutional Sex Assignment Surgery to Proceed

In the closely watched case of M.C. v. Aaronson,  a minor claims a violation of both substantive and procedural due process under the Fourteenth Amendment by South Carolina doctors who performed genital surgery on a child in state custody (foster care).    We discussed the case when the complaint was filed in May.

IntersexualflagIn a 15 page order United States District Judge David Norton denied the motions to dismiss by the various defendants.  With regard to the substantive due process right, the judge found that "M.C. has articulated that defendants violated his clearly established constitutional right to procreation.," and as a "result, defendants’ assertion of qualified immunity must fail at this stage in the litigation."  Given this conclusion, the judge stated he "need not consider M.C.’s arguments that defendants also violated his rights to privacy and bodily integrity."

As for the procedural due process rights, the judge again found that M.C. stated a claim, and that further analysis of the Matthews v. Eldridge factors was not appropriate at this stage.

But as the judge's opinion made clear, the hurdle of summary judgment looms:

Underlying this case’s complex legal questions is a series of medical and administrative decisions that had an enormous impact on one child’s life. Details of how those decisions were made, when they were made, and by whom are as yet unknown to the court. Whether M.C.’s claims can withstand summary judgment challenges, or even the assertion of qualified immunity at the summary judgment stage, is not for the court to hazard a guess at this time. It is plain that M.C. has sufficiently alleged that defendants violated at least one clearly established constitutional right – the right to procreate – when they recommended, authorized, and/or performed the sex assignment surgery in April 2006.

Indeed, this same order included a grant of M.C.'s request for expedited discovery.

RR
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September 1, 2013 in Due Process (Substantive), Fourteenth Amendment, Gender, Medical Decisions, Opinion Analysis, Privacy, Procedural Due Process | Permalink | Comments (0) | TrackBack (0)

Sunday, August 18, 2013

How to Think About Drones

Mark Bowden writes in the current issue of The Atlantic about the moral, military, and legal aspects of U.S. drone strikes against alleged terrorists.  The article came out just as U.N. Secretary General Ban Ki-Moon criticized the use of armed drones and argued that they must be controlled by international law.  We posted most recently on drones here--on the Al-Awlaki case, with links to the leaked DOJ white paper providing the legal justification for drone attacks.

Bowden surveys some of the legal landscape and concludes that drone attacks are legal.  But:

Once the "war" on al-Qaeda ends, the justification for targeted killing will become tenuous.  Some experts on international law say it will become simply illegal.  Indeed, one basis for condemning the drone war has been that the pursuit of al-Qaeda was never a real war in the first place.

He also quotes John Yoo on the relative legality of drone attacks:

I would think if you are a civil libertarian, you ought to be much more upset about the drone than Guantanamo and interrogations. . . .  Because I think the ultimate deprivation of liberty would be the government taking away someone's life.  But with drone killings, you do not see anything, not as a member of the public.  You read reports perhaps of people who are killed by drones, but it happens 3,000 miles away and there are no pictures, there are no remains, there is no debris that anyone in the United States ever sees.  It's kind of antiseptic.  So it is like a video game; it's like Call of Duty.

SDS

August 18, 2013 in Executive Authority, International, News, Procedural Due Process, War Powers | Permalink | Comments (2) | TrackBack (0)

Sunday, June 23, 2013

Ninth Circuit Upholds Denial-of-Bail for Unauthorized Aliens

A divided three-judge panel of the Ninth Circuit this week upheld Arizona's Proposition 100, a ballot measure passed by Arizona voters that amended the state constitution to preclude bail for persons charged with certain serious felonies if the person entered or remained in the United States without proper authorization.

The ruling gives states some space for regulating unauthorized immigrants through the state criminal justice system, even as it reaffirms federal authority over immigration matters generally.  What makes Prop 100 valid, according to the court, is that (1) it's not punitive (it's regulatory), (2) it's reasonably related to the state's interest in preventing flight of individuals charged with crimes, and (3) it piggy-backs on federal immigration determinations (and doesn't make those determinations itself).

The court in Valenzuela v. County of Maricopa ruled that Prop 100 didn't violate due process, Eighth Amendment excessive bail, or the Sixth Amendment right to counsel, and that it wasn't preempted by federal immigration law.

As to due process, the court held under the two-prong test in United States v. Salerno (1987) (1) that there was no punitive purpose (the purpose was regulatory) and (2) that Prop 100 wasn't excessive in relation to its legitimate alternative purpose (because states often categorically deny bail for classes of charges).  The court upheld Prop 100 as reasonably related to the state's (more than) legitimate interest in controlling flight risk.  (The court upheld Prop 100 against the Eighth Amendment challenge based on the same balance.)  The court also upheld Prop 100 against a procedural due process challenge.

As to the right to counsel, the court held that the initial appearance isn't a critical stage of prosecution triggering the right, and that "[b]oth we and the Supreme Court of Arizona have held that there is no constitutional right to an attorney at initial appearances."  Op. at 27.

Finally, with regard to preemption, the court held that Prop 100 doesn't regulate immigration or impermissibly create a state-law immigration classification (because it piggy-backs on the federal determination of immigration status); that Prop 100 isn't field-preempted, because it deals with bail determinations for state-law crimes (that Congress didn't intend to preempt); and that Prop 100 isn't conflict-preempted, because pretrial detention without bail does not impose incarceration for federal immigration law violations--"such detention is not meant to punish an alleged immigration violation but rather to ensure presence in Arizona to stand trial for alleged state-law crimes."  Op. at 35.

Judge Fisher dissented, arguing that Prop 100 is clearly punitive and is too rough a cut at achieving the state's interest:  Without any evidence that unauthorized immigrants released on bail have been or are less likely to appear for trial compared to arrestees who are lawful residents, the majority accepts Arizona's unsupported assertion that all unauthorized immigrants necessarily pose an unmanageable flight risk."  Op. at 37.

SDS

June 23, 2013 in Cases and Case Materials, Congressional Authority, Federalism, Fundamental Rights, News, Opinion Analysis, Preemption, Procedural Due Process, Sixth Amendment | Permalink | Comments (0) | TrackBack (0)

Thursday, May 23, 2013

President Obama on Drones, Guantanamo

President Obama spoke out today on his administration's use of drone attacks and argued (again) for closing the detention facility at Guantanamo Bay in a speech that looked to wind down the war on terror.  Politico reports here.

President Obama's speech came the same day as the administration released a "fact sheet" on U.S. policy standards and procedures for drone strikes and other hostile actions against terrorist suspects outside the United States and areas of active hostilities.  According to the document, there's a preference for capture (and other reasonable alternatives) over killing, but still the document sets out standards for the use of lethal force:

First, there must be a legal basis for using lethal force, whether it is against a senior operational leader of a terrorist organization or the forces that organization is using or intends to use to conduct terrorist attacks.

Second, the United States will use lethal force only against a target that poses a continuing, imminent threat to U.S. persons.  It is simply not the case that all terrorists pose a continuing, imminent threat to U.S. persons; if a terrorist does not pose such a threat, the United States will not use lethal force.

Third, the following criteria must be met before lethal action may be taken:

1. Near certainty that the terrorist target is present;

2. Near certainty that non-combatants will not be injured or killed;

3. An assessment that capture is not feasible at the time of the operation;

4. An assessment that the relevant governmental authorities in the country where action is contemplated cannot or will not effectively address the threat to U.S. persons; and

5. An assessment that no other reasonable alternatives exist to effectively address the threat to the U.S. person.

Finally, whenever the United States uses force in foreign territories, international legal principles, including respect for sovereignty and the law of armed conflict, impose important constraints on the ability of the United States to act unilaterally--and on the way in which the United States can use force.  The United States respects national sovereignty and international law.

The "fact sheet" makes some changes in emphasis and language, but seems to basically leave in place the substance of the three-part test outlined earlier this year in the White Paper.  The "fact sheet" emphasizes rule-of-law principles and broad government decisionmaking and oversight over hostilities, but it does not specifically address or define "imminence" or the process by which the administration will designate a person a target.  (Recall that the White Paper looked specifically at the question when lethal force could be used against a U.S. citizen who is a senior leader of al-Qa'ida or an associated force; the "fact sheet" sweeps in a broader class of potential targets.  Recall, too, that the White Paper defined imminence rather broadly, and it counterbalanced a target's interest in life with the U.S. interest in forestalling attacks on other Americans, under Mathews v. Eldridge.)  The upshot: only time will tell whether the Fact Sheet represents a real change in the way the administration actually executes drone attacks.  

SDS

May 23, 2013 in Executive Authority, Fundamental Rights, News, Procedural Due Process, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Thursday, May 16, 2013

Federal Complaint for Unconstitutional Sex Assignment Surgery on Infant

400px-3D_gender_symbol.svgThe surgical "assignment" of sex/gender to an infant born with "ambiguous" genitals is a problem that has garnered much attention.

The Constitutional Court of Colombia issued a series of opinions beginning in 1995, analyzed in a 2004 law review article by Kate Haas, Who Will Make Room for the Intersexed?, that recognize a constitutional right of children, albeit limited, with regard to the surgery.  A ground-breaking symposium issue of Cardozo Journal of Law & Gender in 2005 engages with many of the legal issues and proposed solutions, often recognizing the limits of constitutional remedies in the United States given that the surgeries are usually the result of private action.

But a complaint filed this week, M.C. v. Aaronson, by the Southern Poverty Center claims a violation of both substantive and procedural due process under the Fourteenth Amendment by South Carolina doctors who performed genital surgery on a child in state custody (foster care).  M.C., now 8 years old, brings the case through his adoptive parents. 

The substantive due process claim is a relatively obvious one, building on established United States Supreme Court cases finding a right to be free of coerced medical procedures including Cruzan v. Director, Missouri Department of Health (1990).  The right is a bit muddled, however, given that the highly discredited 1927 case of Buck v. Bell has never been actually overruled; the declaration that castration was as unconstitutional penalty for a crime in Skinner v. Oklahoma rested on equal protection grounds. 

The procedural due process claim is more novel, contending that the minor was entitled to a pre-deprivation hearing before the surgery.  Such a hearing would presumably be of the type that Erin Lloyd recommended for all minors (whether in state custody or not) in her article From the Hospital to the Courtroom: A Statutory Proposal for Recognizing and Protecting the Legal Rights of Intersex Children in the Cardozo Journal of Gender and Law Symposium issue. 

An accompanying lawsuit filed in state court alleges medical malpractice and failure to obtain informed consent, raising the same underlying facts and many of the same issues, but under state law.

Southern Poverty Center has produced a video featuring the parents and outlining the facts of the case:

 

 This is definitely a case to watch.

RR
[image via]

May 16, 2013 in Cases and Case Materials, Comparative Constitutionalism, Due Process (Substantive), Fourteenth Amendment, Gender, Medical Decisions, Procedural Due Process, Sexuality, Supreme Court (US) | Permalink | Comments (1) | TrackBack (0)

Thursday, February 21, 2013

A Drone Court . . . in the Executive Branch?

While many continue talking about a drone court in the judicial branch, Neal Katyal wrote in the NYT in favor of a drone court in the executive branch.  Katyal argues that an executive tribunal comprised of national security experts, with congressional oversight, is a better tailored way to ensure accountability in the administration's use of drone strikes for targeted killings.  The proposal splits the difference--or takes the best of both approaches--between the administration's current policy (which, it says, includes an internal executive branch review by experts, but with no independent oversight) and a full-fledged drone court in the judicial branch.

According to supporters, the drone court would provide a check to the administration's use of drones for targeted killing of Americans overseas, in the spirit of the FISA court.  But ideas so far locate the court in the judiciary.  Katyal sees a problem with that:

There are many reasons a drone court composed of generalist federal judges will not work.  They lack national security expertise, they are not accustomed to ruling on lightning-fast timetables, they are used to being in absolute control, their primary work is on domestic matters and they usually rule on matters after the fact,  not beforehand.

But putting oversight authority in the executive branch, staffed by experts, would solve that problem.  And Katyal says that an executive branch "court" could still be subject to a check--by Congress:

The adjudicator would be a panel of the president's most senior national security advisers, who would issue decisions in writing if at all possible.  Those decisions would later be given to the Congressional intelligence committees for review.  Crucially, the president would be able to overrule this court, and take whatever action he thought appropriate, but would have to explain himself afterward to Congress.

As to explaining to Congress--and shifting gears just slightly--it's now widely reported that the White House is refusing to disclose DOJ memos justifying its targeted killing program.  Instead, to gain bi-partisan support for John Brennan to lead the CIA, the administration is negotiating with Republicans to provide more information on the attacks in Benghazi in order to gain their support for Brennan.

SDS

February 21, 2013 in Congressional Authority, Courts and Judging, News, Procedural Due Process, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 5, 2013

DOJ White Paper Says Why Drone Attacks on Americans Are Constitutional

A Department of Justice white paper leaked to NBC gives the more detailed version of the administration's legal case for drone attacks against overseas Americans associated with al-Qa'ida.  (Note that the white paper is unsigned and undated; it is not an OLC memo.  It is titled simply "Department of Justice White Paper.")  Michael Isikoff wrote on the white paper here.  The leak is significant, because the administration has steadfastly refused to release a formal legal justification for the program.  Just last month, the administration successfully defended against a FOIA claim in federal court seeking legal justification for the program.)

According to the white paper, the president has constitutional authority to order drone attacks and is not prohibited by due process.  The paper says that the president has authority to respond to order strikes as part of his authority to defend the country against the imminent threat posed by al Qa'ida and associated forces, including U.S. citizens associated with al Qa'ida, under "the inherent right of the United States to national self defense under international law, Congress's authorization of the use of all necessary and appropriate military force against this enemy, and the existence of an armed conflict with al-Qa'ida under international law." 

According to the paper, due process does not prohibit this:

Were the target of a lethal operation a U.S. citizen who may have rights under the Due Process Clasue and the Fourth Amendment, that individual's citizenship would not immunize him from a lethal operation.  Under the traditional due process balancing analysis of Mathews v. Eldridge, we recognize that there is no private interest more weighty than a person's interest in his life.  But that interest must be balanced against the United States' interest in forestalling the threat of violence and death to other Americans that arise from an individual who is a senior operational leader of al-Q'aida or an associated of al-Q'aida and who is engaged in plotting against the United States.

Instead, the white paper sets out a three-part test for targeted killing of a U.S. citizen who is outside the United States and who is "an operational leader continually planning attacks against U.S. persons and interests":

(1) where an informed, high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States;

(2) where a capture operation would be infeasible--and where those conducting the operation continue to monitor whether capture becomes infeasible; and

(3) where such an operation would be conducted consistent with applicable law of war principles.

The paper says that "[i]n these circumstances, the 'realities' of the conflict and the weight of the government's interest in protecting its citizens from an imminent atack are such that the Constitution would not require the government to provide further process to such a U.S. citizen before using lethal force."

The paper, however, goes on to define "imminent" quite broadly (and surprisingly): "the condition that an operational leader present an 'imminent' threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future."  The paper also goes on at length as to why this isn't unlawful murder. 

It mentions as part of the justification that "under the circumstances described in this paper, there exists no appropriate judicial forum to evaluate these constitutional considerations."

SDS

February 5, 2013 in Executive Authority, Foreign Affairs, Fundamental Rights, News, Procedural Due Process, War Powers | Permalink | Comments (0) | TrackBack (0)

Monday, December 3, 2012

Jurisdictional Requirement for TSA Challenges Upheld

The Fourth Circuit upheld a federal statute requring challenges to Transportation Security Administration orders, including TSA airport checkpoint screening procedures (body scans, patdowns), to be filed in in the first instance in a federal appeals court. 

The plaintiffs in Blitz v. Napolitano challenged the jurisdictional requirement, 49 U.S.C. Sec. 46110, as violating due process and separation-of-powers principles--arguing that the requirement prevented them from developing a factual record in district court.  The Fourth Circuit rejected those claims and upheld the statute.

The court wrote that a circuit court, faced with a Section 46110 challenge, could remand the case for factual development, if necessary.  Moreover,

There is nothing unique in Congress's adoption of Section 46110, thereby vesting judicial review of orders of the TSA Administrator in an appropriate court of appeals.  Indeed, agency decisions are commonly subject to such jurisdiction-channeling provisions, and final agency actions are generally reviewed in the courts of appeals.

Op. at 14-15.

The ruling is consistent with rulings in the D.C. and Eleventh Circuits.

SDS

December 3, 2012 in Cases and Case Materials, Courts and Judging, News, Opinion Analysis, Procedural Due Process, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 24, 2012

Complaint Sufficiently Alleges Constitutional Violations Against University Officials

A three-judge panel of the Ninth Circuit ruled in OSU Student Alliance v. Ray that a conservative student newspaper at Oregon State sufficiently alleged constitutional claims against university officials after they removed the newspaper's distribution bins from around campus and limited the locations where the newspaper could replace the bins.  The ruling reverses a lower court ruling dismissing the case, allows the plaintiffs to amend their complaint as to certain defendants, and means that the case will move forward on the merits.

The case arose when Oregon State officials removed distribution bins of the conservative Liberty newspaper, published by the Student Alliance.  Officials did not similarly remove distribution bins of the official student newspaper, the Daily Barometer, or outside newspapers (like USAToday).  Officials claimed that they were enforcing an unwritten policy prescribing the acceptable campus locations for outside newspaper distribution bins.  Officials treated the Liberty as an outside newspaper, even though it has a student editorial staff, because its funding came almost exclusively from outside sources--donations and advertising.  In contrast, the Daily Barometer received university funding through the student government.  Officials said that this distinction explained why they treated Liberty bins differently than Daily Barometer bins, but it obviously didn't explain why it treated Liberty bins differently than USAToday bins. 

The newspaper sued under 42 U.S.C. Sec. 1983, arguing that four university officials--the president, a vice-president, the vice-provost for student affairs, and the director of facilities services--violated their rights to free speech, due process, and equal protection.  The district court dismissed the claims for injunctive and declaratory relief after the school changed its policy; and it dismissed the claims for damages because the plaintiffs didn't plead that any of the four defendants participated in the confiscation of the newsbins.

The Ninth Circuit reversed.  It ruled that the plaintiffs sufficiently pleaded that the certain defendants "caused" a "deprivation of federal right" and remanded to allow the plaintiffs to replead as to others.

As to the deprivation, the court said that the OSU campus is "at least a designated public forum," that the unwritten "policy" left university officials with unbridled discretion (alone enough to doom the policy), and that any standard (identified only post hoc) that distinguished between on-campus and outside publications bore no relationship to the school's interest in reducing clutter around campus.  "OSU's standardless policy cannot qualify as a valid time, place, and manner restriction."  Op. at 12778.  And the plaintiffs correctly pleaded that it was viewpoint discrimination.

The court also said that the plaintiffs sufficiently pleaded an equal protection violation, because they pleaded that the university treated them differently than a similarly situated newspaper in a way that trenched on a fundamental right (free speech).  It also said that the plaintiffs adequately pleaded that the defendants removed their bins without prior notice in violation of due process.

As to causation, the court recognized that "[s]ome of the plaintiffs' claims raise thorny questions under Iqbal."  Claims against the director of facilities management were easiest, because that official was directly involved in the confiscation and relocation policy.  But the court said that claims against the president and vice-president (the director's supervisors) had to show the requisite intent under Iqbal.  The court said that the plaintiffs sufficiently pleaded that the president and vice-president knew of the director's violations of free speech--that knowledge (and not specific intent) is the relevant state of mind required for a free speech violation.  (Recall that the Supreme Court required the plaintiffs to plead specific intent for equal protection and free exercise violations in Iqbal.)

The court wrote that the complaint sufficiently tied the director of facilities to the due process violation--that he was responsible for the unwritten bin policy, and that the confiscation happened pursuant to the policy--but that it didn't sufficiently tie the president and vice-president to the policy. 

As to the vice-provost, the court said that the complaint didn't sufficiently allege that he knew of the free speech violations and that he wasn't sufficiently tied to the due process violation. 

The court remanded the case to allow the plaintiffs to amend their complaint to bring in the president and the vice-president on the due process claims and the vice-provost on any claims.

Judge Ikuta dissented in part, arguing that the majority's approach as to the president and vice-president "resurrects the very kind of supervisory liability that Iqbal interred."

SDS

October 24, 2012 in Cases and Case Materials, Equal Protection, First Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis, Procedural Due Process, Recent Cases, Speech | Permalink | Comments (0) | TrackBack (0)

Monday, August 20, 2012

Kansas Supremes Extend Right to Counsel to Sexually Violent Predators Proceeding

The Kansas Supreme Court ruled last week in In the Matter of the Care and Treatment of Ontiberos that state and federal due process require that the state provide counsel to a person in a civil proceeding to detain that person as a sexually violent predator.

The ruling means that persons subject to civil confinement as sexual predators under Kansas law get an attorney at trial, and that the attorney has to meet certain standards of performance.  The case is a victory for advocates of the right to counsel in civil proceedings, even if it's not particularly groundbreaking.  It also reminds us that even after the Supreme Court stepped back from granting a categorical right to counsel whenever liberty is at stake, due process may still demand counsel in certain civil cases.

The Kansas Sexually Violent Predator Act allows the state to detain a person upon a showing beyond a reasonable doubt that the person is a sexually violent predator.  But the Act is ambiguous about a target's statutory right to counsel.  (The Act says that any person subject to it is entitled to the assistance of counsel at every stage, but it also says that the state's failure to comply "in no way prevents the attorney general from proceeding against" the person.)  Ontiberos, a prisoner subject to KSVPA proceedings, had an attorney at trial, but claimed that he was ineffective.  The ambiguity of the statutory right to counsel, and Ontiberos's claim that his attorney was ineffective, allowed the court to rule first whether he had a constitutional right to counsel and next whether that counsel was ineffective.

The court ruled Ontiberos had a state and federal constitutional right to counsel.  It applied the familiar three-part procedural due process balancing test in Mathews v. Eldrige and ruled that Ontiberos's liberty interest was quite high, the government's interest in saving money was comparatively low, and the risk of an erroneous deprivation of liberty without counsel was high, especially because the government was represented by counsel.

The court tipped its hat to the Supreme Court's 2011 ruling in Turner v. Rogers.  That case held that there was no automatic right to counsel in a child support proceeding, even if that proceeding could result in a parent's 1-year imprisonment (for contempt), so long as sufficient alternative procedures were available.  Even so, said the Kansas court, Turner didn't rule out a constitutional right to counsel in other civil cases (like this one) where the Mathews factors aligned more favorably for the claimant.

Instead, the court looked to Vitek v. Jones.  In Vitek, the Supreme Court ruled that a prisoner had a right to counsel in a proceeding to transfer the prisoner to a mental hospital until his sentence expired, unless treatment was no longer necessary.  The Kansas court said that Ontiberos's liberty claim (the first Mathews factor) was even greater than the liberty claim in Vitek, because without the KSVPA proceeding Ontiberos would have been released.  (Remember: his sentence was coming to an end.)

Having found a right to counsel, the court then ruled that counsel had to meet the two-prong performance standard in Strickland v. Washington.  The court said that this attorney didn't, and remanded the case to the trial court.

SDS

August 20, 2012 in Cases and Case Materials, Courts and Judging, News, Opinion Analysis, Procedural Due Process, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 18, 2012

Suit Seeks Damages for Targeted Killing

The ACLU and the Center for Constitutional Rights filed suit in the D.C. District on behalf of relatives of victims of the government's targeted killing program.  The plaintiffs, parents of Samir Khan and Anwar al-Aulaqi and grandfather of Abdulrahman al-Aulaqi (Anwar's son), seek money damages against high-level government officials for authorizing targeted killings in violations of the Fourth and Fifth Amendments and the Bill of Attainder Clause.

The case comes 19 months after Judge Bates (D.D.C.) dismissed an earlier suit by Anwar al-Aulaqi's father, seeking to stop the government from killing his son in the first place.  Judge Bates ruled that al-Aulaqi's father lacked standing and failed to allege a violation of the Alien Tort Statute, and that the case raised non-justiciable political questions.  (Judge Bates didn't rule on the government's state secrets claim.)

The case also comes on the heels of a couple of dismissed torture suits against high-level officials--Doe v. Rumsfeld (rejected because special factors counseled against a Bivens remedy) and Lebron v. Rumsfeld (same, and cert. denied).

All this is to say that the case faces some hurdles--political question, state secrets, Bivens special factors, and qualified immunity, to name a few.

The plaintiffs in the most recent case argue that the targeted killing were illegal under the laws of war, because the plaintiffs were not engaged in activities that presented a concrete, specific, and imminent threat of death of serious physical injury; because something short of lethal force could have been used to neutralize any threat that they posed; because they were not directly participating in hostilities; because the government failed to take steps to avoid harm to bystanders; and because the killings didn't meet the requirements of distinction and proportionality.

We covered the government's likely justification for targeted killing here, here, here, and here (among other places, linked in these posts).  We still don't have a complete legal justification from the government for the targeted killing program.

SDS

July 18, 2012 in Cases and Case Materials, Due Process (Substantive), Fifth Amendment, Fourth Amendment, Jurisdiction of Federal Courts, News, Political Question Doctrine, Procedural Due Process, Recent Cases, War Powers | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 5, 2012

Court Orders State Department to Rule on Petition Challenging Terrorist Designation

A three-judge panel of the D.C. Circuit ordered the State Department on Friday in In Re: People's Mojahedin Organization of Iran to act on the petition of the People's Mojahedin Organization of Iran, PMOI, to delist the organization as a Foreign Terrorist Organization under the Antiterrorism and Effective Death Penalty Act.

PMOI originally petitioned the State Department for redesignation on July 15, 2008.  PMOI argued that, while it had engaged in terrorist actions in the past, those days were over.  PMOI said that it had stopped its military campaign against the Iranian regime, renounced violence, surrendered arms to U.S. forces in Iraq, and cooperated with U.S. officials in Iraq and on Iran's nuclear program.

Secretary Rice denied the petition on January 7, 2009, and PMOI petitioned for review with the D.C. Circuit.  The court then ruled that due process required the Secretary to notify PMOI of the unclassified material on which the Secretary proposed to rely and be given an opportunity to respond before re-designation as an FTO.  The court remanded to the Secretary to provide that access.  

The Departments of State and Justice dragged their feet, and the Secretary has yet to take final action on the petition.  (AEDPA requires a final determination within 180 days after receiving the petition.)  PMOI filed a writ of mandamus with the D.C. Circuit earlier this year.

The court was highly critical of the government's delays and gamesmanship.  (Under AEDPA, a petitioner cannot appeal to the D.C. Circuit until the Secretary issues a final determination.  The government's foot-dragging thus left PMOI in limbo.)  It gave the Secretary four months to issue a final determination--to which it said it'd give great deference--or it would grant PMOI's writ of mandamus setting aside the FTO designation.

SDS

June 5, 2012 in Cases and Case Materials, News, Opinion Analysis, Procedural Due Process | Permalink | Comments (0) | TrackBack (0)

Thursday, May 24, 2012

OWS Complaint for Destruction of Books Filed in Federal Court

The November 15, 2011 police "eviction" of members of Occupy Wall Street from Zucotti Park prompted quick legal action resulting in a TRO, and today, months later, a complaint in federal court raising constitutional and state law challenges to the confiscation of the materials in the OWS library.

800px-Peoples_Library_Occupy_Wall_Street_2011_Shankbone

In their complaint in Occupy Wall Street v. City of New York, the plaintiffs allege that city officials seized 3,600 books, only 1,003 of which were returned, and 201 of those very damaged.  The constitutional claims include a violation of the Fourth Amendment, a violation of procedural due process, and a violation of the First Amendment.  The plaintiffs also allege these violations occurred because of a lack of supervision and training, a claim that has become more and more difficult to sustain.  The plaintiffs also make parallel claims under the pertinent New York state constitution, as well as common law claims of conversion and replevin.

RR
[image: OWS Zucotti Library via]

 

May 24, 2012 in Current Affairs, First Amendment, Fourteenth Amendment, Fourth Amendment, Procedural Due Process, State Constitutional Law | Permalink | Comments (1) | TrackBack (0)

Monday, May 7, 2012

Ninth Circuit Rejects Veterans' Claims

The en banc Ninth Circuit today rejected veterans groups' claims against the VA over delays in the provision of mental health care and the adjudication of service-connected disability compensation claims.  The court ruled that it lacked jurisdiction over the groups' mental health care claims and disability benefits claims, and that while it had jurisdiction over the groups' due process challenges to regional office procedures, those challenges failed on the merits.

The ruling is based on a broad reading of the statutory restriction on federal court involvement in cases related to veterans benefits outside the Veterans Court and the Federal Circuit; it means that veterans and veteran groups won't be able to get judicial relief for anything related to veterans benefits in the Ninth Circuit.  While they can still file claims related to individual benefits decisions in the Veterans Court and the Federal Circuit (an appeal of a denial of benefits at the VA, e.g., or even an individual mandamus claim to get the VA moving), they apparently have no judicial remedy for claims like this, based on systemic delay.

The case, Veterans for Common Sense v. Shinseki, arises out of a complaint by two veterans groups that the VA delayed the provision of mental health care and the adjudication of service-connected disability claims of veterans.  The court ruled that it lacked jurisdiction, because Congress "expressly disqualified us from hearing cases related to VA benefits in Section 511(a), and . . . Congress has conferred exclusive jurisdiction over such claims to the Veterans Court and the Federal Circuit." 

Section 511(a) says that the VA

shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans.

38 U.S.C. Sec. 511(a).  The court ruled that the groups' mental health care claims and disability benefits claims would require it to delve into "the circumstances of individual veterans and their requests for treatment, and determining whether the VA handled those request properly," thus intruding into an area that Congress reserved, under Section 511(a), to the VA.  Op. at 4850.  The court rejected the plaintiffs' argument that they challenged only average delays, not individual delays, and that the court could rule without violating Section 511(a).  The court said that this was a distinction without a difference.

In contrast, the court ruled that it possessed jurisdiction over the plaintiffs' challenges to VA regional office procedures, but, applying Mathews v. Eldridge, it rejected those challenges on the merits, emphasizing Congress's creation of a non-adversarial system of benefits administration.

Judge Schroeder dissented, arguing that the court erred in rejecting jurisdiction on the first two claims, writing that "the claims of systemic delay do not, in my view, require any review of the VA's actual benefits decisions."  Op. at 4868.

SDS

May 7, 2012 in Cases and Case Materials, Congressional Authority, Courts and Judging, Fundamental Rights, News, Opinion Analysis, Procedural Due Process | Permalink | Comments (0) | TrackBack (0)

Sunday, October 9, 2011

Justifying Targeted Killing

Sources close to the process that resulted in a yet-to-be-disclosed OLC memo authorizing the targeted killing of Anwar al Awlaki have revealed more and more information about what's in that memo, between last week's story in WaPo and today's story in the NYT.  And according to the source or sources, the legal justification seems pretty close to the justification that State Department Legal Adviser Harold Koh gave in his 2010 speech to the American Society of International Law, which we covered and analyzed in May 2010.  Koh relied heavily on the right of self defense under international law and on the AUMF; he made only little mention of the assassination ban under long-standing executive order and the Due Process Clause.  See our May 2010 analysis for more on those sources.

But if we have some little hint of the administration's legal justification, we don't yet have much information on the process, except this sentence in the NYT story today:

The deliberations to craft the memo included meetings in the White House Situation Room involving top lawyers for the Pentagon, State Department, National Security Council and intelligence agencies.

Now Members of Congress are calling on the Justice Department to release the memo, or at least non-classified portions of it, according to WaPo.  The administration hasn't responded to congressional or media requests for information.

SDS

October 9, 2011 in Executive Authority, Fifth Amendment, Fundamental Rights, News, Procedural Due Process, War Powers | Permalink | Comments (0) | TrackBack (0)

Saturday, October 8, 2011

A New Face of Guantanamo Military Commission Trials?

Chief Prosecutor Army Brig. General Mark Martins announced this week that military commission trials at Guantanamo Bay will resume, with changes designed to increase transparency and fairness.

General Martins mentioned three changes.  First, there are new restrictions on the use of evidence obtained by torture (although the exception--"in the interest of justice"--may well swallow the rule).  Second, relatives of victims will be able to view the proceedings by a video feed in the U.S.  And third, the Pentagon set up a new web-site with case information, FAQs for detainees' representatives, case files, and more.  (The site even has a "legal system comparison," illustrating in a chart the different features of military commissions, courts martial, and Article III courts.)

First up under the revamped proceedings: Al Nashiri's arraignment on November 9 for his alleged role in bombing the USS Cole and planning attacks on the USS The Sullivans and the MV Limburg.

Al Nashiri's arraignment is on the new web-site's calendar, and his case file is up, with links.  But as of today, even the Defense Request for Continuance of Arraignment and the following Order were not available.  The link said they were undergoing a security review.

SDS

October 8, 2011 in Executive Authority, International, News, Procedural Due Process | Permalink | Comments (0) | TrackBack (0)

Monday, October 3, 2011

Alston on Targeted Killings

Philip Alston (NYU) recently posted his now-even-more-timely article The CIA and Targeted Killings Beyond Borders late last month on SSRN.  In it, Alston argues that there's no effective check on CIA targeted killings, and that this undermines the international rule of law.  From the abstract:

The CIA's internal control mechanisms, including its Inspector-General, have had no discernible impact; executive control mechanisms have either not been activated at all or have ignored the issue; congressional oversight has given a "free pass" to the CIA in this area; judicial review has been effectively precluded; and external oversight has been reduced to media coverage which is all too often dependent on information leaked by the CIA itself.  As a result, there is no meaningful domestic accountability for a burgeoning program of international killing.  This in turn means that the United States cannot possibly satisfy its obligations under international law to ensure accountability for its use of lethal force, either under IHRL or IHL.  The result is the steady undermining of the international rule of law, and the setting of legal precedents which will inevitably come back to haunt the United States before long when invoked by other states with highly problematic agendas.

We post on Judge Bates's dismissal of a case brought by al-Awlaki's father here; we posted on the legality of targeted killings here.

SDS

October 3, 2011 in Executive Authority, Foreign Affairs, International, News, Procedural Due Process, Scholarship, Standing, War Powers | Permalink | Comments (0) | TrackBack (0)

Monday, September 5, 2011

Third Circuit: Prolonged Immigration Detention Unconstitutional

A three-judge panel of the Third Circuit ruled last week in Diop v. ICE that the government's nearly 3-year detention of a person who was removable from the country while his case worked its way through the immigration system violated the Due Process Clause.

The case involved the government's detention authority under 8 U.S.C. Sec. 1226(c), which permits the government to detain and hold an alien without bond when the alien "is deportable by reason of having committed," among other crimes, a crime "involving moral turpitude" or one "relating to a controlled substance."  This means that the federal government could hold a deportable alien indefinitely and without bond while the case is pending in the immigration and federal courts.  (In the ordinary case--one involving an alien who did not commit a crime that would make him or her deportable--an alien gets a bond hearing and may be released on bond while his or her case moves forward.)

Diop was detained under the provision, without a bond hearing, for nearly three years while his case worked through the immigration courts and the federal courts.  He was finally released after 1,072 days in detention--after four rulings by an immigration judge, three rulings by the Board of Immigration Appeals, a state court ruling on his 1995 conviction and a subsequent appeal to the state intermediate appellate court, a ruling by a federal district judge, and an appeal to the Third Circuit.

The Third Circuit said this violated due process.  It drew on Justice Kennedy's concurrence in Demore v. Kim:

Justice Kennedy's opinion provides helpful guidance on how to interpret the Demore opinion.  Under the Supreme Court's holding, Congress did not violate the Constitution when it authorized mandatory detention without a bond hearing for certain criminal aliens under Section 1226(c).  This means that the Executive Branch must detain an alien at the beginning of removal proceedings, without a bond hearing--and may do so consistent with the Due Process Clause--so long as the alien is given some sort of hearing when initially detained at which he may challenge the basis of the detention.  However, the constitutionality of this practice is a function of the length of detention.  At a certain point, continued detention becomes unreasonable and the Executive Branch's implementation of Section 1226(c) becomes unconstitutional unless the Government has justified its actions at a hearing inquiring into whether continued detention is consistent with the law's purposes of preventing flight and dangers to the community.

Op. at 18.  In other words, Section 1226(c) is facially constitutional, but, as applied, detention under its authority might run up against the Due Process Clause when that detention fails to serve the purposes of the law.  And the courts owe the Executive little deference in determining that point: "courts reviewing petitions for writ of habeas corpus must exercise their independent judgment as to what is reasonable."  Op. at 21.

The court also ruled that Diop had standing, despite his release, because his detention was capable of repetition yet evading review.

SDS

September 5, 2011 in Cases and Case Materials, Due Process (Substantive), Executive Authority, Fundamental Rights, News, Opinion Analysis, Procedural Due Process | Permalink | Comments (0) | TrackBack (0)