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.
May 16, 2013
Federal Complaint for Unconstitutional Sex Assignment Surgery on Infant
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.
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 (0) | TrackBack
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.
February 05, 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."
December 03, 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.
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."
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
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.
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.
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
June 05, 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.
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.
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.
[image: OWS Zucotti Library via]
May 07, 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.
October 09, 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.
October 08, 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.
October 03, 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.
September 05, 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.
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
August 23, 2011
Protection Against Domestic Violence as a Constitutional (Human) Right
Castle Rock v. Gonzales, decided by the United States Supreme Court in 2005, stands for the proposition that one does not have a due process right to have a restraining order enforced by law enforcement. In Castle Rock, Ms. Jessica Gonzalez had a restraining order against her husband, but despite the fact that he took their three children without permission and she contacted the police department three times and was essentially told to call back later each time, and Mr. Gonzalez murdered all three children without any police action, the Court found that she did not have any due process rights to have the order enforced.
Confronted with a case such as Castle Rock, students may ask whether there is anything else Ms. Gonzalez could do. The usual answer for ConLawProfs would be no, given that the nation's highest court has rendered its opinion. However, Ms. Gonzalez, now known as Jessica Lenahan, represented by American law professors and students at University of Miami's Human Rights Clinic took her case to an international forum - - - the Inter-American Commission on Human Rights.
The Commission has just made public its lengthy Report on the matter, finding that the restraining order was the only means available to Jessica Lenahan at the state level to protect herself and her children in a context ofdomestic violence, and the police did not effectively enforce it. The Commission concluded that these failures to protect Lenahan and her daughters constituted a form of discrimination in violation of the American Declaration, since they took place in a context where there has been a historical problem with the enforcement of protection orders; a problem that has disproportionately affected women sincethey constitute the majority of the restraining order holders.
Today, the UN Special Rapporteur on violence against women "urged the United States Government to reexamine its current policies on dealing with violence against women."
The constitutional effect of such rulings and "urgings" may be limited, but the interrelationship between domestic constitutional law and international human rights is worth surfacing in ConLaw classes.
July 28, 2011
Schoolhouse Gates, My Space and First Amendment in the Fourth Circuit
May a school discipline a student for internet "bullying"? The Fourth Circuit has answered this increasingly common question with a resounding "yes" in its opinion in Kowalski v. Berkeley County Schools.
Kowalski, a senior in a West Virginia public high school, created a MySpace page entitled "S.A.S.H." Although perhaps not immediately obvious to the uninitiated, this stood for "Students Against Sluts Herpes." The site was dedicated to ridiculing a fellow student. The school suspended her for five days.
The Fourth Circuit had little difficulty rejecting Kowalski's First Amendment claim, despite the fact that she created the material outside of school. Applying Tinker v. Des Moines Indep. Community Sch.
Dist., 393 U.S. 503 (1969), the panel reasoned:
because the School District was authorized by Tinker to discipline Kowalski, regardless of where her speech originated, because the speech was materially and substantially disruptive in that it "interfer[ed] . . . with the schools’ work [and] colli[ded] with the rights of other students to be secure and to be let alone." See Tinker, 393 U.S. at 508, 513. Given the targeted, defamatory nature of Kowalski’s speech, aimed at a fellow classmate, it created "actual or nascent" substantial disorder and disruption in the school. See Tinker, 393 U.S. at 508, 513.
The panel found that "every aspect of the webpage’s design and implementation was school-related." It recited facts including Kowalski's design of the website for "students," sending it to students inviting them to join; and encouraging commentary. Moreover, the panel noted that the "victim understood the attack as school-related, filing her complaint with school authorities." Additionally, another student "participated from a schoolcomputer during class, to the cheering of Kowalski and her fellow classmates, whom she invited to the affair."
The Fourth Circuit twice noted the recent Third Circuit en banc opinions also involving MySpace pages constructed off campus, but the mentions were exceedingly brief and the analysis confined to paretheticals. The Fourth Circuit did not distinguish the Third Circuit cases as having targets of school personnel rather than students, which might also be an important distinction for future courts.
Kowalski also raised a due process claim which the Fourth Circuit rejected: "Kowalski’s argument that school administrators did not follow their own policies was not demonstrated in the record and also has no legal merit. Violations of state laws or school procedures "are insufficient by themselves to implicate the interests that trigger a [federal] due process claim.""
At the end of its opinion, the panel had harsh and somewhat paternalistic words for Kowalski (and presumably her parents), as well as sympathy for school administrators attempting to combat bullying:
Rather than respond constructively to the school’s efforts to bring order and provide a lesson following the incident, Kowalski has rejected those efforts and sued school authorities for damages and other relief. Regretfully, she yet fails to see that such harassment and bullying is inappropriate and hurtful and that it must be taken seriously by school administrators in order to preserve an appropriate pedagogical environment. Indeed, school administrators are becoming increasingly alarmed by the phenomenon, and the events in this case are but one example of such bullying and school administrators’ efforts to contain it. Suffice it to hold here that, where such speech has a sufficient nexus with the school, the Constitution is not written to hinder school administrators’ good faith efforts to address the problem.
June 22, 2011
D.C. Circuit Rejects Omar's "Refashioned" Habeas Claim
A three-judge panel of the D.C. Circuit ruled Tuesday in Omar v. McHugh that an American citizen held in military custody in Iraq has no right to judicial review of conditions in Iraq, the country where he is to be transferred. The majority thus rejected his habeas petition; Judge Griffith, in concurrence, would have reached the merits and rejected them.
Petitioner Omar is the same Omar who was part of Munaf v. Geren, the 2008 Supreme Court case holding that federal courts may not exercise habeas jurisdiction to enjoin the government from transferring individuals alleged to have committed crimes and detained within the territory of a foreign sovereign for criminal prosecution. In Munaf, Omar argued that he would be tortured if transferred to Iraqi authorities, that he therefore had a right under "the substantive component of the Due Process Clause" against transfer, and that the courts had the authority and duty to enforce that right by inquiring into his likely treatment if transferred. The Court rejected these arguments.
Omar came back with new statutory and constitutional arguments, but the D.C. Circuit rejected them, as well. Omar argued the Foreign Affairs Reform and Restructing Act of 1998 (FARR), which implements Article 3 of the Convention Against Torture, granted him a right to judicial review. But the court ruled that the FARR provides judicial review of conditions in the receiving country only in the immigration context, for aliens seeking judicial review of removal, and not for military transferees like Omar. (The REAL ID Act of 2005 made the limited scope of judicial review even clearer.) The majority thus ruled that neither the FARR nor the REAL ID Act provided for judicial review here.
As to the Constitution, Omar argued that habeas alone gave him the right to judicial review (whereas the Munaf Court held only that he had no right under habeas and due process), and that he has a substantive due process right to judicial review (whereas the Munaf Court held only that he had no procedural due process right), among other arguments. The court rejected them all, writing that his attempts to distinguish Munaf failed, that his attempts to craft a right out of constitutional and statutory combinations failed, and that the tradition of habeas in like circumstances cut against him. ("Those facing extradition traditionally have not been able to block transfer based on conditions in the receiving country. . . . Similarly, military transferees traditionally have not been able to raise habeas claims to prevent transfer based on conditions in the receiving country." Op. at 11.) The majority thus rejected Omar's habeas claim (although it reminded us that Congress could extend habeas and craft judicial review of conditions in a receiving country for military transferees (in addition to the already existing right for alien transferees), if it wanted).
Judge Griffith would have granted habeas and heard the merits, because "the FARR Act 'trigger[s] constitutional habeas' by giving Omar a colorable claim that his transfer to Iraqi authorities would be unlawful. When an American citizen is in U.S. custody, the Constitution's guarantee of habeas corpus entitles him to assert any claim that his detention or transfer is unlawful." Griffith, concurring, at 1. But Judge Griffith nevertheless would have denied relief:
Omar cannot be "return[ed]" to Iraq for a simple reason: "he is already there." The U.S. military arrested him in Iraq, and he was subsequently convicted in an Iraqi court for violating Iraqi law. He now seeks to use the FARR Act to prevent the Iraqi authorities from bringing him to justice, which would effectively "defeat the criminal jurisdiction of a foreign sovereign." Because there is nothing in the FARR Act to suggest that Congress could have intended such a result, I concur in the majority's judgment.
Griffith, concurring, at 8 (citations to Munaf omitted).
June 22, 2011 in Cases and Case Materials, Congressional Authority, Courts and Judging, Due Process (Substantive), Fundamental Rights, Habeas Corpus, Jurisdiction of Federal Courts, News, Opinion Analysis, Procedural Due Process, Recent Cases | Permalink | Comments (0) | TrackBack
June 20, 2011
Right to Process, but No Absolute Right to Counsel in Civil Contempt Proceedings
The Supreme Court ruled on Monday in Turner v. Rogers that a father who owes back child support has no absolute right to counsel in a civil contempt proceeding, even when it results in his incarceration. But the Court also ruled (5-4) that the procedures in this case--in which the father had no attorney and in which the civil contempt court did not use adequate safeguards for the father--violated the Fourteenth Amendment Due Process Clause.
The case is an addition to the Court's civil right-to-counsel jurisprudence and its procedural due process jurisprudence, but a narrow one. The ruling goes to lengths to distinguish right to counsel in criminal cases (even criminal contempt) from right to counsel in civil cases (even when they may result in detention or incarceration, as here), underlining its holding that a poor civil litigant (unlike a poor criminal defendant) doesn't have an absolute right to counsel even when he or she faces detention or incarceration. But at the same time, the Court made clear that state courts must use some reasonable safeguards, even if short of counsel, to protect the significant interest of a civil defendant in avoiding detention. (A portion of the case reads like an instruction manual for state courts on these safeguards.) And the Court was careful to point out that its ruling here applies only when the opposing party is an unrepresented private person, not the state itself (with its attorneys). In short, the ruling means that state courts don't always have to appoint counsel for poor defendants in civil contempt proceedings that may result in detention, but that they do have to provide some meaningful safeguards to protect that defendant's significant interest in avoiding detention.
Justice Breyer, joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan, wrote that Petitioner Turner was not necessarily entitled to appointed counsel in his civil contempt proceeding for failure to pay child support, even when his civil contempt landed him in detention. Justice Breyer applied the familiar procedural due process balancing test in Mathews v. Eldridge and held that while Turner's interest (avoiding detention) argues strongly in favor of appointed counsel, three considerations counter-balanced his interest. First, the right procedures can ensure that the key question, a defendant's ability to pay child support (and therefore the defendant's civil contempt for not paying), is "sufficiently straightforward to warrant determination prior to providing a defendant with counsel . . . ." Op. at 13. Second, often the opposing party in civil contempt proceedings is also unrepresented by counsel (as was the case here); when this happens, the parties are equally situated, and appointed counsel would only lead to an asymmetry. Finally, civil contempt courts can protect against an erroneous detention by using safeguards, like notice to the defendant that ability to pay is a key issue, a form to collect relevant financial information, an opportunity for the defendant to respond to questions about ability to pay, and "an express finding by the court that the defendant has the ability to pay." Op. at 14.
The majority ruled that these safeguards weren't in place here, and so Turner's detention violated Due Process. The Court remanded the case, suggesting that the state courts simply adopt the safeguards.
Justice Thomas, joined by Chief Justice Roberts and Justices Scalia and Alito, dissented. Justice Thomas argued that the Fourteenth Amendment does not provide a right to appointed counsel for poor defendants facing incarceration in civil contempt proceedings. Justice Thomas wrote that neither the original understanding nor the Court's recent jurisprudence supported a right to counsel in civil contempt proceedings. (The portion of Justice Thomas's opinion on original understanding included this: "Moreover, as originally understood, the Sixth Amendment guaranteed only the 'right to employ counsel, or to use volunteered services of counsel'; it did not require the court to appoint counsel in any circumstance." Op. at 2 (citing Justice Scalia's dissent in Padilla v. Kentucky). Chief Justice Roberts and Justice Alito did not join the portion of Justice Thomas's opinion on original understanding.) Justice Thomas also wrote that the adequacy of the procedures (and the safeguards) came up late and were outside the question presented (which was limited to the right-to-counsel issue).
May 20, 2011
President Expands Order Blocking Property of Syrian Officials
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.)