Saturday, October 8, 2011
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.
Monday, October 3, 2011
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.
Monday, September 5, 2011
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 (0)
Tuesday, August 23, 2011
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.
Thursday, July 28, 2011
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.
Wednesday, June 22, 2011
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 (0)
Monday, June 20, 2011
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).
Friday, May 20, 2011
President Obama this week expanded his recent executive order blocking the property of certain Syrian officials responsible for human rights abuses in the recent crackdowns against protestors and political activists. The new EO expands the list of persons whose property is and may be blocked.
The new EO, issued Wednesday, blocks the property of President Al-Assad, VP Al-Shara, PM Safar, the Interior and Defense Ministers, the Head of Syrian Military Intelligence, and the Director of Political Security Directorate. It also authorizes the Treasury Secretary, in consultation with the Secretary of State, to block property of others determined to have assisted in the crackdowns, including any "senior official of the Government of Syria." (The earlier EO blocked property of three lower level officials and two groups, the Syrian General Intelligence Directorate and the Islamic Revolutionary Guard Corps, and included an authorization to block property of a narrower group.)
Friday, April 29, 2011
President Obama today issued an Executive Order blocking U.S.-based property of certain persons and entities responsible for human rights abuses in Syria.
The EO cites as authority the Constitution, the International Emergency Economic Powers Act (IEEPA) and the National Emergencies Act. It expands the national emergency declared in EO 13338 (May 11, 2004), and relied upon for additional steps taken in EO 13399 (April 25, 2006) and EO 13460 (February 13, 2008), finding that the Syrian Government's human rights abuses "constitute an unusual and extraordinary threat to the national security, foreign policy, and economy of the United States . . . ."
The EO also prohibits donations to persons and entities whose property is blocked under the Order and prohibits transactions or conspiracies to violate the Order.
Section 7 of the Order implements the freeze without prior notice to those in the U.S. whose property is covered. The stated purpose is to capture the property before the owner can transfer it electronically:
For those persons whose property and interests in property are blocked pursuant to this order who might have a constitutional presence in the United States, I find that because of the ability to transfer funds or other assets instantaneously, prior notice to such persons of measures to be taken pursuant to this order would render those measures ineffectual. I therefore determine that for these measures to be effective in addressing the national emergency declared in Executive Order 13338 and expanded in this order, there need be no prior notice of a listing or determination made pursuant to section 1 of this order [which authorizes the blockage of covered property].
The EO also lists three current and former Syrian Government officials by name and two entities by name.
Tuesday, March 1, 2011
Article 21, Protection of life and personal liberty, provides:
No person shall be deprived of his life or personal liberty except according to procedure established by law.
The Court described Article 21 as the "heart and soul" of fundamental rights and "the most important feature of our Constitution." But the Court also cited Article 22(1), Protection against arrest and detention in certain cases; U.S. Supreme Court cases Powell v. Alabama, Gideon v. Wainwright, and Brewer v. Williams; its own precedent; and a treatise.
The Court even drew on its own brand of originalism:
The Founding Fathers of our Constitution were themselves freedom fighters who had seen civil liberties of our people trampled under foreign rule, and who had themselves been incarcerated for long periods under the formula Na vakeel, na daleel, na appeal (No lawyer, no hearing, no appeal). Many of them were lawyers by professor, and knew the importance of counsel, particularly in criminal cases. It was for this reason that they provided for assistance by counsel under Article 22(1), and that provision must be given the widest construction to effectuate the intention of the Founding Fathers.
The Court extended the right to appeals, even though the case involved only the right to counsel at trial. In the U.S., it took a second case, Douglas v. California, to extend the right to counsel to appeals. Douglas and Gideon came down the same day, March 18, 1963, but Douglas was announced from the bench first. As Anthony Lewis wrote in Gideon's Trumpet:
A fourth state criminal case came from California, and Justice Douglas for a six-three majority said poor prisoners were entitled to free counsel for their appeals. To any informed listener it was obvious that the same rule must apply at trials . . . . Those who had before them the printed opinions in the California case--page boys bring them around to a few newspaper reporters and the Solicitor General as they read--knew from the text that they were about to hear the Gideon case decided, because there was a reference to "Gideon v. Wainwright, decided today."
But unlike Gideon and Ali, which both sounded in process, Douglas sounded in equal protection. Citing and quoting Griffin v. Illinois, the Court in Douglas wrote:
In either case, the evil is the same: discrimination against the indigent. For there can be no equal justice where the kind of an appeal a man enjoys "depends on the amount of money he has."
March 1, 2011 in Comparative Constitutionalism, Criminal Procedure, Equal Protection, International, News, Opinion Analysis, Procedural Due Process, Sixth Amendment | Permalink | Comments (0) | TrackBack (0)
Tuesday, February 15, 2011
New York Chief Judge Lippman today delivered the State of the Judiciary address--a speech dominated by calls for open courts and access to justice. (Click on the link for the 2011 State of the Judiciary web-cast.)
We posted on Chief Judge Lippman's address on the same issues earlier this month at CUNY here.
Chief Judge Lippman focused on dramatically increased legal needs of the poor in a struggling economy and in a resource-strained judiciary. Drawing parallels to the right to counsel for indigent criminal defendants in Gideon v. Wainwright, he called for counsel in all civil cases in which fundamental human needs are at issue, including home foreclosures.
Chief Judge Lippman's comments come in the wake of the November 2010 report of the New York Task Force to Expand Access to Civil Legal Services in New York, which reported on unmet legal needs and made recommendations to expand access to justice in civil cases involving fundamental human needs.
We posted on the Maryland Commission on Access to Justice report also calling for civil counsel in cases involving basic human needs here.
Monday, January 24, 2011
The Maryland Access to Justice Commission recently released its report Implementing a Civil Right to Counsel in Maryland, a strategy paper for implementing a state-paid civil right to counsel, or Civil Gideon, in that state.
The report advocates for a civil right to counsel in cases involving basic human needs--shelter, sustenance, safety, health, child custody, and others. (This approach is consistent with a 2010 recommendation of the ABA.) It also advocates for a right to counsel on appeal in these cases.
The report comes seven years after a sharply divided Maryland Court of Appeals, the state's high court, declined to rule on a claimed right to counsel in Frase v. Barnhart, a child custody case. (The court agreed on the result in the case, but the dissent would have reached the right-to-counsel issue.) The petitioner in Frase argued that the Declaration of Rights in the Maryland Constitution required court-appointed counsel (under the "law of the land" clause, the "open courts" provision, and the due process clause), thus sidestepping the Fourteenth Amendment Due Process Clause and Lassiter v. Dep't of Social Services (holding that the Due Process Clause does not require appointed counsel in all civil cases, and that there's a presumption that there is no right to appointed counsel where physical liberty is not at stake).
The report also looks to the need for legal services in basic human needs cases and estimates that 344,470 poor Marylanders have unmet legal needs. According to the report, it would cost $106.6 million to provide them with an attorney.
For more on the civil right to counsel, check out the National Coalition for a Civil Right to Counsel.
Monday, October 25, 2010
The Kansas Court of Appeals (the state's intermediate appellate court) ruled last week in Merryfield v. Kansas that a person involuntarily confined in the Kansas Sexual Predator Treatment Program has a right to counsel under due process and equal protection in a habeas petition that is not subject to summary dismissal under state law.
Dustin Merryfield filed his habeas petition alleging that conditions of confinement were unconstitutional. He also requested court-appointed counsel for his petition. Under Kansas law, his petition was not subject to summary dismissal. The Court of Appeals therefore remanded the case for a hearing and granted his request for counsel.
The court ruled that both due process and equal protection support a right to counsel. The court wrote that while Merryfield's habeas petition did not involve an initial deprivation of liberty (which triggers a constitutional right to counsel, as in In re Gault), it also did not involve a collateral attack on a criminal conviction (which does not trigger a constitutional right to counsel, as in Pennsylvania v. Finley). Merryfield's liberty interest was different, but sufficient:
His liberty interest is manifest, and he contends--with sufficient basis to warrant an evidentiary hearing--that the treatment provided to him is so ineffective that it could never give him the help he would need to regain his freedom. A person like Merryfield, who has been involuntarily committed in a civil proceeding that explicitly recognizes that the detention may be for a long-term period--more than a decade so far for Merryfield--must be entitled to the assistance of counsel in the resolution of such substantial claims. . . .
Merryfield's claim that the treatment program is so poor that he will never regain his liberty is certainly among the most significant that could be brought by a person confined under the Kansas program for treatment of sexually violent offenders.
Op. at 12.
The court wrote that equal protection also compels appointment of counsel. The court wrote that Kansas law provides court-appointed counsel for inmates who have been imprisoned after felony convictions when their habeas petitions cannot be summarily dismissed. If Kansas law provides counsel for this class, under equal protection it must also provide counsel for the similarly situated class that includes Merryfield.
For more on right to counsel in civil proceedings, check out the National Coalition for a Civil Right to Counsel.
Tuesday, September 28, 2010
The Philadelphia Bar Association recently launched its Civil Gideon Corner, an on-line resource page for all things Civil Gideon (including activities of the Bar Association's Civil Gideon Task Force).
According to the site,
The term "civil Gideon" refers to a growing national movement that has developed to explore strategies to provide legal counsel, as a matter of right and at public expense, to low-income persons in civil legal proceedings where basic human needs are at stake, such as those involving shelter and child custody.
The new site complements the site for the National Coalition for a Civil Right to Counsel.
Sunday, September 26, 2010
The government on Friday filed its legal arguments in support of its motion to dismiss Nasser Al-Aulaqi's case against it for allegedly designating his son Anwar Al-Aulaqi, a U.S. citizen living in Yemen and allegedly supporting al Qaeda in the Arabian Peninsula, for targeted killing. Thanks to Rachel Mabbott for the heads-up.
The government proffers three principal arguments, each of which reveals a little more about the legal authority it claims for targeted killings in the first place. Thus, the government argues that Nasser Al-Aulaqi, as Anwar's next-of-friend, lacks standing. The government argues that Nasser failed to show the imminence of harm necessary to support standing (because, after all, the whole program is secret--see below) and that Anwar could access the courts by turning himself over to U.S. authorities.
Next, the government argues that the case is barred by the political question doctrine. The government argues that judicial action in the case would intrude upon the foreign affairs and national security powers of the President in violation of separation-of-powers principles. In short, the courts are not well suited to evaluate this kind of claim. Moreover, the government argues that it has clear authority to engage in targeted killing (without admitting that it has targeted Al-Aulaqi) under the AUMF and international law.
Finally, the government argues that its assertion of the state secrets privilege requires complete dismissal. Emboldened by the recent Ninth Circuit decision in Mohamed v. Jeppesen, the government argues that the case should be dismissed on the pleadings based on its assertion of the privilege and the court's ex parte and in camera review of it own affidavits supporting the assertion. The government goes one step farther than the Ninth Circuit's ruling in Mohamed, however, and argues that the privilege is rooted in constitutional principles (citing the Fourth Circuit's decision in El-Masri)--a dangerous argument not supported by Mohamed (or any other authority except El-Masri, for that matter) and taking the courts out of the equation entirely (as I argue in detail here). While the government is careful to argue the privilege as a last resort--and with all the procedural protections built in by the Holder Justice Department--its claim here is still breathtaking and means that the government could order the targeted killing of a U.S. citizen on its own say-so, with no judicial oversight. The government gives a glimpse of the kind of information it seeks to protect here:
Resolution of the plaintiff's claim therefore would require the Court to answer a range of questions, even apart from the question of whether the plaintiff's son has been targeted: What kind of threat, if any, does plaintiff's son pose? If there is a threat, how imminent is it, and how continuing is it? How many innocent people are threatened by the danger plaintiff's son might pose? In the totality of the circumstances does the United States have the capability and access to capture plaintiff's son safely? In trying to capture him, how many innocent people or military personnel would likely be killed or injured in the process? It is self-evident that all the above questions (and more) directly implicate information protected by the military and state secrets privilege, at a minimum because those facts would require the examination of any available and pertinent classified intelligence that might exist on the subject, as well as the sources or methods for gathering that intelligence, and any related information concerning foreign relations and diplomatic communications.
. . .
Finally, plaintiff also raises a claim under the Fifth Amendment that expressly seeks disclosure of alleged secret criteria governing the targeting of U.S. citizens engaged in terrorist activities with lethal force. Such a disclosure would reveal not only whether such targeting has occurred or been considered in any given case but would disclose to the plaintiff and any potential target the criteria utilized by the Government to make this determination. It strains credulity to argue that the Due Process Clause requires the Government to disclose to Answer al-Aulaqi, an operational leader of the [al Qaeda in the Arabian Peninsula], whatever criteria it may be applying to respond to his activities.
Thus the government follows the Ninth Circuit's lead in invoking the privilege quite carefully, with protections (or saying that it's invoking the privilege carefully with protections), but in the end its sweep is every bit as broad as the more cavalier invocations by the prior administration and the Fourth Circuit in El-Masri.
September 26, 2010 in Executive Authority, Fundamental Rights, International, Jurisdiction of Federal Courts, News, Political Question Doctrine, Procedural Due Process, Recent Cases, Separation of Powers, State Secrets, War Powers | Permalink | Comments (0) | TrackBack (0)
Thursday, June 10, 2010
The D.C. Circuit on Tuesday released an opinion rejecting the claims of Adham Mohammed Ali Awad, a Yemeni detainee at Guantanamo Bay who was surrendered to Afghan forces in 2001, and immediately turned over to U.S. forces in Afghanistan, after a two-month allied siege of a hospital occupied by al Qaeda fighters.
The D.C. Circuit ruled in Awad v. Obama that the government satisfied due process by proving its authority to continue to detain Awad with a mere preponderance of the evidence--not requiring the higher standard of clear and convincing evidence, as Awad argued. The D.C. Circuit wrote that this holding reaffirms its January 2010 ruling in Al-Bihani v. Obama, which followed the plurality decision in Hamdi v. Rumsfeld. The court also rejected Awad's arguments that the government failed to show that he would continue to pose a threat if released and that he was in the "command structure" of al Qaeda. The court ruled that under Al-Bihani and the Authorization for Use of Military Force (AUMF), the government need not show either. Instead, under Al-Bihani the government satisfied its burden by showing continued hostilities, and under the AUMF the government satisfied its burden by showing that Awad was "part of" al Qaeda.
Monday, May 24, 2010
A sharply divided Supreme Court today dismissed cert. in Robertson v. United States ex rel. Watson as improvidently granted. The majority issued a one-line dismissal; Chief Justice Roberts wrote a 12-page dissent for himself and Justices Scalia, Kennedy, and Sotomayor.
The case involved Ms. Wykenna Watson's criminal contempt case against Mr. John Robertson in the D.C. courts for violation of a civil protection order after Robertson beat Watson (for a second time). The D.C. court judged Robertson guilty of violation of three counts of criminal contempt and sentenced him to prison plus restitution.
The problem: The AUSA had already entered into a plea agreement with Robertson for the underlying assault, and the D.C. courts already sentenced him to one to three years.
The D.C. courts upheld Robertson's sentence imposed in Ms. Watson's criminal contempt case. Robertson argued to the Supreme Court that that violated due process and separation-of-powers considerations, because he had already been sentenced for the underlying assault (the due process claim) and because private parties lack authority to prosecute criminal cases (the core separation-of-powers claim--that only the executive can bring criminal charges).
The Supreme Court granted cert. against the advice of the U.S. government and today dismissed cert. as improvidently granted. (The government argued that the D.C. court ruling didn't conflict with Supreme Court precedent and that, in any event, this case was a poor vehicle for deciding the important and complex constitutional issues.)
Chief Justice Roberts wrote in dissent that "[o]ur entire criminal justice system is premised on the notion that a criminal prosecution pits the government against the governed, not one private citizen against another."
Alas, the case was never that simple. The parties' arguments on the constitutional text, the history, and the practice of private prosecution (Robertson's here; Watson's here) gives just a glimpse of how complicated the questions are. This case only added to the complexities: The private criminal contempt case grew out of an assault that was already punished by the government (adding to the due process concerns), and in an area of the law--domestic violence--that often relies on private enforcement but also demands a stronger public response. As the government argued at the cert. stage, this was, indeed, a bad case to address these issues.
Friday, May 21, 2010
Rand Paul, the Republican nominee for U.S. Senate from Kentucky, seems to have reconsidered his distinction between public discrimination and private discrimination in taking on the Civil Rights Act of 1964. (In this clip from the Rachel Maddow show, Paul argued against federal the federal anti-discrimination law insofar as it applies to places of private accommodation.)
But his constitutional claims may nevertheless be worth considering. He makes three:
1. The Civil Rights Act of 1964 Violates Property Rights. Paul's claim is that a federal prohibition on private discrimination amounts to a violation of private property rights--a Due Process or regulatory takings claim. But the Supreme Court in 1964 rejected precisely this kind of challenge to the Civil Rights Act of 1964 in Heart of Atlanta Motel v. U.S. In just four or five paragraphs, the Court wrote that it had repeatedly rejected property rights claims against civil rights legislation, going back to The Civil Rights Cases, that anti-discriminatory legislation was common among the states, and that the federal law posed no particular threat to property or liberty. (The Court mentioned a rational basis test, but barely applied it, instead deferring to Congress's judgments in passing the Civil Rights Act of 1964.) The Court also flatly rejected a challenge based on the Thirteenth Amendment, that the private anti-discrimination provisions of the Civil Rights Act of 1964 amounted to involuntary servitude.
2. The Civil Rights Act of 1964 Violates the First Amendment. Paul's claim here is that Congress can't prohibit individuals from advancing discriminatory or racist views without violating the First Amendment's Speech Clause. But his First Amendment claim is perhaps better thought of as an argument against forced inclusion of an unwanted person in a group that engages in "expressive association," as in Boy Scouts of America v. Dale. In that case, the Court ruled that New Jersey's Law Against Discrimination, which prohibited discrimination against gays and lesbians, violated the First Amendment as applied against the Boy Scouts. But there's no indication that most private corporations engage in expressive association under the Boy Scouts test; it's simply inapplicable to an organization that doesn't, as an organization, engage in "expressive activity" with a purpose of excluding or discriminating. (Your local grocery, favorite restaurant, and book store probably don't fit this description.)
3. Congressional Authority Could Be Used in Other Ways. Paul argues that a Commerce Clause that would support federal anti-discrimination legislation against private actors could also support federal gun-rights legislation against private actors--a result, he claims, that some supporters of the Civil Rights Act of 1964 may not favor. For example, there are now several bills before Congress that would provide reciprocity for legal concealed weapons carriers and thus allow them to carry their weapons in states without a concealed weapon law. See, e.g., H.R. 197. But this is no constitutional argument. It simply shows that an expansive federal Commerce Clause can support a wide range of federal action. As the Court in Katzenbach v. McClung wrote:
The power of Congress [under the Commerce Clause] is broad and sweeping; where it keeps within its sphere and violates no express constitutional limitations it has been the rule of this Court, going back almost to the founding days of the Republic, not to interfere. The Civil Rights Act of 1964, as here applied, we find to be plainly appropriate in the resolution of what the Congress found to be a national commercial problem of the first magnitude. We find in it no violation of any express limitations of the Constitution and we therefore declare it valid.
May 21, 2010 in Congressional Authority, Current Affairs, Equal Protection, Federalism, Fourteenth Amendment, Fundamental Rights, News, Procedural Due Process, Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)
Friday, May 14, 2010
It's well known by now that President Obama has ordered numerous drone attacks and ordered the killing of Anwar al-Awlaki, an American Muslim cleric allegedly living in Yemen and plotting terrorism against the United States. The New York Times reports today that these orders are causing "unease." We thought we'd elaborate.
The best legal justification offered by the administration is State Department Legal Adviser Harold Koh's speech in March to the American Society of International Law (below). Koh argues that targeted killings are fully constitutional and within the President's powers as part of the United States's right under international law to defend itself (especially in time of war) and under the 2001 Authorization for Use of Military Force.
But Koh makes little mention of the assassination ban under long-standing executive order, E.O. 12333 (he concludes that it does not restrict lawful killings under the law of war), the Hague Convention's ban on "treacherous" killing of enemies, and the Army Field Manual's interpretation of the Hague Convention's ban (in paragraph 31) to prohibit assassination (to say nothing of the Due Process Clause)--all of which seem relevant, even if ultimately deemed inapplicable. ("Assassination" is nowhere well defined and is subject to some dispute. But, as the Congressional Reserach Service writes in this post-9/11 report on E.O. 12333 and the assassination ban, an Army memo issued in the process of reauthorizing the Army Field Manual defines "assassination" as a "surprise" attack during peacetime and notes that the Hague Convention does not preclude defining assassination this way also in wartime.)
Koh's justifications for tageted killings--and his omission of limitations upon targeted killings, as above--seem surprising, given his critiques of the Bush administration justifications for everything from warrantless wiretaps to torture. For example, Koh testified before the Senate Judiciary Committee in 2008 that the AUMF was too vague an authority upon which to base these Bush administration policies. He also argued for a more robust role for Congress and the courts. Koh argued against inherent executive authority to conduct these programs, instead referring to Justice Jackson's three-part framework in Youngstown.
But if, as Koh argued, e.g., FISA limited President Bush's power to conduct warrantless wiretaps (or domestic and international law limited President Bush's power to torture, etc., etc.), why don't E.O. 12333, the Hague Convention, and the Army Field manual (and the Due Process Clause) limit President Obama's power to authorize targeted killings, putting the President's power at its lowest ebb under Jackson's framework? Or at least, why aren't these sources of law even worthy of mention up against the inherent right of self defense, the law of war, and the AUMF (which was too vague for many presidential actions, by Koh's own reckoning)? (Related: If the President's authority is at all in doubt, why not go to Congress and get specific authorization for them?)
There may be three reasons.
First, the administration may be relying upon inherent Article II, Commander in Chief, authority. This seems unlikely, however, given the administration's repeated rejections of this position by the Bush administration. In this area and others, Prsident Obama has gone out of his way to say that his actions are not based upon inherent Article II authority.
Second, Koh may have made the judgment that the nation's right to self-defense and the AUMF outweigh these restrictions. But this seems implausible, given Koh's testimony to the Senate Judiciary Committee (above, and on other matters) carefully considering both the authorities and the restrictions upon presidential action under Jackson's framework (in a Hamdan-like way).
Finally, and most likely, Koh may have judged these authorities inapplicable--that President Obama's ordered killing of al-Awlaki was not an "assassination." But this seems reminiscent of the Bush administration OLC memos defining around "torture." Given the widespread critiques of the torture memos, we might have expected a little bit more from this administration about why a targeted killing isn't an "assassination."
Whatever the answer, Koh's positions seem to lead to the surprising result that there are greater protections against warrantless wiretapping and torture than against a targeted killing.
In any event, Koh's statement to the ASIL may not represent the administration's legal analysis. But the problem is that we don't know. The administration hasn't publicized its legal reasoning, even with the wide-spread reporting of the drone attacks and the ordered killing of al-Awlaki. There can be little down-side to publicizing the reasoning, especially for an administration committed to transparency, unless the administration worries that it is a little too close to Bush administration positions on the constitutionality of presidential actions during wartime.
Wednesday, May 12, 2010
The Indiana Supreme Court recently agreed to hear a case in which an indigent mother was denied counsel on appeal after the trial court entered an order terminating her parental rights. (The mother was represented at trial, but the appellate court denied her motion for appointed counsel on appeal.)
The case, In the Matter of the Termination of the Parent-Child Relationship of I.B. v. Indiana Dep't of Child Services, raises state and federal constitutional issues related to civil right to counsel. But this is no "Civil Gideon." The claimed constitutional right is a right to counsel on appeal--a "Civil Douglas."
"Civil Douglas" refers to Douglas v. California, the 1963 Supreme Court case establishing a right to counsel on appeal for poor criminal appellants. Douglas came down the same day as Gideon v. Wainwright, the case establishing a right to counsel at trial for poor criminal defendants. But despite their obvious similarities, Douglas and Gideon were rooted in different constitutional principles: Gideon was based on procedural considerations under the Sixth Amendment; Douglas was based on equal access to the courts under equal protection. Although the cases came down one right after the other, they didn't even cite each other.
Gideon and Douglas planted the seeds for subsequent access-to-justice cases at trial and on appeal--even civil cases. Thus subsequent cases dealing with all manner of barriers to access at trial (fee barriers, lack of appointed counsel) are based primarily on due process considerations, but subsequent cases dealing with the same barriers on appeal are based primarily on equal protection considerations.
The difference is critical in civil right to counsel cases. The Supreme Court ruled in Lassiter v. Dep't of Social Services in 1981 that poor civil litigants had no categorical right to counsel at trial in cases involving an interest other than physical liberty. The Court ruled that the three-part procedural due process balancing test in Mathews v. Eldridge must overcome a Court-created presumption against counsel in cases not involving physical liberty. The test makes it very difficult for poor civil litigants to get a court-appointed attorney at trial in parental rights cases, housing cases, and other cases involving basic human needs other than physical liberty.
But, under Douglas and its progeny, there is no presumption against counsel on appeal. In fact, there's no necessary consideration of the underlying interests at all. Instead, the courts look to equal access and equal protection considerations, not the interest-bound due process test. As a result, civil right to counsel on appeal may well be easier to establish (as I argue here and here).
Petitioner in the Indiana case puts Civil Douglas squarely before the Indiana Supreme Court.
Petitioner also makes a state constitutional "open courts" argument. The jurisprudence among the several states of state constitutional open courts provisions--which require "justice" to be administered "freely and fairly," "speedily," "without denial," and variations on those terms--is notoriously inconsistent and confused. (I tried to make some sense of it in the context of access and right-to-counsel here.) Indiana may have a cleaner open courts jurisprudence by focusing on "fundamental fairness" in process--a test that sounds like a combination of due process and equal protection.
At the end of the day, though, it's not clear that the court will address any of the constitutional arguments. Indiana has a statute that says that "[a] parent is entitled to representation by counsel in proceedings to terminate the parent-child relationship." The court might well dodge the constitutional questions by interpreting "proceedings" to include appeals.
The "petition to transfer" (the cert. petition) is here.