Constitutional Law Prof Blog

Times Profiles Fertig, of Holder v. Humanitarian Law Project

Adam Liptak in today's NYT profiled Ralph Fertig, the president of the Humanitarian Law Project and the moving force behind Holder v. Humanitarian Law Project, the case challenging portions of the Anti-Terrorism and Effective Death Penalty Act under the First Amendment now before the Supreme Court.

The case involves a section of the Act, 18 U.S.C. Sec. 2339B(a)(1), that outlaws the "knowing" provision of "material support or resources" to a "foreign terrorist organization," as determined by the Secretary of State, in exceptionally vague terms.  Thus that section defines "material support or resources" as follows:

any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials.

18 U.S.C. Sec. 2339B(a)(1) (emphasis added).

As Liptak quotes a DOJ attorney in a 2007 oral argument in the case, "Congress wants these organizations to be radioactive."

The Humanitarian Law Project argues in its brief that this provision is unconstitutionally vague and that it is a content-based restriction in violation of the First Amendment.  (The government's brief is here; the Humanitarian Law Project's reply brief is here.)  Oral argument in the case is scheduled for February 23.

SDS

State Secrets, UK Style

A three-judge panel of the British Court of Appeal today ordered the release of a seven-paragraph summary of U.S. intelligence information about the treatment of Binyam Mohamed, the detainee who was subject to extraordinary rendition, torture, and detention at Guantanamo under U.S. control with UK assistance.

The British Foreign Office fought for over a year to keep the paragraphs secret, asserting national security concerns--a kind of state secrets privilege--and worries that release would impact the government's relationship with U.S. intelligence agencies.

The British Court of Appeal ruled against the Foreign Office, however, in a lengthy judgment (link above) citing, among other considerations, government openness, accountability, and journalists' right to obtain information as bases for rejecting the Foreign Office's claim that release would damage national security.  The Court also recognized that Mohamed's assertions were already released in a federal court opinion in the D.C. District in December 2009 in another case.

The Court of Appeal approach is a far cry from the sweeping approach to the state secrets privilege by the Fourth Circuit in El-Masri and by the Bush and Obama administrations.  (Our state secrets posts analyzing the scope of the privilege in recent cases and in administration arguments are collected here.)  The Guardian summed it up:

Three of the country's most senior judges today shattered the age-old convention that the courts cannot question claims by the government relating to national security, whatever is done in its name, in an unprecedented ruling that is likely to cause deep anxiety among the security and intelligence agencies.

The Foreign Office elected not to appeal the ruling, because it says that the court, even while ruling against it, validated the "control principle."  That principle holds that only those who create or give intelligence--and not those who receive it--can be ordered to release it.  The Foreign Office web-site says that the court ordered the release of the summary because its substance had already been released by the D.C. District.

This overstates the role that the control principle and the D.C. District played in the decision.  In fact, the court ruling goes to great lengths to discuss values related to government openness and accountability.  The fact that the D.C. District validated some of Mohamed's claims played only one part in the court's final judgment.

But for the Fourth Circuit and for both the Bush and Obama administrations, none of these concerns plays a role.  Government openness and accountability are easily trumped by national security concerns, and prior release of the underlying information--even by the administration itself--is no bar to an assertion of the state secrets claim.  Thus the Fourth Circuit and both the Bush and Obama administrations have claimed a sweeping state secrets privilege that allows little role for the courts in judging the validity of the administration's national security claim.

SDS

Competing Claims for Second Amendment Incorporation

Robert Barnes reported yesterday in the Washington Post on the competing claims for Second Amendment incorporation in McDonald v. City of Chicago, the Second Amendment case now before the Court (and scheduled for argument on March 2).  The article is a nice overview of the constitutional claims on incorporation and the politics of the case.

As Barnes reports, the NRA "was on the outside looking in" in D.C. v. Heller, the OT 07 case that held that the Second Amendment protects an individual right to bear arms, but left open the question whether that right extends to the states (or is "incorporated").  Barnes reports that the NRA was unhappy being left outside that case and thus filed to participate in oral argument in McDonald. 

On January 25, the Court granted the NRA's motion, no doubt in large part because of who would argue on its behalf: Paul Clement.  (Clement, of course, was the Bush administration's Solicitor General and, as Barnes writes, "a favorite of the court.")

In moving for time at oral argument, the NRA claimed that McDonald's attorney, Alan Gura (who also argued Heller), gave insufficient attention to the argument that the Due Process Clause incorporates the Second Amendment.  (As we reported, Gura pressed harder on his claim that the Privileges or Immunities Clause incorporates the Second Amendment.  He all but ignored the Due Process argument.)  The NRA apparently wanted to press the Due Process claim--the path of lesser resistance (because it wouldn't require overturning The Slaughter-House Cases, among others).  Gura's brief is here; the NRA's brief is here.

It's hard to know what, or how much, (if anything) to make of the Court's decision to grant time to the NRA and Clement.  It could simply be a move to include an obviously interested party with a popular attorney.  Or it could signal the Court's desire to consider more seriously the Due Process claim (and less seriously the Privileges or Immunities claim).

We've most recently posted on the case here, here, and here.

SDS

Mayer on KSM's Trial

Jane Mayer, author of The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals, wrote an excellent piece in the New Yorker detailing Attorney General Eric Holder's decision to try Khalid Sheikh Mohammed in the regular federal courts (and not before a military commission).

Mayer's article comes as the administration is more aggressively defending its decision to deal with some alleged terrorists through the regular criminal justice system and in Article III courts.  (We posted on Holder's letter to Senator McConnell outlining the reasons for dealing with the December 25 would-be bomber through the regular criminal justice system last week.)

A good part of the administration's case is based on the prior administration's practices:  The Bush administration similarly treated a number of terrorist suspects through the regular criminal justice system.

SDS

Rumors of SCOTUS Retirements and Nominations

The speculation regarding the retirements of Justices Ruth Bader Ginsburg and John Paul Stevens continues. "That can't be news," Stevens reportedly said,  "I'm not exactly a kid."  Ginsberg has seemingly not commented.

Following closely on any rumor of retirement is discussion of possible nominees.  Among those being mentioned are Elana Kagan, Diane Wood (Judge on the Seventh Circuit, pictured below) and Cass Sunstein.

RR

 

AG Holder Defends Criminal Justice System for Terrorist Suspect

Attorney General Eric Holder today wrote to Senator Mitch McConnell defending the Justice Department's use of the regular criminal justice system--and not military tribunals--to arrest, detain, charge, and try Umar Farouk Abdulmutallab in connection with his attempted bombing of Northwest flight 253 near Detroit on December 25, 2009.

The letter is largely a political response to criticism of the administration for using the regular criminal justice system and Article III courts instead of military tribunals for suspected terrorists.  But Holder includes a couple paragraphs on Constitutional issues related to detention and interrogation of terrorist suspects, defending current policies in part because they are consistent with past practice (of the Bush administration).

Here's a sample related to detention authority and what Holder calls "law of war" custody:

Since the September 11, 2001 attacks, the practice of the U.S. government, followed by prior and current Administrations without a single exception, has been to arrest and detain under federal criminal law all terrorist suspects who are apprehended inside the United States. . . .

In fact, two (and only two) persons apprehended in this country in recent times have been held under the law of war.  Jose Padilla was arrested on a federal material witness warrant in 2002, and was transferred to law of war custody approximately one month later, after his court-appointed counsel moved to vacate the warrant.  Ali Saleh Kahlah Al-Marri was also initially arrested on a material witness warrant in 2001, was indicted on federal criminal charges (unrelated to terrorism) in 2002, and then transferred to law of war custody approximately eighteen months later.  In both of these cases, the transfer to law of war custody raised serious statutory and constitutional questions in the courts concerning the lawfulness of the government's actions and spawned lengthy litigation.  In Mr. Padilla's case, the United States Court of Appeals for the Second Circuit found that the President did not have the authority to detain him under the law of war.  In Mr. Al-Marri's case, the United States Court of Appeals for the Fourth Circuit reversed a prior panel decision and found in a fractured en banc opinion that the President did have authority to detain Mr. Al Marri, but that he had not been afforded sufficient process to challenge his designation as an enemy combatant.  Ultimately both Al-Marri (in 2009) and Padilla (in 2006) were returned to law enforcement custody, convicted of terrorism charges and sentenced to prison.

Letter at 2-3 (emphasis in original).  We covered Al-Marri's case most recently here.

Here's a sample related to detention authority of "enemy combatants":

Some have argued that had Abdulmutallab been declared an enemy combatant, the government could have held him indefinitely without providing him access to an attorney.  But the government's legal authority to do so is far from clear.  In fact, when the Bush administration attempted to deny Jose Padilla access to an attorney, a federal judge in New York rejected that position, ruling that Padilla must be allowed to meet with his lawyer.  Notably, the judge in that case was Michael Mukasey, my predecessor as Attorney General.  In fact, there is no court-approved system currently in place in which suspected terrorists captured inside the United States can be detained and held without access to an attorney . . . .

Letter at 5. 

SDS

California Marriage Bill: Civil Marriage and Religious Protection

The legal definition of "marriage" is at the core of the Proposition 8 trial in California federal court: A new Bill introduced in the California Senate, SB 906, would alter that definition and clarify some of the constitutional issues surrounding solemnization of marriage by clergy.  The Bill does not specifically pertain to same-sex marriage, but does have - - - and is most likely intended to have - - - implications for the constitutional arguments surrounding same-sex marriage and religious free exercise.

The summary of the Bill states:

Existing law defines marriage as a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary. This bill would instead define the term civil marriage as a personal relation arising out of a civil contract between a man and a woman, established pursuant to a State of California marriage license issued by
the county clerk, to which the consent of the parties capable of making
that contract is necessary. The bill would also make conforming related
changes by changing certain references to marriage to civil marriage.

Existing law enumerates persons who are authorized to solemnize a
marriage, including, but not limited to, any priest, minister, rabbi, or authorized person of any religious denomination. The bill would specify that no priest, minister, rabbi, or authorized person of any religious denomination would be required to solemnize a marriage that is contrary to the tenets of his or her faith. The bill would state that any refusal to solemnize a marriage under that provision shall not affect the tax exempt status of any entity.

Thus, the Bill enacts a conscience clause for religious solemnizers of civil marriages. No similar conscience clause exemption exists in the Bill for public officials. 

RR

Chicago Programs on Guantanamo Lawyering, Rights and National Security

Chicago chapters of the American Constitution Society and the Federalist Society have (coincidentally) scheduled two exciting and related, but independent, programs this week and next, both related to detention and treatment of "enemy combatants."

On Thursday the Chicago Lawyers Chapter and the John Marshall Law School Student Chapter of the American Constitution Society, the Illinois ACLU, and the Chicago Council of Lawyers are co-hosting a lunch-time discussion titled The Guantanamo Lawyers: Inside a Prison Outside the Law, featuring four attorneys who have represented detainees at Guantanamo Bay who also tell their stories in a book by the same name.  The anouncement follows.

The Chicago Lawyer Chapter of the American Constitution Society presents: The Guantanamo Lawyers: Inside a Prison Outside the Law Featuring attorneys who have represented Guantanamo detainees: Marc D. Falkoff Assistant Professor of Law, Northern Illinois University College of Law H. Candace Gorman The Law Office of H. Candace Gorman Gary A. Isaac Counsel, Mayer Brown LLP   and   Thomas P. Sullivan Partner, Jenner & Block LLP Thursday, February 4, 2010 12:00 p.m. John Marshall Law School 315 S. Plymouth Court Room 200 Chicago, IL Following 9/11, the United States imprisoned more than 750 men at its naval base at Guantanamo Bay, Cuba.  The stories of these detainees told by their lawyers are collected in the book The Guantanamo Lawyers: Inside a Prison Outside the Law. This panel discussion brings some of these lawyers together to discuss their experiences: from gaining access to their clients, to establishing their clients' right to habeas corpus, to documenting the conditions at the prison. There will be no cost to attend this event.  Please feel free to bring your lunch. 1.0 hours of CLE credit will be offered free of charge to attorneys who bring their ARDC number. Copies of the book will be available for sale and signing. RSVP by Wednesday, February 3rd here. Questions? Please contact Amy M. Gardner at [email protected] or Scott J. Richard at [email protected] This event is co-sponsored by the John Marshall Law School Student Chapter of the American Constitution Society, the American Civil Liberties Union of Illinois and the Chicago Council of Lawyers. On Monday, February 8, the Chicago Lawyers Chapter of the Federalist Society is hosting a debate between John Yoo and Congressman Bob Barr titled Balancing Individual Rights and National Security.  (Thanks to student Matt Fender for the tip.)  The announcement follows.   Debate: Balancing Individual Rights and National Security Sponsored by the Chicago Lawyers Chapter See Other Upcoming Federalist Society Events HERE The Federalist Society 1015 18th Street, NW Suite 425 Washington, DC 20036 202-822-8138 Featuring Professor John C. Yoo Professor of Law, University of California, Berkeley, Boalt Hall School of Law Author of Crisis and Command: A History of Executive Power from George Washington to George W. Bush.   Congressman Bob Barr Represented the 7th District of Georgia in the U.S. House of Representatives from 1995 to 2003, and was the 2008 Libertarian Party nominee for President of the United States. He practices law with the Law Offices of Edwin Marger, and runs a consulting firm, Liberty Strategies, Inc., in Atlanta, Georgia. Moderated By Mr. Gil M. Soffer Co-Chair of the National White Collar Practice at Katten Muchin Rosenman, LLP. In 2008, Mr. Soffer served as  Associate Deputy Attorney General at the U.S. Department of Justice. Monday, Feb. 8, 2010 11:30 a.m. - 1:30 p.m. Location: Union League Club 65 W. Jackson Blvd. Chicago, IL Union League Club Dress Code: Business or Business Casual Attire. No jeans or athletic attire. Prof. John C. Yoo will sign his book: Crisis and Command: A History of Executive Power from George Washington to George W. Bush after the debate. Copies of the book will be available for purchase. Luncheon and Debate $30 for Lawyers - $15 for Students To RSVP for this event, please email: [email protected].

SDS

California Constitution: Conference and CFP

 

More information and Call for Papers here.

RR

Arar Files Cert. Petition in Detention, Access, Torture Case

The Center for Constitutional Rights yesterday filed a cert. petition in the U.S. Supreme Court on behalf of Maher Arar, the Canadian citizen detained by U.S. authorities, denied access to the courts, and delivered to Syria for torture, seeking review of the Second Circuit's rejection of Arar's claims.  The CCR has an outstanding legal resource page, including media links and C-Span's coverage of the Second Circuit's en banc oral argument, here.

Arar filed his claim against a host of senior federal officials and 10 unknown federal law enforcement and immigration agents for violations of the Torture Victim Protection Act and the Fifth Amendment Due Process Clause.  The district court rejected Arar's claims; a divided three-judge panel of the Second Circuit affirmed; and the en banc Second Circuit upheld, 7-4 (with four separate and notably sharp dissents).

Arar argues four points in his cert. petition.  First, he argues that the Second Circuit's rejection of his Bivens claim for obstruction of access to the courts is contrary to laws implementing the Convention Against Torture (the "CAT") and the purpose and spirit of Bivens.  Federal law implementing the CAT prohibits sending any person to a country where he faces danger of torture, 8 U.S.C. Sec. 1231(a) and (e), and grants court of appeals jurisdiction to review constitutional and CAT claims in petitions for review of removal orders.  8 U.S.C. Secs. 1252(a)(2)(D) and (a)(4).  Arar argues that defendants in the case violated both, and that the Second Circuit's rejection of his claims allows federal officials "to escape accountability so long as they ensure that aliens in their custody cannot get to court."  (Cert. Petition at 13.)  This undermines "one of the predominant justifications for Bivens remedies[:] to deter unconstitutional conduct."  (Id.)

Arar argues next that the Second Circuit erred in weighing only those factors against recognizing a Bivens action in the case (and not those factors in favor of recognizing an action) and in holding that any reason for hesitation in recognizing a Bivens action should bar such claims.  Arar argues that this approach is inconsistent with the balancing approach in Wilkie v. Robbins (2007) ("weighing reasons for and against the creation of a new cause of action"), the Court's most recent Bivens decision, and decisions of other courts of appeals.

Third, Arar argues that the Second Circuit erred in ruling that defendants did not act "under color of law" of a foreign nation, for the purpose of the Torture Victim Protection Act, when they conspired with Syrian officials.  Arar argues that defendant's "willful participation in joint action" with Syrian officials satisfies the standard set in Dennis v. Sparks (1980) (holding that private parties who bribed a state judge to issue an injunction acted under color of state law for purposes of 42 U.S.C. Sec. 1983).

Finally, Arar argues that the Second Circuit, in affirming the dismissal because Arar couldn't name the defendants and identify their precise actions, set a pleading standard that exceeded even the heightened pleading standards in Twombly and Iqbal, because, unlike the defendant in Iqbal, the defendants here cannot give (and have not given) an "obvious alternative explanation" for the facts asserted in the complaint.

The sharply divided Second Circuit opinion, and Arar's strong arguments that the ruling runs up against well settled law, make Arar's case a good candidate for Supreme Court review.  But the trend of this Court is to curtail judicial review, not expand it.  A Court ruling in this case could well extend that trend, possibly doing even more damage to Bivens, to liberal pleading standards, and to access to the courts in cases involving the government's claimed interest in national security.  (On this last point, the other case to watch is Mohamed v. Jeppesen Dataplan, the state secrets case pending before the en banc Ninth Circuit.  The case was argued December 15, 2009; audio is here.)  

SDS

Could this be from one of your students?

A bit of humor, or perhaps not:

RR