Tuesday, December 20, 2011

The National Defense Authorization Act

There's quite a bit of confusion and argument about what exactly the National Defense Authorization Act, or NDAA, does.  (The Conference Report is here; the relevant Title, Subtitle D, Counterterrorism, begins on page H8436.)  On one side, detractors claim that it expands government authority to detain aliens and even U.S. citizens.  Glenn Greenwald does a nice job setting out the case at salon.com.  On the other side, supporters say that it only codifies the government's authority under existing law.  Benjamin Wittes and Bobby Chesney carefully make this argument in their thorough examination at lawfare.

It turns out, both sides are right.  In short, the plain language of the NDAA expands detention authority beyond the plain language of the Authorization to Use Military Force, P.L. 107-40, but it only codifies the authority already claimed by President Obama and granted by the D.C. Circuit under the AUMF.  Here are some of the highlights:

  • Indefinite Detention.  Section 1021(c)(1) says that "[t]he disposition of a person under the law of war as described in subsection (a) may include . . . [d]etention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force."  (Emphasis added.)  This is the definition of indefinite detention.  But it's also an authority that President Obama claimed from the early days of the administration.  In fact, the definition of a "covered person" in Section 1021(b)(2) almost exactly tracks the administration's proposed definition of a "detainable person" under the AUMF in its March 13, 2009, filing in a Guantanamo habeas case in the D.C. District.  (More below.)  So while this authority in the NDAA is significant for representing clear congressional support for indefinite detention, and while it's deeply troubling, it also merely reflects the administration's long-standing position.
  • Detainable Persons.  Section 1021(b)(2) says that the government can detain (indefinitely) "[a] person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces."  This is new, and adds to the definition of detainable person under the AUMF (and tracked in Section 1021(b)(1)) that allows detention of "[a] person who planned, authorized, committed, or aided the terrorist attacks that occured on September 11, 2001, or harbored those responsible for those attacks."  Moreover, Section 1022(a) requires military detention for anyone who is "a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda" and anyone who "participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners."  (Section 1022 covers a subset of detainable persons in Section 1021.  U.S. citizens and resident aliens are excepted from the requirement; more below.)  In short, the NDAA authorizes indefinite detention, and in some cases requires military detention, for those who not only participated in the 9/11 attacks or harbored those who did (as under the AUMF), but also for those who currently attack the United States or its partners.  But again, this is an authority that the administration claimed from its early days.  Thus the NDAA tracks almost exactly the adminsitration's proposed definition of a detainable person in Guantanamo habeas cases.  And it seems congruent with the D.C. Circuit's "part of" test--that under the AUMF the government can detain anyone who is "part of forces associated with Al Qaeda or the Taliban."  So here, too, the plain language of the NDAA seems to expand authority beyond the AUMF, but it also seems consistent with the government's long-standing position and the courts' interpretation of the government's authority under the AUMF.
  • Detainability of U.S. Citizens.  Section 1022(b) says that the military detention requirement in Section 1022 does not apply to U.S. citizens and lawful resident aliens for conduct within the United States.  This means that the NDAA does not require the military and indefinite detention of U.S. citizens who are "covered persons" under Section 1022(a)(2) (see above), but it also seems to permit such detention of U.S. citizens.  The Act is deliberately ambiguous on this point and seems to punt to the courts.  But in any event, it doesn't obviously add anything to the administration's position on detention or to what the courts would permit under Hamdi.
  • Guantanamo Transfers.  Section 1027 unequivocally denies funds for transfers of Guantanamo detainees to the United States.  This restriction means that the administration can't transfer detainees for civilian criminal trials.  The administration previously objected to this restriction (among others), even threatening a veto over this and other measures in the bill, but apparently dropped its objection.
  • Civilian Trials.  In addition to the restrictions in Section 1027, which prevent transfers of Guantanamo detainees to the United States for civilian trials (or for any other reason), Section 1029 requires the Attorney General to consult with the Director of National Intelligence and the Secretary of Defense about civilian trials for anyone held under Sections 1021 and 1022, discussed above.

These provisions in the NDAA represent significant and explicit congressional approval of government detention authority.  But they also only represent the administration's long-standing positions, and they're not obviously out of line with the courts' approaches.  In short, the codification of these authorities is significant--because it means that Congress is explicitly signing onto them--but they also only represent the creep of authority claimed by the administration and reflected in the courts under the AUMF.


December 20, 2011 in Executive Authority, Foreign Affairs, Fundamental Rights, Habeas Corpus, International, News, Separation of Powers, War Powers | Permalink | Comments (5) | TrackBack (0)

Wednesday, July 27, 2011

Federal Judge Declares Florida Drug Statute Lacking Intent Requirement Unconstitutional

In Criminal Law courses throughout the common law world, students learn that a criminal law offense generally requires an actus reus and a mens rea, an act and an intent.  In 2002, however, the Florida legislature amended its Drug Abuse Prevention and Control Law, Fla. Stat. §893.101, to seriously curtail the mens rea requirement for drug crimes.

Welcome to florida

In her opinion and order granting a petition for habeas corpus in Shelton v. Secretary Department of Corrections, Florida District Court Judge for the Middle District of Florida, Judge Mary S Scriven, declared  Fla. Stat. § 893.13, as amended by Fla. Stat. § 893.101, unconstitutional.

Judge Scriven found that although a government may fashion some criminal laws that do not have a mens rea requirement, this ability is limited by the constitutional contraints of the due process clause. The judge credited the amicus brief filed by Amici Curiae that included 38 law professors (and listed the signatories in footnote 7) that elimination of mens rea is "atavistic and repugnant to the common law."  

{Update by request: Amicus Brief here, via}

The judge applied the tripartite analysis for evaluating strict liability crimes by considering the penalty imposed; the stigma associated with conviction; and the type of conduct purportedly regulated.  On the first prong, the judge found that sentences of fifteen years, thirty years, and life imprisonment under the Florida Statute are too severe to pass constitutional muster.  On the second prong, the judge concluded that a felony conviction certainly carries a stigma, especially given felony disenfranchisement, exclusion from juries, gun licenses, and student loan assistance.  Regarding the last prong considering the type of conduct regulated, the judge noted that without knowledge of the substance one possessed, one could be engaging in behavior that would be innocuous. 

This last point is the most difficult to grasp.  Judge Scriven provided this analysis:

     Backpack      the State argues that FLA. STAT. § 893.13 does not regulate innocuous conduct since “the possession of cocaine is never legal,” and the imposition of harsh penalties without proof of mens rea is simply a risk drug dealers undertake for selling or delivering cocaine. (Id. at 18) By this assertion, the State confirms Professor Sanford H. Kadish’s hypothesis that the basis for strict liability crimes is often simply a backhanded retort - - “tough luck” to those who engage in criminal activity. Sanford H. Kadish, Excusing Crime, 75 Cal. L. Rev. 257, 267-68 (1987).

But, in this suggestion, the State ignores that Florida’s statute is not a “drug dealer beware” statute but a “citizen beware statute.” Consider the student in whose book bag a classmate hastily stashes his drugs to avoid imminent detection. The bag is then given to another for safekeeping. Caught in the act, the hapless victim is guilty based upon the only two elements of the statute: delivery (actual, constructive, or attempted) and the illicit nature of the substance. See FLA. STAT. §§ 893.02(6), 893.13(1)(a). The victim would be faced with the Hobson’s choice of pleading guilty or going to trial where he is presumed guilty because he is in fact guilty of the two elements. He must then prove his innocence for lack of knowledge against the permissive presumption the statute imposes that he does in fact have guilty knowledge.

The judge noted that the Florida Statute is unique amongst all the drug laws in the United States.  Now, it has been declared unconstitutional.

[image via]

July 27, 2011 in Criminal Procedure, Current Affairs, Due Process (Substantive), Habeas Corpus | Permalink | Comments (2) | TrackBack (0)

Wednesday, 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 (0)

Saturday, June 11, 2011

D.C. Circuit Reverses Habeas for Guantanamo Detainee

A three-judge panel of the D.C. Circuit on Friday unanimously reversed the district court's decision granting Guantanamo detainee Hussain Salem Mohammad Almerfedi's petition for a writ of habeas corpus.

The case, Almerfedi v. Obama, is a relatively close case for the D.C. Circuit.  It turned on three pieces of evidence: (1) Almerfedi's acknowledgment that he stayed for two-and-a-half months at Jama'at Tablighi, an Islamic missionary organization that is a Terrorist Support Entity "closely aligned" with al Qaeda (although he refused to join the organization and barely talked to anyone there); (2) Almerfedi's circuitous route to his stated destination, Europe, which took him closer to the Afghan border; and (3) his unexplained possession of $2,000.00 in cash when he was captured.  The three together, wrote the court, demonstrated by a preponderance of the evidence that Almerfedi was "part of" al Qaeda.

But still the panel emphasized the minimal preponderance-of-the-evidence standard when evaluating the government's case--and suggested that this was the first time it had evaluated a case so close.

The panel split on one issue (even as they agreed on the evidence above and on the outcome): whether to credit the statements of another detainee, al-Jadani, that Almerfedi stayed at a guesthouse in Tehran maintained by al Qaeda in 2002 or 2003.  (The district court found that al-Jadani's statements were not credible.)  Judges Silberman and Kavanaugh credited al-Jadani's statements; Judge Rogers did not.  Judge Rogers wrote that "[t]he record evidence does not lead to a 'firm conviction' that the district court's analysis of al-Jadani's statements was mistaken, much less implausible." 


June 11, 2011 in Cases and Case Materials, Habeas Corpus, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 3, 2011

Obama Made His Guantanamo Bed . . .

Owen Fiss (Yale) argues in the Boston Review that President Obama's pickle--caught between his former policy to close Guantanamo and his desire to try KSM and others in Article III courts, on the one hand, and the congressional ban on using appropriated funds to transfer Guantanamo detainees to the U.S., on the other--is of his own creation.

Fiss argues that President Obama's May 2009 speech at the National Archives (in which he announced that some detainees would get Article III trials while others would get military commissions while yet others would get indefinite detention) and his support for the Military Commissions Act of 2009 (which revised military commission procedures, but still fell short of Article III trials) lined up such that "the Guantanamo closure ceased to be of much importance."  According to Fiss, President Obama's resistance to extending habeas to detainees at Bagram in the Al Maqaleh litigation only underscores this conclusion.

With a Guantanamo closing all but off the table (by the President's own actions), congressional restriction on the use of appropriated funds to transfer Guantanamo detainees to the U.S. was only the final straw.  After the ban,

[t]he options that then remained for Obama were: (a) the continued imprisonment of Khalid Sheikh Mohammed without trial (he had already been incarcerated for more than seven years) or (b) trial before a military commission.  Given the alternative options, Obama chose the one that is, in my judgment, the less constitutionally offensive.  Sympathy for Obama's choice, however, should not obscure his complicity in constructing the alternatives he confronted.

In truth, there was (is) a third option, the one that the administration adopted: Sign the legislation banning the use of funds for transfer, but issue a signing statement that claims that such a ban unconstitutionally encroaches on a core executive function, and move to overturn it.

This third way is emblamatic of President Obama's approach to so many of these issues--detention, military trial, habeas, state secrets, even signing statements: He's made some constitutionally significant changes to Bush administration positions around the edges on each of these, but in the end the refined positions only result in more-or-less the same policies.

But with regard to KSM and some others, President Obama once seemed truly committed to moving forward in Article III courts.  And with regard to Guantanamo, he once seemed truly committed to closing.  Sure, his positions and policies may have contributed to a larger political environment in which closing Guantanamo "ceased to be of much importance."  (And maybe he could have (should have) spent even more political capital in seeking closure and Article III trials.) 

But in the end the congressional ban on transfers was a congressional ban.  (And the most recent version came in the eleventh-hour spending bill negotiated between the White House and Congress to avoid a shut-down, presenting President Obama with no practical option but to sign the measure.)  The ban entirely foreclosed even any marginal change that President Obama might have made (e.g., an Article III trial for KSM) using his third way. 


May 3, 2011 in Congressional Authority, Executive Authority, Foreign Affairs, Fundamental Rights, Habeas Corpus, International, News, Scholarship, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Saturday, April 23, 2011

Footnote of the Day: The Satisfaction of Michigan v. Long?

The footnote from the Tennessee Supreme Court seems rather innocuous:

The decision in Middlebrooks was required by Art. I, § 16 of the Tennessee Constitution. We reviewed federal constitutional law in our analysis to determine whether the duplication also violated the Eighth Amendment to the United States Constitution, but Middlebrooks was decided on separate and independent state constitutional grounds. See Middlebrooks, 840 S.W.2d at 346; Zant v. Stephens, 462 U.S. at 877.

State v. Howell, 868 S.W.2d 238, 259 n.7 (1993).  But the footnote is a dramatic one, as Neil Colman McNabe demonstrated in his article, A Rescue From The Jaws Of The Crocodile: The Post-Certiorari Plain Statement Footnote, 59 Albany Law Review 1737 (1996).   Tennessee_Statehood_1946_Issue3c

The Middlebrooks case in the footnote was Middlebrooks v. State, in which the Tennessee Supreme Court vacated Donald Ray Middlebook's death sentence.  The state sought certiorari to the United States Supreme Court, which was granted, oral argument was heard, and then certiorari was dismissed as improvidently granted.  The reason for the dismissal of certiorari was that footnote 7 in Howell, rendered 9 days after the oral argument in Middlebrooks.  The footnote  was deemed to satisfy the rule of Michigan v. Long.  

The Court in Michigan v. Long, 463 U.S. 1032 (1983), enunciated its rule of judicial review for state decisions involving federal constitutional matters: the state court must include a "plain statement" that the decision rests on adequate and independent state grounds.  Otherwise, the Court will assume that the state court decided the way it did because it felt compelled to do so by federal constitutional law.  Interestingly, Michigan v. Long involved the state executive branch attempting to overrule its own state high court by seeking review from the United States Supreme Court.  Many other cases followed a similar pattern, as was the situation in State v. Middlebrooks.

However, as the Sixth Circuit opinion affirming a denial of habeas to Middlebrooks decided in September 2010 makes clear, the dismissal of certiorari did not end the matter.  After the Tennessee Supreme Court vacated the death sentence, "In 1995, a jury again sentenced Middlebrooks to death after finding that the murder was especially heinous, atrocious, or cruel and after weighing the aggravating and mitigating circumstances."   Middlebrooks then raised a number of constitutional claims in state postconviction proceedings, including ineffective assistance of counsel, and in the subsequent habeas petition in federal district court which was denied, and which the Sixth Circuit affirmed.

Meanwhile, Tennessee is one of several states that have turned over their supplies of sodium thiopental, a sedative widely used in lethal injections, to the federal drug enforcement officials because of controversies regarding the drug.

(H/T J. Zak Ritchie)

April 23, 2011 in Courts and Judging, Criminal Procedure, Federalism, Games, Habeas Corpus, Interpretation, Jurisdiction of Federal Courts, Scholarship, State Constitutional Law, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Monday, April 18, 2011

Court Declines to Hear Uighur Case (Again)

The Supreme Court today denied cert. in Kiyemba v. Obama, the case involving the Chinese Muslims held without lawful cause for seven years at Guantanamo Bay.

The petitioners sought release into the United States.  The district court ordered release, but the D.C. Circuit reversed.  The Supreme Court first granted cert. on the question whether a district court may order release into the United States where no other remedy is available. 

But the Court remanded after learning that other remedies were available--that the government offered, and the petitioners rejected, at least two offers of resettlement.  The D.C. Circuit reinstated its original opinion as modified, and the petitioners again sought cert.

The Court today declined to take the case.  Justice Breyer issued a statement, joined by Justices Kennedy, Ginsburg, and Sotomayor, concluding:

the lack of any meaningful challenge as to [the appropriateness of the Government's resettlement offers], and the Government's uncontested commitment to continue to work to resettle petitioners transform petitioners' claim.  Under present circumstances, I see no Government-imposed obstacle to petitioners' timely release and appropriate resettlement.  Accordingly, I join in the Court's denial of certiorari.  Should circumstances materially change, however, petitioners may of course raise their original issue (or related issues) again in the lower courts and in this Court.

(The statement appears at the end of today's order list.)

The denial today ends this chapter (and perhaps the entire book) on the Uighurs' judicial challenges to their confinement at Guantanamo Bay.


April 18, 2011 in Cases and Case Materials, Executive Authority, Foreign Affairs, Habeas Corpus, News, Separation of Powers, War Powers | Permalink | Comments (1) | TrackBack (0)

Tuesday, April 12, 2011

Footnote of the Day: Separation of Powers and Military Commissions in Hamdan

Writing for the Court in Hamdan v. Rumsfeld, 548 U.S. 557 (2006), Justice Stevens included footnote 23:

Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 637 (1952) (Jackson, J., concurring). The Government does not argue otherwise.

In his article, Congress, the Commander-In-Chief, and the Separation of Powers After Hamdan,  16 Transnational Law & Contemporary Problems 933 (2007), draft available on ssrn, Professor Stephen Vladeck argues - - - in a footnote - - - that "To say that “[t]he Government does not argue otherwise” is entirely misleading, for the government’s entire theory of the case was that the UCMJ procedures were not exhaustive."  Id. at 959 n. 141.  

Vladeck later expands on the relevance of the footnote in Hamdan and its relationship to the famous concurrence of Justice Robert Jackson (pictured right) in Youngstown:

Robert Jackson In the crucial footnote 23, the only part of the majority opinion where Justice Stevens even attempted to recognize the existence of a significant constitutional question in Hamdan, the sole citation is to Justice Jackson’s Youngstown concurrence, and to page 637—where Jackson outlines all of the second category and the beginnings of the third. It is an odd choice, though, given that even in category three cases, where the President’s power was to be at its “lowest ebb,” there remained a residual question about “disabling” Congress, the very question raised by the Commander-in-Chief override.

Indeed, through the lens of Justice Jackson’s Youngstown concurrence, the logic of Hamdan grows only more obfuscated. Was the majority  disavowing any and all claims to inherent executive power in the field of trying enemy combatants by military commission? If so, was it overruling a series of cases upholding such tribunals even where congressional authorization was questionable?  Was it reading the UCMJ as manifesting clear (and valid) congressional intent to oust independent executive regulation? Suffice it to say, if Justice Stevens meant to decide Hamdan on the strength of Justice Jackson’s Youngstown concurrence, he skipped a few steps, for he did not even attempt to undertake the question (to which Jackson had devoted over a dozen pages) of whether the President’s inherent constitutional authority might trump congressional restrictions in such a case.

Id. at 960.


[image: Justice Robert Jackson, circa 1945, via]

April 12, 2011 in Cases and Case Materials, Congressional Authority, Executive Authority, Games, Habeas Corpus, Opinion Analysis, Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, April 8, 2011

D.C. Circuit Rejects Guantanamo Habeas Petition

A three-judge panel of the D.C. Circuit today upheld the District Court's denial of Guantanamo detainee Yasein Khasem Mohammad Esmail's habeas corpus petition.  The panel, in a per curiam opinion, wrote, "Because we agree with the district court's ultimate determination that Esmail was more likely than not 'part of' al Qaeda at the time of his capture in December of 2001, we affirm."

The decision is unremarkable--it applies the "part of" and preponderance tests, and deals unsurprisingly with the evidence--with one notable exception: Judge Silberman's concurrence.

Judge Silberman took issue with everything from the standard in habeas cases, to the dangers that released detainees pose, to the challenges that lower courts face in implementing Boumediene v. Bush, and even to the "charade" when the administration declines to release winning petitioners.  It's worth a read:

[T]he government at oral argument agreed that even if petitioner could show he resolutely declined to "join" al Qaeda or the Taliban, and thus could not be said to be a part of either, so long as evidence showed he fought alongside of al Qaeda, the Taliban, or with associated forces he would be covered by the Authorization for Use of Military Force.  District courts, in that sort of case, need not strain to find a petitioner is "a part of al Qaeda." . . .

When we are dealing with detainees, candor obliges me to admit that one can not help but be conscious of the infinitely greater downside risk to our country [than when our criminal justice system releases likely criminals when a conviction is based on insufficient evidence], and its people, of an order releasing a detainee who is likely to return to terrorism.  One does not have to be a "Posnerian"--a believer that virtually all law and regulation should be judged in accordance with a cost/benefit analysis--to recognize this uncomfortable fact.

That means that there are powerful reasons for the government to rely on our opinion in Al-Adahi v. Obama, which persuasively explains that in a habeas corpus proceeding the preponderance of evidence standard that the government assumes binds it, is unnecessary--and moreover, unrealistic.  I doubt any of my colleagues will vote to grant a petition if he or she believes that it is somewhat likely that the petitioner is an al Qaeda adherent or an active supporter.  Unless, of course, the Supreme Court were to adopt the preponderance of the evidence standard (which it is unlikely to do--taking a case might obligate it to assume direct responsibility for the consequences of Boumediene). . . .

Of course, if it turns out that regardless of our decisions the executive branch does not release winning petitioners because no other country will accept them and they will not be released into the United States, see Kiyemba v. Obama, then the whole process leads to virtual advisory opinions.  It becomes a charade prompted by the Supreme Court's defiant--if only theoretical--assertion of judicial supremacy, see Boumediene, sustained by posturing on the part of the Justice Department and providing litigation exercise for the detainee bar.


April 8, 2011 in Cases and Case Materials, Executive Authority, Habeas Corpus, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 29, 2011

No "Constitutional Tort" for Brady Violation by Prosecutors in Connick's New Orleans Office: Connick v. Thompson Opinion Analysis

What are the consequences of a violation of Brady v. Maryland, 373 U. S. 83, 87 (1963), which requires the prosecution to disclose evidence favorable to the accused and material to his guilt or punishment?    ANGOLA PRISON If it comes to light while the case is on direct appeal, it may require reversal of a conviction.  If it comes to light later, it may be the subject of a post-conviction relief.   And if it comes to light much later, after a person has spent 18 years incarcerated of which 14 years are on death row it does not merit civil damages.

In a 5-4 opinion reversing the Fifth Circuit and authored by Justice Thomas, the Court in Connick v. Thompson held that the state district attorney's office cannot be held liable for a failure to train the assistant district attorneys regarding compliance with Brady unless there was evidence that there was a need for "more or different Brady training."  Opinion at 7.  Although Connick conceded that there was a Brady violation and the jury found a lack of training on Brady, the Court essentially concluded that there must be a pattern or practice of Brady violations before such training would be warranted under a constitutional "deliberate indifference" standard.  The Court distinguished the role of attorneys from those of law enforcement officers who must make "split-second decisions with life-or-death consequences" as in Canton v. Harris, 489 U. S. 378 (1989).


Attorneys are trained in the law and equipped with the tools to interpret and apply legal principles, understand constitutional limits, and exercise legal judgment. Before they may enter the profession and receive a law license, all attorneys must graduate from law school or pass a substantive examination; attorneys in the vast majority ofjurisdictions must do both. [citations to Louisiana bar requirements omitted].  These threshold requirements are designed to ensure that all new attorneys have learned how to find, understand, and apply legal rules. Cf. United States v. Cronic, 466 U. S. 648, 658, 664 (1984) (noting that the presumption “that the lawyer is competent to provide the guiding hand that the defendant needs” ap-plies even to young and inexperienced lawyers in their first jury trial and even when the case is complex). Nor does professional training end at graduation. Most jurisdictions require attorneys to satisfy continuing-education requirements.

The dissenting opinion, authored by Justice Ginsburg and joined by Breyer, Sotomayor and Kagan, provides a different picture:

 From the top down, the evidence showed, members of the the District Attorney’s Office, including the District Attorney himself, misperceived Brady’s compass and there-fore inadequately attended to their disclosure obligations. Throughout the pretrial and trial proceedings against Thompson, the team of four engaged in prosecuting himfor armed robbery and murder hid from the defense and the court exculpatory information Thompson requestedand had a constitutional right to receive. The prosecutorsdid so despite multiple opportunities, spanning nearly twodecades, to set the record straight. Based on the prosecu-tors’ conduct relating to Thompson’s trials, a fact triercould reasonably conclude that inattention to Brady was standard operating procedure at the District Attorney’s Office. What happened here, the Court’s opinion obscures, was no momentary oversight, no single incident of a lone officer’s misconduct. Instead, the evidence demonstrated that misperception and disregard of Brady’s disclosure requirements were pervasive in Orleans Parish.

The case seems to set a new standard for recovery for Brady violations - - - and perhaps other constitutional violations - - - by prosecutors. 

Connick, the district attorney of New Orleans from 1973 - 2003, is no stranger to important constitutional cases.  This is the same Harry Connick of Connick v. Myers, in which assistant district attorney Sheila Myers, complained about morale in the office, was terminated, and brought a First Amendment claim. 

And this is Harry Connick, Sr.  It is his son, Harry Connick, Jr. who is the singer, although Sr. also did his share of entertainment.


[image: entrance to Louisiana State Penitentiary, Angola, via]

March 29, 2011 in Criminal Procedure, First Amendment, Habeas Corpus, Music, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Thursday, March 24, 2011

District Court Denies Habeas for Guantanamo Detainee

The U.S. District Court for the District of Columbia yesterday released a redacted version of Judge Leon's November 2010 opinion denying habeas relief for Guantanamo detainee Obaydullah.  Judge Leon today rejected Obaydullah's motion for reconsideration.

The government argued that Obaydullah was "part of" an al Qaeda "bomb cell" based upon evidence it obtained during a raid of Obaydullah's home and its own pre-raid intelligence.  (The government declined to disclose the source of the intelligence.)  Evidence included 23 anti-tank mines, a notebook with instructions and wiring diagrams for how to build a remote-control IED, and an automobile that contained dried blood and Taliban propaganda.  Information based upon pre-raid intelligence was largely, if not entirely, redacted from Judge Leon's opinion. 

Judge Leon ruled that the evidence corroborated pre-raid intelligence and that it was more likely than not that Obaydullah was part of an al Qaeda bomb cell:

However, the combination of the explosives, the notebook instructions and the automobile with dried blood all fit together to corroborate the intelligence sources placing both the petitioner and Bostan at the scene aiding fellow bomb cell members who had been accidentally injured while constructing an IED.  Additionally [redacted] serve to further corroborate the credibility of the government's intelligence source linking Obaydullah to the al Qaeda bomb cell.  Thus, combining all of this evidence and corroborated intelligence, the mosaic that emerges unmistakenly supports the conclusion that it is more likely than not that petitioner Obaydullah was in fact a member of an al Qaeda bomb cell committed to the destruction of U.S. and Allied forces.  As such, he is being lawfully detained under the AUMF and this Court must, and will, therefore DENY his petition for a writ of habeas corpus.


March 24, 2011 in Habeas Corpus, News, Recent Cases, War Powers | Permalink | Comments (0) | TrackBack (0)

Monday, March 7, 2011

President Orders Review of Guantanamo Detainees

President Obama today issued an executive order providing for "periodic review of individuals detained at Guantanamo Bay Naval Station pursuant to the Authorization for Use of Military Force."

The move suggests that the White House won't achieve its goal to close down Guantanamo anytime soon.

The new periodic review process applies only to those 172 individuals currently detained at Guantanamo and subject to the interagency review process in 2009.  Under the process, detainees may present a written or oral statement to the review board, introduce relevant information including written declarations, answer any questions posed by the review board, and call witnesses who are reasonably available.  Each detainee gets a "personal representative" and a right to independent counsel (not at government expense).

The EO explicitly grounds authority for the new process in the Authorization for Use of Military Force and explicitly subjects detention at Guantanamo to the Convention Against Torture, Geneva Conventions Common Article 3, the Detainee Treatment Act of 2005, "and other laws relating to the transfer, treatment, and interrogation of individuals detained in armed conflict."  It also explicitly recognizes detainees' right to habeas corpus.

The EO sets this standard for continued detention:

Continued law of war detention is warranted for a detainee subject to the periodic review . . . of this order if it is necessary to protect against a significant threat to the security of the United States.

Emphasis added.


March 7, 2011 in Executive Authority, Habeas Corpus, International, News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Monday, November 15, 2010

Government Likely to Detain KSM Indefinitely

The Washington Post reported this weekend that the Obama administration is unlikely to push for federal trial for Khalid Sheik Mohammed (because it would anger lawmakers in Congress and in New York) and unlikely to push for trial in a military tribunal (because it would alienate liberal supporters).

The result?  It looks like indefinite detention.

The administration has long claimed that indefinite detention is authorized under the AUMF and legal under international law, although it hasn't given us its precise reasons.  (We posted on indefinite detention here and here.) 

The AtlanticWire collects reactions--from a critique that this means we're in a "forever war" to glee that Obama seems to be following the Bush administration's approach (but without also offering the aggressive legal claims).


November 15, 2010 in Congressional Authority, Fundamental Rights, Habeas Corpus, International, News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Friday, November 12, 2010

D.C. Circuit Clarifies "Part Of" Test for Guantanamo Detention

The D.C. Circuit last week remanded a Guantanamo petitioner's habeas corpus case to the district court for a determination whether the petitioner was "part of" al Qaeda under the Circuit's refined standard for detention.

The case, Salahi v. Obama, tests the government's authority to detain Mohammedou Ould Salahi as "part of" al Qaeda based on his 1991 oath of allegiance to the organization, his association with its members, and his support for the organization.  (The government has not criminally indicted Salahi for providing material support to al Qaeda, and it does not seek to detain him on the ground that he aided the 9/11 attacks or the ground that he supported al Qaeda in hostilities against the U.S. or its partners.)  The district court granted the writ and ordered Salahi released.

The D.C. Circuit ruled that the district court applied the "part of" test without the benefit of the D.C. Circuit's more recent rulings in Al-Adahi v. Obama, Bensayah v. Obama, and Awad v. Obama.  The D.C. Circuit ruled that those cases require a more flexible, case-by-case evaluation of a "part of" claim that looks at the evidence against a detainee in its totality.  The D.C. Circuit thus rejected the district court's formalist approach that looks at evidence piece-by-piece, and only in isolation.

Here the D.C. Circuit ruled that the district court erred in finding that Salahi was not part of the command structure of al Qaeda, because there was no evidence that he received and executed orders from al Qaeda.  The D.C. Circuit ruled that the "command structure" test was relevant to the "part of" test, but alone not dispositive of it.  In short, the district court "did not make definitive findings regarding certain key facts necessary for us to determine as a matter of law whether Salahi was in fact 'part of' al-Qaeda when captured."

The circuit court also ruled that the government did not shift the burden to Salahi to prove that he was not "part of" al Qaeda at the time of capture merely by showing that he swore an oath in 1991.  The court pointed out that at the time of Salahi's oath, al Qaeda and the United States shared a common objective: to topple Afghanistan's Communist government.  Bin Laden didn't directly turn on the United States until 1992, when he issued his first fatwa against U.S. forces.  But Salahi declared that he severed ties to al Qaeda that same year.  Moreover, over 10 years passed between Salahi's oath and his capture.  The court ruled that Salahi's oath was relevant to determining whether he was "part of" al Qaeda, but under the circumstances it couldn't shift the burden to Salahi.  (The court ruled that an oath might shift the burden under different circumstances, e.g., if the oath occurred closer to the time of capture.) 

The court gave a sense of the kinds of questions it'd like answered under the broader "part of" approach:

[D]oes the government's evidence support the inference that even if Salahi was not acting under express orders, he nonetheless had a tacit understanding with al-Qaida operatives that he would refer prospective jihadists to the organization?  Has the government presented sufficient evidence for the court to make findings regarding what Salahi said to bin al-Shibh during their "discussion of jihad and Afghanistan"?  Did al-Qaida operatives ask Salahi to assist the organization with telecommunications projects in Sudan, Afghanistan, or Pakistan?  Did Salahi provide any assistance to al-Qaida in planning denial-of-service computer attacks, even if those attacks never came to fruition?  May the court infer from Salahi's numerous ties to known al-Qaida operatives that he remained a trusted member of the organization?

Op. at 14.

These questions instruct the government and lower court to press harder in putting the evidence together and drawing inferences that Salahi was "part of" al Qaeda.  The ruling thus not only reaffirms the broader approach to the "part of" test in its most recent cases; it also puts that approach into sharper focus.  Particularly, Salahi illustrates that this case-by-case, totality-of-circumstances approach can make the government's job much easier: The government can (and the courts must) put the disparate pieces of evidence together and draw inferences to create a larger picture of a detainee who was "part of" al Qaeda at the time of capture.


November 12, 2010 in Executive Authority, Habeas Corpus, Recent Cases, War Powers | Permalink | Comments (0) | TrackBack (0)

Friday, November 5, 2010

Greenhouse on Sotomayor and Dissents from Certiorari

Linda Greenhouse has a worth-reading column that begins by referencing the revelation of ConLawProf Larry Tribe's initial dismissal of Sotomayor in a letter to Obama but soon rises to an insightful analysis of Sotomayor's career as a Justice so far.

Picture 2 Greenhouse focuses on the Court's criminal docket, noting that so far Sotomayor "was second only to Justice Stevens in voting on the side of the criminal defendant."   Of course, Sotomayor's dissent last term in Berghuis v. Thompkins merits a mention.  And unspoken is the departure of Stevens, which presumably makes Sotomayor the most sympathetic Justice to claims by criminal defendants. 

But it is Sotomayor's dissent from a denial of a certiorari grant - - - in the context of such dissents - - -  that proves most interesting.  Greenhouse contends that the Roberts Court has seen the revival of individual justices issuing dissenting opinions from the Court’s denials of certiorari, a practice that had shriveled under Rehnquist but which has been embraced by Roberts himself.   Greenhouse highlights Sotomayor's dissent in Pitre v. Cain, a prisoner's pro se petition.  While Sotomayor's dissent seems compelling, Greenhouse concludes it is the kind of case which the Court usually does not hear because it would simply correct the error of the Fifth Circuit and be dispensing "retail justice."

Lest this be interpreted as implying Sotomayor is a "retail Justice" herself, Greenhouse quickly compares Sotomayor's dissent to a dissent issued Monday by Alito, Roberts, and Scalia, from the denial of certiorari in Wong v. Smith, the grant of a habeas petition by the Ninth Circuit.  The Court, the dissenters wrote, should hear the case to "correct the Ninth Circuit’s error."

"Error-correction to the left, error-correction to the right," Greenhouse writes, which is accurate Court-wise, if not reflective of a wider Left/Right politics in which describing Sotomayor, a former federal prosecutor, as "left" seems odd.  But what is certainly true, as Greenhouse reminds us, is that ConLawProfs should be paying attention to those dissents from denial of certiorari.


November 5, 2010 in Cases and Case Materials, Courts and Judging, Criminal Procedure, Current Affairs, Habeas Corpus, News, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 18, 2010

Federal Judges' Treatment of Coerced Statements in Gitmo Cases

Federal district court judges have ruled against the government in 8 of 15 Guantanamo detainees' habeas cases because of interrogations of detainees and witnesses under "questionable circumstances," ProPublica reports in its latest installment in its ongoing investigation of detention at Guantanamo Bay, The Detention Dilemma.

ProPublica reviewed 31 published decisions involving 52 detainees who claimed they were wrongfully detained.  Fifteen of those involved detainee claims that they or witnesses were "forcibly interrogated." 

Judges rejected government evidence because of interrogation tactics ranging from verbal abuse threats to physical abuse they called torture.  Even in the seven cases the government won, the judges didn't endorse aggressive methods.  In six, they decided the detainees' stories of abuse simply weren't credible or were irrelevant to the outcome.  In one, the prisoner had repeated self-incriminating statements in military hearings, which the judge viewed as less intimidating than the interrogations he found unacceptable.

And the "clean evidence" strategy doesn't seem to be working:

In most of the cases the government lost, the judges rejected statements even from the "clean" sessions that the Bush administration began administering in 2002 to collect evidence to use in court.  The fear prisoners experienced during improper interrogations bled over to corrupt those statements too, the judges said.

The government has now lost 37 of the 53 habeas cases decided.  Fifty more cases are pending.  And the Obama administration has designated at least 48 of the remaining 176 prisoners at Guantanamo Bay for indefinite detention "because they're too dangerous to release but can't be prosecuted successfully in military or civilian court. . . .  [C]oercion tainted evidence is one obstacle," according to the report.

This problem explains in part why the government isn't pursuing these cases in criminal courts: "The rules for excluding tainted evidence are stricter in [both civilian and military criminal courts], yet the government's need to marshal evidence is greater."

ProPublica's The Detention Dilemma project includes dozens of other outstanding reports--essential reading for anyone teaching or studying Guantanamo detention.  We've posted most recently on detainee habeas cases here and here.


August 18, 2010 in Executive Authority, Fundamental Rights, Habeas Corpus, News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)