Topic: Law and Civil Liberties

Supreme Court and GITMO (Part 2)

Because of widespread interest in yesterday’s Guantanamo case, the Supreme Court released the audio of the oral argument.  Since Justice Anthony Kennedy is considered to be the deciding vote in what will be a 5-4 decision, I thought the most interesting and perhaps pivotal moment came at the very end of the oral argument.  If you have any interest in this debate at all, click on the audio link above and then skip to the good part at the 1 hour, 21 minute mark and just listen to the final three minutes. 

Justice Kennedy asks a question and attorney Seth Waxman begins his response, explaining the “Kafkaesque” procedures that are supposed to be a “substitute” for the writ of habeas corpus.  But then Waxman’s alloted time expires! Had the late Chief Justice William Rehnquist been presiding, he would have immediately pounded his gavel and thanked the attorneys–even if Waxman had been in mid-sentence.  Very strict about the clock, among other things. Fortunately, Chief Justice John Roberts was presiding–because he allowed Waxman an extra minute to complete his powerful closing argument in response to Justice Kennedy’s question.

Previous coverage here.  Podcast here

Supreme Court and GITMO

Today, the Supreme Court will be hearing oral arguments in the case of Boumediene v. Bush  The case represents an important battle over the constitutional doctrine of separation of powers and the “Great Writ” of habeas corpus.

This isn’t the place to lay out all the details, but I will try to boil it down.  The case is about two things: (a) the power of government to put people in prison; and (b) a power clash between the three branches of our government. 

President Bush says the entire world, including every inch of U.S. territory, is a battlefield.  As Commander-in-Chief, Mr. Bush and his military and intelligence agents will decide who must be imprisoned (sometimes the prisoners are called “enemy combatants,” “POWs,” “high value detainees,” or “imperative security detainees”) and the courts should not “second guess” the calls made by members of the executive branch. 

There is a Supreme Court precedent called Eisentrager that says the courts do not have jurisdiction over prisoners–so long as they are non-citizens who are kept in facilities abroad.  Guantanamo was selected as the site, in part, for that legal reason.  The Bush administration has tried to keep any legal claims by prisoners out of federal court.  When the Supreme Court ruled that a federal statute permitted claims in federal court, Bush went to Congress to change that law.  We now have the Military Commissions Act, which tries to withdraw federal habeas corpus jurisdiction from the federal courts–for any case arising out of Guantanamo.  The Court will be hearing arguments on the constitutionality of that law today.

In my view, Guantanamo gets so much media attention that most people end up losing the big picture.  What if the Supreme Court says habeas petitions from Guantanamo can be heard in federal court?  In an ironic twist, such a ruling might prompt Mr. Bush to announce, “I am closing of Guantanamo!” (footnote: The prisoners, however, will be moved to Abu Graib or some other facility).  What then?

“Jurisdiction” refers to the power of a court to decide a case.  Territory is usually a key factor in deciding jurisdiction.  If a prisoner in a California prison sends a habeas petition to a court in Maine, the Maine court will quickly toss it out because it has no jurisdiction.  It does not matter if the Maine judge is convinced of the prisoner’s innocence. 

The Bush administration says it should win the Boumediene case because federal courts do not have jurisdiction over non-citizen prisoners who are beyond U.S. borders.   And they refer us back to the terms of the Military Commission Act and the Eisentrager case.

I believe the Bush administration should lose this case.  The Framers of the American Constitution called the writ of habeas corpus the “Great Writ” because it is the fundamental check on the power of government to put people in prison.  In law, we say this writ “cuts through all forms,” such as territorial jurisdiction.  The courts do have jurisdiction over the “power of control,” which is the President.  The writ operates upon the jailer, not the prisoner.  Thus, if a habeas petition has merit, the court orders the jailer to release his grasp. 

The Supreme Court needs to protect the role of the judiciary in habeas litigation by invalidating the habeas removal provisions of the Military Commission Act.  Once jurisdiction is established, federal courts can move on to the “merits” of the petitions.  Whether any particular prisoner can persuade a court that his imprisonment is a mistake remains to be seen. 

The Cato brief in this case can be found here.  To watch or listen to me debate George Mason University professor Jeremy Rabkin, go here.  I am also participating in an on-line debate over at the Federalist Society.

Free Speech and Property Rights in St. Louis

The St. Louis Post-Dispatch has a story on an important free speech case here in St. Louis. Property rights activist Jim Roos, whose run-ins with city bulldozers are documented in my recent study, has painted an enormous two-story mural on the side of one of the buildings the city has threatened with eminent domain. It reads “End Eminent Domain Abuse,” and its location makes it plainly visible for commuters driving on Interstate 55, a major commuter route.

The city isn’t amused, and has charged Roos with having an “illegal sign.” Roos fought back:

Roos fought the citation, claiming the city was targeting him not because of the size of his sign, but because of its message.

“I think if it said, ‘Go Cardinals,’ we wouldn’t have any problems,” Roos said.

The city routinely approves exemptions for large signs. On the same day a city panel rejected Roos’ claim, it granted an appeal by Laclede Gas to display a sign of over 1,000 square feet on the utility’s downtown headquarters.

Even so, content is not the issue, city officials say — it’s keeping the city tidy.

“Can you imagine what our city would look like if everyone were allowed to paint a 363-square-foot, two-story sign on their buildings?” asked City Attorney Patti Hageman.

Roos has taken his case to federal court, where he has drawn the aid of the Institute for Justice, a libertarian advocacy group in Arlington, Va. The interest in Roos’ fight is twofold for the institute, which advocates for both free speech and property rights.

It sure would be terrible if everyone were allowed to express their political opinions by painting murals on their buildings.

More Nanny-State Foolishness

Article I, Section VIII of the United States Constitution specifies the powers of the United States Congress. The list of congressional powers is not very long, comprising less than 20 items, so it did not take very long to discover that federal lawmakers do not have any power to regulate school lunches. So I was shocked, absolutely shocked, to read in the New York Times that Senators Harkin and Murkowski are pushing legislation to micro-manage the number of calories in vending-machine snacks (though they have graciously and generously decided to exempt the Girl Scouts):

Federal lawmakers are considering the broadest effort ever to limit what children eat: a national ban on selling candy, sugary soda and salty, fatty food in school snack bars, vending machines and cafeteria lines. …Senator Tom Harkin, Democrat of Iowa and the chairman of the Agriculture Committee, has twice introduced bills to deal with foods other than the standard school lunch, which is regulated by Department of Agriculture. Several lawmakers and advocates for changes in school food believe that an amendment to the $286 billion farm bill is the best chance to get control of the mountain of high-calorie snacks and sodas available to schoolchildren. Even if the farm bill does not pass, Mr. Harkin and Senator Lisa Murkowski, Republican of Alaska, a sponsor of the amendment, vow to keep reintroducing it in other forms until it sticks. …Food for sale would have to be limited in saturated and trans fat and have less than 35 percent sugar. Sodium would be limited, and snacks must have no more than 180 calories per serving for middle and elementary schools and 200 calories for high schools. The standards would not affect occasional fund-raising projects, like Girl Scout cookie sales.

The Politics of Free Speech Change for the Better

The politics of free speech are changing fast.

The presidential public financing system is all but dead, largely because the candidates are raising so much money they don’t need to dun the taxpayers for campaign cash. The Democrats have raised a lot more money for the coming election than the Republicans. The Supreme Court is starting to favor free speech in campaign finance cases and casting a cold eye on laws like McCain-Feingold.

For most of the past three decades, so-called “reform” groups have dominated DC battles about campaign finance. These special interest groups lobbied Congress while their lawyers practiced the art of restricting speech before the Federal Election Commission.

Now that too is changing. A new group, SpeechNow.org, has formed to fight restrictions on speech. They just asked the Federal Election Commission to issue an advisory opinion about whether their fundraising must follow the contribution limits in federal election law.

Contribution limits exist–in law, if not in fact–to prevent corruption or the appearance of corruption. But SpeechNow.org is not giving money to federal candidates for office, and it is not incorporated (corporations cannot legally give money to parties or candidates). The organization is funded solely by individuals, some of whom want to give more than $5,000 to support the work of the new group.

What are they planning to do? The Center for Competitive Politics, which along with the Institute for Justice provides legal counsel to SpeechNow.org, says that “the group wants to run TV ads supporting and opposing candidates on free speech issues during the 2008 election cycle.”

Think about that for a minute. A group of citizens wants to come together to pool their resources to speak out for and against candidates on matters concerning free speech. They don’t plan to give candidates or the parties money, so the corruption threat does not exist. What could be more in line with the First Amendment and the Constitution? And yet… SpeechNow.org finds itself asking the Federal Election Commission “mother may I?” just to exercise its constitutional rights.

That should make you angry.

But think about this too. SpeechNow.org is something different from what we’ve heard on these issues for so many years, a group that plans to defend the First Amendment outside the courtroom. And somewhere in this nation is at least one person who is willing to give SpeechNow.org more than $5,000 for that effort.

That gives me hope.

Judicial Restraint and the Second Amendment

Paul Helmke, president of the Brady Campaign to Prevent Gun Violence, has a column on HuffingtonPost and the Atlanta Journal-Constitution arguing that the Supreme Court should uphold the D.C. gun ban and reject the idea that when the Constitution says “the right of the people to keep and bear arms shall not be infringed,” it means that people have the right to keep and bear arms. His basic argument, summed up in the title, is that “The will of the people must not be overruled.” He pounds away at that theme:

Last March, the District of Columbia saw judicial activism replace the will of the people….

More than 30 years ago, the elected representatives on the D.C. City Council decided to enact a system of strict gun laws to help protect public safety. The people in D.C. strongly support these laws….

[The Court of Appeals] imposed their own policy preferences on the people of D.C.

It was a textbook example of judicial activism at its worst….

If the justices reject judicial activism and refrain from substituting their own policy preferences for the people’s elected representatives, then the District of Columbia will prevail. And so will the American people.

As a lawyer and a lifelong Republican, I have deep respect for judicial precedent, for American history and for a close reading of all the words in the Constitution. As one who served as mayor of Fort Wayne, Ind., for 12 years, I also believe in the importance of local communities being able to pass the laws they believe will help keep them safe.

It’s a powerful argument, and it may well resonate with the conservative justices who think that judges often overreach and “substitute their own policy preferences” for those of the people’s elected legislators. But I wonder if Helmke really believes that judges should respect the will of legislators and not strike down laws. Does he believe that the Warren Court should not have struck down school segregation, which was clearly the will of the people’s elected representatives–and no doubt the people–in Kansas, as well as in South Carolina and Virginia, whose similar cases were combined with Brown? Does he believe that the Supreme Court was wrong to strike down Virginia’s law against interracial marriage in 1967? The Texas law outlawing sodomy in 2003? The Communications Decency Act in 1997? Does he indeed think the John Marshall Court was wrong to invalidate a section of the Judiciary Act of 1789 in Marbury v. Madison? That’s the implication of his ringing words in defense of legislative absolutism.

I don’t think he believes this for a minute. I am sure he agrees with Cato’s constitutional scholars that the Supreme Court has an obligation to strike down laws that exceed the powers granted to Congress or that violate the rights protected in the Bill of Rights. He just doesn’t want the Court to apply that rule to the right to keep and bear arms. But in fact there’s an increasingly broad consensus among scholars that the Second Amendment protects an individual right to bear arms. And thus the Court should do its duty and find that an absolute ban on gun ownership by law-abiding citizens clearly exceeds any power of reasonable regulation that might be permitted under a properly understood Second Amendment.

Hyde Will Be Missed

Former Congressman Henry Hyde of Illinois, who died this morning in Chicago at the age of 83, was a friend of the Cato Institute who worked closely with us in our efforts to put a spotlight on the abuses flowing from America’s civil asset forfeiture law. A staunch defender of the war on drugs, Rep. Hyde saw nonetheless that not every tactic the government used in that war could be justified. In particular, the government’s seizure for itself of private property that merely “facilitated” a crime, often from completely innocent people, drove him to do whatever he could to end such abuses. He called hearings, at which Cato scholars were invited to testify. Then in 1995 Cato published his book, Forfeiting Our Property Rights: Is Your Property Safe from Seizure? The tone of the book was captured in its opening words:

Much of what you may have learned in school or college about your rights and liberties no longer applies. Increased government and police powers, rising criminal activity and violence, popular anxiety about drug use–all have become justifications for curtailing the application of the Bill of Rights and the individual security it once guaranteed.

The book was a ringing indictment of the government’s war on private property through the awful practice of civil asset forfeiture. More hearings followed its publication, culminating in a reform bill, which Hyde unveiled as the keynote speaker at a 1999 Cato conference. Hyde was tireless in shepherding the bill through both houses of Congress, fighting the Justice Department all the way, and in obtaining President Clinton’s signature. We will miss him.