Topic: Law and Civil Liberties

Yoo and Boumediene

John Yoo published this article in the Wall Street Journal yesterday about the Supreme Court’s Boumediene ruling. He makes too many claims for me to respond to here in a blog post, but let me address a handful.

1. Yoo: “Under the writ of habeas corpus, Americans (and aliens on our territory) can challenge the legality of their detentions before a federal judge.”

This is an astonishing statement coming from a former Department of Justice official like John Yoo. I say that because Americans were locked up in military brigs as “enemy combatants.” And their attorneys did file habeas corpus petitions in federal court. The Bush administration responded to those petitions by urging the federal courts to immediately throw them out of court! At one point in the litigation, Bush’s lawyers told the Supreme Court, “The Commander in Chief … has authority to seize and detain enemy combatants wherever found, including within the borders of the United States.” Brief for United States, Rumsfeld v. Padilla (No. 03-1027), p. 38. Yoo and others now seem to be playing down those previous assertions about the executive’s military powers, but the record is there for anyone to check. Bush’s lawyers argued that such American prisoners were perfectly free to “challenge” their imprisonment by filing a habeas corpus petition–again, just so long as the courts pronounced such petitions dead on arrival. See Hamdi v. Rumsfeld, 296 F.3d 278, 283 (2002) (“The government [argues that the courts] may not review at all its designation of an American citizen as an enemy combatant–that its determination on this score are the first and final word.”).

With that background in mind, let’s return to Yoo’s claim that Americans “can challenge the legality of their detentions before a federal judge.” To be non-misleading, one would have to add something like, “as long as the courts repudiate the Bush administration’s claims regarding executive power.” Or I suppose there is another possibility. One could prop up the claim with a clarification like “After all, any lawyer can try to challenge anything.” A lawyer can challenge a speeding ticket by the Colorado State Police by asking a judge in Maine to rule in his favor. The Maine judge isn’t going to take any action because his court has no jurisdiction, but the lawyer is nevertheless free to file his request or “challenge” in Maine, futile as it is.

In context, Yoo seems to be trying to assure readers that the writ of habeas corpus is in place for Americans. Well, only if you ignore the legal precedents the Bush administration has been trying to establish. Or only if you are assured by the fact that Americans have a guaranteed right to file futile legal motions in court.

2. Yoo: “The Boumediene Five also ignored the Constitution’s structure, which grants all war decisions to the president and Congress.”

All war decisions? Should the Supreme Court have sanctioned Harry Truman’s seizure of the steel mills (Youngstown Sheet and Tube v. Sawyer, 343 U.S. 579 (1952))? Should the Supreme Court have sanctioned the internment of Americans during World War II (Korematsu v. United States, 323 U.S. 214 (1944)? Should the Supreme Court have affirmed the conviction of Eugene Debs under the Espionage Act for giving an anti-war speech (Debs v. United States, 249 U.S. 211 (1919)? Should the Supreme Court have sanctioned military trials for Americans during the Civil War (Ex Parte Milligan, 71 U.S. 2 (1866)? Perhaps Yoo answers all of these questions in the affirmative, but shouldn’t he make his case for such sweeping war powers more forthrightly?

3. Yoo: “Under Boumediene’s claim of judicial supremacy, it is only a hop, skip and a jump from judges second-guessing whether someone is an enemy to second-guessing whether a soldier should have aimed and fired at him.”

Here Yoo wants readers to imagine a judge in robes running between foxholes to review the battle plan. He desperately wants readers of the Wall Street Journal to ask: What in the world can our Supreme Court be thinking? Not to worry. Yoo is simply trying to caricature a position with which he disagrees. I would make two points here. First, I quite agree that judges have no place on the battlefield. However, we need to watch our terms and definitions here. I do reject the Bush administration’s claim that all of the world, including all of the USA is a “battlefield.”

Second, once the dust has settled after a patrol or firefight, is it not appropriate to review the actions of our soldiers? Unless one is prepared to argue that U.S. military personnel are simply incapable of using their weapons unlawfully, war crime allegations have to be adjudicated somewhere, right? In a previously published article, Yoo has called the Abu Ghraib abuses “sadistic.” Given that statement, it seems fair to ask whether the prosecutions and convictions arising from that case were improper because a court “second-guessed” the soldiers’ detention and interrogation methods? And should not U.S. military personnel who believe they have been unfairly prosecuted be able to pursue their legal appeals (in the event of a conviction) beyond the military system to the Supreme Court? If not, why not?

For more on the Boumediene case, go here. For more on the Bush administration’s legal record, go here. For more on John Yoo, go here.

Lawyers Write Laws to Protect Lawyers… I’m Shocked!

As my colleague Tim Lynch, product of Marquette Law School, can attest, graduates of Wisconsin law schools become members of that state’s bar without having to take an exam.  Understandably, out-of-staters (or even Wisconsonians who go elsewhere for law school and then want to return home) might be jealous.  Now a federal judge has granted class status to a group of law school graduates who have earned law degrees outside Wisconsin and want the same right as in-state grads to practice in the state without passing a bar exam.  (The judge also dismissed the suit as moot because the plaintiff had since passed the bar exam, but apparently this plaintiff has since added his wife and another recent law grad and hopes to take another bite at that apple.)

Wisconsin’s policy is obviously little more than a bit of protectionism meant to give its two law schools (Marquette and UW) a competitive advantage over regional rivals (or to retain, at the margins, Wisconsonians who might be tempted to go to other schools which they perceive as better or which offer them scholarships).  But it may not be unconstitutional, at least not on the grounds the suit alleges – as a violation of Congress’s exclusive power to regulate inter-state commerce (state-specific bar rules are unlike the state-specific railroad gauges – which the Supreme Court has ruled to be unconstitutional on Commerce Clause grounds – because each state has its own substantive and procedural laws).  Indeed, it is easy for Wisconsin to argue that its schools are the only ones that specifically teach its laws.  Similarly, though many states allow experienced (typically five years) lawyers to waive into their bar, others (including – surprise, surprise – all major retirement destinations: HI, CA, AZ, TX, FL) require exams of all comers, even, say, a former Supreme Court justice. 

A better argument to counteract all this nonsense can probably be made on equal protection grounds – on which the Supreme Court struck down citizenship requirements in 1973 – but even those formulations have failed in the context of, e.g., state bars that exclude non-permanent resident aliens (there goes my dream of practicing in New Orleans).  In any event, I suspect that, at least in the Wisconsin case, a court would apply “rational basis” review and, for the reasons stated above, find for the state.

A free market solution would, of course, eliminate all the bar membership requirements for legal practice, giving clients the option to hire moderately trained non-lawyers – at cheaper rates! – for relatively simple matters such as simple wills, small claims litigation, uncontested divorces, etc.  Much as lawyers can now advertise which law school they graduated from, the “real” lawyers would be able to say that they’d passed the bar, had their “character and fitness” reviewed by a committee, tried x number of cases, and other indicia that would distinguish them from hucksters selling the legal equivalent of snake oil.

Some Reactions to the Supreme Court’s Ruling About Habeas Corpus and Guantanamo

Today George Will slams John McCain for his “extravagant condemnation” of last weeks ruling concerning habeas corpus and Guantanamo.

Here’s an excerpt:

The day after the Supreme Court ruled that detainees imprisoned at Guantanamo are entitled to seek habeas corpus hearings, John McCain called it “one of the worst decisions in the history of this country.” Well….

The purpose of a writ of habeas corpus is to cause a government to release a prisoner or show through due process why the prisoner should be held. Of Guantanamo’s approximately 270 detainees, many certainly are dangerous “enemy combatants.” Some probably are not. None will be released by the court’s decision, which does not even guarantee a right to a hearing. Rather, it guarantees only a right to request a hearing. Courts retain considerable discretion regarding such requests.

McCain, co-author of the McCain-Feingold law that abridges the right of free political speech, has referred disparagingly to, as he puts it, “quote ‘First Amendment rights.’ ” Now he dismissively speaks of “so-called, quote ‘habeas corpus suits.’ ” He who wants to reassure constitutionalist conservatives that he understands the importance of limited government should be reminded why the habeas right has long been known as “the great writ of liberty.”

No state power is more fearsome than the power to imprison. Hence the habeas right has been at the heart of the centuries-long struggle to constrain governments, a struggle in which the greatest event was the writing of America’s Constitution, which limits Congress’s power to revoke habeas corpus to periods of rebellion or invasion. Is it, as McCain suggests, indefensible to conclude that Congress exceeded its authority when, with the Military Commissions Act (2006), it withdrew any federal court jurisdiction over the detainees’ habeas claims?

As the conservative and libertarian Cato Institute argued in its amicus brief in support of the petitioning detainees, habeas, in the context of U.S. constitutional law, “is a separation of powers principle” involving the judicial and executive branches. The latter cannot be the only judge of its own judgment.

In Marbury v. Madison (1803), which launched and validated judicial supervision of America’s democratic government, Chief Justice John Marshall asked: “To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?” Those are pertinent questions for McCain, who aspires to take the presidential oath to defend the Constitution.

Read the whole thing. The Cato legal brief quoted can be found here.

Steve Chapman’s latest column is also about the Supreme Court ruling. Here’s an excerpt:

The administration asserted that in time of war, even an unconventional war against a shadowy foe, the executive branch has the power to capture a foreigner abroad and hold him for the rest of his life, without any independent review by the courts.

Short of claiming the right to do that to an American citizen arrested on U.S. soil—a claim the administration had also made, only to see it repudiated by the courts—that’s about as vast and dangerous a power as you could find. So it is not surprising that the Supreme Court balked.

The justices insisted that the constitutional guarantee of habeas corpus, which lets prisoners challenge their confinement, must be respected. Except when Congress formally suspends that right, wrote Justice Anthony Kennedy, it assures that “the judiciary will have a time-tested device … to maintain the ‘delicate balance of governance’ that is itself the surest safeguard of liberty.”

Good stuff. The full article is here.

Update: Steve Chapman has a follow up article here.

But What About the Children?

Sometimes the Supreme Court makes news for the cases it doesn’t take, not just the opinions it produces in cases it hears.  Today marked one such occasion, when the Court denied cert in Dupuy v. McEwen, in which Cato filed an amicus brief.

For more than a decade, the Illinois Department of Child and Family Services has investigated parents based on anonymous tips of abuse or neglect, and deemed them “indicated” after a cursory investigation by state officials who have no effective check on their unilateral authority. Unlike actual child abuse cases, in which the State removes children from abusive situations with judicial approval, the State takes a different route with “indicated” parents – threatening them with what it calls a “Safety Plan.” In so doing, the State demands that parents abandon their homes and families pending an investigation of unlimited duration. Frequently State officials will threaten to remove children immediately into foster care if the parents do not “consent” to the plans without counsel and without negotiation. According to the Seventh Circuit, parents are not allowed to challenge the plans in a judicial or administrative forum if they “consent” to the State’s demands, even if they do so only after being threatened with the loss of their children. Our brief, which supported the class of parents petitioning the Supreme Court for review of these practices, argued that these “Safety Plans” violate the Due Process Clause because they infringe on fundamental family rights without affording any opportunity to challenge state action. They also vest unfettered discretion in state officials to infringe on parents’ fundamental rights. Finally, they represent an unconstitutional condition that forces parents to make an agonizing choice between abandoning their children in the hope that the State’s vague concerns would be mollified by subsequent investigation, or taking the risk that the State would make good on its threat to remove their children into foster care without a hearing.

We had some hope on this case – as did SCOTUSblog – because the Court had asked Illinois to respond to the cert petition (immediately after receiving our amicus brief I should add!), and also because SCOTUSblog had picked it as “one to watch,” but it was not to be. It’s not a tremendously surprising outcome given the tangled procedural history underlying the case – making it a less than ideal vehicle for presenting these issues – but still a disappointing result for parents, children, and freedom from state coercion.

What Do You Call the Ring in a Bull’s Nose? Perhaps “KST”?

While the country moves forward with increasing confidence in its ability to meet the security challenges posed by terrorism, the administration seems still utterly, utterly spellbound.

Take, for example, National Security Presidential Directive 59/Homeland Security Presidential Directive 24. Issued June 5th, it (take a breath … wait for it …) “establishes a framework to ensure that Federal executive departments and agencies … use mutually compatible methods and procedures in the collection, storage, use, analysis, and sharing of biometric and associated biographic and contextual information of individuals … .”

That means, roughly, “Let’s get our act together on biometrics and biometric surveillance, people!”

The directive uses a set of initials I hadn’t come across before: “KST.” This stands for “known and suspected terrorists.” As in, we’re going to “collect, store, use, analyze, and share biometrics to identify and screen KSTs and other persons who may pose a threat to national security.”

Now, to be clear, there are terrorists, and there may be some in the country - terrorist precursors, perhaps. But I don’t think there are enough of them, or enough danger from them, to merit awarding them their own initials. Even in acronym- and initial-happy Washington, D.C., these things are reserved for things of greater significance.

This reveals the thrall in which the administration is still held by terrorism. “We’re not up against a few small bands of sociopathic ideologues. No, we’re up against a movement with all the power of our ‘FBI’, ‘CIA’, ‘DoD’, and ‘DoJ’.”

I’ve posted here before about terrorism as a strategy, suggesting certain counter-strategic behaviors. Terrorists gain by drawing attention to themselves, wrapping themselves in the romance of rebellion, and being seen as legitimate rivals to their enemies. By dubbing the threat “KST,” the administration grants terrorists that legitimacy. It tells audiences ideologically and physically near terrorists that we’re still scared, which does terrorists a tremendous favor. (I, for one, am not scared; I’m embarrassed.)

On the merits, biometrics are occasionally necessary, but essentially impotent against the well-known technique of using “clean-skin” terrorists (see, e.g., 9/11, Oklahoma City). The NSPD/HSPD doesn’t appear to have a lot of substance other than to promote more ferment and federal spending on biometric surveillance technology.