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Monthly Archives: June 2006
Dude, man, you could like totally use it to get high or something
There’s the kid in Vermont, Nickolas Buckalew. And this poor kid just had to plead guilty to two felony charges, earning himself between 1 and 7 years in the clink. What were those charges, you ask? Well, it’s not like he murdered someone. Just felony charges of intentionally removing or injuring a tombstone and intentionally disinterring and carrying away the remains of a human body.
Last April, it seems that our good friend Nickolas wandered into a local cemetery and broke into a tomb. Wandering over to the casket, Nickolas was pleased to find the lid easy to open. He then got to work on sawing the head off, which he then wrapped in plastic bags. Nickolas then left, head in bag, and some eyeglasses and a bow tie from the corpse in-pocket.
Why did Mr. Buckalew steal the head? Well, this is the best part. He was bored. But, not to let a good opportunity go to waste, he did come up with a plan. He apparently told folks that he intended to bleach the head and then turn the skull into a bong! Which of course gives a whole new meaning to…wait for it…wait for it…dead head!!
…man, it’s a good thing it’s finally Friday, I’ll tell you what.
The Daily Memo - 6/30/06
Chief Justice Roberts concluded the Supreme Court term with a thank you to the Court staff. (SCOTUSblog)
A Maine state legislator has been charged with drunk driving, despite trying to weasel his way out of the “nothing” accident - and, when he told the cops he has a clean driving record, he forgot to mention those 9 tickets he has under his belt. (WLBZ)
President Bush wants the Senate to give him the line-item veto. (Yahoo)
Massachusetts state senator Barrios has withdrawn his proposal to ban Fluff. (Excite)
Jury selection has begun in a $3.8 million civil lawsuit against Michael Jackson, brought by a man Jackson hired to produce television shows to counter the negative publicity associated with the “Living with Michael Jackson” documentary. (FindLaw)
In a case we brought to your attention a few weeks ago, the Arkansas Supreme Court has ruled that the state cannot ban gay couples from becoming foster parents. (CNN)
The Smoking Gun enlightens us about a Tennessee mayor who is being sued, in an attempt to get him out of office, because of uttering racial slurs, trying to get his enemies arrested and profiling soldiers and Hispanics in an attempt to raise more traffic ticket revenue. (The Smoking Gun)
Yahoo has settled out of a class-action lawsuit it was involved in over its ad program and click fraud. (FindLaw)
Not So ‘Wild’ Now, Are You?
After spending much of our week discussing the various ways in which QuizLaw pinup boy, Justice Scalia, has attempted, with varying degrees of success, to erode away our Constitutional rights, it’s nice today to get back to things that matter: Girls Gone Wild.
Indeed, out in Texas this week, a jury has decided not to award Brittany Lowry and Lezlie Fuller any damages in their civil lawsuit against Mantra Films, the producers of the “Girls Gone Wild” videos. According to the lawsuit, a Mantra representative asked the two females, who were 17 at the time, to flash their breasts for what he called a “private film.” The girls, who were in Panama City, Florida at the time (presumably on Spring Break), agreed, lied about their age, and signed a consent form, allowing Mantra to film their boobies for nationwide distribution. The girls apparently resisted being videotaped at first, until they were told it was a private film, though the jury was probably convinced otherwise by the fact that they accepted, put on, and then stripped off “Girls Gone Wild,” T-shirts. I’m also certain that the Mantra representative convinced the jury that what he meant by a “private film,” was a video that millions of men would eventually watch in the “privacy” of their own homes.
In my mind, the strangest part of the lawsuit, however, was the Florida law in effect here, which said that minors could be videotaped in various stages of undress, so long as they were on public land. Is it just me, or is that the world’s biggest loophole for underage-porn stars?
Only in Florida, people. Only in Florida.
The Hamdan v. Rumsfeld dissents
Earlier today we posted our in-depth breakdown of the majority/plurality opinion in the just-decided Hamdan v. Rumsfeld. That was followed up with a breakdown of the two concurring opinions. But wait - there’s more! We’ve got three dissenting opinions to work through. So read on to see what today’s losers had to say about all this.
What’s Scalia’s bug about? Scalia opinions are often fun to read, and this one doesn’t disappoint. He’s clearly pissed at the majority, and doesn’t hold back. He calls them stubborn, accuses them of being sarcastic, and says they show “some semblance of seemly shame.” I’ve said it before, and I’ll say it again - I rarely agree with Scalia’s ultimate determination of most issues, but I love watching him get there.
In any event, the first dissenting opinion was written by our boy Antonin and was joined by fellow dissenters Thomas and Alito. Scalia’s biggest complaint is that he doesn’t think the Court has the jurisdiction to even decide this case, because of § 1005(e)(1) of the DTA. He buys into the President’s argument, unpersuasive to the majority, that Congress meant it when they said that “no court, justice, or judge” could review any habeas applications from Gitmo detainees. And even if the majority is correct that the DTA doesn’t block the Court’s jurisdiction, the Court should’ve declined to exercise jurisdiction anyway.
Why does Scalia think the Court doesn’t have jurisdiction? Scalia’s got a lot of reasons for why he thinks the section 1005(e)(1) repeal of jurisdiction applies to this case. First, he just doesn’t think it’s ambiguous about whether or not it applies to cases pending at the time of its enactment, because it prohibits any exercise of jurisdiction over all cases. Not to mention, the section’s use of the word “justice” was clearly pointed to these Justices. In his majority opinion, Stevens responds by basically saying that Scalia is nuts to argue that the meaning of this section is clear - Congress chose not to include an explicit provision as it did for subsections (e)(2) and (e)(3) and that choice of omission is part of determining the “plain meaning” of the section. For Scalia, however, one need look no further than to “[a]n ancient and unbroken line of authority [which] attests that statutes ousting jurisdiction unambiguously apply to cases pending at their effective date.” To now go against this authority, Scalia says there must be “an explicit reservation of pending cases in the jurisdiction-repealing statute” and section 1005(e)(1) simply doesn’t have any such reservation for pending cases. Addressing the majority, Scalia says the Court got it wrong in deciding: (i) that this line of cases doesn’t establish an inflexible rule; (ii) that the cases only establish a presumption that the repealed-jurisdiction statutes apply to pending cases; and (iii) that this presumption is outweighed by the presumption against retroactivity. Not so, says Scalia, because it wouldn’t be retroactive to apply § 1005(e)(1) to Hamdan’s case - it would be prospectively effecting the pending case, which is different from going back to remove jurisdiction from an already resolved matter. Scalia’s final point on this issue is to slam the majority because “it cannot cite a single case in the history of Anglo-American law (before today) in which a jurisdiction-stripping provision was denied immediate effect in pending cases, absent an explicit statutory reservation” (the emphasis there was Scalia’s, not ours).
Next up, Scalia says he doesn’t buy the “negative inference” the majority makes in looking at the explicit language in subsections (e)(2) and (e)(3) providing application to pending cases. First, the Court should only go to a negative inference if it’s trying to understand an ambiguous provision and, again, this provision is unambiguous to Scalia. Second, there’s another subsection to section 1005 which says that it’s provisions don’t apply to pending cases so, asks Scalia, shouldn’t that be a negative inference in the other direction? Third, and most importantly, Scalia says Congress had good reason to put the language into subsections (e)(2) and (e)(3), reasons which didn’t apply to subsection (e)(1). Specifically, these two sections were creating new jurisdiction where there wasn’t any before (not repealing jurisdiction, like subsection (e)(1)), and recent Court cases have said that provisions creating jurisdiction would be considered retroactive in applying to pending cases. So Congress had to explicitly say that those provisions should apply to pending cases lest the courts follow the recent case law and decide that those sections couldn’t apply to pending cases. This is the point where Scalia gets real testy, calling the majority “stubborn” and claiming that a part of the Court’s opinion, addressing why it doesn’t buy this argument of Scalia’s, “rises to the level of sarcasm.” Anyway, Scalia says that Congress was right to doubt that these two sections might not get applied to pending cases without this language, but he doesn’t think the majority is correct that Congress should’ve been just as concerned about subsection (e)(1).
And now comes one of Scalia’s big pet peeves. “Worst of all” is the fact that the Court dug into the legislative history, noting that Congress had a provision of applicability to pending cases and then took it out. Scalia hates looking to legislative history, especially where, as here, he thinks the statutory language is unambiguous. He accuses the Court of being selective in relying upon certain Senate floor statements while ignoring others. He also doesn’t like the fact that the majority ignored the President’s signing statement, where he said that he thought this provision applied to pending cases (now why should the Court defer to the President on a decision of legal interpretation, you ask? Scalia doesn’t say). Scalia is also angry because these statements where made on the Senate floor while this very case was pending, so he says the statements were made explicitly so they could be used in briefing this matter (and on this point, he throws a prior Stevens decision back in Stevens’ face, because in that case, Stevens said he had doubts about the relevant legislative history because the statements in question were clearly partisan). Now, the majority only relied on Congressional floor statements in a footnote. Some might think this is because the Court wasn’t giving it much weight, but Scalia has a different read - “the Court shows some semblance of seemly shame, tucking away its reference to [the floor statements] in a half-hearted footnote.” Scalia is disappointed that the Court’s reliance on drafting history wasn’t equally hidden away in a footnote. He doesn’t think it matters that Congress removed language from subsection (e)(1) which originally said it applied to pending cases because, as far as Scalia’s concerned, they were just yanking out redundant language.
Scalia’s final point on this whole issue is that he thinks “the Court has made a mess of this statute” that leads to equally messy consequences because there are many pending cases that don’t even have to do with challenging military commissions, and the majority’s read means there is still jurisdiction over all of those cases. So “[t]he Court’s interpretation transforms a provision abolishing jurisdiction over all Guantanamo-related habeas petitions into a provision that retains jurisdiction over cases sufficiently numerous to keep the courts busy for years to come” (again, Scalia’s emphasis, not ours).
But wouldn’t Scalia’s interpretation amount to a violation of the Suspension Clause? With all that out of the way, Scalia turns to something not addressed by the majority, because it didn’t need to reach the issue. Hamdan argued that if subsection (e)(1) were interpreted the way Scalia wants to interpret it, stripping jurisdiction over this case, that would be a violation of the Suspension Clause. The Suspension Clause is a provision of Article I of the Constitution which says that the privilege to seek a writ of habeas corpus cannot be suspended unless such a suspension is required by “cases of rebellion or invasion [of] the public safety.” Scalia says that the Suspension Clause doesn’t apply to Hamdan because he’s an alien being detained outside of the “sovereign ‘territorial jurisdiction’ of the United States.” But even if it did apply to him, the DTA doesn’t create a suspension problem because there would be a collateral remedy that’s adequate and effective, and when that’s the case, this Court has ruled that there’s no actual suspension. The collateral remedy Scalia points to is that subsection (e)(3) would allow him to appeal exclusively to the D.C. Circuit. Scalia says this covers it.
And Scalia also thinks that the Court should not have exercised any jurisdiction it might have had anyway, right? You got it. He says that equitable principles govern everything going on here, and equity here should mean that the courts stay out of it since Congress has provided an alternative avenue for Hamdan in subsection (e)(3) (that is, appealing to the D.C. Circuit). Here, Scalia hammers at the majority for not being persuaded by Councilman. Remember, that case said courts should stay out of pending court-martial proceedings. The majority says it’s not the same as this case for a variety of reasons, but Scalia calls shenanigans. He says that the heart of that decision was that “military necessities” counseled against the court sticking its nose into the military’s business and here, the majority “does not even ponder the same question” (yet again, Scalia’s angry emphasis, not ours). Here, Scalia is sure that military necessities call for the Court to stay away. He also thinks the majority’s distinctions between the military commission here and the court-martial in Councilman are of no consequence because the majority misunderstands some of the details of the military commission, specifically, the way reviews work – he says the Court ignores the new review created by Scalia’s buddy, section 1005(e)(3) of the DTA. Finally, Scalia thinks they should butt-out because “[h]ere, apparently for the first time in history…a District Court enjoined ongoing military commission proceedings, which had been deemed ‘necessary’ by the President…[and]…[s]uch an order brings the Judicial Branch into direct conflict with the Executive in an area where the Executive’s competence is maximal and ours is virtually nonexistent.” Scalia says the Court should avoid such conflict, not rush in headlong.
Ok, if Thomas joined Scalia’s dissent, why did he write a 49 page dissenting opinion of his own? Well, since Scalia also joined in Thomas’ dissent, it’s safe to say that they probably decided to split the kitty, each taking up their own cause. For Scalia, this cause was jurisdiction. For Thomas, it’s the merits of the case. He thinks that, even if the Court was right to decide this case, the majority got it all wrong. And yes, Alito also joins Thomas’ dissent, in addition to joining Scalia’s and writing his own. However, Alito only joins certain parts, and we’ll point them out as we go.
Er…actually, before we move on, let’s clarify something which pops up throughout this discussion. Thomas’ cause really wasn’t the merits of the case so much as it was utter deference to the President. He doesn’t buy any of this checks-and-balances business, and he thinks the war on terror means the Court has to give extreme deference to any related decisions the President makes.
So the Court should defer to the President? According to Thomas, you better believe it (note that this is one of the sections that Alito does not join). Thomas begins by looking at what roles the Constitution gives to the three government branches with regard to conducting war. Of course, the Constitution made the President the Commander in Chief, which is because the President has the primary responsibility to handle national security and deal with foreign relations. This gives the President “broad constitutional authority to protect the Nation’s security in the manner he deems fit.” Thomas goes on for a while to repeatedly nail down his point, which boils down to this - in wartime, the President should be given the strongest deference possible. Here, this means his decision to prosecute Hamdan with a military commission should be ok, especially since Thomas thinks it’s authorized by 2001’s Authorization for Use of Military Force. The majority, meanwhile, doesn’t think the AUMF applies, and decides that the President’s power comes exclusively from the Uniform Code of Military Justice, which is what leads it to ultimately decide the commission is illegal. Thomas says he doesn’t need to rely on the AUMF, because he thinks the military commission is just as legal under the UCMJ, but he brings all of this up just to emphasize how strong he thinks the President’s powers are.
I assume Thomas is next going to argue that the military commission is legal? Hey, you’re catching on, now that we’re in our fifth opinion together. Yes, Thomas turns to the historical analysis of military commissions and finds that history supports the validity of this military commission. Alito is on board with this portion of the opinion, joining all but one section (don’t worry, we’ll alert you to the section Alito doesn’t join when we get to it). Thomas begins by saying that he agrees (ladies and gentlemen, we actually have an agreement on something!) with Stevens’ historical analysis of military commissions and the requirements for their use. If you’ll recall, Stevens outlined four such requirements, which Thomas sums up as being “considerations relating to the (1) time and (2) place of the offense, (3) the status of the offender, and (4) the nature of the offense charged.” He then turns to how those factors are all met here and, therefore, support his conclusion that the military commission is legal.
Thomas begins by looking at the first two factors together, that the commission only has jurisdiction over action that took place “within the field of the command of the convening commander” (what Stevens concluded was a requirement that the offenses be in “the theater of war”) and that they were committed within a period of war (which is the factor the majority hung their collective hat on). Thomas says that the Government has concluded that the theater of war includes Afghanistan and other countries where al Qaeda has setup training camps, and that’s good enough for him. More importantly, the timing issue is wrongly interpreted by the plurality. For Thomas, the current conflict dates back to at least 1996, when bin Laden declared Jihad on the U.S. While the post-9/11 AUMF may have “activated” the President’s war powers, that doesn’t mean you can’t use an earlier date to support charges - in other words, Thomas says that because there was an eventual activation of powers, you can look backwards. So the conspiracy charge, which alleges overt acts against the U.S. from 1996 through 2001 in several “enemy” territories including Afghanistan, meets both of these requirements for Thomas. Further, he believes that the plurality: (i) fails to give the proper deference to the President in his decision that Hamdan was busted in wartime and on the field of war; (ii) is being unrealistic about “the realities of warfare;” and (iii) is ignoring the “overwhelming evidence” supporting the conclusion that this conflict dates back to at least 1996. Thomas points to statements issued by bin Laden and al Qaeda, government fact sheets from those times and, perhaps most importantly, the fact that al Qaeda was involved in several pre-9/11 attacks, such as the 1993 WTC bombing, the 1998 embassy bombings and the 2000 attack on the U.S.S. Cole. In a footnote in the plurality opinion, Stevens responds to this argument, saying that Thomas is nuts because: (i) even the Government didn’t try to argue that the war has been in effect since 1996; and (ii) nothing suggests that the President had any war powers in fighting bin Laden or al Qaeda prior to 9/11, when Congress enacted the AUMF (but this counter seems misguided, as that’s not what Thomas really appears to be arguing).
With these two factors out of the way, Thomas turns to the factor which says that military commissions only have jurisdiction over members of the enemy army who have violated the laws of war or otherwise been involved in illegitimate warfare. This is an easy one for Thomas, addressed in one sentence, and Thomas’ point is well taken: “Hamdan is an unlawful combatant charged with joining and conspiring with a terrorist network dedicated to flouting the laws of war.”
This leaves the fourth factor, which is that the charged offense must be a violation of the laws of war which only military tribunals can adjudicate. Finally, this is someplace where Thomas really thinks that judicial review is appropriate. But he’s got a “however,” which is that the charges don’t need to be precisely stated, as a common law indictment would be. The common law of war, at least in the context of this conversation, comes from our experience in wars and past tribunals. Plus, like the regular common law, it’s flexible and affords respect to the judgment of our military commanders (smells like deference rearing its head again). So Thomas says the plurality gets it wrong in deciding that the conspiracy charge doesn’t fall within the common law of war simply because it’s not defined by statute or treaty. He says that, instead, the courts should only set aside military commissions when it’s clear that they’re illegal. Plus, Thomas thinks the plurality ignores the fact that the common law is flexible and evolves and develops and this is problematic for Thomas because, while he thinks the charge against Hamdan actually fits within the plurality’s view of things anyway, he thinks their view “has dangerous implications for the Executive’s ability to discharge his duties as Commander in Chief in future cases”
Can we liven this thing up at all? Well, whether this really livens things up is a matter of opinion, but it is interesting. This section, when read in conjunction with the relevant portions of the plurality opinion, is full of a lot of back-and-forth arguments. And it’s also the point of the analysis where Alito bows out again, leaving Thomas and Scalia alone. Anyway, Thomas says that under both his “correct, flexible approach” and “the plurality’s new, clear-statement approach,” there’s no question that Hamdan’s been charged with at least two violations of the law of war: “membership in a war-criminal enterprise and conspiracy to commit war crimes.” Thomas takes issue with the plurality, which claimed that Hamdan wasn’t actually charged with being a member in a war criminal organization. Thomas notes that the charging document explicitly “charges that he ‘willfully and knowingly joined an enterprise of persons who shared a common criminal purpose,” i.e., al Qaeda (that was Thomas’ emphasis, not ours). Thus, Thomas says Hamdan’s clearly a confirmed enemy combatant. Stevens, in the plurality opinion, rails on Thomas about this point, in a page-long footnote, saying that it’s a “remarkable view, not advocated by the Government” that Hamdan has been charged with more than one offense. Thomas responds, in a footnote of his own, that the plurality is wrong to say that “we may only look to the label affixed to the charge to determine if the charging document alleges an offense triable by military commission.” He then cites a Civil War case involving the indictment of a man charged with conspiracy to attack soldiers. Stevens actually responds to this citation in the body of the plurality opinion, saying those charges included numerous accusations that the man had personally committed crimes (plus, the Judge Advocate General overseeing that case even said that one of the man’s alleged co-conspirators should not be tried by military commission because there wasn’t enough evidence about his personal involvement in the incidents in question). Maybe Alito didn’t join this section because he wanted to stay out of this in-fighting!
Thomas gives some more explanation for why he concludes that membership in an organization like al Qaeda is good enough, citing various military commission precedents. Stevens responds in the plurality opinion by saying that Thomas is “blurring the distinction” between individuals who can be tried as offenders and those who cannot. Back to Thomas, who now turns to the military tribunals at Nuremberg. Specifically, he looks at the fact that many folks were convicted simply for being a knowing and voluntary member of the Nazi organization. Back to Stevens, who says that Nuremberg was a different beast because the convictions there “were secured pursuant to specific provisions of the Charter of the International Military Tribunal” which explicitly allowed individual Nazi members to be convicted after the Nazi organization itself was convicted (and, points out Stevens, this had to be done on an individual basis). Back to Thomas, who says that Hamdan wasn’t just an al Qaeda member. According to the Government, he also helped out al Qaeda’s top leadership by hooking them up with weapons and transportation. All of this, Stevens’ protestations aside, is enough for Thomas to conclude that Hamdan violated the laws of war.
Can’t we all just get along? No, not really. But the worst of the infighting is mostly kinda’-sorta’ over. Thomas has reached the conclusion that Hamdan was charged with being a member of al Qaeda and that’s good enough for him, and Alito is now rejoining the opinion. Thomas turns to the charge that Hamdan conspired with al Qaeda to, among other things, attack civilians and commit terrorism. This, for Thomas, is also a clear violation of law of war. Thomas says that there’s plenty of evidence to support this, and he then cites to some World War II precedent, including Quirin. You may remember that Stevens and the plurality dismissed this case (it was about some Germans who were tried by a military commission and brought habeas applications). Stevens said the Court, in that case, didn’t actually decide whether conspiracy was a triable war crime and, more importantly, emphasized that an offense had to be completed which, for Stevens, means conspiracy is out (because once conspiracy to commit some crime is completed, you can charge for the actual crime). Well, Thomas says that because the Court declined to decide the issue, you can’t put any import to it and use that failure to decide the issue to support the conclusion that conspiracy isn’t a triable war crime (this is fairly valid point there). Instead, Thomas says we have to look at “the practice and usage of war.”
So Thomas turns to several Civil War examples, including the military commission which tried the so-called Lincoln conspirators (this leads to another back-and-forth with Stevens that we’ll spare you from because there’s not really anything new in it). Thomas then spends a fair amount of time citing a 1920 treatise, “Military Law and Precedents” by W. Winthrop. Actually, Winthrop is cited all over the place by everyone, and we simply haven’t mentioned it until now because for everyone else it was more just a lead-off to something else. But here, Thomas is really relying a lot on Winthrop and not using it so-much as a jumping point. And after getting his fill of Winthrop citations, Thomas concludes that the conspiracy charges are valid, even under the plurality’s rule. As Thomas reads it, the plurality says that conspiracy charges are valid if the underlying planned offenses are, themselves, violations of the laws of war. Here, Hamdan’s conspiracy is in providing weapons, transportation, etc. to al Qaeda, so those underlying offenses are in themselves, as discussed above, violations of the laws of war. This portion of Thomas’ argument feels a bit sloppy to me, personally.
Thomas has one more point before he moves on. He is not pleased with the plurality’s decision that there must be “military necessity” behind the establishment of military commissions. He says the decision to create such commissions is a military and policy judgment, and the Court should stay out of it. He then brings out some of the boldest language of his opinion in saying: “Today a plurality of this Court would hold that conspiracy to massacre innocent civilians does not violate the laws of war. This determination is unsustainable.” He then turns to an explanation that this is not a “traditional battle” and that it’s crazy to say, as the plurality does, that we can only charge terrorists with violations of the law of war if we catch them “redhanded” smack-dab in the middle of trying to execute an attack. This is inconsistent with how the law of war works, as far as Thomas is concerned, and it will also hamper the President’s ability to do his job. Thomas wraps up this section with an enormous “fuck you” to the plurality:
After seeing the plurality overturn longstanding precedents in order to seize jurisdiction over this case [citation], and after seeing them disregard the clear prudential counsel that they abstain in these circumstances from using equitable powers [citation], it is no surprise to see them go on to overrule one after another of the President’s judgments pertaining to the conduct of an ongoing war. Those Justices who today disregard the commander-in-chief’s wartime decisions, only 10 days ago deferred to the judgment of the Corps of Engineers with regard to a matter much more within the competence of lawyers, upholding that agency’s wildly implausible conclusion that a storm drain is a tributary of the waters of the United States. See Rapanos v. United States [citation]. It goes without saying that there is much more at stake here than storm drains. The plurality’s willingness to second-guess the termination of the political branches that these conspirators must be brought to justice is both unprecedented and dangerous.
Uhm, I’m afraid to ask, but I assume Thomas also thinks the military commission complies with the UCMJ and the Geneva Conventions? Of course. He says that commission procedure can basically be setup as necessary by the circumstances, by the Commander in Chief. So for Thomas, the military commissions shouldn’t be held up to any of the standards or requirements of the UCMJ. Thomas says that Article 36 gives the President, and the President alone, the right to depart from courts-martial procedures whenever “he alone” deems it practicable, and Thomas says that the President doesn’t need to explain to this Court why it would be impracticable to apply court-martial procedures to the military commission trying Hamdan. Thomas says that precedent doesn’t support such a position and he thinks the Court is reading an awful lot into one sentence of a statute, to suggest that Congress intended “to change the nature of military commissions from common-law war courts to tribunals that must presumptively function like courts-martial.” Thomas doesn’t think that the UCMJ even requires uniformity between different types of tribunals. But even if it does, he says that Hamdan isn’t entitled to any relief because, again, the Court needs to give deference to the President’s decision that it’s not practicable to use courts-martial procedures.
Quick sidenote for one more smack-down. Thomas has a footnote dissing the Court for using legislative history to support its conclusions about jurisdiction, but then neglecting to look at the legislative history of Article 36 (and Thomas says that history makes it clear that the requirement of uniform procedures only applies to the three Armed Forces branches). Meanwhile on the next page Thomas is explaining why the President is entitled to such deference, and in going through the President’s reasons for setting up the military commission, he cites statements made by Donald Rumsfeld during a 2002 Department of Defense news briefing. Well Stevens attacks this in a footnote, saying there is absolutely no precedent for deferring to media comments when the issue is about “the legality of Executive action.”
Back to our show - Thomas now turns to the Geneva Conventions and there are two issues here - the majority’s determination that the commission violated Common Article 3, and Hamdan’s separate contention (unaddressed by the Court) that the commission violates several parts of the Third Geneva Convention. First, Thomas says that Hamdan’s claims are foreclosed by the Eisentrager decision. Eisentrager, you’ll recall, was where some German nationals challenged their war crime conviction by a tribunal set up in China. The Court mentioned that decision’s “curious statement [buried in a footnote] suggesting that the Court lacked power even to consider the merits of the Geneva Convention.” Stevens and his majority rejected this argument on the grounds that the footnote wasn’t controlling. Well Thomas says the Court of Appeals got it right - that footnote is a valid “alternative holding” which “is no less binding than if it were the exclusive basis for the Court’s decision.” Thomas then goes on to say that, if we’re going to listen to the Court that we have to follow the law of war, then “the Court’s argument is too clever by half” because “[t]he judicial nonenforceability of the Geneva Conventions derives from the fact that those Conventions have exclusive enforcement mechanisms [citation], and this, too, is part of the law of war.” But Thomas is still relying on the Eisentrager footnote in making this argument, so the fight here is really about whether or not the footnote is controlling, and Thomas ultimately loses this argument.
Thomas then turns to Common Article 3 and says that Hamdan’s claim has no merit. Here, for the last time, Alito drops out again, leaving Thomas and Scalia on their own. Anyway, Common Article 3 only applies to “armed conflict not of an international character occurring in the territory of one of the” signatories. The President, under the advice and legal conclusions of the Department of Justice, has decided that Common Article 3 doesn’t apply to al Qaeda or al Qaeda detainees and Thomas says that Court precedent tells us to give great deference to governmental agencies’ interpretation of treaties. And Thomas says this is a reasonable conclusion.
With Alito now back on board, Thomas says that the commission doesn’t violate Common Article 3 even if it were applicable. First, Hamdan’s claim isn’t ripe because Common Article 3 only applies to the passing of sentences and carrying out of executions, which hasn’t happened in Hamdan’s case yet - he only has a claim if and when the commission convicts and sentences him. And so the Court is speculating as to whether he will, in the future proceedings, be deprived of the judicial guarantees offered by Common Article 3. Plus, the commission is “regularly constituted” because commissions like this have lawfully been used throughout history. And Thomas says that the majority doesn’t suggest that the commission differs from historical commissions; instead, it goes back to the argument that the commission procedures differ from court-martial procedures and this makes no sense to Thomas because there’s no statutory or historical requirement that the commission use the structure and procedures of courts-martial. Thomas also doesn’t see any problem with the actual procedures of the commission, even the possibility of Hamdan being barred from the proceedings, because there are guarantees that the commission will conduct a fair trial. Thomas then goes back to deference, saying that the President would only exclude Hamdan from the proceedings if there were security issues with evidence in question, and we should trust the Government’s judgment on this.
And finally, we’re on the home stretch. Thomas’ last point is to address Hamdan’s contention that he also has claims under the Third Geneva Convention. Thomas says that this convention only applies to conflicts between two or more “High Contracting Parties” (a.k.a., signatories), and the President has decided that al Qaeda isn’t a High Contracting Party. And once again, Thomas says we must defer to “[t]he President’s finding about the nature of the present conflict with respect to members of al Qaeda.”
Can we go home yet? Not just yet, young grasshopper, there’s one more opinion to go.
Ok, so what does Alito have to say for himself? Ok, Alito joined with Scalia, so he doesn’t think this Court should even be hearing this case. He also joined with most of Thomas’ opinion and thinks that the majority got the merits wrong (and the sections he didn’t join in Thomas’ opinion were issues that Alito doesn’t think needed to be reached). But, Alito has a little technical matter he’d like to get off his chest. Scalia and Thomas both join in this opinion as well, although there’s a bit of confusion here for me, and it may be something that needs to be resolved when the final reporter version of this opinion is published. The decision’s header says that Scalia and Thomas join in Parts I-III, and this language is generally only used when there’s some additional part not being joined. But Alito’s decision only has Parts I-III - so Thomas and Scalia actually don’t join some part of this or, more likely, there was a Part IV to the opinion which they were declining to join and Alito ended up removing that part before the opinion was delivered.
Is this going to be another 2,000 word explanation? Actually, no. Alito’s opinion really just boils down to one point. The way he reads Common Article III, there are three requirements: “Sentences may be imposed only by (1) a ‘court’ (2) that is ‘regularly constituted’ and (3) that affords ‘all the judicial guarantees which are recognized as indispensable by civilized peoples.’” In his mind, the first and third requirements are obvious - the first is self-explanatory, and the third just “imposes a uniform international standard that does not vary from signatory to signatory.” But, what does “regularly constituted mean?” For Alito, it just means that the court in question should be setup in accordance with the laws of the domestic country in question. So he disagrees with Stevens and Kennedy that this requires the military commission to use court-martial standards and procedures unless there’s a practical need not to. Alito cites examples of all sorts of courts, from a municipal court to the International Criminal Tribunal for the Former Yugoslavia - they’re all constituted differently, but this doesn’t mean they’re not “regularly constituted.” Furthermore, if the drafters of Common Article 3 wanted something more specific in terms of the court structure and procedure, Alito says they would’ve said so. Alito also digs after an argument made by the Court which we skimmed over - it turns on the comments to another article of the Fourth Geneva Convention and the difference between “special” tribunals and “regular” tribunals, and Alito basically poo-poo’s the Court’s argument. Finally, even though some of the commission’s procedures may deviate from court-martial procedures, Alito doesn’t see how this means the commission still isn’t “regularly constituted.” Simply put, Alito thinks all three elements are met and that the military commission is therefore totally legal under Common Article 3
What happened to Chief Justice Roberts again? Yeah, it was 10,000+ words ago, so I forgive you for forgetting. Roberts had to recuse himself because he ruled on this case at the appellate level. That means he was overturned by the majority today and he likely would’ve sided with most, if not all, of the arguments presented by the dissenters.
Ok, seriously, are we done? Yes, indeed, we’re done. If you actually made it through our whole breakdown, you’re either nuts (but probably not crazy enough to plead an insanity defense) or…yeah, you’re nuts. But in any event, you deserve a reward, so no matter what time of day it is, get up from your computer right now and got get yourself a beer.
See you next Supreme Court term!
The Hamdan v. Rumsfeld concurrences
Earlier today we posted our in-depth breakdown of the majority/plurality opinion in the just-decided Hamden v. Rumsfeld. We’ve also got a breakdown of the three dissents to the case. But we’ve also got Justice Breyer’s brief concurrence, and Justice Kennedy’s concurrence-in-part. So let’s take a look at what’s going on there, shall we?
So what did Justice Breyer say in his little one-page concurrence? Breyer joined fully in the totality of Stevens’ opinion, both the majority and plurality portions. However, he would like to address a coment made by Justice Thomas in his dissent. Specifically, Thomas said that the Court’s decision would “sorely hamper the President’s ability to confront and defeat a new and deadly enemy.” In response to this, Breyer makes a very simple point:
Congress has not issued the Executive a ‘blank check.
Breyer notes that the President has already been explicitly denied, by Congrees, the authority to create military commissions like the one here at issue, and nothing is stopping him from going back to Congress and trying again. When there’s not an emergency preventing the President’s ability to consult with Congress, he should do so. This actually strengthens are nation, which is why this import check and balance was put in the Constitution.
Justices Kennedy, Souter and Ginsburg all joined in on this little pro-checks and balances message.
What’s Justice Kennedy’s deal? As discussed in our breakdown of the main opinion, Kennedy was on board with most of what Stevens was serving. In this opinion, Stevens explains why he agrees with most of Stevens’ analysis and he also explains why he didn’t join in the two plurality sections. Justices Souter, Ginsburg and Breyer all joined the portions of Kennedy’s opinion giving further explanation as to why he joined with Stevens, but they obviously don’t join the last part, where Kennedy explains his difference of opinion with STevens and them.
First, Kennedy notes that military commission trials bring up serious issues regarding the separation-of-powers, since you’ve got one branch, the Executive, defining, prosecuting and adjudicating offenses. And it almost worse here because the President is acting in a way which, historically, Congress has played a large part in (i.e., Congress set up the military court system, enacted the Military Justice Act, authorized courts-martial, etc.). Kennedy admits that the President should be given some level of deference with regard to his stated reasons for having the military commission utilize procedures that are different from court-martial procedures (this ties back to Stevens’ discussion that where “practicable,” he military commissions should use the same proceudres as courts-martial). However, Kennedy then breaks down some of the relevant statutory language to show why Stevens was right not to give too much deference to the President’s determination in this case, particularly because the statutes suggest that Congress, itself, has said not to give too much deference to the President (because the statute says that there should be uniformity insofar as is practicable, “not insofar as the President considers it to be” practicable).
Turning to another provisions which says that special military commissions can be convened to prosecute violation of other statutes, Kennedy notes that this affords no help to the Govermement’s position since the President doesn’t claim to be basing the charge against Hamdan on any statute and explicitly says the conspiracy charge stems froma violation of the law of war. Thus, Kennedy says Stevens was correct to focus on the relevant law of war, Common ARticle 3 of the Geneva Convention. And Stevens was also, therfore, correct that the military commission must satisfy Common Article 3’s requirement for a “regularly constituted court.” And the commission doesn’t do this: (i) it’s not a court formed by Congress, like other military courts; (ii) it’s not fashioned like courts-martial, as previous military commissions have been; (iii) there’s not an “acceptibel degree of indepdnedence from the Execitive,” such as what courts-martial have; and (iv) there is no sufficient explanation from the Government as to why there’s this deviation from court-martial practice
At this point, Kennedy has been talking fairly broadly, and he decides to hone in on a more detail analysis of the specific military commission in this case (and Justices Souter, Ginsburg and Breyer are still on board with him, joining this discussion as well). Once again, Kennedy points out that the military commission deviates from the general standards of a court martial without any “evident practical need.” For example, many of the many fucntions are concentrated into a single official, rather than being spread out. Similarly, there are less reigourous standards for how the tribunal, itself, is setup. And perhaps most importantly, the commission doesn’t have the same type of review procedures as is available in courts-martial (e.g., certain decisions from a court martial can be appealed to the independent Court of Criminal Appeals).
These difference would be okay if there was a supporting practical need for them, but Kennedy doesn’t see one, and this just means that the military commission has lost many of the fairness safeguards that courts-martial have. And it doesn’t help that the DTA allows for federal court judicial review since, as Stevens noted in the majority opinion, the scope of that review is rather limited and not automatic in every case (for example, it wouldn’t be automatic for Hamdan). Not to mention the fact that post-facto reviews can’t necessarily correct serious structural and procedural defects such as those identified here and in the majority opinion.
Kennedy’s final point here is that the commission also differs from courts-martial in its procedures. While Stevens didn’t focus so much on the structural differences Kennedy just discussed, we already know that he did spend some time looking at the procedural differences. Thus, Kennedy goes through this pretty quickly, dissing the military commission for having just one single evidentiary rule, allowing any evidence to be admitted if it has any probative value. So, for all these reasons, Kennedy is on-board with Stevens and the others in finding that the military commission simply exceeds the President’s authority.
Now comes the part of of Kennedy’s opinion where he explains why he didn’t join in portions of Stevens opinion (and the other Justices, who did join Stevens, obviously bow out of this part of Kennedy’s opinion). The basic reason is simply that he thinks Stevens addressed issued that didn’t need to be reached, since the majority had already concluded that the military commission was not authorized by the UCMJ. First, Kennedy thinks it was a mistake to delve into the issue of whether Common Article 3 requires the accused the be present at all parts of his trial. He actually likes Justice Thomas’ point (in his dissenting opinion) that the order creating the military commission disallows the use of seret evidence if it would impinge the ability of having a “full and fair trial.” Plus, he sais this determination of fairness would be subject to judicial review under the DTA. Now, if you’re curious about this, me too. Kennedy just went though a whole thing about he distrusts the military commission and its abitliy to be fair, but now, on this point, he seems okay with it. It’s a little odd. But then he goes on to say that he’s not so sure that it’s right to declare portions of the Geneva Conventions as binding law in light of the fact that the Government has decided not to be a part of those portions.
Finally, Kennedy notes that he doesn’t think it’s necessary to go into whether the conspiracy charge is valid. This is strictly because the majority has already concluded that the commission are unauthorized. Kennedy thinks the Court should be silent on this issue and let Congress take any steps it wants to try to define conspiracy as a valid, or invalid, charge.
Supreme Court Decision Update - Hamdan v. Rumsfeld
The Supremes waited ‘till the very end of the term to release their 185 page (!!) decision in one of the most anticipated cases of the whole term, Hamdan v. Rumsfeld (PDF of the opinion), the case about the Guantanamo military commissions. As many expected, the Court ruled in the Guantanamo detainee’s favor, finding the commissions illegal.
QuizLaw Analysis: With this case, the Supremes have ruled that President Bush was acting outside of any valid authority when he set up the tribunal commissions at Guantanamo Bay, and that these commissions are illegal under both the Geneva Convention and U.S. military justice law. This raises obvious questions about “what happens next” for the current Gitmo detainees, but it is certain to bring further criticism of Bush’s, and his administrations’, handling of the war on terror.
What’s the background of this case? In 2001, while U.S. forces were fighting in Afghanistan, they captured Salim Ahmed Hamdan, a citizen of Yemin. In 2002, they sent him to Guantanamo Bay, a U.S. naval base in Cuba (often referred to as “Gitmo”) where many suspects in the “war on terror” were being detained. In 2004, Hamdan was charged with being involved in a conspiracy to commit terrorism, and he was set to be tried before a military commission that had been setup at Guantanamo. Hamdan filed petitions for writs of habeas corpus and mandamus, claiming that he was being detained in violation of his due process rights and that he could not be prosecuted in this manner. Specifically, Hamdan argued that neither Congress nor the general laws of war recognize the authority of a military commission to prosecute someone for this type of conspiracy crime. Hamdan also argued that the actual procedures of the commission violate military and international law.
Hamdan’s writ for habeas corpus was granted by the District Court, which ruled that the Government has to show that a detainee is a prisoner of war before it can prosecute the detainee before a military commission. The District Court based this requirement on the Geneva Conventions, which the U.S. is a signatory to. However, the Court of Appeals for the D.C. Circuit reversed the District Court, finding that the Geneva Conventions were not judicially enforceable and that the military commissions were therefore legal.
So what does the Supreme Court say? The short version of things is that there is a majority ruling on two issues. First, the Court has the authority and jurisdiction to rule on the validity of military commissions. Second, the Guantanamo military commission is illegal under U.S. military justice law and under the Geneva Conventions, and the commission was not authorized by either Congress’ authorization of a response to the 9/11 attacks or the Detainee Treatment Act of 2005. There was another issue, whether or not detainees can be tried under conspiracy charges such as the charge before Hamdan, which the Court split on. Only four Justices ruled that Hamdan could not be charged with conspiracy, so this decision is not really binding and its long-term effect is unclear.
How did the votes break down? While there are six separate opinions in the decision, the vote breakdown is actually relatively easy. Stevens, Souter, Ginsburg, Breyer and Kennedy were the majority which ruled that the Court had jurisdiction in this case and then went on to find the military commissions illegal. Those same Justices, except for Justice Kennedy, are the ones who ruled that Hamdan couldn’t be charged with conspiracy. Justices Scalia, Thomas and Alito dissented to everything, each writing their own opinion. And Chief Justice Roberts didn’t take part in this case because he ruled on it when he was sitting on the Court of Appeals for the D.C. Circuit (and he supported the commissions’ legality, so he’s probably a bit tweaked to see his decision overturned today by his brethren).
So for those keeping score, it’s 5-3 that the Court had jurisdiction, 5-3 that the commissions are illegal and 4-3 on whether detainees can be charged with conspiracy (while Kennedy didn’t join with the plurality on this point, he also declined to express a view in his own written opinion).
Do the Supremes have the authority to hear this habeas application? Yes, one of the things we have a majority ruling on is that the Court has jurisdiction over this case. The Government made two arguments here, and the first one involves a rather intricate reading of the Detainee Treatment Act of 2005 (the DTA). One section of the DTA, § 1005(e)(1), says that no court has jurisdiction to consider any application for a writ of habeas corpus filed by any Guantanamo detainee. Section 1005(e)(2) and 1005(e)(3) of the DTA say that the D.C. Circuit Court has exclusive jurisdiction to review: (i) any final decisions of a Combatant Status Review Tribunal that a detainee was properly designated as an enemy combatant; and (ii) any final decisions of a military commission (but the review’s scope is limited to only questions of compliance with military standards and the Constitution). Finally, section 1005(h) says that 1005(e)(2) and (e)(3) apply to cases pending at the time of the DTA’s enactment. However, it is silent as to § 1005(e)(1).
Ok, so the Government says that § 1005(h) should also apply to § 1005(e)(1), meaning that the courts have no jurisdiction over habeas applications pending at the time of the enactment of the DTA (remember, Hamdan’s application was pending at that time). Stevens turns to basic statutory interpretation to decide that the government is wrong, at least with respect to cases like this, where the habeas application was already pending at the time § 1005(e) was enacted. Stevens cites “[a] familiar principle of statutory construction,” which allows for a negative inference to be drawn when certain language is excluded from one provision but “included in other provisions of the same statute.” It’s conclusive for Stevens that § 1005(h) explicitly applies itself to (e)(2) and (e)(3) but is silent as to § 1005(e)(1). In addition, an earlier draft of § 1005(e) actually included similar language but since that language was not included in the final draft, Stevens argues that the Court can make a negative inference that Congress did not want this section to apply to pending cases.
The Government’s second argument was that, even if the Court has jurisdiction, it should abstain from exercising that judgment because of a prior Supreme Court case, Councilman. In that case, the Supremes basically created a new rule that courts should keep-out of pending court-martial proceedings against service members. There were two reasons the Court created that rule in Councilman: (i) the military justice system can most efficiently deal with military discipline if the civilian courts stay out of it; and (ii) the courts should respect the balance that Congress created between military procedure and fairness to service members, when it created the military justice and review system. These reasons simply don’t apply to the current situation: (i) Hamdan is not a member of U.S. armed forces; (ii) the tribunal trying him isn’t part of the military judicial system; and (iii) there’s not the same type of appeal/review process set up for tribunal decisions as there are for military courts. Stevens thinks it’s better to look at another Supreme case, Quirin, where the Court did not abstain from hearing the habeas applications of some Germans who were before a military commission. The Court got involved because of the importance of the questions at issue, the public interest in those issues getting resolved quickly, and the Court’s duty and obligation to preserve Constitutional safeguards. As far as Stevens is concerned, those same reasons rule the day here, at least for this particular case.
With that out of the way, what about these military commissions - are they legal? Stevens, still with a majority in his pocket, does not believe that the Guantanamo military commission is legal. First, the commission “was born of military necessity,” but is not actually authorized by the Constitution nor created by any statute. The Constitution makes the President the “Commander in Chief,” presiding over the armed forces, but it put Congress in charge of making rules relating to “captures on land and water” and regulating the armed forces. In other words, Congress makes military laws, and the President executes those laws. Stevens then recognizes that Congress has explicitly authorized that military commissions can be set up to try folks for “offenses against the law of war in appropriate cases.” This does not give the President “a sweeping mandate” to invoke military commissions whenever wants; instead, it allows him to use such commissions in compliance “with the law of war.” This is not changed or overridden by either the Congressional Authorization for Use of Military Force granted to the President or the DTA. Neither includes any language even suggesting that Congress intended to expand the President’s ability to use military commissions.
Since there is no Congressional authorization for the Guantanamo military commission trying Hamdan, Stevens says we should next look at whether the commission is otherwise “justified under the ‘Constitution and laws,’ including the law of war.” Here, Stevens loses his majority, as Kennedy bows out of this portion of the opinion. We’ll discuss it in more depth below, but the plurality ultimately concludes that Hamdan has not been charged with an offense which the law of war allows military commissions to try - that is, “conspiracy” is not a valid offense under the law of war. It doesn’t matter that Stevens lost his majority on the above issue, however, because he regains his majority in concluding that the commission’s structure and procedure violate the Uniform Code of Military Justice (the UCMJ) and the Geneva Conventions.
Stevens begins by explaining some of the procedures involved in a trial before the Gitmo commission. The emphasis of Steven’s displeasure is with the evidentiary aspects of the proceeding. The detainee is entitled to an appointed military counsel or to hire his/her own civilian counsel (if that attorney has sufficient security clearance). The commission also allows the detainee to have a copy of the charges, and affords some other basic defendant rights. “These rights are subject, however, to one glaring condition,” which is that the commission has the discretion to “close” proceedings, preventing the accused detainee from learning anything about the evidence presented against him. The commission also has discretion to deny access to any “protected information,” if it decides that a full and fair trial can still be had even if the accused doesn’t know about it. Finally, the commission is also allowed to admit any evidence (Steven’s emphasis, not ours) that may have probative value, such as hearsay and coerced testimony.
Stevens then turns to the Government’s argument that a procedural challenge is premature because the commission proceedings against Hamdan aren’t finished yet - Hamdan can challenge them when all is said and done, the Government argues, and there’s no reason to think that the procedure won’t be done in a manner faithful to the law. Stevens doesn’t buy this. First, Hamdan would not have an automatic right to appeal a decision against him since he’s not subject to the death penalty or more than 10 years in prison. Second, the commission has already exercised procedures in violation of the law, because Hamdan has been excluded from his trial. So Stevens tells the Government, essentially, to get bent - the Court’s looking at the procedural challenge.
How does this military commission violate the Uniform Code of Military Justice? The short version is that Stevens and his majority have decided that the commission’s procedures vary from the procedures used in courts-martial, and no proper justification has been provided by the President. While there are differences between military commissions and courts-martial, the same rules and procedures have historically applied to both (Stevens mentions a “glaring historical exception,” the World War II trial of General Yamashita, but says that the precedent involved in that situation “has been seriously undermined by post-World War II developments”). Nevertheless, Stevens recognizes that there are times when court-martial procedures can be departed from, if that departure is “tailored to the exigency that necessitates it.” Such a departure is governed by Article 36 of the Uniform Code of Military Justice (the UCMJ). Article 36 gives the President the power to promulgate procedural rules for both courts-martial and military commissions, with two restrictions: (i) any such procedural rule cannot be contrary to or inconsistent with the UCMJ; and (ii) all rules must be “uniform insofar as practicable,” meaning the same rules should be applied to courts-martial as to military commissions (i.e., don’t deviate from the procedures in the Manual for Courts-Martial unless you have to). Stevens skips over this first restriction, declining to decide whether any of the commission procedures are contrary to or inconsistent with the UCMJ. This is because he has concluded that “the ‘practicability’ determination the President has made is insufficient to justify variance from the procedures governing courts-martial.”
Although the President has concluded, in his official Article 36 determination, that it would be impracticable to apply the rules of law used in District Court cases to Hamdan’s commission, he has not made such a determination as to the rules for courts-martial, and that’s what is called for by Article 36. So Stevens looks to the record and finds nothing to suggest that it would be impracticable to use court-martial rules. And even if he is willing to consider the reason provided by the President with regard to District Court procedures, the only relevant one is the danger presented by terrorism. However, while Stevens acknowledges the importance of this danger, he just doesn’t see how this requires using different procedures. And Stevens says that he finds the lack of a showing of impracticability especially troublesome in light of the fact that Hamdan was denied “one of the most fundamental protections afforded not just by the Manual for Courts-Martial but also by the UCMJ itself: the right to be present.” At the end of the day, it boils down to this - since there’s no showing of impracticability, the courts-martial rules must apply, and since the commission “deviates in many significant respects from these rules, it necessarily violates Article 36(b).”
How does this military commission violate the Geneva Conventions? Stevens notes that the Court of Appeals dismissed Hamdan’s challenge based on the Geneva Conventions because it decided, among other things, that the Conventions aren’t judicially enforceable, that Hamdan isn’t entitled to their protection anyway, and that even if he was entitled to their protection, the Court should abstain from enforcing the Conventions under the principal addressed in Councilman. Stevens has already talked about why the Court is not abstaining under the Councilman rule, so he focuses here on the other two issues.
First there’s the issue about whether the Geneva Conventions are judicially enforceable (this harkens back to Monday’s Supreme decision in Sanchez-Llamas v. Oregon, where Chief Justice Roberts declined to decide whether the Vienna Convention was judicially enforceable). The Court of Appeals relied upon a 1950 Supreme Court case, Johnson v. Eisentrager, which involved several German nationals challenging their war crime conviction by a tribunal in China. The Eisentrager Court decided the case on the merits but included a “curious statement [buried in a footnote] suggesting that the Court lacked power even to consider the merits of the Geneva Convention argument.” The Court of Appeals relied on this footnote in making its decision, and Stevens notes that the footnote is simply not controlling. Further, whatever rights Hamdan has, those rights are clearly “part of the law of war” and the UCMJ requires compliance with the law of war.
The bigger issue here is whether the Geneva Conventions even apply to Hamdan. The Court of Appeals’ rationale that the Conventions did not apply went like this - Hamdan was captured while the U.S. was at war with al Qaeda, this war is separate and distinct from the U.S. war with the Afghani Taliban, and since al Qaeda is not a signatory to the Conventions, the Conventions don’t apply to the present situation. Stevens sort of punts this issue, deciding that the Court doesn’t need to decide whether all of the Geneva Conventions apply where “the relevant conflict is not one between signatories” because “there is at least one provision” that does apply.
The provision in question is Common Article 3 (referred to as “Common” because it appears in all four of the Geneva Conventions), which says that whenever there’s a “conflict not of an international character” which is taking place in the territory of a Conventions signatory, any party to the conflict must apply certain protections to people not actively involved in the hostilities. This includes opposing armed force members who lay down their weapons and those who are detained. One of the protections that falls within this category is that sentences can’t be handed out without a judgment being “pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” The Government argues that Common Article 3 shouldn’t apply here since the U.S.’s fight with al Qaeda is of an international character. Stevens rejects this however, saying that “conflict not of an international character” is simply intended to provide a broader scope than that of Article 2, which is more directed towards international war between nations. This broader scope is intended to encompass situations where one party to the conflict is not actually a legal entity (i.e., a nation). For example, this affords protection where a country is involved in a civil war - the rebels, who have no international legal status, are afforded the protections offered by Common Article 3. Thus, Stevens concludes, Common Article 3 applies to the current situation.
Since Common Article 3 applies to Hamdan’s situation, he may only be tried by “a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civil peoples.” Since Common Article 3 doesn’t specifically define what “a regularly constituted court” is, Stevens looks to other sources. Although he doesn’t actually provide a definition of his own, he appears to latch on to the Red Cross’ definition of the term, which requires such a court to be “established and organized in accordance with the laws and procedures already in force in a country.” Here, this means that a military commission, to meet this definition, must follow the standards of our own military justice system which, in turns, means it must follow court-martial procedure or have an justified explanation for why it deviates from those procedures. And as we know, Stevens and his majority have already decided that the military commission fails to do so.
As a final point here, Stevens also notes that the procedures employed and followed by the military commission do not afford the guarantees which civilized folks would recognize as being indispensable. This is the other place where Kennedy declined to join, so this again lacks the weight of a majority. However, the only real import in this section is Stevens’ repeated emphasis of his discomfort with the fact that the military commission dispenses with customary international law by not allowing for the accused to be present at his trial and aware of the evidence against him.
Anyway, at the end of the day, the point here is relatively clear:
Common Article 3 obviously tolerate a great degree of flexibility in trying individuals captured during armed conflict; its requirements are general ones, crafted to accommodate a wide variety of legal systems. But requirements they are nonetheless. The commission that the President has convened to try Hamdan does not meet those requirements.
As a final point on this issue, the folks over at SCOTUSblog have raised an interesting interpretation of this portion of the decision. Namely, that because Common Article 3 applies to the war against terror, there are “enormous implications for the Administration’s detention and interrogation practices, because the Administration’s legal conclusion that [Common Article 3] does not apply…was the the key linchpin to the entire edifice of legal maneuvers that led to waterboarding, hypothermia, degradation, etc….Per today’s decision, the Administration appears to have been engaged in war crimes.”
Ok, but if the military commissions are illegal, can Hamdan still be detained in Guantanamo? Stevens concludes by noting that the Court has assumed that the Government is correct in assessing that “Hamdan is a dangerous individual whose beliefs, if acted upon, would cause great harm and even death to innocent civilians, and who would act upon those beliefs if given the opportunity.” Thus, Stevens wants to make it very clear that the Court has not addressed, in any way, the Government’s ability to “detain him for the duration of active hostilities in order to prevent such harm.” So at the end of the day, Stevens has told the President that he can keep all the Guantanamo detainees locked up, if they’re assessed to be a danger, but he cannot try them in the fashion that Hamdan was being tried.
Now can we back up and take a look at this “conspiracy” and “rule of law” business that Stevens lost his majority on? Ok, so if you remember back, we were talking about Stevens’ determination that the military commissions aren’t legal under the UCMJ or the Geneva Convention. But first, he looked into the fact that they’re not authorized by Congress. He then went on a slight sidetrack to explain why doesn’t think that the charge against Hamdan is even justified under U.S. law or the law of war. It didn’t matter for his ultimate decision, which is good for him since he lost Kennedy in this part of the opinion, giving him a mere plurality of four votes. So what is this plurality section all about?
Well, Stevens begins by looking at the historical use of military commissions, identifying three situations where they’ve generally been used. The first is in the place of civilian courts when there’s been a declaration of martial law. That is not analogous to the present situation, since no martial law has been declared in Guantanamo. The second place military commissions have been used is where there’s no civilian government yet and, instead, a temporary military government has been setup, such as in occupied territories. Again, this doesn’t apply to the current situation because Guantanamo Bay isn’t an occupied enemy territory. The third and final historical use of military commissions has been where they’ve been “convened as an ‘incident to the conduct of war,’” to allow for the immediate seizure and trial of military enemies who have attempted to attack the military or get in its way. This third type of commission is the only one that’s close to what is going on in Guantanamo Bay. For such a commission to have proper jurisdiction, Stevens identifies four preconditions that must be met.
First, the military commission can only assume jurisdiction of those offenses which were committed within “the theatre of war.” Second (and pay attention, because this is the one that Stevens focuses on), the offense which the accused is being charged with must have been committed during the war in question. Third, the commission can only try members of the enemy army who have conducted “illegitimate warfare or other offences in violation of the laws of war” or members of the military commission’s own army who, during wartime, committed some crime not otherwise triable by criminal courts or under the Articles of War. Fourth, and finally, the commission only has jurisdiction over two types of offenses - where the law of war, as recognized by military tribunals, has been violated, or where military orders or regulations have been breached (and where the offender can’t be tried by court-martial).
So, with these four preconditions in mind, the issue is whether they exist in Hamdan’s case. Hamdan is charged for conspiracy extending from 1996 through November 2001. Stevens notes that of this 5-year period, only two months fall after September 11, 2001 and the Congressional enactment of the AUMF which gave the President his current war powers. The Government doesn’t allege any specific act against Hamdan which took place after 9/11, meaning that “[n]one of the overt acts that Hamdan is alleged to have committed violates the law of war.” So the second precondition to such a military commission, that the charge took place during war time, simply isn’t present. Stevens says this casts doubts on the commission’s legality and, more importantly, is symptomatic of “the most serious defect of this [commission’s] charge: The offense it alleges is not triable by law-of-war military commission.”
So now, we finally get to the real meat of the plurality portion of the decision, Stevens’ conclusion that “conspiracy” is not a valid charge for the military commission to try. While Congress hasn’t included “conspiracy” in its definition of war crimes, that’s not the end of the argument because Congress has “‘incorporated by reference’ the common law of war,” which means that military commissions may be able to try some offenses which aren’t explicitly defined as a war crime by Congress. But here, there’s no clear precedent for defining “conspiracy” as a war crime. Stevens says that “conspiracy” has rarely been charged by U.S. military commissions acting as the third law-of-war type of commission, and there’s nothing about “conspiracy” in either the Geneva Conventions or the Hague Conventions. Similarly, it’s not been recognized by other international sources, such as the International Military Tribune at Nuremberg, which actually explicitly refused to allow conspiracy charges. And the Government’s attempt to rely on Quirin, the case where German prisoners brought habeas applications, is not persuasive to Stevens. He says that the Court didn’t actually decide, in that case, whether conspiracy was a triable war crime and, more importantly, that Court emphasized an offense being “completed,” which is a limitation Stevens says kicks “conspiracy” firmly outside the scope of war crimes.
As a result of all of this, Stevens concludes that the military commission doesn’t have proper jurisdiction to try a conspiracy charge, which means it has no authority to try Hamdan. But again, this decision is only a plurality, and its impact is therefore entirely unclear.
What about the concurring opinions? Justice Breyer wrote a brief one-page concurrence, and Justice Kennedy wrote a concurrence-in-part (coming in at a longer 20 pages). You can read about those two opinions here.
What about the dissenting opinions? As mentioned above, all three dissenters (Justices Scalia, Thomas and Alito) each wrote their own dissenting opinion. You can read about these three dissenting opinions here.
The Daily Memo - 6/29/06
The NFL and the NFL Players Association have been sued by seven current and former players over an investment fraud scheme allegedly endorsed by the NFLPA. (SI)
D.C. has rent control for the first time in about two decades. (Metroblogging Washington)
A bankruptcy judge has approved the sale of Adelphia’s assets to competitors Time Warner and Comcast. (Blogging Stocks)
Tiffany & Co. has entered into a settlement over its defective silver baby rattles. (Rocky Mountain News)
A Florida man received several squirrel-related citations, including citations for “squirrel at large” and “squirrel on the beach.” (Political Gateway)
A 17-year-old St. Louis girl has been awarded $180,000 in a sexual-harassment suit because, among other things, her employer referred to her as a “whore” and “skank” and a coworker tried to rape her. (Kansas City Star)
Palm and Xerox have settled a heated patent battle they’ve been involved in for nine years. (Engadget)
A $15 million verdict against comic book creator Todd McFarlane, stemming from a comic book mobster character in “Spawn” which he based on hockey player Tony Twist, has been upheld. (The Hollywood Reporter, Esq.)
Supreme Court Decision Update - Clark v. Arizona
For those of you lawyers who slept through much of your first-year crim law classes and missed the intricacies of the M’Naghten rule, the Supremes, in Clark v. Arizona (PDF of the Opinion) are here to offer you a refresher. Indeed, in today’s decision, the Supremes have just made it a little more difficult for crazy killers to escape conviction by reason of insanity.
QuizLaw Analysis: If you are completely batshit, and you go out and kill a cop, it no longer matters if you were unaware of what you were doing when you pulled the trigger. Now, the threshold question is whether you were unable to understand that what you were doing was wrong when you pulled the trigger. In the insanity context, cognitive capacity is now only material inasmuch as it disproves that our crazy killer knew what he was doing was morally wrong. That may seem like splitting hairs to you, but for the defendant in this case, it means a life sentence. Moreover, in Arizona at least, a judge may only allow our crazy killer to introduce mental disease evidence to prove insanity, not to negate mens rea. Got it? Yeah. Me neither. So, let’s go through it together.
The facts, at least, are straightforward: 17-year-old Jeffrey Clark was driving around in his truck early one morning, blaring his music, when a police officer tracked him down, pulled him over, and asked him to get out of the car. Clark did so, and then shot the police officer dead.
Initially, Arizona found that Clark was incompetent to stand trial and ordered him institutionalized. Two years later, however, Arizona deemed that his competence had been magically restored, so they put him on trial. Clark did not contest that he was the one who shot the officer. Instead, he claimed that because of his paranoid schizophrenia, he had not formed the specific intent, required by the murder statute, to shoot the officer. The prosecution, however, presented evidence that Clark did know he was shooting the officer and had, in fact, lured him out in order to kill him.
Clark countered by claiming that he was mentally ill, and sought to introduce evidence of that illness 1) to raise the affirmative defense of insanity, and 2) to rebut the prosecution’s evidence that he had formed the requisite mens rea, i.e., to prove that he had not acted “knowingly” or “intelligently” when he shot the police officer.
The trail court, however, held that he could not present evidence of his mental stability to disprove mens rea. In other words, he could not present evidence of mental illness short of insanity to disprove his intent to kill. Therefore, to escape conviction, Clark had to mount enough evidence to prove that he was actually insane. On that count, Clark presented a lot of evidence from friends and classmates which tended to show that he wasn’t exactly in his right mind — he thought aliens were after him, he kept a bird in his truck to warn of airborne poisons, and he rigged wind chimes out of fishing reel to warn of intruders. A psychiatrist also testified that Clark was suffering from paranoid delusions about an attack by aliens when he shot the officer. The prosecution, however, rebutted much of this, asserting that Clark’s paranoid delusions did not prevent him from knowing the difference between right and wrong (indeed, he must have known what he was doing was wrong, the prosecution argued, because after shooting the officer, he ran away, hid the gun, and otherwise evaded the police).
The trial judge convicted Clark of first-degree murder, finding that – though he was suffering from paranoid delusions at the time of the shooting — his mental illness did not distort his perceptions enough to show that he didn’t know what he was doing was wrong. This appeal followed.
The first issue presented to the Supremes was whether Arizona’s insanity test provided for due process. Under the traditional McNaghten rule (which dated back to Victorian times in England), to prove insanity, due process required asking two questions 1) did the defendant have cognitive capacity, i.e., did he understand what he was doing, and 2) did he understand that his actions were wrong? The Arizona definition of insanity, however, did away with the first prong (i.e., Arizona doesn’t require the defendant to have cognitive capacity).
In the 5-4 opinion written by Justice Souter, the Supremes determined that having only the second element of the McNaghten rule was enough to pass constitutional muster. In doing so, Souter asserted that, though it was an oft-used rule, the McNaghten rule did not rise to the level of “fundamental principle,” and that the insanity rule is open to state choice. Moreover, Souter wrote that the cognitive capacity element was extraneous, because if a defendant did not know what he was doing then he wouldn’t have known that what he was doing was wrong. In application to this case, Clark may not have known — because of his paranoid delusions — that the officer he shot was a human being, but he did know what he did was wrong. And apparently that was enough to disprove insanity.
Having ruled out complete insanity as an affirmative defense to murder, the second issue presented to the Court was whether Clark could put forth evidence of mental defect to disprove the mens rea element. The lower courts said no, and the Supremes agreed. Justice Souter acknowledged that mental-defect evidence could be used to disprove mens rea, but that any state has the right to force a defendant to channel that evidence into the insanity defense exclusively. Why? In large part, because — when going to the element of mens rea — the probative value of such evidence might be outweighed by unfair prejudice, confusion of the issues, and the potential to mislead juries. For instance, in this case, evidence of mental disease might “mislead jurors (when they are the factfinders) through the power of this kind of evidence to suggest that a defendant suffering from a recognized mental disease lacks cognitive, moral, volitional, or other capacity, when that may not be a sound conclusion at all.” Indeed, even if mental disease is proven, it may not have a bearing on mens rea and such a suggestion has the potential to confuse the jury, especially if they consider concepts of psychology instead of concepts of legal sanity, which is the issue here.
Kennedy, in his dissent, disagreed with the majority on the second issue, and he’s got a fairly good point. Nevermind that such evidence may unfairly prejudice, confuse, or mislead a jury - evidence of mental defect should be allowed to show that the defendant didn’t actually commit the crime. In other words, Kennedy is saying that this exclusion of evidence is tantamount to prohibiting evidence from an eyewitness saying that the defendant didn’t kill the officer because such evidence might mislead or confuse the jury. Of course, it’s not designed to mislead or confuse, such evidence is introduced to prove that the defendant didn’t commit the crime, and how in God’s name can you keep that out of a trial? Moreover, evidence of mental-disease should not be channeled exclusively into the insanity defense because it is the defendant’s burden to prove insanity, while it is the prosecutions burden to prove mens rea, and this rule thus decreases the burden on the prosecution.
In this case, Kennedy offers a brilliant illustration of why the majority’s reasoning is unworkable: If Clark were to get up on the stand and say that he thought the police officer was an alien, the majority’s rule would not allow Clark to introduce corroborating evidence to show why he thought that the police officer was a space invader. In essence, the jury would be led to believe that Clark engaged in unexplained behaviors for no obvious reason at all, because they wouldn’t be privy to mental-defect explanations.
Breyer wrote separately to sort of agree with the majority’s reasoning, but to say that the case should be remanded for the lower courts to decide the case on the basis of the Court’s ruling.
But the real question is, does this distinction mean I can claim that 5 inches is actually 8 inches?
On the technology front, Western Digital has decided to settle a class-action lawsuit brought by consumers over its alleged misrepresentation of hard drive storage capacity. There are several lawsuits like this floating around across the country (I was actually involved in defending another tech company in a similar class-action lawsuit several years ago), and they all stem from the difference between the decimal and binary systems.
In a nutshell, the tech companies like to advertise storage using the decimal system, so a “gigabyte” to them is 1 billion bytes. The software folks, meanwhile, use the binary system and therefore see a “gigabyte” as being 1.07 billion bytes. Thus, a drive which Western Digital advertises as 50 gigabytes is reported by Windows or Mac OS X as only being about 47 gigabytes. While this is arguably misleading by the hard drive and storage folks, my interpretation of the law at the time I was involved in the matter is that it’s totally on the up-and-up from a legal standpoint. In fact, there’s even a federal statute which says that a company can’t be sued for properly using the decimal system, which is exactly what Western Digital and others are doing. But Western Digital clearly decided it was best to just get out of this muck-a-muck, rather than trying to carry on the fight.
Today’s Reading Assignment
Just a quick heads-up to suggest you go read Senator Feingold’s excellent statement on the Daily Kos about the disparity between how Congress gets a raise and how the rest of get raises (which are harder to come by for many when Congress continually refuses to raise the minimum wage).
Supreme Court Decision Update - League of Latin American Citizens v. Perry
In one of the more anticipated Supreme Court cases this term, in League of Latin American Citizens v. Perry (PDF of the Opinion), i.e., the “Texas redistricting case,” our Justices decided that now was a good time to wreak havoc on summary writers, deciding several issues with different majorities in a whopping 132 page decision in which six of the Justices wrote an opinion.
QuizLaw Analysis: The (really) long and short of it is this: On the two issues that the Supremes came to a majority consensus on, the Court held that 1) part of the redistricting plan violated the Voting Rights Act by screwing over the growing Hispanic population in District 23. However, 2) in what was obviously a power-grab by Republicans to entrench themselves in the majority, the Texan Congress did not violate the Constitution by redrawing the electoral map mid-decade, even though new maps were only required to be drawn once every ten years to account for shifts in population. In essence, besides the one district (23), the Republicans redistricting map was upheld.
Here is some preliminary background: After the 1990 census, in which the Republicans gained on the Democratic majority, the Democrats redrew the Texas electoral map in the hopes of holding on to its slim lead in the congressional delegation. The Republicans unsuccessfully challenged the new map, arguing that it constituted impermissible partisan gerrymandering. By 2000, the Republicans had increased their numbers, but since there was no clear majority in the State House, the job of redrawing the electoral map fell to the courts, which largely held the 1991 Democrat-drawn map in place. However, in 2003, the Republicans finally gained a foothold in the state legislature and, with that power, they redrew the map again, resulting in a 2004 election that gave the Republicans a 21-11 lead in the House.
In 2003, several contingents of voters brought suit, challenging the Texas redistricting map (referred to as 1374c), arguing: (i) that redistricting could not take place mid-decade; (ii) that the map unconstitutionally discriminated on the basis of race; (iii) that the map constituted unconstitutional partisan gerrymandering; and (iv) that the map, in effect, diluted the voting rights of minorities in violation of Section 2 of the Voting Rights Act. A Texas district court, however, upheld the map, holding that it was neither unconstitutional nor in violation of the Voting Rights Act. While the case was pending appeal, however, the Supremes came down with an opinion on another redistricting case in Pennsylvania, Vieth v. Jubelirer. In Vieth, the Court decided that it did have jurisdiction over partisan gerrymandering cases, but it didn’t come up with any consensus on a test for determining impermissible partisan gerrymandering. In light of the Vieth case, the Texas court reaffirmed its earlier holding in the Texas redistricting case. This appeal followed.
First, as to the violation of Section 2 of the Voting Rights Act, Justice Kennedy wrote the opinion in which the court’s liberal members joined, creating a 5-4 majority. This majority held that the redrawing of Texas District 23 amounted to vote dilution, in violation of Section 2. Kennedy found that the new configuration of District 23 prevented a Latino candidate from taking a seat from a Republican incumbent because Hispanics constituted a majority of the voting population under the old map - thus, the Texas legislature did, in fact, redraw the map to protect the incumbent by unnaturally shifting a large segment of the Hispanic population into another district. Indeed, the new map resulted in only five Latino opportunity districts in Texas, despite the fact that Latinos made up 22 percent of the population (and therfore should have been accorded two more districts to account for proportional representation.) “In essence,” Kennedy wrote, “the State took away [the Latinos] opportunity [to oust the incumbent] because they were about to exercise it.” Indeed, Kennedy noted, the redrawing of the map was not done on behalf of the Texas voters (specifically the Latino population) but on behalf of an incumbent who was on the verge of losing his seat. Therefore, under the “totality of the circumstances,” section 2 was violated.
On the separate issue of whether redrawing the congressional map mid-decade constituted political gerrymandering, Kennedy also wrote the 7-2 majority opinion (though the seven justices in the majority differed to some extent on the reasons why it did not constitute political gerrymandering). Kennedy concedes that there was political motivation behind the redistricting plan, recognizing that the sole purpose was to achieve a Republican majority. However, he noted (and four other Justices agreed) that partisan aims did not guide the entire redistricting plan, evidenced by the fact that the Republicans did take into account “mundane and local interest” as well as some of the Democrats’ suggestions in redrawing. Kennedy further noted that there was nothing “inherently suspect about a legislature’s decision to replace mid-decade a court-ordered plan with one of its own,” and that — though the new plan did represent a shift in Republican seats — it reflected the distribution of state party power better than did the previous two plans. Six other Justices agreed with Kennedy, rejecting the argument that mid-decade redistricting for exclusively partisan purposes violated the one-person, one-vote requirement because there was no evidence (at least ascertained by the District Court) to support the argument.
Beyond those two issues, however, the Supremes were split and there were no majority opinions on the other issues (though the SCOTUSblog disagrees slightly, if “sympathetic votes” are accounted for). Specifically, three judges (Kennedy, Roberts, and Alito) all agreed that redistricting in Dallas (District 25) did not dilute the African-American vote because African-American voters consistently voted for the white incumbent and thus, African-Americans were not denied their choice of seat-holder. Moreover, the challengers didn’t present enough evidence that African-Americans wielded enough power (with only 25 percent of the population in the area) to change the outcome. Thomas and Scalia implicitly agreed on this count, without actually joining Kennedy’s opinion, by simply rejecting the Voters Right’s Act claims in their entirety.
Souter, joined by Ginsberg, didn’t necessarily disagree with the plurality about the redistricting in District 25, he simply advocated that the matter be remanded to the district court for further consideration, specifically with regard to the question of whether a voting dilution claim can prevail even though the minority population is less than 50 percent.
Justice Breyer chimed in with his own opinion to agree with Kennedy in ruling that Section 2 of the Voting Rights Act was violated with regard to the dilution of the Latino vote. However, Breyer would go many steps further, suggesting that the entire redistricting plan violated the Equal Protection Clause of the Constitution because the plan “overwhelmingly relies upon the unjustified use of purely partisan line-drawing considerations … which will likely have seriously harmful electoral consequences.”
Chief Justice Roberts, joined by Alito, wrote separately to agree that the new redistricting plan was not unconstitutional partisan gerrymandering, but disagreed that the redrawing of District 23 violated the Voting Rights Act. Roberts argued that the existing redistricting plan actually maximized the Latino vote (as found by the District Court) and he therefore found the majority’s reasoning absurd, noting that there is no alternative redistricting plan that would have fared better for the Latino vote. “When a State’s plan already provides the maximum possible number of majority-minority effective opportunity districts, and the minority enjoys effective political power in the area well in excess of its proportion of the population,” Roberts wrote, “I would conclude that the courts have no further role to play in rejiggering the district lines.”
Justice Scalia, joined by Thomas, also wrote a separate opinion, disagreeing with the majority’s holding that District 23 violated the Voting Rights Act. The crux of his argument was that the Voting Rights Act could only be violated if the reason behind redrawing the map was racially motivated. Here, Scalia asserts that it was not racially motivated, it was motivated by a desire to keep the Republican incumbent in office, i.e., a political motivation (that had an unfortunate side-effect on the Latino community). Though an argument might be made that there was an inference of racial motivation behind the political action, Scalia asserted that simple inferences cannot overcome the district court’s finding of fact because the Supreme Court could only overturn a lower court in the case of “clear error,” i.e., “inferences” do not amount to “clear error.”
The Daily Memo - 6/28/06
John Cusack had to file a restraining order against a homeless woman he says is stalking him with letters inserted into bags of rocks and screwdrivers. (Defamer)
The Senate Judiciary Committee is looking into President Bush’s claim that he doesn’t have to obey the laws that he, himself, signed into effect. (Law.com)
A federal judge in Atlanta has ruled that Georgia cannot enact a broad law which would ban sex offenders from living within 300 feet of a school bus stops, effectively barring them from many cities and towns. (FindLaw)
An Ohio judge threw a man into the clink for trying to get out of a death penalty case jury pool by claiming he was addicted to heroin and had killed someone. (Law.com)
A Texas county failed to do a background check and ended up appointing a new county prosecutor who has a criminal record. (Amarillo.com)
A Missouri federal judge has stopped all executions in Missouri until the state changes its execution methods to ensure that there’s no excruciating pain involved. (Seattle PI)
An Ohio man convicted of murder ridiculed the jury in open court (and he’s previously called the jury dumb and stupid), in an attempt to get a death sentence which, he believes, will allow him to file appeals looking into the competence of the jury. (NewsNet5)
Supreme Court Decision Update - Sanchez-Llamas v. Oregon
In Sanchez-Llamas v. Oregon (PDF of the opinion), the Supremes look at a portion of the Vienna Convention which says that when a foreign individual is detained, the U.S. authorities are required to tell him that he can notify his government of his detention.
QuizLaw Analysis: The Supremes basically skirted the big issue here, which is what really happens when the cops fail to tell a foreign suspect that he’s entitled to get in touch with his government. Instead, they ruled that, when the cops do actually fail to do so, (i) the detainees aren’t entitled to have evidence suppressed and (ii) the detainees must make any claims about the violation in a manner consistent with federal and state procedural law (so if they don’t raise the alleged violation in trial, they lose the right to claim it later). The majority ruling, by skirting the big issue, appears to leave this treaty requirement with little power or effect, almost telling U.S. authorities that it’s ok if they don’t tell foreign suspects that they can get in touch with their consulates.
This decision consolidates two cases, Sanchez-Llamas and Bustillo v. Johnson. At play in both of these cases is the Vienna Convention on Consular Relations, an international treaty which 170 countries, including the U.S., are a part of. The relevant portion of the Vienna Convention is Article 36, which establishes that a detaining country must notify the authorities of the detainee’s home country that they are detaining that person, if that person so requests. Article 36 also says that the detaining country must notify the detainee of his rights under the Article, including this notification right (i.e., local authorities are obligated to tell foreign detainees that they have a right to get in touch with their consulate.
In December 1999, Moises Sanchez-Llamas (a Mexican national) got into a shootout with cops, hitting one in the leg. He was arrested and read his Miranda rights, in English and Spanish, but he was not told that the could request to have the Mexican Consulate informed of his detention, pursuant to Article 36. He was then interrogated by the police with the help of an interpreter and during these interrogations, he provided several incriminating statements about the shootout. He was charged with several criminal offenses, including attempted murder and, before going to trial, he tried to suppress his statements to the police on the grounds that they were involuntary in light of the cops failing to comply with Article 36. The court denied his motion and he was eventually convicted and sentenced to over 20 years in prison. Sanchez-Llamas appealed, again arguing that his statements should have been suppressed, but the Oregon appellate court and Supreme Court both affirmed the trial court decision, holding that Article 36 doesn’t create any right of access or notification to a consulate which a detainee can enforce within the context of a judicial proceeding.
Meanwhile, in 1997, Mario Bustillo (a Honduran national) was in a Virginia restaurant where a man was hit in the head with a baseball bat, eventually dying. Bustillo was identified as the man’s attacker, and he was arrested and charged with murder. The cops did not notify him of his Article 36 right to request that the Honduran Consulate be notified of his arrest. During his trial for murder, Bustillo argued that another man was responsible for the attack, presenting several corroborating witnesses. The jury convicted him of murder, anyway, and sentenced her to 30 years in the clink. Following his conviction, Bustillo filed a writ of habeas corpus arguing, for the first time, that his Article 36 rights had been violated and that he would’ve notified the Honduran Consulate immediately if he had known of these rights. He also had an affidavit from the Honduran Consulate stating that it would’ve helped Bustillo in his defense if it had been notified of his detention. Bustillo claimed that the consulate could have helped him track down the man he claimed was the actual attacker. Bustillo’s claim was dismissed, however, on the basis that he was procedurally barred from raising it because he did not raise the issue at trial or through a standard appeal.
With these facts under our belt, we can turn to the majority opinion, written by Chief Justice Roberts and joined by Justices Scalia, Kennedy, Thomas and Alito. Roberts identifies three issues which are raised by these cases. First, there is the question of whether a detainee can invoke their Article 36 rights in a judicial proceeding (i.e., enforce an alleged violation of those rights). Then, there’s the question of whether the remedy for a violation of Article 36 should be the suppression of evidence. And finally, there is a question of whether a detainee can forfeit a claim that their Article 36 rights were violated by not first raising the issue at trial. Roberts punks out on the first issue, which is really the big one here. He decides not to actually rule on whether there are any judicially enforceable rights created by the Vienna Convention because, even if there are, the second and third issues would play out the same way for him. So he’s just going to work under the assumption that Article 36 does create some judicially enforceable right, without actually deciding this issue.
The second issue, whether suppression of evidence is a viable remedy for an Article 36 violation, comes from the Sanchez-Llamas case. Roberts rules that the Vienna Convention does not support the suppression of evidence for an Article 36 violation, nor does Supreme Court precedent. The Vienna Convention says that Article 36 should “be exercised in conformity with the laws” of the detaining state. This is important because Roberts says that the Supreme Court can only order the suppression of evidence for procedural violations where it’s a federal statute that’s been violated and where the proceeding is in a federal court. “It is beyond dispute that we do not hold a supervisory power over the courts of the several States.” In other words, the Supremes can only otherwise step into state proceedings when there’s a constitutional issue at play. So Sanchez-Llamas can only win if the Vienna Convention, itself, gives the Supremes the authority to create a judicial remedy which applies to the state courts (in that case, the Court can step-in and enforce the treaty in the state courts because of the Supremacy Clause of the Constitution). Here, however, there is no such authority created or granted by Article 36.
Sanchez-Llamas tries to argue that the Court must give “full effect” to Article 36, by its own terms, and that this requires some judicial remedy to be created (even if that remedy isn’t the suppression of evidence). Roberts doubts this interpretation but says, even if it’s true, it still doesn’t support application of an exclusionary rule allowing for the suppression/exclusion of evidence in this situation. This is because the Court does not apply the exclusionary rule lightly, only doing so where there are constitutional issues at play, such as improper search and seizures or compelled self-incrimination. Article 36 has nothing to do with these kinds of rights, since it simply grants a right of notifying and informing the home country of the detainee’s arrest - it doesn’t require police to stop interrogations, or require the consulate to intervene, etc. So a remedy calling for the suppression of evidence would simply be out of proportion with an Article 36 violation.
The third issue in this case, whether a claim that Article 36 rights were violated can be waived due to procedural errors, arises from the Bustillo case. Roberts says that the same procedural default rules which generally apply in the United States equally apply to Article 36 claims. Roberts looks to a 1998 Supreme Court case, Beard v. Greene, and finds that case controlling in this situation. In Beard, the Court addressed this exact issue, ruling that a defendant who didn’t raise his Article 36 claim in trial or on appeal, could not raise it in a habeas proceeding. Bustillo tried to get out of having Beard apply with two different arguments, both of which Roberts rejected. First, Bustillo argued that the ruling in Beard was actually unnecessary because the defendant would have lost in that case anyway. Roberts flat-out rejects this because “[i]t is no answer to argue…that the holding in Beard was ‘unnecessary’ simply because the petitioner in that case had several ways to lose.”
Bustillo’s other attempt to avoid the application of Beard relies on an argument that the International Court of Justice (which the US withdrew from in 2005) has ruled that Article 36 claims can’t be precluded because of procedural default rules such as the one used to preclude Bustillo’s claim. Roberts rejects this argument as well. While the Court should respectfully consider how the ICJ interprets the Vienna Convention, it is not obligated to defer to the ICJ because the Supreme Court, alone, has the power to enforce treaties within the United States. So the ICJ’s interpretation simply doesn’t overcome the fact that Article 36 says it should be exercised in the United States in conformity with U.S. law. And under U.S. law, procedural default is used to waive claims, even alleged violations of the Constitution – so procedural default also applies to Article 36 claims. For example, if a criminal defendant has a valid claim that his Miranda rights were violated but doesn’t raise this issue at trial, he’s barred from raising the violation later. Why, asks Roberts, should this be any different?
So in conclusion, Sanchez-Llamas is out of luck because there is no reason that an Article 36 violation should mean that evidence can be suppressed, and Bustillo is out of luck because he should have raised his claim at the original trial. Thus, both state Supreme Court decisions are affirmed. Roberts notes at the end of his opinion that none of this should be understood as a belittlement of the Vienna Convention. “It is no slight to the Convention to deny petitioners’ claims under the same principles we would apply to an Act of Congress, or to the Constitution itself.”
Justice Ginsburg pens a separate opinion, concurring the judgment. She actually joins in one section of the dissent’s argument, which we’ll discuss below. But regardless of that, she agrees that in these cases, the majority is correct on the suppression and procedural default issues and she therefore agrees that both cases should be affirmed. However, she does concede, unlike the majority, that there could be some situations where a violation of the Vienna Convention would warrant the suppression of evidence or the setting-aside of the normal procedural default rules (which is really what the dissent argues, so she is mainly disagreeing with the dissent on its application of this “sometimes” rule in these particular cases).
Justice Breyer wrote the dissent in this case, joined wholly by Justices Stevens an