Posts

Obama’s Would-Be “Rule of Law” Counselor Calls Bradley Manning’s Treatment Unconstitutional

/in , /by

In Charlie Savage’s story from last year on the sidelining of Laurence Tribe as head of an “Access to Justice” program at DOJ, he reported that Tribe originally believed he would serve as counselor for “rule of law” issues in Obama’s Administration.

There was also concern over how his presence might play out internally, several administration officials said. Some officials feared that he might be unmanageable, intruding into all manner of policy areas and able to call on Mr. Obama as a trump card.

“He has an ego,” said Charles Fried, a former solicitor general in the Reagan administration and a fellow Harvard law professor. “He’s entitled to it. He’s earned it.”

Several friends and administration officials said Mr. Tribe had initially sought and believed he would be given a far broader title and assignment: counselor for “rule of law” issues, which would have come with a mandate to help shape matters of national security and foreign policy. That did not happen, but Mr. Tribe came to Washington anyway.

After less than a year in that position, Tribe left last December, citing medical issues.

Now, the guy Obama sidelined to make sure he didn’t impose too much rule of law on his Administration has strongly criticized Bradley Manning’s treatment, not only signing a letter condemning Manning’s treatment, but elaborating on why that treatment was unconstitutional.

[Tribe] told the Guardian he signed the letter because Manning appeared to have been treated in a way that “is not only shameful but unconstitutional” as he awaits court martial in Quantico marine base in Virginia.

The US soldier has been held in the military brig since last July, charged with multiple counts relating to the leaking of thousands of embassy cables and other secret documents to the WikiLeaks website.

Under the terms of his detention, he is kept in solitary confinement for 23 hours a day, checked every five minutes under a so-called “prevention of injury order” and stripped naked at night apart from a smock.

Tribe said the treatment was objectionable “in the way it violates his person and his liberty without due process of law and in the way it administers cruel and unusual punishment of a sort that cannot be constitutionally inflicted even upon someone convicted of terrible offences, not to mention someone merely accused of such offences”.

A pity. Back when Tribe was celebrating candidate Obama, he called him the best student he ever taught at Harvard Law and promised he would defend civil liberties and would not appoint justices who put executive power above rule of law.

Tribe said Americans’ civil liberties are hanging by a thread. “But it’s better to have a thread than to have the thread cut,” he said. “A Republican president would be in a position to cut that thread.”

[snip]

Tribe said that if Obama were to be elected, he would appoint justices “who share his view that the Constitution is a living document that has to be interpreted in light of evolving values of decency.”

“They would not be justices who fool themselves into thinking they know what the Constitution’s original meaning was, and they can apply it as if nothing has happened in the last 200 years,” Tribe said. “They would be justices who have a serious record of support for human rights and constitutional values, rather than justices who simply have shown their loyalty to executive power.”

[snip]

On a more personal note, Tribe called Obama the “best student I ever had” and the “most exciting research assistant.”

As to Justices Obama would appoint, Tribe has proven himself badly wrong about who would and would not make a good Justice.

But it appears that his belief that Obama would support the rule of law was a far greater misjudgment.

Search and Replace: Sexually Dangerous Person, Terrorist

/88 Comments/in /by

Just as a little thought experiment, let’s look how some passages from SCOTUS nominee Elena Kagan’s successful argument in U.S. v. Comstock–in which SCOTUS just voted 7-2 to affirm the federal government’s authority to indefinitely detain sex offenders who are mentally ill–appear when we replace the term “sexually dangerous person” with “terrorist.” (See Adam B’s post on the decision for a good overview of the decision.)

KAGAN: The Federal Government has mentally ill, sexually dangerous persons [terrorists] in its custody. It knows that those persons, if released, will commit serious sexual [terrorist] offenses;

[snip]

JUSTICE GINSBURG: But the likelihood is that the person will stay in Federal custody?

GENERAL KAGAN: I think that that’s fair, that the likelihood is that the person will stay in Federal custody until such time as a court finds that the reasons for that custody have lapsed.

[snip]

CHIEF JUSTICE ROBERTS: Right. I understand your argument to be that this power is necessary and proper, given the fact that the person is in Federal custody for some other reason, criminal conviction [enemy combatant designation].

GENERAL KAGAN: That has been the government’s case throughout this litigation, that it is always depended on the fact of Federal custody, on the fact that this person has entered the criminal justice system [been designated an enemy combatant],

[snip]

CHIEF JUSTICE ROBERTS: Well, why doesn’t the Federal Government’s authority to have custody because of the criminal justice system [enemy combatant designation] end when the criminal justice system is exhausted if he can’t be charged? In other words, when the sentence is done?

GENERAL KAGAN: Because the Federal Government has a responsibility to ensure that release of the people it has in its custody is done responsibly, and is done in such a way —

Read more →

Sotomayor Refuses to Give Government Privilege for Me But Not for Thee

/66 Comments/in , , /by

Justice Sonia Sotomayor’s first opinion, released yesterday, is interesting for several reasons. Clarence Thomas was a predictable asshole to her about her opinion. (h/t fatster) It was the first time anyone has used the phrase “undocumented immigrant” in a SCOTUS opinion.

But I’m interested in the Obama Administration’s unsuccessful attempt to get the Court to bail them out of troubles they’re having on national security cases like al-Haramain and Jeppesen.

The case, Mohawk v. Carpenter, concerned whether a District Court’s order allowing discovery that threatened the attorney-client privilege merited an immediate appeal. The Government submitted an amicus brief in the case, basically arguing that it did not. But at the same time, the Government tried to write an exception for itself, arguing that attorney-client privilege should not get to bypass the normal appeals process, but state secrets and presidential communications privileges should.

As noted above (pp. 11-12, supra), the collateral order doctrine does not categorically exclude all discovery orders irrespective of their nature or the interests that are at stake. This Court has recognized that important governmental interests, principally of constitutional and statutory significance, justify immediate appealability under the collateral order doctrine. See, e.g., Osborn, supra (Westfall Act certification); P.R. Aqueduct, supra (Eleventh Amendment immunity); Helstoski, supra (Speech or Debate Clause immunity). Although the attorney-client privilege does not meet that high bar, privileges such as those protecting Presidential communications and state secrets qualify for such treatment in light of their structural constitutional grounding under the separation of powers, relatively rare invocation, and unique importance to governmental functions.

The Presidential communications privilege, which draws its authority from the constitutional role of the Executive and “can be viewed as a modern derivative of sovereign immunity,” is well established. Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d 395, 398 n.2 (D.C. Cir. 1984) (citing Raoul Berger & Abe Krash, Government Immunity from Discovery, 59 Yale L.J. 1451, 1459 n.46 (1950)). “The privilege is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution,” and it derives largely from the “necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decisionmaking.” United States v. Nixon, 418 U.S. 683, 708 (1974). Unlike the attorney-client privilege (see pp. 15-17, supra), the Presidential communications privilege is invoked relatively rarely and only after authorization of senior Executive Branch officials.

[snip]

In addition to the Presidential communications privilege, this Court has long recognized a state-secrets privilege. That privilege may be invoked to avoid “a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged.” United States v. Reynolds, 345 U.S. 1, 10 (1953). The state-secrets privilege, whose origins extend to early Anglo-American law, “performs a function of constitutional significance, because it allows the executive branch to protect information whose secrecy is necessary to its military and for eign-affairs responsibilities.” El-Masri v. United States, 479 F.3d 296, 303 (4th Cir.), cert. denied, 128 S. Ct. 373 (2007) (emphasis added); cf. Totten v. United States, 92 U.S. 105, 107 (1876) (noting that in comparison to cases involving common-law privileges—including the attorney-client privilege—“[m]uch greater reason exists for the application of the principle [against maintenance of a suit resulting in disclosure of confidential matters] to cases of contract for secret services with the
government”). As a matter of practice, the privilege is invoked by a formal request “lodged by the head of the department which has control over the matter, after actual personal consideration by that officer,” underscoring its unique significance to the functions of the Executive Branch and the restraints on its invocation. Reynolds, 345 U.S. at 7-8 (footnote omitted). In addition to their paramount “public importance” and “the need for their prompt resolution,” Nixon, 418 U.S. at 687, orders denying the applicability of the Presidential
communications and state-secrets privileges also satisfy the other traditional elements of the Cohen inquiry. First, an order requiring the disclosure of information over the government’s assertion of those privileges would conclusively resolve the issue. The Executive cannot be expected to persist in withholding information that a court has ordered to be disclosed; to suggest otherwise would be to invite the “unseemly” interbranch conflict that this Court declined to let unfold in Nixon. Id. at 692.

Second, neither the Presidential communications privilege nor state-secrets privilege turns on the merits of the action in which they arise, but rather on the nature of the constitutional prerogatives of the Executive Branch. Accordingly, when compared to the attorney client privilege (see pp. 17-21 supra), the governmental privileges are more readily severable from the merits of the underlying case. For example, the question whether disclosure of a state secret would endanger national security or diplomatic efforts is independent of the merits of the underlying action that seeks the disclosure. If information is properly deemed a state secret, then any assessment of the potential merits of the action or the disclosure’s impact on the merits is beside the point—the state secret cannot be divulged regardless. See Reynolds, 345 U.S. at 11 (state-secrets privilege cannot be overcome by “even the most compelling necessity”). The Court in Nixon, a criminal case where the asserted Presidential communications privilege reflected a “generalized interest in confidentiality,” engaged in a more case-specific inquiry, but only after finding appellate jurisdiction. 418 U.S. at 711.6 [my emphasis]

Now, it’s crystal clear what the Government was trying to do with the state secrets stuff. They were trying to dig themselves out of several holes in the 9th Circuit, by pushing the Court to back their argument that they can appeal an order to disclose evidence anytime a question of state secrets is involved. In particular, if I understand correctly (and please correct me if I’m wrong), this is what the Government tried to do in al-Haramain–appeal Judge Walker’s ruling that al-Haramain’s lawyers could have access to materials on their wiretapping so as to litigate the case.

Note, too, their claim that the Government would never refuse to turn over information after a Judge had ordered them to. Except that was precisely what they seemed to be preparing to do in al-Haramain, not just refusing to turn over information, but to take information already lodged with the Court Security Officer, along with filings that are the property of the Court, away from the Court.

Read more →

Will Miguel Estrada Represent John Yoo Before Sonia Sotomayor at SCOTUS?

/in , /by

I had a bit of a contest on Monday to guess which lawyer was representing John Yoo as Jose Padilla’s suit against him goes forward.

The winner of that poll is the anonymous reader who noted that Miguel Estrada represented Yoo when Yoo testified before Congress last year. You can let me know by email which deserving charity you’d like me to mail your utterly worthless hubcap to…

The Recorder has more details about the tough work Estrada has ahead of him. (h/t WSJ Law Blog)

John Yoo, author of some of the Bush administration’s war-on-terror memos, has hired Washington, D.C., lawyer Miguel Estrada to appeal a ruling that allowed an allegedly mistreated detainee’s suit against Yoo.

[snip]

Estrada has already been representing Yoo in an investigation by the Justice Department’s Office of Professional Responsibility into the legal work behind the memos. That investigation is ongoing, though the results could be released at any time, and a draft finding reportedly would have referred Bybee and Yoo to State Bar authorities for possible discipline.

As a reminder, this means that Estrada will represent Yoo as he attempts to convince the 9th Circuit to reverse the District Court’s ruling that Padilla’s suit against Yoo can move forward.  And–it is not unreasonable to imagine–regardless of what the 9th Circuit decides, the Latino the Republicans wished had been the first on SCOTUS (Estrada) might soon face the Latina Republicans will grudgingly see confirmed as Justice in the next few weeks for a big showdown over the rule of law. Any bets on whether Estrada makes more money trying to save Yoo from any consequences for his actions (yes, taxpayers will be footing Estrada’s bill) than Sotyomayor will make in her first year on SCOTUS?

In addition to reporting that Estrada will represent Yoo, the Recorder has some interesting speculation from some law professors who have been following the case on why Yoo needs his own lawyer.

New York University School of Law professor Stephen Gillers, who has written about the investigation into the memos, said that the Justice Department should not have been Yoo’s sole representation in the first place, because conflicts of interest between Yoo and his former employer were too likely to occur.

Yoo may have wanted to make arguments that the Justice Department couldn’t pursue, such as implicating other DOJ officials, Gillers said. Read more →

Feingold Asks Sotomayor about Executive Power

/in , /by

Russ Feingold, predictably, asked Sonia Sotomayor about executive power. I confess, I’m troubled (probably unjustifiably so) by her answer to his first question about executive power.

FEINGOLD: Let me get into a topic that I discussed at length with — with two most recent Supreme Court nominees, Chief Justice Roberts and Justice Alito, and that’s the issue of executive power.

In 2003, you spoke at a law school class about some of the legal issues that have arisen since 9/11. You started your remarks with a moving description of how Americans stood together in the days after those horrific events and how people from small, Midwestern towns and people from New York City found their common threads as Americans, you said.

As you said in that speech, while it’s hard to imagine that something positive could ever result from such a tragedy, that there was a sense in those early days of coming together as one community, that we would all help each other get through this.

And it was, of course, something that none of us had ever experienced before and something I’ve often discussed, as well. But what I have to also say is that, in the weeks and months that followed, I was gravely disappointed that the events of that awful day, the events that had brought us so close together as one nation, were sometimes used, Judge, to justify policies that departed so far from what America stands for.

So I’m going to ask you some questions that I asked now-Chief Justice Roberts at his hearing. Did that day, 9/11, change your view of the importance of individual rights and civil liberties and how they can be protected?

SOTOMAYOR: September 11th was a horrific tragedy for all of the victims of that tragedy and for the nation. I was in New York. My home is very close to the World Trade Center. I spent days not being able to drive a car into my neighborhood because my neighborhood was used as a staging area for emergency trucks.

The issue of the country’s safety and the consequences of that great tragedy are the subject of continuing discussion among not just senators, but the whole nation.

In the end, the Constitution, by its terms, protects certain individual rights. That protection is often fact-specific. Many of its terms are very broad. So what’s an unreasonable search and seizure? What are other questions or facts specific?

Read more →

Sotomayor Confirmation Hearings, Day 2, Part IV

/in /by

Schumer up. Going to follow up on Sessions and Kyl. 

Schumer: Let’s talk about your 17 years of being a judge. No colleague has referred to a case where you tried to change the law. So if a colleague looks at a few snippets rather than your extensive record, colleagues attempting to say you’d put empathy above rule of law. What having empathy means, then turn to record. Commit to rule of law?

SS: Can make and have made for 17 years.

Schumer: One would expect most sympathetic plaintiffs would win. Tragic TWA crash. Sued manufacturers of airplane. Did you have sympathy for the families?

SS: Absolutely. 

Schumer: Ruled against them.

SS: Didn’t author majority opinion. Dissent suggested that court should have followed existing law. 

Schumer: Appropriate scheme for reimbursement off US coast legislative issue. How a judge should rule. How’d you feel?

SS: One in as tragic situation, personal sense of regret but personal senses cannot command results in case. 

Schumer; I guess I don’t have to ask you whether you’re a Mets or Yankees fan?

Leahy: You’d better not let her answer or the Chair will have to vote against her.

[Schumer calls her Scalia, not Sotomayor, saying she should root for the Red Sox.]

Graham: My problem is that the cases you’ve been involved in are left of center but nothing that jumps out at me, but your speeches. I keep talking about your speeches because otherwise I have to admit you’re a boring, hugely qualified judge.

SS: I don’t use labels.

Graham: When Justice Rehnquist said he was a strict constructionist, did you know what he meant? Will you please label yourself so I can show how that means you’re not Rehnquist?

[SS torturing Lindsey because she refuses to label herself or the Constitution. Next up, Graham refuses to let pictures be released.]

Graham: Do you think Roe v Wade changed society?

SS: I think Roe v Wade looked at the Constitution and applied it.

Graham: Does the Constitution as written prohibit a legislative body from defining life?

SS: Word abortion not used in Constitution but it has a broad provision.

Lindsey, thinking he’s very clever, "And that gets us to the speeches." And on and on and on and on. That’s what drives us here. Balls and strikes. A lot of us feel that the best way to change society is to go to ballot box. A lot of the rest of us stacked the courts and don’t want to lose the advantage.

Lindsey: You’re as Read more →