Steven Douglas Maloney

Archive for the ‘Law’ Category

Link.  (anyone know how to use flowplayer on a wordpress.com blog??)

Again, I write this as a person with no formal legal training, so you should take my opinions as one who could certainly be rebutted with things that I am simply not aware of.  The interesting thing to me about Heller is that it seems to be a decision on principle which is entirely consistent with Boumediene, but the decisions share only one voter in common.  I suspect that what we call the more conservative minded legal analysts will object  because Heller, is interpeeting what the words of the second amendment explicitly state, whereas in Boumediene there is more work in inferring an interpretation based on the Constitution and legal precedent.

However, just because the meaning of the second amendment seems clear to conservative scholars does not mean that it is clear. Obviously, reasonable people disagree about what it means — I happen to think the conservative justices are likely correct and obviously so does the majority of the Court– and since reasonable people disagree about what it means, the Court is left with the choice of (a) doing some work in trying to gather a majority opinion about what it means using sound judgment, drawing on relevant case material, and considering the practical applications of their decision once it is made or (b) deferring to democratic legislative bodies.

It is no secret that I am of the opinion that the second one is almost always a worse option than the first.  The Court’s institutional design makes it a unique body to work out such problems reasonably, and to then explain to us the reasons that justify the actual decision. The fact that there are 9 of them, they have a majority vote, and they are representative over a long period of time of the same professional class ensures that while some decisions may not sit well, none of them will be barbarous. Finally, I think there are very substantial reasons to think that the legislative branch is not democratic at all in the ways that dissenters glorify it as being when they defer to majority infringement on the law. More than anything, the law should be just, and I think experts in the law serving in what amounts to deliberative panels on managing the tradeoffs between coherence, fairness, constitutionality, practical enforcement, etc. are far more likely to understand these problems than the public or their representatives. The House Committee hearing on Guantanamo Bay and Interrogation Rules today evidences this in spades, as it is a very disheartening thing, even for a person with a fairly Downsian view of Congressman, to see a collection of representatives of the people who cannot collectively be preapred enough or precise enough to pin down people who, in all likelihood, uncontroversially ordered human rights abuses.

In short, in both Heller and Boumediene, the Majority of the Court rolled up their sleeves, did seem serious legal analysis about why it was essential for the fundamental legal guarantees of our government and the minority of the Court in both cases through a fit about the Court’s counter-majoritarian behavior.  When I think of guns, I think of violence in cities, and I think of the creepy people I met in Pennsylvania who have bought into the gun industry’s selling of being into guns as a lifestyle, and I cringe.  I also know many people who have a military background, who hunt, and who work in law enforcement that use guns responsibly. I am aware that htere are places in America that do not look like any place I have ever lived where the nearest police station is not near. I’m not sure if it is actually the legal case that the DC ban “goes too far” in violating the Second Amendment or not. I am also not sure if the Court’s reading of the second amendment is the best possible reading or not. However, it seems like a reasonable intepretation of both the amendment and of the ban. Further, I see it no different to say “it is wrong to say ‘better safe than sorry’ about people locked up in Guantanamo Bay for whom there is little to no evidence” and “it is wrong to say ‘better safe than sorry’ that because some people use guns for violent crime we should take them all away.”   Recognizing that the Supreme Court would in fact not be a better insitution if all decisions were just made by me, I can easily live with Heller. Like with Boumediene, it seems to be well-reasoned and it errs towards protecting the rights of citizens fromt he state. While both decisions will result in a lot of apocolyptic pronouncements from those who disagree with the opinion, I for one think we ought to be fairly pleased with both as pragmatic decisions that try to maximize the right kinds of priorities for us as free and equal citizens,

Tonight, I watched a debate over the Court’s big decision on The News Hour between a man in a bow tie and what looked at first glance to be Elton John. As I watched, the person who applauded the decision said things that made me cringe a bit — like talking about the significance of the victory for his political world view. The debate came off as if those who believe in interpretation must think the decision bad, and those who believe in law as politics by other means must think it good.  

I happen, upon my understanding of the decision, to think that it is a well-reasoned decision. I note the reasoned objections in dissent, but I am not afraid of the cataclysm that Justice Scalia thinks this has brought down upon the court. Beyond this, I think that all of the Supreme Court Justices, regardless of their opinion are trying to do right by the law and not just advance their interests.  I’ll explain this in a different post maybe, but for now I’d like to point out the “weak man” argument I see in claims against judicial activism. 

1. Judges make decision A

2. Many people defend position A because they like the political outcomes entailed by A

3. Many other people also do not like the political outcomes entailed by A

4. The many from (3) argue with the many from (2), amongst their arguments is that one should have a commitment to the rule of law not easily superseded by a single instance of political victory on an issue or set of issues.  

5. From this argument, the many from (3) believe that they have defeated the position of the judges who make decision A.  

 

Again, this does not suggest that there is not also reasoned objections that CAN be made in objecting to decision A, it is just to say that defeating weaker representatives of an argument does not imply that you have beaten the stronger ones as well. 

My sense is that one of the ways that those who argue the court is counter-majoritarian in a bad way is to say:

1. Judges claim not to be biased

2. People who like what judges say also proclaim their own bias out loud

3. Therefore, the people in (2) are merely giving voice to the hidden motives of the judges in (1)

Here’s an obvious example that Democrats tend to have:

1. SCOTUS hands down Bush v. Gore

2. Nearly half America rejoices because they got the President that they want

3. These people in (2) are merely voicing the secret motives of the Judges in the majority in (1)

 

To assume this is true strikes me as a very, very bad move, and I wonder how strong a case against the view of the court as protecting an evolving higher law there really is without this rhetorical sleight of hand… of course I am wondering this in seriousness because to assume that those who use this sleight of hand logic represent the best version of their position would be to commit the same mistake!

I’ll tip my hand by the way I frame these quotes in terms of my view of the decision:

Chief Justice Roberts, Dissenting:

It is grossly premature to pronounce on the detainees’ right to habeas without first assessing whether the remedies the DTA system provides vindicate whatever rights petitioners may claim.

Hamdi concluded that American citizens detained as enemy combatants are entitled to only limited process, and that much of that process could be supplied by a military tribunal, with review to follow in an Article III court.  That is precisely the system we have here.  It is adequate to vindicate whatever due process rights petitioners may have.

First of all, the majority is quite wrong to dismiss the Executive’s determination of detainee status as no more than a “battlefield” judgment, as if it were somehow provisional and made in great haste.  In fact, detainees are designated “enemy combatants” only after “multiple levels of review by military officers and officials of the Department of Defense.”  Memorandum of the Secretary of the Navy, Implementation of Combatant Status Review Tribunal Procedures for Enemy Combatants Detained at Guantanamo Bay Naval Base (July 29, 2004), App. J to Pet. for Cert. in No. 06–119inafter Implementation Memo). 

Justice Scalia, Dissenting:

Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation-of-powers principles to establish a manipulable “functional” test for the extraterritorial reach of habeas corpus (and, no doubt, for the extraterritorial reach of other constitutional protections as well).  It blatantly misdescribes important precedents, most conspicuously Justice Jackson’s opinion for the Court in Johnson v. Eisentrager.  It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization.  And, most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner.  The Nation will live to regret what the Court has done today.  I dissent. 

 

Justice Souter, Concurring with the Majority:

A second fact insufficiently appreciated by the dissents is the length of the disputed imprisonments, some of the prisoners represented here today having been locked up for six years, ante, at 66 (opinion of the Court).  Hence the hollow ring when the dissenters suggest that the Court is somehow precipitating the judiciary into reviewing claims that the military (subject to appeal to the Court of Appeals for the District of Columbia Circuit) could handle within some reasonable period of time. 

The framework of the decision:

Based on this language from Eisentrager, and the reasoning in our other extraterritoriality opinions, we conclude that at least three factors are relevant in determining the reach of the Suspension Clause: (1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ.

On (1):

But the petitioners in Eisentrager did not contest, it seems, the Court’s assertion that they were “enemy alien[s].”  Ibid.  In the instant cases, by contrast, the detainees deny they are enemy combatants.

On (2):

But there are critical differences between Landsberg Prison, circa 1950, and the United States Naval Station at Guantanamo Bay in 2008.  Unlike its present control over the naval station, the United States’ control over the prison in Germany was neither absolute nor indefinite.  Like all parts of occupied Germany, the prison was under the jurisdiction of the combined Allied Forces. 

On (3):

The Government presents no credible arguments that the military mission at Guantanamo would be compromised if habeas corpus courts had jurisdiction to hear the detainees’ claims.

On Congresses’s Habeas-suspending powers:

In light of this holding the question becomes whether the statute stripping jurisdiction to issue the writ avoids the Suspension Clause mandate because Congress has provided adequate substitute procedures for habeas corpus.

 Our case law does not contain extensive discussion of standards defining suspension of the writ or of circumstances under which suspension has occurred.  This simply confirms the care Congress has taken throughout our Nation’s history to preserve the writ and its function.

That the statutes in Hayman and Swain were designed to strengthen, rather than dilute, the writ’s protections was evident, furthermore, from this significant fact: Neither statute eliminated traditional habeas corpus relief.  In both cases the statute at issue had a saving clause, providing that a writ of habeas corpus would be available if the alternative process proved inadequate or ineffective.  

In passing the DTA Congress did not intend to create a process that differs from traditional habeas corpus process in name only.  It intended to create a more limited procedure.  See, e.g., 151 Cong. Rec. S14263 (Dec. 21, 2005) (statement of Sen. Graham) (noting that the DTA “extinguish[es] these habeas and other actions in order to effect a transfer of jurisdiction over these cases to the DC Circuit Court” and agreeing that the bill “create[s] in their place a very limited judicial review of certain military administrative decisions”); id., at S14268 (statement of Sen. Kyl) (“It is important to note that the limited judicial review authorized by paragraphs 2 and 3 of subsection (e) [of DTA §1005] are not habeas-corpus review.  It is a limited judicial review of its own nature”). 

 

We do not endeavor to offer a comprehensive summary of the requisites for an adequate substitute for habeas corpus.  We do consider it uncontroversial, however, that the privilege of habeas corpus entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to “the erroneous application or interpretation” of relevant law.  St. Cyr, 533 U. S., at 302.

 

Conclusion:

In cases involving foreign citizens detained abroad by the Executive, it likely would be both an impractical and unprecedented extension of judicial power to assume that habeas corpus would be available at the moment the prisoner is taken into custody.  If and when habeas corpus jurisdiction applies, as it does in these cases, then proper deference can be accorded to reasonable procedures for screening and initial detention under lawful and proper conditions of confinement and treatment for a reasonable period of time. 

 

The only law we identify as unconstitutional is MCA §7, 28 U. S. C. A. §2241(e) (Supp. 2007).  Accordingly, both the DTA and the CSRT process remain intact.  Our holding with regard to exhaustion should not be read to imply that a habeas court should intervene the moment an enemy combatant steps foot in a territory where the writ runs.  The Executive is entitled to a reasonable period of time to determine a detainee’s status before a court entertains that detainee’s habeas corpus petition.  The CSRT process is the mechanism Congress and the President set up to deal with these issues.  Except in cases of undue delay, federal courts should refrain from entertaining an enemy combatant’s habeas corpus petition at least until after the Department, acting via the CSRT, has had a chance to review his status. 

 

Entire opinion can be found here.

From SCOTUSblog:

In a stunning blow to the Bush Administration in its war-on-terrorism policies, the Supreme Court ruled Thursday that foreign nationals held at Guantanamo Bay have a right to pursue habeas challenges to their detention. The Court, dividing 5-4, ruled that Congress had not validly taken away habeas rights.  If Congress wishes to suspend habeas, it must do so only as the Constitution allows — when the country faces rebellion or invasion.

Read the rest of the SCOTUSblog summary here:

Read the opinion of the Court here.

Read Marty Lederman on what has and has not been come from this ruling here, here, and here!

I have some thoughts I am collating on the ruling and what it might mean in a more meta-institutional level, but this should get you started on its legal implications.

 

 

"We cannot use race as the test of diversity."  (via Balkinization)