Wednesday, June 01, 2011

Enforcing Medicaid's Equal Access Provision: The Obama Administration's Disappointing Amicus Brief in Independent Living Center

Over the weekend, the New York Times ran a thorough story summarizing an amicus brief the Obama Administration filed last week in Douglas v. Independent Living Center, the trio of monumental Medicaid cases that the Supreme Court is set to hear next Term.  As the article notes, the Administration's brief sides quite forcefully with the State of California (the Petitioner in Douglas), and against the Ninth Circuit, which had held that the Supremacy Clause itself provides a cause of action for an injunction to enforce one of the most important provisions of the Medicaid Act--the so-called "equal access" provision. That provision [42 U.S.C. 1396a(a)(30)(A)] requires states to set reimbursement rates that are "sufficient to enlist enough providers so that care and services are available under [Medicaid] at least to the extent that such care and services are available to the general population in the geographic area." Here, plaintiffs challenged a series of drastic across-the-board reductions in Medicaid reimbursement rates by California, allegedly in violation of the Medicaid Act's "equal access" mandate. 

In short, the government's brief argues that there is no express cause of action to enforce the "equal access" provision (true); that the Supreme Court has never squarely held that the Supremacy Clause provides a cause of action for injunctive relief to enforce a federal statute against an allegedly preempted state law (debatable at best); and that such a cause of action in this case would "not be compatible with the nature of the statutory scheme." 

Skipping over the second issue, it's the Obama Administration's position on the third issue that is what I find so disappointing both legally and politically.

The heart of the matter comes in the following passage on page 26 of the brief:

If private parties who lack a statutory cause of action could simply style their suit as a preemption action to enjoin state officials from enforcing a state law that was adopted to implement the State’s undertakings pursuant to the program, the result would be in considerable tension with Congress’s decision not to confer a private right of action to enforce state compliance.

Legally, I'm not sure this even follows. Congress's decision not to confer a private right of action (1) came in 1965, before the Court's contemporary jurisprudence disfavoring implied remedies; (2) could have reflected the understanding that the only defendants in suits to enforce the equal access provision would be state officers, who could be sued (as was then clear thanks to Monroe v. Pape) under Section 1983; and (3) could just as easily have reflected a wariness of damages remedies for violation of the equal access provision, without any intent to foreclose equitable relief.

And in any event, the government's brief conveniently neglects to note that, at least until the Supreme Court's decision in Gonzaga University v. Doe, every circuit to reach the issue had concluded that the equal access provision could be enforced through Section 1983--holdings that necessarily relied on the conclusion that Congress did mean for the equal access provision to be privately enforceable. To be sure, Gonzaga changes that calculus dramatically (as post-Gonzaga courts have recognized vis-a-vis the equal access provision, which is why Independent Living Center is a Supremacy Clause case), but if the question for Supremacy Clause purposes is simply whether there is tension with Congress's decision not to confer a private right of action, it seems to me that the pre-Gonzaga cases suggest quite forcefully that the answer is no. In point of fact, private enforcement of the equal access provision was the central means by which that provision was enforced for the first 37 years that it was on the books, an understanding that was both shared and repeatedly endorsed by the Department of Health and Human Services (and its predecessor, the Department of Health, Education, and Welfare), at least until Gonzaga.

Thus, the implicit argument that the Administration relies upon, but does not articulate, is that Gonzaga did not just change the standard for determining whether federal statutes are enforceabile via Section 1983; it also necessarily changed the standard for determining whether federal statutes can be enforced against state laws that they preempt via the Supremacy Clause. That would be an incredibly significant (and, in my view, disturbing) result, yet it comes through only between the lines.

Separate from the brief's rather conclusory legal analysis, it's the politics of the brief that I find completely baffling.  The same Administration, when asked for its views on whether certiorari should be granted, recommended a denial--because of both the unique facts of this case, and the absence of a circuit split on the central (cause of action) issue.[Curiously--or perhaps tellingly--that brief was joined by various attorneys from the Department of Health & Human Services, including the Acting General Counsel, whereas the merits brief was not... one can only speculate, but it seems entirely possible that the merits brief is the outcome of an internal battle that HHS lost, which would be particularly ironic as I note below].

To be sure, the CVSG brief avoided taking a firm position on the underlying enforceability question, but if the Administration was willing to leave the Ninth Circuit decision intact at that point, what makes it necessary to go after it at the merits stage, as opposed to sitting this one out? 

The implicit answer the brief gives is fairly typical for implied cause-of-action cases, i.e., that federal enforcement actions are theoretically available, and that private enforcement would produce potentially inconsistent judicial interpretations of the equal access provision that could interfere with the Secretary of Health and Human Services' authority to administer the Medicaid Act. [Here's the irony.] Of course, that position should have supported a grant, rather than a denial, in the invitation brief. Clearly, something changed behind the scenes, and the merits brief thereby represents a shift in policy that, if endorsed by the Supreme Court, would make it all-but-impossible to enforce the equal access mandate--one of the most important statutory requirements of the Medicaid program.

This may seem like a lot of huffing and puffing over a hypertechnical Federal Courts issue about an even more hypertechnical statute. But as Professor Abby Moncrieff has put it,

enforcing § 30(A)’s requirements is necessary to ensure that Medicaid programs abide by their legal commitment to provide healthcare to the poor. The states must have flexibility in their rate-setting methodologies, but they are statutorily required—and should be judicially required—to pay a reasonable price for the services they buy.

Why would this Administration all of a sudden decide that it disagrees? 

Update: A helpful reader pointed out that it's standard practice for the government to file on the merits in any case in which the Court seeks its views at the cert. stage. I thought that was only true when the government recommends a grant, but that at least explains why the Administration filed. It still does nothing to explain why this was the result...  

Posted by Steve Vladeck on June 1, 2011 at 04:08 PM in Current Affairs, Steve Vladeck | Permalink | Comments (0) | TrackBack

Tuesday, May 24, 2011

The Obama Administration and the NDAA

I've been rather critical of the Obama Administration, both on this blog and elsewhere, for what might best be described as a frustrating degree of timidity when it comes to some of the key national security debates of the day, particularly where detainee issues are concerned.  Thus, although I had been troubled by the Administration's silence on the "new AUMF" buried within the House version of the National Defense Authorization Act, and the restrictions on the President's power to transfer detainees either stateside or to third-party countries, it hadn't exactly been surprising...

With that in mind, I was quite pleased by the discussion of the detainee provisions in the NDAA contained within the Statement of Administration Policy released today. Quoting from it in relevant part:

The Administration strongly objects to section 1034 which, in purporting to affirm the conflict, would effectively recharacterize its scope and would risk creating confusion regarding applicable standards. At a minimum, this is an issue that merits more extensive consideration before possible inclusion. The Administration strongly objects to the provisions that limit the use of authorized funds to transfer detainees and otherwise restrict detainee transfers and to the provisions that would legislate Executive branch processes for periodic review of detainee status and regarding prosecution of detainees. Although the Administration opposes the release of detainees within the United States, Section 1039 is a dangerous and unprecedented challenge to critical Executive branch authority to determine when and where to prosecute detainees, based on the facts and the circumstances of each case and our national security interests. . . .  The prosecution of terrorists in Federal court is an essential element of our counterterrorism efforts - a powerful tool that must remain an available option. . . . If the final bill presented to the President includes these provisions that challenge critical Executive branch authority, the President's senior advisors would recommend a veto.

Kudos to the Administration for finally taking a public stand on these issues--not to mention the right one, in my book. For more, see Bobby Chesney's insightful take over at Lawfare.

Posted by Steve Vladeck on May 24, 2011 at 05:23 PM in Constitutional thoughts, Steve Vladeck | Permalink | Comments (0) | TrackBack

Monday, May 16, 2011

Is the AUMF Broke? (And If Not, Why Fix It?)

There's been a lot of discussion over the past few weeks in D.C. about the "Chairman's Markup" to the National Defense Authorization Act, especially the provisions that would "reaffirm" the conflict that Congress initially authorized in the September 18, 2001 Authorization for Use of Military Force (AUMF)--i.e., the use of military force against those groups that were responsible for the September 11 attacks.

What is surprising to me about the current debate is just how little detail one hears from supporters of the "new" AUMF for why it is a necessary piece of legislation, and for what authority the new legislation would provide that the existing statute does not. To my knowledge, the Obama Administration has not publicly suggested that it needs any additional authority from Congress in the context of ongoing military counterterrorism operations, and for better or worse, the case law coming out of the D.C. Circuit supports a fairly expansive interpretation of at least the detention authority provided by the 2001 statute, largely vitiating any argument that broader detention authority is the justification for the new bill. So if it's not about detention, and if the Administration doesn't think it's necessary, what gives? 

The irony is that it's folks like yours truly who are discontent with the status quo, in large part because I don't think the AUMF can fairly be read to sweep as broadly as the D.C. Circuit has held that it does. But are there those who think the D.C. Circuit is largely getting these issues right who still think we need a new statute? If so, why? That, to me, is the key question here, and I continue to be floored by just how little supporters of the new bill have addressed it...

Posted by Steve Vladeck on May 16, 2011 at 04:03 PM in Current Affairs, Steve Vladeck | Permalink | Comments (10) | TrackBack

Wednesday, May 11, 2011

The D.C. Circuit After Boumediene

Speaking of self-promotion... Those who have been following the Guantanamo litigation and/or the ongoing debate over the "new AUMF" language in the NDAA are probably well-acquanited with the debate over whether the D.C. Circuit in its post-Boumediene jurisprudence has attempted to undermine the Supreme Court's June 2008 decision, which held that the Guantanamo detainees are entitled to the full protections of the Suspension Clause. 

For those who would like to read more, or who could use (what I hope is) a useful capsule summary of the jurisprudence to date, I have a new paper on SSRN (part of a sympoisum for the Seton Hall Law Review) that analyzes the bulk of the D.C. Circuit's post-Boumediene Guantanamo case law in light of this charge. Not to ruin the punch-line, but the essay concludes that the hostility to Boumediene (and, as significantly, Hamdi) can be ascribed to no more than four of the D.C. Circuit's judges. The rest of the Court of Appeals has generally hewed to a more moderate line, and has even rebuffed their outlier colleagues in a few significant cases. That's not to commend the results in all of the court's decisions, many of which I find quite disturbing (some deeply so). Rather, it's to suggest that, for the most part, the core of the D.C. Circuit is acting consistently with what little guidance the Supreme Court has offered--a point we would do well to keep in mind in the context of the very live debate over whether statutory reform of the AUMF is necessary...

Posted by Steve Vladeck on May 11, 2011 at 10:06 AM in Article Spotlight, Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink | Comments (0) | TrackBack

Monday, April 25, 2011

The Real Reason Why K&S Dumped DOMA?

I haven't seen all of the stories on today's news re: King & Spaulding, former SG Paul Clement, and the DOMA litigation, but I wonder if we might be missing part of why this case became increasingly unpopular within K&S... Apparently, the following clause was in the contract between the House of Representatives and the firm:

[P]artners and employees who do not perform services pursuant to this Agreement will not engage in lobbying or advocacy for or against any legislation … that would alter or amend in any way the Defense of Marriage Act and is pending before either the U.S. House of Representatives or the U.S. Senate or any committee of either body during the term of the Agreement.

Whether or not there are legal problems with enforcing such a provision against the many employees of King & Spaulding, isn't it likely that internal opposition within the firm in light of this proviso might have had just as much to do with today's news as the external, political pressure? 

Update: This is what I get for not staying glued to my computer. See Huffington Post for more on the contract issues... But if this meme is already out there, how come it's not part of any of today's coverage?

Update, Part II: See also Metro Weekly's coverage here.

Posted by Steve Vladeck on April 25, 2011 at 02:24 PM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink | Comments (2) | TrackBack

Monday, April 04, 2011

What Is a "Tenth Amendment" Claim?

Over at The Cockle Bur, Timothy Sandefur has a helpful post summarizing the interesting amicus brief that he filed last week in support of Virginia's challenge to the individual mandate in the Fourth Circuit, largely responding to (and attacking) arguments that we made in our amicus brief in support of the government in the same case. [In short, we argued that Virginia doesn't have standing; Tim's brief argues that it does.]

I'll leave it to interested readers to decide whose brief is more convincing, but there's one fundamental analytical disagreement that I think dominates the differences in our position: The heart of the brief in support of Virgina's standing is the premise that, wholly distinct from parens patriae standing (which settled precedent denies to states in suits against the federal government), states suffer their own freestanding Tenth Amendment injury whenever Congress passes a statute in excess of its enumerated powers. Indeed, as the brief rightly notes, indviduals generally lack standing to enforce the Tenth Amendment, except perhaps as a defense in criminal prosecutions (depending on what the Supreme Court does with the Bond case it has this Term). It should logically follow that, where individuals lack standing, states don't...

Here's where I think we're talking past each other: I had always thought that there's a meaningful analytical difference, at least these days, between a "pure" Tenth Amendment claim and a claim that Congress has exceeded its Article I powers. Thus, cases like New York v. United States and Printz are examples of the former, where Congress is injuring states directly by commandeering their legislative/executive policy. Congress might have the enumerated power to enact the legislation in the abstract, but the Tenth Amendment injury is in how the law applies to the states. In contrast, cases like Lopez and Morrison aren't "Tenth Amendment" cases, since Congress isn't directly telling the states to do (or not do) anything. As Justice Douglas explained in 1941, in this context, "The amendment states but a truism that all is retained which has not been surrendered." Yes, the Tenth Amendment presumably reserves power to the states, but--in marked contrast to the commandeering cases--it doesn't inform the analysis of whether Congress has exceeded its authority. It should follow, if Massachusetts v. Mellon and its progeny mean anything, that states generally lack standing to challenge the constitutionality of legislation in this latter category, but have standing to challenge the constitutionality of legislation in the former, commandeering context.

If that distinction is correct, then I'm hard-pressed to see how the state challenges to the individual mandate fall on the pro-standing side of that line--or, if they do, how any challenge to congressional power doesn't. The short of the argument, as I understand it, is that Congress is preventing the states from enforcing their own laws on the subject, but that's always true where there's a conflict between state and federal law. Congress isn't "commandeering" states to do anything. And unlike in New York and Printz, the federal statute is directed at private, rather than state, conduct. If this is nevertheless a "Tenth Amendment" claim, what isn't?

Posted by Steve Vladeck on April 4, 2011 at 12:51 PM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink | Comments (2) | TrackBack

Monday, March 07, 2011

Does Virginia Have Standing to Challenge the Individual Mandate?

In an amicus brief (that I co-authored) filed today in the Fourth Circuit in Virginia ex rel. Cuccinelli v. Sebelius, a group of pretty distinguished Federal Courts professors says "no," and rather emphatically at that.

The brief itself lays out the argument in far clearer detail, but the short version is that states can't (and shouldn't be able to) overcome the bar on parens patriae standing against the federal government merely by passing a state law that provokes a conflict with the allegedly unconstitutional federal law. Because the constitutionality of the individual mandate in no way turns on laws like the Virginia Health Care Freedom Act, Virginia is, in fact, simply suing to vindicate the rights of its citizens -- something that decades of settled precedent bars it from doing, and (as we explain) for good reason.

This doesn't mean that the various challenges to the individual mandate won't (or shouldn't) go forward; it just means that, when they do, private parties, and not states, should be the plaintiffs...

Posted by Steve Vladeck on March 7, 2011 at 03:23 PM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink | Comments (0) | TrackBack

Monday, February 28, 2011

An Al-Kidd Reality Check: The Myth of Non-Statutory "National Security" Detention

In cross-posts at Volokh and SCOTUSblog, Orin Kerr takes issue with the government’s litigation strategy in Ashcroft v. al-Kidd, the material witness/Fourth Amendment/qualified immunity appeal in which the Supreme Court is set to hear argument on Wednesday. Orin’s argument is worth reading in full, but I will focus on his principal point -- that, when it comes to the substantive Fourth Amendment question in the case, "DOJ is making an argument with one arm tied behind its back.” I don’t think that’s right. Instead, as I explain below the fold, DOJ does not, in fact, have available the alternative “national security detention” argument that Orin believes it is avoiding.

As Orin notes, DOJ's merits-based argument is argument is that because it has available a criminal law enforcement justification for detaining someone under the material witness statute, it does not violate the Fourth Amendment if the government’s “real” reason for the detention is instead a national security objective, such as interrogating the detainee to discover if he has information about possible future national security threats.

What Orin finds curious is that DOJ is not arguing that the national security justification is itself an independent ground for the detention. As Orin puts it, “DOJ never makes the argument that its use of the material witness statute for national security reasons is permitted by its national security detention powers. . . . DOJ is arguing that the Court shouldn’t even look at its non-law-enforcement purpose and therefore shouldn’t get into its national security powers. . . ." This choice puzzles Orin. He writes that “[i]t’s not clear to me why DOJ has limited its argument in this way. But . . . [t]he Justices presumably will want to know . . . what DOJ thinks its national security powers are.” What this overlooks is that the government is probably forgoing such an argument because it does not have any such “national security” power to detain a U.S. citizen for over two weeks (as happened to al-Kidd).  Indeed, I think it's fairly clear that neither the Constitution nor any federal statute affords the government such authority, at least in this case.

For starters, federal law specifically forbids it. The so-called Non-Detention Act, 18 U.S.C. § 4001(a), provides that “[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” In Hamdi, the government argued that this prohibition does not apply to military detention. The Court did not specifically rule on that question, but as I wrote way back when, its earlier decision in Howe v. Smith had held that “[t]his argument . . . fails to give adequate weight to the plain language of § 4001(a) proscribing detention of any kind by the United States, absent a congressional grant of authority to detain.”

To be sure, as Hamdi itself suggests, the Non-Detention Act is merely a baseline restriction: It does not prevent Congress from authorizing “national security detention.” (Indeed, the Hamdi Court went on to hold that Hamdi’s detention was authorized by the 2001 Authorization for Use of Military Force.) The material witness statute might well provide such authority in some cases – the government’s argument is that it did so in the al-Kidd case. Orin’s puzzlement, however, is why DOJ is not also citing a stand-alone “national security” basis for al-Kidd's detention, rather than falling back on the material witness statute.

The reason for DOJ's reticence on that score is that Congress has not afforded the Executive such an authority. Section 412 of the USA PATRIOT Act does authorize the detention of non-citizens suspected of terrorism-related activities for up to seven days, before the detainee must either be (1) charged with a crime; (2) placed in removal proceedings; or (3) released. But that authority would not help in al-Kidd, both because he is a citizen and because his detention more than doubled the seven-day statutory limit. Moreover, as Orin himself notes, DOJ urged Congress during the debate over the PATRIOT Act to enact a broader statute authorizing national security detentions that might cover the case here, but that “proposal proved controversial and was never passed.”

It might be argued instead that the AUMF authorizes the very “national security detention” Orin contemplates. It is very much an open question whether the AUMF does (and constitutionally could) authorize the detention of individuals, especially U.S. persons, who are apprehended within the United States and alleged to be enemy forces, among the persons covered by the terms of the AUMF. That was the question raised in both the Padilla (U.S. citizen) and al-Marri (lawfully resident non-citizen) cases, which the Supreme Court did not resolve because the government returned the two detainees to criminal custody. But whatever the government's national security detention authority might be as to members of enemy forces captured inside the United States, the AUMF cannot be of assistance here; the government is not alleging that al-Kidd is part of enemy forces, or otherwise covered in any way by the terms of the AUMF.

Nor am I aware of any extant statutory authority for long-term “national security detention” beyond what the material witness statute, the USA PATRIOT Act (for non-citizens), and the AUMF provide. Together with the prohibition of the Non-Detention Act, this absence of statutory authority explains why the government’s sole argument for its authority to detain al-Kidd is based on the material witness statute. To be fair, If I’m reading his posts correctly, Orin appears to think that the Fourth Amendment itself might provide the government with the authority that the U.S. Code does not for a long-term “national security” detention of a U.S. citizen. But I had always understood the Fourth Amendment as only limiting the government’s power to seize persons – not as creating such powers.

In short, then, it seems to me that the Justice Department isn’t forgoing any important arguments here. Leaving aside whether or not former Attorney General Ashcroft is entitled to qualified immunity, the underlying merits issue is whether the material witness statute authorized al-Kidd’s detention -- and, if it did, whether that detention nevertheless violated the Fourth Amendment if the government’s motives were pretextual in the way al-Kidd alleges (allegations that must be taken as true at this stage of the litigation). It's still an important and tricky case to be sure, but I just don't see Orin's dog that didn't bark...


Update: Orin's posted a thoughtful reply, for which I'm quite thankful. I agree with Orin that Virginia v. Moore appears to stand for the (in my view, not entirely obvious) proposition that the mere fact that a seizure is ultra vires is not conclusive of its reasonableness for Fourth Amendment purposes. At the risk of drawing out this exchange longer than is merited, Orin's response provokes two additional thoughts on my end:

First, crystallizing the argument as Orin has only reinforces to me the reasons why DOJ didn't make it part of their argument on the merits before the Supreme Court. After all, to make the argument that al-Kidd's seizure was reasonable on national security grounds, DOJ would have to concede that it had nothing whatsoever to do with the material witness statute, since it's hardly an alternative theory that fits the same facts. So framed, the government would be litigating the case on even weaker terrain--conceding a statutory violation and resting everything on Moore, where the issue was the legality of the initial arrest, rather than the subsequent detention.

Second, and related, I can't imagine the Justices will see the issue here as settled by Moore. It's one thing to argue that certain seizures are consistent with the Fourth Amendment regardless of whether they're authorized by statute, but that's in the short term (as in Moore). It's another thing entirely to think that the Fourth Amendment would also tolerate continuing detention beyond the initial seizure in the face of contrary statutory authority -- especially where, as here, a federal statute specifically forbids precisely that category of detention (i.e., detention without statutory authority). Of course, one response is that it's difficult to draw the line between what the Fourth Amendment might tolerate initially and what it won't abide in the long term, but isn't that the entire point of the 48-hour rule articulated by the Court in County of Riverside? I'm not the criminal procedure expert that Orin is, but it strikes me that Moore would be irreconcilable with County of Riverside if it stood for the proposition that the Fourth Amendment tolerates detention past 48 hours in the absence of other, statutory authority. 

Given that, although I appreciate what Orin's arguing, I still can't see how the wiser course for DOJ would have been to argue for "national security" detention.

Posted by Steve Vladeck on February 28, 2011 at 01:42 AM in Blogging, Constitutional thoughts, Criminal Law, Current Affairs, Steve Vladeck | Permalink | Comments (171) | TrackBack

Saturday, February 19, 2011

Judge Randolph Pulls Another Fast One--But Will Anyone Notice?

Tuesday's decision by a D.C. Circuit panel (Henderson, Williams, Randolph) to vacate and remand the grant of habeas relief in Hatim v. Gates is hardly surprising.  As the per curiam opinion notes, there have been a number of D.C. Circuit decisions since the district court ordered Hatim's release that call at least some of the trial court's analysis into question. So reconsideration in light of these intervening decisions seems, at first blush, totally uncontroversial.

Buried in the three-page order, however, is a critically important--and dangerously wrong--holding that will likely prejudice Hatim's case on remand (and any number of cases to follow).  Here's the relevant language:

The district court ruled that the military could detain only individuals who were “part of” al-Qaida or the Taliban; and that Hatim did not fit that description. That ruling is directly contrary to Al-Bihani v. Obama, which held that “those who purposefully and materially support” al-Qaida or the Taliban could also be detained. Hatim admits the error, but says it was harmless. We cannot see how. As the district court stated in issuing the stay, Al-Bihani “calls into question” a “key determination[ ]” upon which the order rested.

Just to be clear, the key here is the notion that anyone who "purposefully and materially support[s]" al Qaeda or the Taliban can be detained indefinitely, whether or not they're in any way affiliated with either group, and whether or not they come anywhere near the definition of a "belligerent" under international humanitarian law. (After all, the famous "little old lady in Switzerland" who gives money to certain Islamic charities may be materially supporting al Qaeda...)

Suffice it to say, it's an amazingly broad--and momentous--holding. So what? Well, (1) the Obama Administration has never affirmatively argued in a habeas case that the scope of the AUMF should be understood by reference to the MCA; (2) such a conclusion was, at best, dicta in Al-Bihani (which is why the district court in Hatim said Al-Bihani only "call[ed] into question" Hatim's argument, rather than foreclosed it); and (3) there is clear and compelling evidence that, dicta or not, Al-Bihani's analysis on this issue was just plain wrong.

More on (2) and (3) below the fold...

Al-Bihani and the Dangerous Conflation of the AUMF and the MCA

The heart of the Hatim panel's "purposeful and material support" holding is borrowed from this discussion by Judge Brown for herself and Judge Kavanaugh in Al-Bihani (my emphasis added):

The AUMF authorizes the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.” The Supreme Court in Hamdi ruled that “necessary and appropriate force” includes the power to detain combatants subject to such force. Congress, in the 2006 MCA, provided guidance on the class of persons subject to detention under the AUMF by defining “unlawful enemy combatants” who can be tried by military commission. The 2006 MCA authorized the trial of an individual who “engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces).” . . . The provisions of the 2006 and 2009 MCAs are illuminating in this case because the government's detention authority logically covers a category of persons no narrower than is covered by its military commission authority. . . . [F]or this case, it is enough to recognize that any person subject to a military commission trial is also subject to detention, and that category of persons includes those who are part of forces associated with Al Qaeda or the Taliban or those who purposefully and materially support such forces in hostilities against U.S. Coalition partners. 

In short, Al-Bihani read the definition of who can be tried under the MCA as expanding, albeit sub silentio, the scope of detention authority under the AUMF.

There are two problems with this view: First, it doesn't follow logically that those who can lawfully be tried by a military commission are a subset of those who can be lawfully detained without trial. Under IHL, these are two very different categories of detainees, whose status presents two distinct sets of questions. Second, even if that conclusion could follow as a matter of logic, it is abundantly clear from the MCA's legislative history that Congress in no way meant or intended to impact the substantive scope of the AUMF through its definition of who could be tried by a military commission. Quite to the contrary--the House Armed Services Committee's report accompanying the MCA expressly notes that the divergence between the AUMF and MCA definitions reflected the committee's disagreement that "the United States must be engaged in armed conflict to try an alien unlawful enemy combatant engaged in hostilities against the United States." That is, the difference was a deliberate choice to reflect the different standards and rules applicable to military trials vs. noncriminal detention under IHL. Thus, it's not only a logical fallacy to read the MCA as expanding the scope of the AUMF's detention authority; it runs directly counter to the intent of those who wrote the latter statute.

The AUMF/MCA Conflation as Dicta

Judge Brown's logical fallacy notwithstanding, one might still conclude that the Hatim panel was bound to follow this discussion. Except that it's clear that this point was dicta in Al-Bihani, since the panel there concluded that Al-Bihani was clearly "part of" al Qaeda, mooting the question of whether he could be detained simply because he provided "purposeful and material support" thereto. 

Nor should it surprise anyone that Al-Bihani is full of inconvenient dicta. Judge Williams' concurrence in that case made exactly that point. And the D.C. Circuit all-but went en banc to overrule (or, at least, dicta-ize) one of the panel's other holdings--i.e., that the laws of war have no bearing on the scope of the government's detention authority under the AUMF. 

Thus, Hatim was not merely "following" Al-Bihani; it converted wholly unnecessary (and woefully incorrect) dicta into a holding, and without anything in the way of analysis. Moreover (and this is key), Judge Brown's reliance on the MCA in Al-Bihani came only after she rejected the Obama Administration's argument that the scope of the AUMF should be understood by reference to international law--that is, the conflation of the AUMF and the MCA necessarily followed upon her rejection of international law as the relevant constraint, a position that was itself dismissed by the rest of the D.C. Circuit in the non-en banc manuevering last August. So to reaffirm that logic (as the Hatim panel did) after its necessary predicate (Al-Bihani's holding vis-a-vis international law) had been vitiated is even less convincing than the original holding might have been on its face.

So this leads to my real question: As it becomes increasingly clear that a small but vocal minority of the D.C. Circuit (Judges Brown, Kavanaugh, and Randolph, in particular) will apparently find any way in any case to adopt holdings that (1) go beyond even what the government is asking for in these cases (see, e.g., Randolph's lament about the standard of review in Al-Adahi); and (2) are indefensible as a matter of law and logic, is anyone else on that court going to notice?

Don't get me wrong--the answer in Hatim's case may end up being the same. And the other judges of the D.C. Circuit may well reach the same results in these cases as their more aggressive colleagues. But my gripe is not about the merits; it's about the indifferent attitude that the rest of the court seems to have toward the analysis being deployed by these three jurists, and the damage that is being done to the substantive and procedural law governing detention going forward. The more these decisions pile up, the more a pattern is developing in which panels that include one or more of Judges Brown, Kavanaugh, or Randolph find seemingly uncontroversial ways to reach sweeping new holdings that have dramatic effects on the shape of the law. And if the Supreme Court isn't in a position to say anything about it, that leaves the other seven active judges of the D.C. Circuit. Let's just hope they're paying attention...


Update: A helpful reader pointed me to even more specific language in the 2009 MCA's "conference" report (of which I was unaware), which provides that the statute's definition of who may be tried "is included for the purpose of establishing persons subject to trial by military commission in accordance with section 948c, of title 10, United States Code, and is not intended to address the scope of the authority of the United States to detain individuals in accordance with the laws of war or for any other purpose." If this doesn't prove how wrong Al-Bihani is on this point (and how wrong Hatim is to adopt it sans analysis), I'm not sure what will.

Even worse, imagine the implications of a world where anyone who "purposefully and materially supports" al Qaeda could be detained indefinitely at Guantanamo or elsewhere... I dare say that there's a pretty good reason why neither the Obama Administration nor any judge (other than Brown, Kavanaugh, and now Randolph) has ever argued for a standard so completely divorced from the laws of war.

Posted by Steve Vladeck on February 19, 2011 at 04:03 PM in Current Affairs, Steve Vladeck | Permalink | Comments (1) | TrackBack

Friday, February 18, 2011

The New Habeas Revisionism: Shameless Plug (and Overdue Thanks)

In the Friday afternoon shameless self-promotion department, my essay reviewing Paul Halliday's Habeas Corpus: From England to Empire is finally out, in the February 2011 issue of the Harvard Law Review.  Because HLR's (silly!) policy wouldn't allow me to say the following in my author footnote, let me take this opportunity to express my heartfelt thanks to Zach Schauf, Jaime Eagan, and David Caldwell, who made this about as productive and enjoyable an editing experience as I've ever experienced--and whose substantive contributions to the final product cannot be overstated.

Posted by Steve Vladeck on February 18, 2011 at 02:54 PM in Article Spotlight, Books, Constitutional thoughts, Steve Vladeck | Permalink | Comments (1) | TrackBack

Monday, January 24, 2011

The Most Inexplicable One-Year Delay in Appellate History?

With a tip of the hat to Dwight Sullivan at CAAFlog and to Bobby Chesney at Lawfare, let me be at least the third person to note today's decisions by several judges of the Court of Military Commission Review to recuse from deciding the pending appeals in Hamdan and al-Bahlul, both of which were argued to that court a year ago this Friday. 

I don't have any quibble with the reasons given by Chief Judge O'Toole for recusing. If anything, his is an admirable view of the need for these proceedings to be as hallowed and conflict-free as possible. Rather, my exasperation, like Bobby's, is with why it has taken so long for things to progress to this point. There are currently no other cases pending before the CMCR. There is no question that the party that loses in the CMCR will appeal (as of right) to the D.C. Circuit. And, under 10 U.S.C. 950g(d), the D.C. Circuit "may act under this section only with respect to the findings and sentence as approved by the convening authority and as affirmed or set aside as incorrect in law by the [CMCR], and shall take action only with respect to matters of law, including the sufficiency of the evidence to support the verdict." In other words, the CMCR's decisions in these cases, whatever they are, won't have much of an effect on the D.C. Circuit, which would review legal issues de novo in any event. The only thing that matters is some decision from which the losing party can properly take an appeal.

As I wrote last year in an article surveying the merits of the jurisdictional issues, "It is impossible to have a meaningful debate over whether a civilian court or a military commission is a more appropriate forum for trying terrorism suspects so long as serious questions remain over whether the commissions may constitutionally exercise jurisdiction over particular offenses and/or offenders." Last week's news that the Administration is considering re-commencing the commissions adds only further urgency to the timely resolution of these questions. And yet, until and unless the CMCR decides these questions in Hamdan and al-Bahlul, and appeals are taken to the D.C. Circuit (and, perhaps, to the Supreme Court), those questions will remain unanswered.

Suffice it to say, the time has long since passed for the CMCR, however constituted, to do its job--and get out of the way.

Posted by Steve Vladeck on January 24, 2011 at 10:36 PM in Constitutional thoughts, Criminal Law, Current Affairs, Steve Vladeck | Permalink | Comments (7) | TrackBack

Wednesday, January 12, 2011

On Counting to Five (Without Justice Kagan) in the Guantanamo Cases

Throughout Justice Kagan's confirmation process, a lot of virtual ink was spilled on the recusal issue, and the extent to which her prior service as Solicitor General would preclude her from participating in a not-insignificant percentage of the Court's docket. The consensus that seemed to emerge was that (1) these concerns were overblown; and (2) even if they weren't, recusal would be at most a short-term issue, and would not generally interfere with either the Court's workload or its ability to continue to play its assigned role within our legal system.

In at least one area, though, it seems that Justice Kagan's recusals may well be of massive, long-term significance: the continuing habeas litigation arising out of Guantanamo. At last count, there are currently eight different petitions for certiorari before the Court in Guantanamo cases, which between them raise a battery of issues going to (1) the power of the federal courts to effectuate the release of detainees who have prevailed in their habeas cases; (2) the power of the federal courts to provide notice and a hearing before a detainee is involuntarily transferred to their home country or somewhere else; and (3) the proper procedural, evidentiary, and substantive standards to govern disposition of the merits of these cases. And in light of yesterday's denial of rehearing en banc by the D.C. Circuit in Abdah v. Obama (over three dissents), it seems increasingly clear that there is no majority of active D.C. Circuit judges who wish to revisit what their court has already done in these areas.

The underlying question is whether, in its jurisprudence, the D.C. Circuit has actively subverted or otherwise undermined the Supreme Court's 2008 decision in Boumediene. My own view, as I've suggested before, is that it has, but I accept that I may be in the minority. What cannot be gainsaid, though, is that this is an important question, and one on which the Supreme Court's views might be rather helpful. So assume, for the sake of argument, that the D.C. Circuit has in fact misapplied or otherwise misread Boumediene. Then what?

Enter, Justice Kagan. So far as I understand, in each of the eight Guantanamo cases where any action by the Court has been necessary, such action has included a notation that she is recused. On the (potentially incorrect) assumption that she is recused from all matters Guantanamo, that creates a difficult math problem: Four of the current Justices clearly think that Boumediene was wrongly decided, given that they dissented in that case (and rather sharply, at that). As such, to whatever extent the D.C. Circuit is undermining Boumediene, they may well not object. There are at most four Justices on the other side, who both (1) think Boumediene was rightly decided; and (2) might conclude that a number of these D.C. Circuit decisions are misapplications thereof. And there would be no reason for those four to vote to grant certiorari if it were clear that there was no fifth vote on the merits.

What this means for practical purposes, is that until and unless one of the Boumediene dissenters is willing to even consider chastising the D.C. Circuit for refusing to follow a decision from which they themselves dissented, the D.C. Circuit will necessarily get to have the last word(s) in the Guantanamo habeas litigation. Perhaps Chief Justice Roberts will have his own Dickerson moment?

Posted by Steve Vladeck on January 12, 2011 at 06:22 PM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink | Comments (0) | TrackBack

Tuesday, January 04, 2011

Thursday's Con Law Panels @ AALS

Thanks to the labor strife and a host of other issues, my sense is that there have been a number of last-minute (i.e., post-program printing) changes to the composition of panels at this week's AALS Annual Meeting. One in particular that I wanted to flag (at least partially for selfish reasons) is Thursday's Section on Constitutional Law session on "American Constitutionalism in Global Perspective." The session is actually two different panels -- one on "American Constitutionalism in International Perspective," and one on "American Constitutionalism in Comparative Perspective." The panels are devoted to the ongoing debate over just how much international/comparative law should affect American constitutionalism and constitutional interpretation, and I suspect both sets of discussions will be lively, to say the least.

The "International" panel includes Mike Ramsey from the University of San Diego, Michael Van Alstine from the University of Maryland, Carlos Vasquez from Georgetown, and yours truly, and is being moderated by Mark Graber from the University of Maryland. The "Comparative" panel includes Penelope Andrews from Valparaiso, Heinz Klug from Wisconsin, Vicki Jackson from Georgetown, Kim Lane Scheppele from Princeton, and Miguel Schor from Suffolk, and is being moderated by Garrett Epps from the University of Baltimore. 

The session is scheduled to run from 2:00 to 5:00 on Thursday, in the Embarcadero Room on the third floor of the Parc 55. And I promise to say lots of nice things about Article I's Define and Punish Clause... (and then take them all back during the Prawfs/Co-Op Happy Hour later that night.)

Posted by Steve Vladeck on January 4, 2011 at 05:57 PM in Constitutional thoughts, Steve Vladeck | Permalink | Comments (0) | TrackBack

Remember Jose Padilla? (Apparently, the Eleventh Circuit Doesn't...)

Bobby's post about the still-outstanding decisions of the Court of Military Commission Review in the Hamdan and al-Bahlul appeals reminded me of another important post-9/11 case that's still under submission -- the appeal by Jose Padilla and his co-defendants of their conviction in the U.S. District Court for the Southern District of Florida, and the government's cross-appeal of Padilla's (relatively lenient) sentence.

The appeal was argued before a three-judge panel of the Eleventh Circuit (Dubina, Barkett, Pryor) on January 13, 2010 -- that is, a year ago next Thursday.  (See here for a contemporaneous media report on the argument.) Given the passage of time, it seems virtually certain that someone is dissenting. But who, and on which issues? This could matter quite a lot, since Padilla's arguments also go to some of the key issues in the civilian prosecution of Ahmed Ghailani -- and any subsequent potential civilian prosecution of a former "enemy combatant." And although a one-year delay is hardly exceptional in the Courts of Appeals, it does seem odd that such an important, high-profile, criminal appeal would take so long...

Posted by Steve Vladeck on January 4, 2011 at 11:02 AM in Criminal Law, Current Affairs, Steve Vladeck | Permalink | Comments (0) | TrackBack

Monday, December 20, 2010

Constitutional Authority for Legislation in the 112th Congress (the House, Anyway)

Making the electronic rounds over the weekend was a proposed rules change by the incoming Republican leadership in the House, to require any new bill to include a statement identifying the particular source of constitutional authority for the substance of the legislation. In particular, the new language to Clause 7 of Rule XII would specify that:

A bill or joint resolution may not be introduced unless the sponsor has submitted for printing in the Congressional Record a statement citing as specifically as practicable the power or powers granted to Congress in the Constitution to enact the bill or joint resolution. The statement shall appear in a portion of the Record designated for that purpose and be made publicly available in electronic form by the Clerk.”

I haven't thought that hard about this rules change, but it strikes me as a fairly silly political trick that will be utterly devoid of legal significance.  It's not just that Congress has never had to specifically identify the source of its power for legislation in the past; it's that, if memory serves, the courts have often upheld legislation based on powers other than the one (or two) most obvious / likely candidates, whether or not Congress identified that provision as a source of its power. Nevermind the separate but equally distinct possibility that a bill will be amended between introduction and passage to regulate based on different enumerated powers than those initially identified by the bill's sponsor...

Do folks disagree? That is, does anyone think that a court would strike down a federal law that is a valid exercise of Congress's constitutional authority on the ground that it's not a valid exercise of the power Congress thought (or "said") it was exercising? If not, is this federalism-inspired theater? Something more sinister?

Posted by Steve Vladeck on December 20, 2010 at 03:09 PM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink | Comments (13) | TrackBack

Friday, December 17, 2010

Trifurcating the Espionage Act? Me on ACSblog on L'Affair Assange

Over at ACSblog, I have a guest post up about yesterday's House Judiciary Committee hearing on "The Espionage Act and the Legal and Constitutional Issues Raised by WikiLeaks." In particular, I suggest that yesterday's hearing may have produced the conclusion that the true "answer" to the current problems with the Espionage Act is three different statutes--one for spies, one for government employees and contractors, and one for private citizens with no specific intent to benefit a foreign power. The devil is in the details, of course (especially for the third statute, which raises tons of First Amendment concerns), but my own view is that this would be a pretty good start...

Posted by Steve Vladeck on December 17, 2010 at 03:57 PM in Constitutional thoughts, Criminal Law, Steve Vladeck | Permalink | Comments (0) | TrackBack

Thursday, December 16, 2010

All Espionage Act, All the Time...

For those who haven't yet had their weekly fix of all-things WikiLeaks and the Espionage Act, I'll be testifying later this morning at a hearing before the full House Judiciary Committee on "The Espionage Act and the Legal and Constitutional Issues Raised by WikiLeaks." The hearing is supposed to be covered live by C-SPAN3 starting at 10 a.m. (EST) (here), and the testimony should be up on the Committee's page by later today.

Given both the topic and the witness list, it promises to be an interesting discussion...

Posted by Steve Vladeck on December 16, 2010 at 09:19 AM in Constitutional thoughts, Criminal Law, Current Affairs, Steve Vladeck | Permalink | Comments (0) | TrackBack

Wednesday, December 08, 2010

The Best One-Sentence Summary of Why the Espionage Act is a Mess

Apropos the continuing obsession with L'Affair Assange (and the various degrees of hysteria relating to the viewing of Wiki-leaked documents by ordinary people), I thought I'd post this quote, which comes from congressional testimony given in 1979 by Anthony A. Lapham, then the General Counsel of CIA. There's a lot more to say about how the Espionage Act might apply to WikiLeaks, but to get a sense of the problem raised by the Espionage Act's myriad ambiguities, here is the nutshell version:

On the one hand the laws stand idle and are not enforced at least in part because their meaning is so obscure, and on the other hand it is likely that the very obscurity of these laws serves to deter perfectly legitimate expression and debate by persons who must be as unsure of their liabilities as I am unsure of their obligations.

I dare say, little has changed in the last 31 years.

Posted by Steve Vladeck on December 8, 2010 at 03:48 PM in Constitutional thoughts, Criminal Law, Current Affairs, Steve Vladeck | Permalink | Comments (0) | TrackBack

Friday, December 03, 2010

Doe, Atamirzayeva, and Fallujah: When Stealth Overruling Produces Incoherent Doctrine

Thanks to the irreplaceable Bobby Chesney, I've had a chance to read through last month's decision by the Court of Federal Claims throwing out a takings claim (among others) by an Iraqi citizen whose house was occupied by the Marines (who razed a wall around the house) during the Battle of Fallujah in 2004. The opinion itself is worth a read, but, at least with respect to the takings claim, the gist of it is two-fold: (1) the takings claim is not justiciable because it arose in the context of active combat operations by the armed forces, and is therefore covered by the so-called "military necessity" doctrine; and (2) in the alternative, because the plaintiff is a non-citizen with no significant contacts to the United States, he lacks standing to enforce the Takings Clause against the United States.

In this post, I want to skip over the first holding, not because it isn't interesting or controversial, but because I think it follows from the precedents cited by Judge Miller (even if those precedents are themselves troubling, for reasons I've written about before). Rather, I want to focus on the second holding, i.e., that a non-citizen outside the territorial United States must have substantial contacts with the United States in order to have standing to enforce constitutional rights.

The standing holding isn't new--it follows (as the Court of Federal Claims explains) from a 2008 Federal Circuit decision, Atamirzayeva v. United States. Part of what makes Atamirzayeva so remarkable is that the court there articulated this "contacts" requirement, rather than simply hold that non-citizens outside the territorial United States cannot enforce the Takings Clause. The latter route was foreclosed by a 1953 Court of Claims decision, Turney v. United States, that had allowed such a claim to go forward. As the Federal Circuit (which is bound to follow pre-1982 Court of Claims decisions) explained in Atamirzayeva,

The Philippine corporation that was the claimant in Turney had three significant connections to the United States. First, the corporation had been formed by two United States citizens. Second, the corporation received its ownership interest in the surplus property by assignment from those United States citizens. Third, after liquidation of the corporation, a United States citizen was appointed as the liquidating trustee and the plaintiff in the Court of Claims action. Ms. Atamirzayeva, by contrast, has not pleaded any relationship, business or otherwise, with the United States. As pleaded, her only connections with the United States are that her cafeteria was adjacent to the U.S. Embassy and that embassy officials directed the seizure. Her relationship with the United States is therefore not analogous to the relationship between the claimant corporation and the United States in Turney.

Leaving aside the fact that, as the Federal Circuit itself recognized, "the court in Turney did not state that the plaintiff was required to demonstrate any connection with the United States," what's particularly distressing about Atamirzayeva is how it has since been understood, i.e., as requiring a showing of substantial contacts to the United States in order to have standing to enforce constitutional rights. Indeed, although the Atamirzayeva court did not itself use the word "standing," the Court of Federal Claims in Doe used it repeatedly, ultimately concluding that no standing exists because of the lack of contacts.

In other words, rather than go en banc and overrule Turney, the Federal Circuit in Atamirzayeva molded onto Turney a "standing" requirement that may render the original holding largely unenforceable (let alone other cases that have recognized limited circumstances in which constitutional provisions can be enforced by non-citizens outside the United States). If this isn't stealth overruling (to steal Barry Friedman's term), I'm not sure what is.

More than stealth overruling, though, this approach makes no doctrinal sense. It's black-letter law that, to make out a case for Article III standing, plaintiffs must show injury-in-fact, causation, and redressability. Unless Doe's claim is patently frivolous (and it's hard to see how it is--clearly, the Court of Federal Claims didn't think so), it seems that all three prongs are easily satisfied here. That Doe might lose on the merits (e.g., if the courts ultimately conclude that the Takings Clause doesn't apply to the property of non-citizens located outside the territorial United States) is beside the point in ascertaining whether he has standing to bring the suit in the first place. And if the Federal Circuit is increasingly moving toward a view of "standing" that turns on the merits of a plaintiff's claim, that could have enormous (and unintended) consequences in a wide run of cases. At the very least, it deflects attention from the true issue, which is when, if ever, the Constitution constrains the conduct of our government vis-a-vis non-citizens abroad.

Reasonable people will surely disagree on the answer to that question, but at least that's the right question, as opposed to the one articulated in Atamirzayeva and followed in Doe. And so, even if the result in Doe is correct (which it may well be, given the first holding and the fact that the standing discussion was in the alternative), the reasoning is yet further proof of the dangers of stealth overruling--that it sometimes produces new understandings of doctrine that are analytically incoherent, rather than taking the underlying question on its face.

Posted by Steve Vladeck on December 3, 2010 at 03:31 PM in Constitutional thoughts, Steve Vladeck | Permalink | Comments (2) | TrackBack

Wednesday, December 01, 2010

VOPA v. Stewart and the Future of Ex parte Young

I've blogged before at some length about the issue presented in Virginia Office for Protection and Advocacy v. Stewart, a case that is scheduled to be argued before the Supreme Court later this (Wednesday) morning (and in which I co-authored amicus briefs in support of certiorari and in support of the Petitioner on the merits). In short, the question is whether a public agency created by a state pursuant to a federal Spending Clause statute may invoke the doctrine of Ex parte Young in suits for prospective relief against a state officer allegedly acting in violation of federal law--i.e., in circumstances in which the ability of a private agency to sue under Ex parte Young is unquestioned. The Fourth Circuit, in an opinion by Judge J. Harvie Wilkinson III, said no. [The unanimous en banc Seventh Circuit has since come out the other way.]

I won't reiterate the substantive arguments here. They're addressed at some length in my earlier post, and at even greater length in this contribution to the Charleston Law Review's Supreme Court Preview. Rather, I thought I'd take a brief moment to reflect on the implications of a decision affirming the Fourth Circuit and barring an Ex parte Young suit here. In particular, although Ex parte Young is often described (whether appropriately or not) as a "fiction," it has become a necessary fiction, providing useful balance between the sovereign immunity that the Supreme Court has read the Constitution to confer upon the states and the need to vindicate the supremacy of federal law as against state officers. As one of the more influential Federal Courts treatises puts it, the decision has proven “indispensable to the establishment of constitutional government and the rule of law.” And yet, that may be jeopardized if the decision below is upheld.

To be sure, the Court has recognized constraints on "EPY" over the years. Thus, Edelman v. Jordan controversially limited relief under Ex parte Young to claims for prospective, rather than retrospective, relief. And Pennhurst II held that Ex parte Young could not be used to pursue prospective relief against state officers for violations of state law. But with one sui generis (and largely marginalized) exception, the Court has otherwise emphasized, in Justice Scalia's words, that "a court need only conduct a straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.” 

That brings me to Stewart. To hold, as the Fourth Circuit did, that the identity of the plaintiff can sometimes factor into the availability a cause of action under Ex parte Young is to turn this "straightforward inquiry" on its head for reasons I've previously suggested, and to thereby potentially open the door to Young's demise. Yes, this is a unique case about a situation that doesn't arise very often (i.e., a state agency suing a state officer for violating a federal statute that the state agency is specifically empowered to enforce), but the underlying analytical premise of Ex parte Young doesn't admit of such considerations. Indeed, Young rests on the conclusion that state officers aren't in fact "the state" for Eleventh Amendment purposes when they continue to act in violation of federal law. One is hard-pressed to see how the legal status of the plaintiff meaningfully affects that analysis...

Moreover, even if one finds the Fourth Circuit's "intramural" concern persuasive, there is a serious floodgates problem; the conclusion that these kinds of case-specific circumstances do -- and should -- impact the availability vel non of relief necessarily opens the door to other considerations that might also factor in. Just for starters, these could include the nature of the federal right being enforced; the good (or bad) faith of the state officer; the potential availability of other remedies; and so on. Young's saving grace both practically and analytically is the simplicity of its core premise, and that's what's at stake later today.

Posted by Steve Vladeck on December 1, 2010 at 03:09 AM in Article Spotlight, Civil Procedure, Constitutional thoughts, Steve Vladeck | Permalink | Comments (4) | TrackBack

Tuesday, November 23, 2010

Me on ACSblog on Ghailani

Although I'm a bit late to the party, I have a guest post up today over at ACSblog on last week's near-acquittal (that term itself is telling) in the Ghailani prosecution.  The post isn't about the result so much as it's a critique of one of the more original responses thereto...

Posted by Steve Vladeck on November 23, 2010 at 11:47 AM in Criminal Law, Current Affairs, Steve Vladeck | Permalink | Comments (0) | TrackBack

Friday, November 19, 2010

In Which the Miami Heat Are Shocked To Learn That They Play in Miami...

As a former Miami resident (let alone a former NBA fan), this is absolutely hilarious (and totally unsurprising). 

Posted by Steve Vladeck on November 19, 2010 at 05:42 PM in Culture, Current Affairs, Steve Vladeck | Permalink | Comments (1) | TrackBack

Thursday, November 11, 2010

Must Second Amendment Originalism Account for the Militia Clauses?

Both because plenty of others are far more well-versed in the debates than I am and because my own views are a bit odd, I've largely stayed out of the Second Amendment conversations invigorated by Heller and McDonald, and the concomitant debates over originalism in constitutional interpretation. There's one place, though, where Second Amendment originalism does dovetail with some work I've done, and that's with regard to the "Militia Clauses" of Article I, which empower Congress "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions," and "To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress." 

To get to the point, here's my basic thought: As I've argued at some length elsewhere, the "militia" for constitutional purposes has basically become a dead-letter, thanks to both Congress and the Supreme Court. Congress has rendered the militia obsolete by (1) authorizing use of the federal regulars in circumstances where the Constitution appears to only contemplate use of the militia; and (2) setting up a "dual enlistment" system with the National Guard pursuant to which guardsmen are always federal regulars (and not militia) for constitutional purposes, even when they're only acting in their non-federal capacity. And the Supreme Court has sanctioned these developments in a series of lesser-known decisions, especially the Selective Draft Law Cases during World War I (which rejected an argument that draftees could only be used in the circumstances specified in the Calling Forth Clause) and Perpich v. Department of Defense in 1990 (which rejected a similar argument with regard to guardsmen).

If all of the above is true, i.e., if history (along with Congress and the courts) has rendered Article I's reliance upon the "militia" obsolete, should that have any bearing on whether we look to the original understanding of the militia in interpreting the Second Amendment? I recognize, as I must, that the ship has basically sailed. But isn't there at least an academic argument that where different provisions of the Constitution refer to the same entity, it makes little sense to apply different methodologies to interpreting those distinct provisions? Or, put another way, if Heller and McDonald are methodologically correct, might the Selective Draft Law Cases and Perpich be wrong?

Posted by Steve Vladeck on November 11, 2010 at 03:07 PM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink | Comments (11) | TrackBack

Wednesday, November 03, 2010

The Varnum Effect?

To me, one of the more interesting stories arising out of yesterday is Iowa voters' dismissal of three of the seven justices of the state supreme court in their retention election. (See story here.) I think it's safe to attribute this result to the concerted campaign to oust the justices in response to the court's unanimous 2009 decision in Varnum v. Brien, which recognized sexual orientation as a "quasi-suspect" classification under the Iowa Constitution, and proceeded to invalidate the Iowa law defining marriage as being between a man and a woman.

This is hardly the first time that unpopular decisions by state court judges have factored into campaigns to unseat them in subsequent elections. Still, given both the dramatic nature of this particular result (unseating three of the seven sitting state supreme court justices), along with the increasing attention -- thanks at least in part to Justice O'Connor -- being paid to the issues raised by state judicial elections, I wonder if this result may end up being an even bigger story in the long-term than Harry Reid defeating Sharron Angle, or the size of the Republican swing in the House...

Posted by Steve Vladeck on November 3, 2010 at 08:05 AM in Constitutional thoughts, Current Affairs, Law and Politics, Steve Vladeck | Permalink | Comments (0) | TrackBack

Tuesday, November 02, 2010

When is a Majority Opinion Really a Plurality Opinion?

A student and I have been fighting over United States v. Verdugo-Urquidez -- the 1990 Supreme Court decision that is cited for the proposition that the Fourth Amendment categorically does not apply to non-citizens outside the territorial United States.  I have long read Chief Justice Rehnquist's opinion in that case as only being for a plurality, at least with respect to that specific holding. My student rightly pointed out that no one on the Court seemed to treat it that way, including the reporter, who didn't make the normal notations that signify a plurality opinion. And Justice Kennedy seems to share this view, given that his concurrence (which, in my view, is only a concurrence in the judgment) expressly says "Although some explanation of my views is appropriate given the difficulties of this case, I do not believe they depart in fundamental respects from the opinion of the Court, which I join."

In a nutshell, here's my argument: Kennedy's concurrence only concludes that "the Constitution does not require United States agents to obtain a warrant when searching the foreign home of a nonresident alien." His analysis, as his opinion makes clear, is quite distinct from the categorical approach to the question that Rehnquist undertakes (moreover, he, unlike Rehnquist, doesn't over-read Johnson v. Eisentrager). Given that, isn't it more accurate to read Verdugo as only holding what Kennedy said, i.e., that the Warrant Clause doesn't apply to searches of the foreign homes of nonresident aliens? That would leave open the possibilities that (1) the rest of the Fourth Amendment applies to such searches; and (2) the Warrant Clause applies in other contexts. Although I suspect a negative answer to (2) would also follow from Kennedy's analysis, (1) strikes me as a serious issue, and one for which there were only four votes in Verdugo.

So does form or function govern when deciding whether a particular holding is for a plurality or a majority? If it's function, I feel pretty good about my argument. If it's form, doesn't that give a lot of power to the Supreme Court's Reporter of Decisions, or, at the very least, to the Justice in the middle, who may not want to highlight the depth of his disagreement(s) with the majority?

Posted by Steve Vladeck on November 2, 2010 at 01:47 PM in Constitutional thoughts, Steve Vladeck | Permalink | Comments (15) | TrackBack

Tuesday, October 26, 2010

"Dissenting in Large Part"

We may need a new Bluebook rule in light of today's dissent by Chief Judge Kozinski in Gonzalez v. Arizona (see pg. 63 of the slip opinion).

What's next? "Mostly dissenting" (a la Princess Bride)? Or "Only Concurring a Little?"

Posted by Steve Vladeck on October 26, 2010 at 03:44 PM in Steve Vladeck | Permalink | Comments (3) | TrackBack

Saturday, October 23, 2010

Do 1Ls or Upper-Level Students Need / Benefit From Midterms More?

At various points in the past, different folks have posted on Prawfs about the costs and benefits of giving midterm exams, and the various approaches to doing so (for example, see Colin Miller's posts here and here).  I've always given midterms in my two "big" classes -- Constitutional Law and Federal Courts -- because I think they're pedagogically useful in (1) requiring the students to put things together earlier in the semester; (2) giving the students two different opportunities to show their stuff / have a bad day (my midterm is usually worth half of the grade; the final worth the other half); and (3) reducing the otherwise massive amount of material for which students in both classes would be responsible on the final exam, which, in light of the midterm, is non-cumulative.

Here's my problem: Next spring, I'm slated to teach both classes in the same semester. And I know myself well enough to know that it's going to be extremely difficult to grade 175-200 midterms in anywhere near a reasonable amount of time -- and that it might even be unfair to the students to try. Moreover, the academic calendar is such that it would be difficult to give a midterm in both classes and not have them overlap with each other, such that the slowness of grading issue is difficult to cure (unless I give all-multiple-choice exams, which I won't do). So the question is whether, if I am forced to choose between my two classes, a midterm is "better" for second-semester 1Ls in Constitutional Law, or 2Ls and 3Ls in Federal Courts? Below the fold, I offer my own set of pros and cons, but I'd welcome yours, as well.

Reasons to Offer Midterm in Federal Courts Rather than Constitutional Law:

  1. I cover a lot more material in Federal Courts than I do in Con Law. 
  2. In lots of ways, I think the material in Federal Courts is more dense and more difficult than the material in Con Law, such that the more the students can narrow their focus, the better. 
  3. My Federal Courts syllabus admits to a more obvious "break" between one half of the semester and the other than Con Law does.
  4. Students would choose to take Federal Courts knowing that there is a midterm, whereas Con Law students wouldn't have a choice (even if they have midterms in other classes or other commitments).
  5. In my anecdotal experience, upper-class students are, as a group, less likely to stay on top of the material on a class to class basis than their 1L colleagues, such that a midterm might have a greater effect on their overall handle on things.

Reasons to Offer Midterm in Constitutional Law Rather than Federal Courts:

  1. 1Ls are more likely than 2Ls and 3Ls to benefit both directly and indirectly from additional in-semester evaluation of their work.
  2. Constitutional Law is, in some ways, a sharper break from what 1Ls are used to than Federal Courts is from other upper-level courses.
  3. A midterm in Constitutional Law would allow me to test on deeper issues than I'd be able to if covering the whole course in one four-hour exam.
  4. 1L grades may be more significant than 2L/3L grades, and to the extent they are, it's better (fairer?) for them to be based on more differentiated evaluation than upper-level classes.
  5. Unlike Federal Courts, I do give some multiple-choice questions on my Constitutional Law exams, and so the more of these to which the students are exposed, the better (both for my class and for the MBE--which is why I do it in the first place).

I'm sure there are other reasons, and I'm sure readers will dispute / disagree with some of those I've offered above. So, I open it to you: if you were me, and you could only offer a midterm in one of these two classes (I know--the "right" answer is to offer a midterm in both), which one would you choose and why?

Posted by Steve Vladeck on October 23, 2010 at 02:00 PM in Life of Law Schools, Steve Vladeck, Teaching Law, Things You Oughta Know if You Teach X | Permalink | Comments (8) | TrackBack

Thursday, October 21, 2010

Judge Randolph Comes Clean: Boumediene Was Wrongly Decided

In a speech titled "The Guantanamo Mess" delivered yesterday at the Heritage Foundation, D.C. Circuit Judge A. Raymond Randolph launched a quite pointed (if wholly unsurprising, given his own jurisprudence) attack on the Supreme Court's 2008 decision in Boumediene v. Bush, which held that non-citizens detained at Guantanamo are protected by the Constitution's Suspension Clause. (Reversing, it should be noted, a D.C. Circuit opinion written by Randolph.)  Although the theme of Judge Randolph's remarks went to Boumediene's negative consequences in the D.C. courts, he spent a fair amount of time in the speech attacking the opinion itself, especially the extent to which it distinguished the Supreme Court's 1950 decision in Johnson v. Eisentrager.

The speech itself is worth watching. But I wanted to post about it to share two distinct observations, one of which goes to the merits of Judge Randolph's argument, and the other of which goes to the forum in which he presented them.

On the merits, as I've previously argued, we have an alarming tendency today to overread Eisentrager. Yes, there are lots of statements by Justice Jackson suggesting that non-citizens detained outside the United States are not generally shielded by the Constitution (statements Randolph quotes at length in his speech), but all the Court actually held was that those petitioners--who had been tried and convicted by a U.S. military commission--were not entitled to pursue habeas relief. Indeed, Jackson devoted a substantial chunk of his opinion (Parts III and IV, which are virtually never mentioned by those who criticize Boumediene) to rejecting the petitioners' principal claim on the merits, i.e., that the commission acted without jurisdiction [in 1950, this was the only claim cognizable in a habeas petition attacking the judgment of a military court]. If the petitioners were bound to lose simply by virtue of being non-citizens detained outside the territorial United States, over half of Jackson's opinion was totally irrelevant and unnecessary. Thus, as I've suggested before, whatever Boumediene's merits, I think it is clear that the Court was not bound to "follow" Eisentrager, since the petitioners in the later case had not been convicted by a U.S. military commission acting within its jurisdiction.

As to the forum for Randolph's remarks, a colleague of mine asked me if I thought it was inappropriate for a sitting circuit judge, whose docket includes a number of related cases, to speak out so publicly on this topic. Quite to the contrary, I think it's far more appropriate for Judge Randolph to air his hostility to Boumediene in speeches than in the forum in which it has thus far appeared, i.e., his opinions on the merits in the post-Boumediene Guantanamo cases. If one reads the D.C. Circuit's opinions in Kiyemba I and Al-Adahi, both of which were penned by Randolph (and the former of which was vacated by the Supreme Court), one can see some of the same unbridled opposition to the Guantanamo litigation in general, and to Boumediene, in particular, that comes through in his speech. Don't get me wrong--I'm not suggesting that sitting judges should decline to object to Supreme Court precedents; indeed, I think that such criticism is one of their noblest and most important obligations. But objections usually come in the context of detailed opinions calling for the Court to revisit the issue, or in "special" concurrences suggesting that, though settled law compels that particular result, the author believes that the settled law is wrong. Rather than state such views directly, Judge Randolph has taken to adopting rather narrow readings of the Supreme Court's decisions in Rasul, Hamdan, Boumediene, and Kiyemba I (each of which, it should be noted, reversed a Randolph opinion), and in some cases, ignoring them altogether.

Consider as just one example the original panel opinion in Kiymeba I, in which, after Boumediene, Judge Randolph held that the federal courts cannot order the release of Guantanamo detainees into the United States. In the same opinion, Randolph held that the detainees do not have due process rights, citing Eisentrager (among other cases), and not Boumediene. [Ironically, later in the opinion he castigates Judge Rogers for failing to recognize existing Supreme Court precedent.] Boumediene didn't address the due process issue, of course, but it certainly did articulate a new framework within which to evaluate that question, a framework that Judge Randolph nowhere adverts to.

To be sure, readers may disagree with me about Boumediene being rightly decided, or even about Boumediene being decided on a clean slate. But Judge Randolph has given the Supreme Court every opportunity to revisit its rulings in the Guantanamo cases, and it in turn has reversed him every single time. Isn't there a difference between lower-court judges objecting once (and publicly) versus repeatedly writing opinions that all-but suggest that Supreme Court precedent doesn't exist?

Posted by Steve Vladeck on October 21, 2010 at 03:49 PM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink | Comments (10) | TrackBack

Tuesday, September 21, 2010

The Habeas Scorecard Doesn't Matter--Except When It Does?

Lurking just behind the scenes in our ongoing debate over the Graham bill is a deeper conversation with regard to the importance and significance of habeas review in the Guantanamo detention cases.  This appeared to culminate two weeks ago with my and Ben's exchange over the so-called habeas "scorecard," and the meaningfulness (or not) of the percentage of post-Boumediene cases in which the detainees have prevailed on the merits. Ben, as you may recall, finds the scorecard largely useless (or at the very least misleading), since it may (in his view) overstate the nature of the success of the detainees in these cases, while underselling the government's key "wins." (My response is here; Ben's reply is here.)

Now, Ben has a new post up extolling the virtues of an article by Aziz Huq arguing that, empirically, habeas has been largely unsuccessful in these cases, at least in actually producing the release of the detainee.  After summarizing Aziz's findings, Ben asks rhetorically "How valuable is [habeas] really as a mechanism for freeing the innocent? Policy differences aside, Huq’s empirical answer seems to me profoundly correct." I don't disagree for a moment that habeas has directly forced the release of a detainee we otherwise would not have released in a distressingly small percentage of cases (indeed, Aziz's data is irrefutable).  But Ben's post (and, to a lesser degree, Aziz's article) misses two critical points, defects that are all the more surprising given's Ben's arguments in his earlier criticisms of the "scorecard."

First, and directly, the data necessarily do not take into account cases in which the government decided to release a detainee before risking a loss in subsequent habeas litigation. There is, as Ben conceded earlier, no way to quantify how many cases fall into this category, but it's virtually impossible to believe, based on the numbers of detainees we've released from Guantanamo over the years, that it's a null set. Habeas doesn't have to work directly to work--it can, and almost certainly does, affect policy by requiring the government to decide up front whether it's going to defend particular cases or not. (Indeed, this is one of the themes of my review of Ben's book--that the courts often influence policy indirectly, and so one can't just rely on the results in individual cases.)

Second, the data don't take into account the extent to which the executive branch (under both the current and past administrations) has fought tooth-and-nail to limit the powers of the federal courts to effectuate release in cases in which the detainee has prevailed.  And I think it is not an overstatement to say that the D.C. Circuit has been complicit in this regard, adopting decisions in Kiyemba I and Kiyemba II that heavily undermined the potential effectiveness of habeas--decisions I critique as being inconsistent with the original understanding of habeas in this forthcoming article. For those, like me, who find deep problems with these decisions, it is easy to see how habeas can--and should--do more in these cases.

Separate from these specific points, there's a deeper disconnect here: Step back for a moment and ask yourself where we would be today had the Supreme Court held in 2004 that the Guantanamo detainees were not entitled to pursue habeas relief, and things ended there. Would we really be "better off" from a policy standpoint? Is there any chance that we'd know as much as we now do about what has actually happened at Guantanamo (and to the detainees)? Would we have had any judicial review of the military commissions invalidated in Hamdan? Whatever the warts of the habeas process, do we really think it's had a marginal effect on the shape of U.S. detention policy? Folks may be troubled by the role habeas has played, but it strikes me as a silly argument (and one I thought Ben had already rejected in the context of our debate over the scorecard) that its effectiveness can be deduced from the specific cases in which it has directly produced a detainee's release.

Posted by Steve Vladeck on September 21, 2010 at 09:28 AM in Blogging, Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink | Comments (1) | TrackBack

Sunday, September 19, 2010

The Graham Bill and Detention Authority: U.S. Citizens and Material Support

In last Sunday’s post, I attempted a relatively comprehensive critique of the Graham bill (S. 3037), which is supposedly designed to (1) codify existing practices in the post-Boumediene habeas litigation; and/or (2) provide clearer substantive, evidentiary, and procedural rules for courts to follow in these cases. 

In the interest of highlighting two significant trees in a fairly dense forest (and in light of the various intervening exchanges between me and Ben Wittes, Bobby Chesney, and Peter Margulies; and the speech Senator Graham is apparently set to give tomorrow at the American Enterprise Institute), I wanted to focus more specifically on the heart of the problem--i.e., why the substantive detention authority provided by the bill is so troubling (Gabor Rona from Human Rights First already offered his own thoughts in the comments to the first post—they’re worth reading). As I explain in more detail below the fold, in addition to my original observations from last week, the detention authority provided by the Graham bill would dramatically expand existing U.S. law in two other respects: allowing for the stateside detention of U.S. citizens, and focusing on “material support” as a basis for detention.

(1) Stateside Detention of U.S. Citizens

Although the Graham bill borrows the critical detention authority language (new 28 U.S.C. § 2256(a)(6)) almost verbatim from the Military Commissions Act of 2009 (see 10 U.S.C. § 948a(7)), there is one vital difference: Whereas the MCA authorizes military commissions only for “alien unprivileged enemy belligerents,” the Graham bill authorizes detention of “unprivileged enemy belligerents,” regardless of their citizenship. Thus, the Graham bill would almost certainly apply to U.S. citizens, and it would also likely satisfy the Non-Detention Act, 18 U.S.C. § 4001(a), which provides that “[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” Moreover, because the bill incorporates no limits on where detention can occur, it would also likely authorize the detention of U.S. citizens who satisfy the substantive detention criteria even if they are initially arrested within the United States. 

Of course, the Supreme Court in Hamdi held that the 2001 Authorization for the Use of Military Force (AUMF) did authorize the detention of a U.S. citizen, but Justice O’Connor’s opinion for the plurality there relied heavily on the extent to which Hamdi was captured “on the battlefield,” in an active combat theater in Afghanistan. Where a citizen was picked up stateside, it appeared in 2004 at least that there were five votes to hold that the AUMF did not authorize detention, given Justice Scalia’s dissent in Hamdi and the four-Justice dissent in Padilla. As a result, today it is unclear—at best—whether the AUMF would allow the United States to detain without charges a U.S. citizen captured within the territorial United States. The Graham bill--to the extent that it constitutionally could--would change that.

(2) Pegging Detention Authority to “Material Support”

Of course, authorizing the stateside detention of U.S. citizens might not raise any hackles if the bill only applied to those directly involved in planning acts of terrorism against the U.S. or its allies. But part of why the potential domestic application of the Graham bill is so significant is because the bill goes much further, authorizing the detention without trial of anyone who “has purposefully and materially supported hostilities against the United States or its coalition partners.” The focus on the “material support” concept is troubling in at least three respects, which I’ll briefly try to delineate below: 

First, the concept of “material support” has been given an incredibly broad reading by the federal government, which has used the federal criminal material support statute to prosecute individuals for a wide range of conduct, very little of which resembles anything close to active participation in hostilities. The government has even claimed the authority under 18 U.S.C. § 2339B to prosecute individuals whose only "support" came in the form of speech trying to convince terrorist groups to pursue peaceful measures. Whatever the merits of this reading, it unquestionably sweeps far beyond what me might previously have thought of as "belligerency." 

Second, and related, the Supreme Court just this June upheld § 2339B against constitutional challenge, concluding that the statute was not void for vagueness, and did not otherwise violate the First Amendment even though it was a content-based regulation of speech. So long as the advocacy on behalf of a designated foreign terrorist organization was "coordinated," Chief Justice Roberts concluded, Congress could (and did) constitutionally proscribe it.  Because of Humanitarian Law Project, virtually any “coordinated” activity with a designated foreign terrorist organization, regardless of its intent or purpose, is the provision of “material support” in violation of 18 U.S.C. § 2339B. It’s hardly a stretch to see how the same concept could easily be adopted in the detention context--producing a remarkably expansive detention authority, especially vis-a-vis U.S. citizens within the territorial United States. 

Third, even if the material support statute doesn't violate the First or Fifth Amendments, "material support" as a concept has never been endorsed as a basis for detention under international humanitarian law, let alone as a basis for trial by military commission. There's certainly a lot of disagreement over just how far IHL goes in defining belligerency, especially in a non-international armed conflict, but the provision of "material support," without more, goes well past any recognized precedent, decoupling detention authority from any meaningful requirement of active participation in hostilities.  In this sense, then, the Graham bill would provide detention authority that fundamentally transcends not just the limits of international humanitarian law, but its analytical underpinnings. 

In one of his early posts, Ben already offered a bit of a defense of the Graham bill’s treatment of material support. In particular, he suggested that this provision, too, is merely codifying existing practice, since Judge Janice Rogers Brown already relied upon the similar language in the MCA in al-Bihani as informing the scope of the government’s detention authority (in the same opinion that suggested that IHL had no bearing on the scope of the AUMF). But even if that discussion in al-Bihani survived its August dicta-ization by the other seven active D.C. Circuit judges (and I don't think it did), it's a preposterous argument: Congress in the MCA was not even remotely speaking to detention authority--it was dealing with who could be tried by military commissions.  The focus on material support was necessary because one of the offenses that the MCA creates is "providing material support to terrorism," which itself raises constitutional questions concerning Congress's power to create new war crimes and subject them to trial by military commission (and to do so retroactively). In that sense, it is telling that no other judge to consider the issue in any of these cases has found the language of the MCA at all useful in ascertaining the scope of detention authority. The limitless scope of "material support" may have a lot to do with explaining why... 

Posted by Steve Vladeck on September 19, 2010 at 11:10 AM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink | Comments (4) | TrackBack

Tuesday, September 14, 2010

A Surreply to Ben Wittes on the Graham Bill

Not surprisingly, my rather harsh criticism of the Graham bill in this post from Sunday morning has provoked a series of reactions from its defenders over at Lawfare (for what it's worth, this is my favorite thing about blogging--meaningful substantive disagreements fleshed out over time).  Although I have thus far been responding offline, Ben's latest salvo mischaracterizes what I've said in a couple of ways that may affect the substance of the ongoing dialogue, so I thought I'd clarify a bit (below the fold) for those who have been following this debate all the way through.

First, Ben says that "it’s a revealing admission on Steve’s part that current law is not adequate" with regard to the class of individuals who can be detained without charges under the extant legal regime. That's not quite what I said. In my original post, I suggested that the 2001 Authorization for the Use of Military Force (AUMF) is itself insufficiently clear on this point, since it nowhere refers at all to any detention authority. I, for one, think that the D.C. district court has made significant strides in bringing clarity to the subject in the two years of litigation since Boumediene (whatever the merits of the specific answers that it has provided), and (I think) I was exceedingly careful in my original post to distinguish between the AUMF itself and how it has subsequently been interpreted. 

To be sure, I believe that Congress can try to legislate more specifically with regard to who can be detained. There are certainly other examples in American history of statutes that more precisely identified the subject class. I nevertheless believe, for reasons I articulated ad nauseam over the weekend, that such legislation isn't needed in light of these intervening judicial developments (and because statutory precision in this context may in any event be impossible). Moreover, legislation could in fact be dangerous to the extent that it effects a sub silentio extension of the scope of the current armed conflict (as, in my view, the Graham bill would).

Second, Ben is rather critical of my concern with what would be new 28 U.S.C. § 2256(a)(6)(C), which would authorize the detention of anyone who, before, on, or after September 11, "was a member of, part of, or operated in a clandestine, covert, or military capacity on behalf of the Taliban, al Qaeda, or associated forces." As Ben writes, "If members of enemy forces are not covered by the international laws of war, then who exactly is?" Ben's rhetoric is powerful, but he overstates my argument and understates the scope of the provision: My particular focus is on those individuals whom the government claims are "part of" these groups even though they have never committed a belligerent act--or otherwise provided any support whatsoever for hostilities against the United States. (Or, relatedly, individuals who were involved with al Qaeda in the early 1990s, but not since.) Indeed, if you read the three subsections of § 2256(a)(6) together (go ahead, I'll wait), you'll see that subsections (A) and (B) already address those other cases (participating in or providing material support for hostilities). [And as Gabor Rona noted in his comment to my original post, even those raise some issues under IHL.] 

To put it succinctly, the only cases in which subsection (C) would be necessary would be cases in which neither (A) nor (B) was satisfied--i.e., cases where the detainee had engaged in no affirmative act of belligerency vis-a-vis the U.S. or its coalition partners.  Let me be clear, here: I am not an IHL expert, and try very hard not to pretend to be one.  But my amateur understanding of the relevant law is that, at a minimum (and even in non-international armed conflict), there must be some nexus between the individual and the underlying hostilities in order for there to be authority to detain. In cases where neither (A) nor (B) are satisfied, just how strong is that link?

Finally, Ben joins in my reading of the myriad ways in which the Graham bill would otherwise cut off judicial review of claims besides challenges to ongoing detention (a point curiously missing from summaries of the legislation), but is rather dismissive of my concerns, "finding myself nodding in agreement with each [result] straight across Steve’s incredulity." In that regard, Ben completely ignores the decades of precedent establishing the right of defendants before military tribunals to litigate their right not to be tried before the trial takes place. Perhaps he believes these cases are wrong or inapposite; I happen to think they're bedrock.  He also doesn't respond to my point about the bill's constraint on the scope of post-conviction review of military commissions, which is basically rendered pointless by the exhaustion requirements and the concomitant bar on re-litigation of non-jurisdictional claims. And with regard to transfers, he assumes that, so long as the government swears it is acting in "good faith" to secure the release of a detainee, there is nothing for courts to do, and so no reason why Congress shouldn't take away their power to act. 

As in my original post, I think this argument misses the distinction between sound (or, in my view, unsound) exercises of judicial discretion and congressionally imposed constraints on judicial power. And lest this appear to be a distinction without a difference, imagine a case where it is abundantly clear that the detainee will be tortured if returned to his home country, and the government seeks to return him anyway. Would we be so comfortable with the Graham bill's categorical preclusion of judicial review then, when domestic and international law would both clearly prohibit the imminent transfer? What about if the government's "good faith" efforts drag on over the course of a decade? Are we so willing to accept that courts won't exert pressure on the political branches to prevent detainees from languishing in permanent (as opposed to long-term, but temporary) limbo?

Lest we lose sight of the big picture, though, it's important to realize that the wrangling over collateral review and transfers is a sideshow to the real problem (a point that should itself make one wonder why those provisions are even in the bill). The heart of the Graham bill both (1) goes well beyond problems that critics have identified in the post-Boumediene habeas litigation; and (2) doesn't do nearly as much as its defenders suggest to actually resolve those problems (other than substituting new ones in their stead). However convincing Ben's thoughtful response to my post is on its own terms, I think it's telling that these two core critiques are largely unaddressed.

Posted by Steve Vladeck on September 14, 2010 at 12:41 AM in Blogging, Constitutional thoughts, Steve Vladeck | Permalink | Comments (1) | TrackBack

Sunday, September 12, 2010

The Case Against the Graham Bill

Looming in the background of the ongoing conversation over the appropriate way forward on detention (both at Guantánamo and elsewhere) is S. 3707 (the “Terrorist Detention Review Reform Act,” better known as the Graham bill), introduced last month and framed as one of the most comprehensive attempts yet at legislative resolution (or at least clarification) of many of the recurring issues in the post-Boumediene habeas litigation. 

Those who defend the Graham bill (and, more generally, the need for some legislation), tend to rely on three related arguments: (1) that the substantive, procedural, and evidentiary issues raised in detainee habeas cases are too important to be left to the “common-law process” unfolding in the D.C. courts; (2) that, to date, the D.C. courts have answered the questions that have arisen in a manner that is either inconsistent or simply incorrect; and (3) that, as such, legislation will not just stabilize the current litigation, but will also have a significant settling effect on forward-looking policy, since the relevant government actors will have a clearer sense of the substantive and evidentiary standards to which their decisions will eventually be subjected. Indeed, one can see threads of each of these arguments in the series of posts (e.g., this one) by Ben Wittes on the Graham bill (on which he consulted) over at “Lawfare.”

In the post that follows, I aim to identify a number of problems with the Graham bill as currently drafted, at least some provisions of which cause a lot more mischief than Ben’s posts suggest. (Some of these concerns have already been raised by Daphne Eviatar here and here.) But lest readers think that my concerns with the Graham bill can be “fixed” simply by addressing the critiques outlined herein, I conclude with a more general explanation for why, in my view, detention legislation like the Graham bill is both unnecessary and unwise. In short, my specific objections to S. 3707 notwithstanding, better drafting won’t—and can’t—solve my real concerns.

Because of the unusual length of this post, I begin with a roadmap: Part I summarizes the current version of the Graham bill. Part II offers my specific objections to it. Part III lays out the more general critique of such “framework” detention legislation.

I.  The Graham Bill in a (Rather Thorough) Nutshell

As currently drafted, the Graham bill would create new 28 U.S.C. § 2256, titled “Habeas corpus review for certain unprivileged enemy belligerents.” Section 2256(a), the definitions provision, defines “unprivileged enemy belligerent” (those who can be detained under the statute) as anyone other than a privileged belligerent (curiously, the bill doesn't really deal with detaining any of them) who “(A) has engaged in hostilities against the United States or its coalition partners; (B) has purposefully and materially supported hostilities against the United States or its coalition partners; or (C) was a member of, part of, or operated in a clandestine, covert, or military capacity on behalf of the Taliban, al Qaeda, or associated forces.” This definition is basically a carbon copy of the controversial definition of who can be tried by a military commission under the Military Commissions Act of 2009 (see 10 U.S.C. § 948a(7)), but I’ll come back to that point later. 

New § 2256(b) “reaffirms that the United States is in an armed conflict with the Taliban, al Qaeda, and associated forces and that those entities continue to pose a threat to the United States and its citizens, both domestically and abroad.” (emphasis mine). As such, the bill authorizes detention of anyone involved in that conflict, “regardless of the place of capture, [and] until the termination of hostilities.” New § 2256(c) deals with “jurisdiction and venue,” although in addition to vesting exclusive jurisdiction in the D.C. district court (even if the detainee is moved somewhere else), § 2256(c)(2)(B) purports to bar the exercise of that jurisdiction over any claim other than a “challenge to the legality of the continued detention” of the petitioner, including claims “relating to the detention, transfer, treatment, trial, or conditions of confinement of the covered individual or any other action against the United States or its agents.” 

New § 2256(d) deals with the issue of “organizations considered associated forces,” and provides procedures through which the detention authority provided by § 2256(b) can be brought to bear against those affiliated with groups other than al Qaeda and the Taliban, procedures that even Ben finds somewhat troubling given that "[a]s written, the provision would do nothing to prevent a secret, sealed notice to the court and no notification of Congress at all, when the government effectively expands the legal war by interpreting the AUMF as covering a new group."

Section 2256(e), titled “Procedures,” is the most intricate provision in the bill. In particular, § 2256(e)(1) deals with burdens and evidentiary presumptions, including the language to which Daphne objected (e.g., in § 2256(e)(1)(E)) that creates strong presumptions both with regard to a detainee's training and his membership in the relevant organizations that can only be overcome with "clear and convincing evidence."

Section 2256(e)(2) governs discovery, and § 2256(e)(3) deals with witness production. There’s interesting stuff in both (and, as Ben notes, the bill is more favorable to the government than the current case law), but I’m going to basically skip over them here given the more important fish to fry elsewhere. Section 2256(e)(4) deals with the admissibility of statements alleged to have been obtained involuntary, including those obtained through torture or other coercion. Curiously, other than the bar on admitting statements obtained through torture, the provision otherwise allows admissibility so long as a statement was either voluntary or "was made incident to lawful conduct during military operations at the point of capture or during closely related active combat engagement, and the interests of justice would best be served by admission of the statement into evidence."

Section 2256(e)(5) provides for the “reliability” of statements against interest; § 2256(e)(6) governs attorneys representing detainees in habeas proceedings; and § 2256(e)(7) provides procedures for the use of video testimony. Again, although there is fodder in each of these, I’m going to leave it to the reader to delve into their specifics. 

Most commentary on the Graham bill thus far has completely overlooked new § 2256(f), which all-but precludes two additional classes of habeas claims: those seeking to collaterally attack military commission proceedings, and those seeking to block transfers to third-party countries. To that end, § 2256(f)(1) requires a stay of any habeas petition brought by a detainee against whom military commission charges have been sworn; § 2256(f)(2) creates significant exhaustion requirements for military commission defendants who have been convicted by a military commission before they can use habeas; and § 2256(f)(3) requires a stay of any habeas petition in a case where the executive branch is making "good faith efforts" to secure the transfer of a detainee who has been "designated" for transfer or release. 

Finally, § 2256(g) deals with second or successive applications for habeas relief, and § 2256(h) governs the release of detainees, including § 2256(h)(1), which bars courts from ordering release into the United States, § 2256(h)(2), which leaves up to the Secretary of Homeland Security to transfer a detainee who has been ordered released. I may be skipping other relevant provisions, but it's a dense 23-page bill, and I wanted to focus on the highlights.

II.  Problems With the Graham Bill

There are any number of problems with specific provisions of the Graham bill.  For ease of reference, I am going to break the issues discussed below into five major categories, in loose order of their structural-ness: (1) the identity of the enemy; (2) the scope of detention authority; (3) the bars on claims that might be protected by the Suspension Clause; (4) the evidentiary presumptions; and (5) the voluntariness of statements. I by no means suggest that the following is an exhaustive catalog; rather, it is just the issues that jumped out at me when reading through the bill.

A.  The Identity of the Enemy

One of the most remarkable things that the Graham bill does--in two separate places--is provide for the potentially fundamental expansion of the scope and nature of the armed conflict Congress authorized in the September 2001 Authorization for the Use of Military Force (AUMF). Just to remind ourselves, here's the critical authorizing language enacted nine years ago next week:

the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Whatever else might be said about the AUMF, the requirement that the organizations have a direct link to the September 11 attacks is manifest, and has routinely been enforced by the D.C. courts in detention cases (as manifested perhaps most strongly in the D.C. Circuit's Parhat decision).

The Graham bill provides for the silent extension of the conflict in two distinct places: First, § 2256(b)(1), the "Statement of Authority," "reaffirms that the United States is in an armed conflict with the Taliban, al Qaeda, and associated forces," (emphasis added), regardless of whether those associated forces had anything to do with 9/11 whatsoever. Second, and relatedly, § 2256(d), which deals with "Notice of Organizations Considered Associated Forces," requires district courts to give "utmost deference" to the government's "notice" that "a particular organization" is "among the associated forces of the Taliban or al Qaeda." (A notice that could presumably be filed ex parte and under seal).  In other words, the government can simply assert (behind closed doors) that a group is associated with the Taliban or al Qaeda, and that assertion is not just effectively unreviewable, but is itself the basis for detaining individuals affiliated with that group (whether or not they have any ties to the Taliban or al Qaeda).

Indeed, the bill is dead silent on what standard the government should even use in ascertaining whether a particular organization is "associated with" the Taliban or al Qaeda. Such authority could hypothetically be used to work a dramatic extension both of the class of individuals who can be detained without charges, and, relatedly, the scope of the conflict Congress authorized nine years ago. Indeed, for all of the current debate over whether the AUMF authorizes the use of drones far from active military theaters, including in Somalia, Yemen, and other parts of the world, this provision could well be viewed as sanctioning such authority, so long as the targets were affiliated with "associated forces." 

B.  The Scope of Detention Authority

As noted above, the Graham bill provides something vital that the AUMF did not: a specific definition of who can be detained (new § 2256(a)(6)). So far, courts have been relying on the vague language of the AUMF quoted above, and the assumption derived from the Supreme Court's opinions in Hamdi and Hamdan that the scope of authority under the AUMF can be understood at least largely by reference to the laws of war. (This was the heart of the fight over the D.C. Circuit's Al-Bihani decision, as I explained here.).  The Graham bill provides specific detention criteria, borrowing rather expressly, as I noted above, from the 2009 MCA. Under the bill, the government can detain individuals who are not "privileged enemy belligerents"; and (1) have engaged in hostilities against the U.S. or its coalition partners; (2) have "purposefully and materially supported hostilities against the United States or its coalition partners," or (3) were members of, parts of, or "operated in a clandestine, covert, or military capacity" on behalf of the Talbian, al Qaeda, or associated forces. 

Assuming, for the sake of argument, that (1) and (2) are basically consistent with international law (I recognize that this may not be a satisfying assumption, especially re: (2)), the real problem is (3), because the laws of war are hardly clear that being a "member" or a "part" of a group like al Qaeda or the Talbian automatically makes one a "belligerent" subject to detention under international law. I don't mean to assume the debate over whether international law meaningfully constrains the scope of Congress's power to authorize detention without charges.  But for those, like me, who believe that it does, this is a substantial defect in the Graham bill (let alone in the 2009 MCA, which raises the separate and additional question of whether such individuals can be tried by a military commission).

Nor is it any consolation to argue, as Ben does, that this language merely codifies existing case law. There is dicta in the D.C. Circuit's original Al-Bihani decision to the effect that this is the scope of the government's detention authority, but (1) it's only dicta; and (2) it is not even a little clear how the 2009 MCA, which was not in any way addressed to detention, could have expanded the detention authority conferred by the AUMF. Thus, for better or worse, the Graham bill would dramatically enlarge the scope of who could be detained as compared to the status quo (or, at the very least, would codify the erroneous dicta in Al-Bihani), and in a manner that might well be inconsistent with international law. [In addition, wrangling over what it means to be "part of" al Qaeda is itself an issue that would surely create a similar range of decisions from the district court as those that we've seen under the AUMF. So the Graham bill replaces one ambiguous set of terminology with another.]

Finally, although it's a bit of a tangent, the Graham bill asserts that detention authority exists "until the termination of hostilities," and specifically disavows any need on the government's part to show that the detainee represents a continuing threat to the national security of the United States.  Although I, for one, do not think such provisions are inconsistent with international law (assuming that the individual is properly detained as a belligerent), there may be due process issues (to the extent the Due Process Clause applies), and there are certainly policy concerns, as Ben documents here. Periodic review should be a staple of any long-term detention regime, and yet the Graham bill's only response to this concern is to constrain the scope of second-or-successive applications for habeas relief in new § 2256(g). (For more on this problem, see Peter Margulies' thoughtful analysis.)

C.  Barring Claims that Might Be Protected by the Suspension Clause

Although the Graham bill has been marketed almost entirely as being geared toward the post-Boumediene "detention" cases, it includes several provisions that would constrain judicial review of other claims, and which may thereby implicate the Suspension Clause as applied to the Guantanamo detainees. Ben emphasizes in one of his posts that the Graham bill's "limited impact" is "one of its virtues." As evidence, he suggests that "[i]t does not in any way impact the scope of federal court jurisdiction to entertain habeas claims." (emphasis his). Quite to the contrary.

First, new § 2256(c)(2)(B) bars the use of habeas to litigate claims "relating to the detention, transfer, treatment, trial, or conditions of confinement" of the petitioner other than pure challenges to the legality of continued detention. It is hardly settled that these claims all fall outside the scope of the Suspension Clause, especially those relating to transfer. Even Kiyemba II, the problematic D.C. Circuit decision that rejected the ability of the D.C. courts to enjoin a detainee's transfer until the detainee had a hearing and an opportunity to be heard, turned on the government's assurance on the merits that it would not transfer detainees to countries in which they credibly feared mistreatment.  To take away jurisdiction over such a claim regardless of whether the government has made such assurances raises serious Suspension Clause concerns, since it bars access to habeas even where a detainee can prove that he credibly fears torture if returned to his home country (and that such a transfer would therefore violate both domestic and international law).

Second, new § 2256(f)(1) imposes a mandatory stay of any habeas petition brought by a detainee against whom military commission charges have been sworn, even though the Supreme Court has repeatedly recognized (most recently in Hamdan) that defendants before military tribunals have a right to contest their amenability to military trial before the trial takes place. As Justice Stevens put it in Hamdan, "we do not apply Councilman abstention when there is a substantial question whether a military tribunal has personal jurisdiction over the defendant." To be sure, nothing in Hamdan (or any other Supreme Court decison) suggested that such a right not to be tried is protected by the Suspension Clause, but as I've argued elsewhere, there is at least a colorable (if not substantial) line of reasoning supporting that conclusion. Indeed, there would be little point in protecting the ability of military defendants to collaterally invoke their right not to be tried if such a right had no constitutional foundation.

Third, proposed § 2256(f)(2)(D) constrains the substantive scope of post-conviction habeas petitions attacking military commissions to only those claims suggesting "that the commission was without jurisdiction." In other words, no habeas for non-jurisdictional constitutional defects at trial. At least since 1941, the Supreme Court has recognized a broader scope for federal habeas review of state-court convictions, and there are fairly strong arguments that at least some of that review may be constitutionally compelled. And as Justice Frankfurter repeatedly pointed out, whatever deference federalism might require the federal courts to show to convictions obtained in state courts, similar arguments are far less availing when the trial court was a federal military tribunal.

Fourth, new § 2256(f)(3) imposes a mandatory stay of any habeas case where the petitioner has been designated for transfer or release, and where the government is making "good faith efforts" to facilitate that result. In other words, as long as the government is, in good faith, trying to effectuate a detainee's release, the courts not just should, but must, stay their hand.

Especially with regard to these objections, I suspect one response will be that they are largely reflective of extant case law. Section 2256(f)(1) is basically the D.C. district court's decisions in the Hamdan and Khadr litigation; and § 2256(f)(3) reflects the practical result of the D.C. Circuit's decisions in Kiyemba I and Kiyemba II -- that there's nothing more for the courts to do once the government avers that it's doing everything it can to effectuate a detainee's transfer and/or release. To me, at least, such a rejoinder is unconvincing. For starters, there are serious problems with each of those decisions (especially Hamdan, Khadr, and Kiyemba II), and I'm hopeful (perhaps unjustifiably so) that the Supreme Court will eventually distance itself from the relevant conclusions contained within each of them.

But more fundamentally, it is one thing for courts to decide that discretion is the better part of valor, and that they should stay their hand while other events (be they military commissions or diplomatic negotiations) are underway. It is quite another for Congress to affirmatively bar the courts from acting, and in a manner that, as noted above, may go beyond existing precedent. In short, I don't think it is a sufficient defense of these provisions that they merely codify existing law.  Even if that were descriptively accurate (and I don't think it is), it assumes that existing law is correct--and final.

D.  Evidentiary Presumptions

I have somewhat less to say about the various evidentiary presumptions that the Graham bill creates, not because they aren't significant, but because Ben and Daphne have already discussed them at some length (Ben himself is critical of most of them, for reasons with which I basically agree). The shorthand, though, is that proposed § 2256(e)(1) creates strong presumptions supporting the government's authority to detain where there is a showing that the detainee received any "military-style" training from the Taliban, al Qaeda, or associated forces (back to those guys again), and an even stronger presumption against a detainee's withdrawal from his affiliation with that organization. (So strong that it cannot be rebutted after capture, even if, as in the Slahi case, the detainee turns state's evidence.) Section 2256(e)(1)(E)(2) requires a detainee to show withdrawal by clear and convincing evidence, something that will be extremely difficult for an individual detained at Guantanamo -- and without meaningful access to witnesses, or other potentially exculpatory evidence -- to do.

E.  Voluntariness

Finally, the Graham bill also redefines when statements can be admitted against a detainee in § 2256(e)(4). In particular, statements can be admitted so long as they were not obtained through torture or other cruel, inhuman, or degrading treatment; and (1) they were voluntarily given; or (2) they were made incident to lawful conduct during military operations at the point of capture or during closely related active combat engagement, and the interests of justice would best be served by admission of the statement into evidence." For the most part, I find this provision unobjectionable. My fear, though, is that this last provision could be broadly construed to admit against detainees any number of statements they make in the process of their capture, including statements that would not traditionally be admissible as excited utterances, statements against interest, and so on. Put simply, why isn't voluntariness enough, here? 

But the real trouble may come from new § 2256(e)(4)(D), which creates "a rebuttable presumption in favor of the voluntariness of statements against interest given before a Combatant Status Review Tribunal, Administrative Review Board, or comparable review board or as a result of treatment in compliance with the Army Field Manual." (emphasis added). In other words, any statement against interest not obtained through torture is presumed to be voluntary. Hmm...

F.  Concluding Thoughts on the Graham Bill

At the end of one of his posts defending the Graham bill, Ben poses the following question: "Do you object to legislative action that does nothing to alter the status quo but merely codifies the points the courts have already largely settled?" I've endeavored in the above paragraphs to explain the ways in which the Graham bill does in fact alter the status quo, or, at the very least, how the current status quo is itself problematic, whether as a matter of policy, legal constraints, or both. In that sense, then, Ben's question is misleading, because "merely codif[ying] the points the courts have already largely settled" isn't really (or only) what the Graham bill does. It also is worth emphasizing that, as with the "part of" language vis-a-vis the scope of detention authority, the very interpretive inconsistencies that supporters of the Graham bill invoke to justify such legislative reform will likely recur under the Graham bill, albeit in the context of different language. Some of the problems critics have identified just aren't problems; others are problems, but inherent ones. But, if we assume for the sake of argument that Congress could write a statute that did not raise the policy or legal problems charted above, would that be a good thing? That's the harder question to which I now turn.

III.  Structural Problems With Any Detention Legislation

In one sense, it is more than a little silly to object categorically to detention legislation. After all, we're only here because Congress passed a statute (the AUMF) that, as interpreted, authorizes the detention without charges of certain individuals. And so one might understandably assume that since detention authority is up to Congress, it makes perfect sense for Congress to fill in the rest of the puzzle, as well.

The reality, though, is more complicated. Habeas is at its core an intensively fact-bound inquiry into whether the jailer had the legal authority to incarcerate the prisoner. Yes, there are baseline rules that Congress can articulate (e.g., we're at war with Germany, not Australia), and evidentiary standards Congress can adopt (e.g., preponderance vs. clear-and-convincing), but it is difficult for a one-size-fits-all statute to otherwise deal with every contingency.  Should Congress really be specifying whether one night in a Taliban training camp is enough to make someone a "part of" that organization, as opposed to two? Does it make sense for legislation to specifically delineate the circumstances in which evidence should and should not be given particular weight? Or to precisely differentiate between the kinds of documents that should and should not be discoverable in individual cases? Are there reasons why Congress is better suited to make these decisions across the board than district judges, on the records of the individual cases in which they arise?

Justice Brennan once wrote that the Supreme Court has "consistently rejected interpretations of the habeas corpus statute that would suffocate the writ in stifling formalisms or hobble its effectiveness with the manacles of arcane and scholastic procedural requirements." At a fundamental level, this sentiment reflects the belief that habeas is essentially an equitable remedy, designed to be shaped by judges based upon the circumstances of individual cases, and not by legislators who can't possibly (and shouldn't be expected to) account for such hyper-specific variations.

But there's an even more pernicious problem with "framework" detention legislation, and it's one that's hardly new.  In his fascinating recent study of habeas practice in England from 1500-1800, Paul Halliday documented how Parliament's increasing "codification" of habeas actually weakened the writ, by cutting down the presumption that King's Bench had the sweeping common-law powers that it routinely exercised in habeas cases well into the 1700s. Even benign habeas legislation (a characterization that I do not believe the Graham bill deserves) had the effect in England of cabining the discretion of judges to adapt the remedy that habeas is designed to provide, a practice that I dare say American history has reflected.

This is not to say that there is no role for Congress here.  I freely concede, as I must, that the scope of detention authority is entirely Congress's baliwick, just so long as the legislature operates within constitutional limits. I believe that Congress should trust the courts to apply a general rule to specific facts, but I also recognize that, in the end, this question is, and must be, a threshold policy question for our legislators, that judges are then charged to implement. But the further afield Congress goes past identifying those who may be detained, the more it is wading into the traditional (and necessary) equitable discretion of habeas courts--the more it is assuming the job not just of lawmakers, but law-appliers and law-expounders. Either Congress must leave interpretive flexibility in the hands of the courts, or it must legislate with a scalpel. I have a hard time believing that the latter is truly the approach we should be sanctioning in an area so dominated by gray, even if that gray itself creates some uncertainty in the decisional law.

As those familiar with my work (and recent postings) should know, I am no fan of the current status quo in the Guantanamo litigation, especially the vast majority of decisions in detainee cases by the D.C. Circuit. As a result, it may seem strange that I am devoting so much energy to defending the power of the courts when I am so troubled by how those courts are (or, more precisely, aren't) using that power. But as problematic as some of the recent decisions have been, framework legislation like the Graham bill could do even more damage, on a far wider (and longer-range) scale. For better or worse, the Guantanamo cases are a short-term problem. But the notion that these kinds of decisions are for Congress, and not the courts, is a principle with the ability to transcend the current debbate, and to go to the very structural separation of powers between the branches.

As such, absent a far more convincing and compelling showing that the current, judicially-driven status quo is unworkable, and that the proposed legislation meaningfully fixes those shortcomings (indeed, many of the problems with current practice identified by Ben are either unaddressed, unresolved, or perhaps even exacerbated by the Graham bill), we should all be exceedingly wary of any legislation, from any quarter, purporting to have all, or even many, of the answers.

Posted by Steve Vladeck on September 12, 2010 at 02:37 AM in Blogging, Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink | Comments (1) | TrackBack

Wednesday, September 08, 2010

Why the Scorecard Matters: A Response to Ben Wittes

Over at the new "Lawfare" blog, Ben Wittes has a post up outlining some objections to the media's increasingly common use of the Guantanamo "scorecard"--the unofficial tally of the 50-something post-Boumediene detainee habeas cases that have thus far been adjudicated on the merits.  (For one of the more easily accessible versions of the scorecard, see here.)

Ben's critique operates on several levels. For starters, he points out that the scorecard counts the same decision multiple times when it implicates more than one detainee (like the Uighur cases or Boumediene itself). Thus, it overcounts detainee "wins." (Of course, this depends on how one defines a "win.") Second, he notes that some of the detainee "wins" are only temporary, given the likelihood (in his view) that the D.C. Circuit will reverse on appeal. Third, he argues that the scorecard doesn't account for the number of cases in which detainees, for whatever reason, have chosen not to pursue habeas relief. And finally, as he observes, the figure the scorecard represents "ignores–or, rather, downplays–the most important government wins in these cases. These are not numerical but qualitative in nature; that is, it matters how the government wins and loses."

In my view, Ben's post has two distinct--but equally profound--flaws:

First, in putting so much emphasis on how the scorecard might over-state the detainee wins both numerically and qualitatively, he ignores several ways in which it under-represents them, as well. For example, the scorecard says nothing about cases in which detainees were released by the government prior to a judicial determination that they could no longer be held--the fate of an overwhelming majority of those held at Guantanamo, since we know that, at one point in time, upwards of 800 non-citizens were detained there (compared to the under 200 still in custody today). If anything, the fact that these decisions today are coming only after that process took place underscores how remarkable it is that so many of the detainees are prevailing on the merits in any event, regardless of how or why they are winning. Even Judge Leon, who wrote in 2005 that there was "no viable legal theory" on which a Guantanamo detainee might prevail, has ordered the release of a number of detainees.

Second, and more fundamentally, I fear that Ben's post fails to grasp why the scorecard matters. No one invokes the specific win-loss total (which, if I understand correctly, currently stands at 38-16) as proof of anything that a different ratio in the same ballpark wouldn't prove. That is to say, the actual numbers aren't the reason why the scorecard is such a big deal. The scorecard is important because it provides hard data for the proposition that the government lacks the authority to detain a more-than-insignificant number of Guantanamo detainees (including, for the record, all of the Uighurs). For those critics of the Supreme Court's decision in Boumediene and the litigation that both precipitated that decision and that has followed, the fact that the merits of these cases are so often favoring the detainees should prove the importance of the project, and the reason why habeas corpus jurisdiction matters. It's one thing to argue against judicial review when that review would make little difference--after all, how different would the ongoing debate over closing Guantanamo look if the government were winning in 80-90% of these cases? But where there is an unmistakable pattern identified by a bipartisan range of highly regarded judges, shouldn't that tell us something, regardless of the specific statistics used as evidence thereof?

Civil libertarians, human rights groups, and the detainees' lawyers themselves have maintained for years that many of the men still detained at Guantanamo are not there legally. What the scorecard shows, more than anything else, is that the judges of the U.S. District Court for the District of Columbia agree with that proposition more often than not. It's perfectly fine to argue, as Ben does, that the scorecard may not be precise. But that's hardly the point of it.

Posted by Steve Vladeck on September 8, 2010 at 07:50 AM in Blogging, Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink | Comments (0) | TrackBack

Tuesday, September 07, 2010

The Guantanamo Litigation and the D.C. Courts

One of the more under-reported stories arising out of the post-Boumediene Guantanamo litigation has been the quiet but very real disagreements between the judges of the D.C. district court and different panels of the D.C. Circuit on virtually every question that matters, including the fundamental propriety of the entire post-Boumediene project. And although I posted last week on the immediate significance of the D.C. Circuit's decision not to go en banc to rehear the three-judge panel decision in Al-Bihani, I have put together some more extended thoughts on how that plays into the broader tension between the trial and appellate courts in a guest post for ACSblog up as of this afternoon. In particular, as you'll see, the post suggests that the real winner in last week's drama may in fact be the district court.

Posted by Steve Vladeck on September 7, 2010 at 03:43 PM in Blogging, Constitutional thoughts, Steve Vladeck | Permalink | Comments (0) | TrackBack

Sunday, September 05, 2010

Hamdan and the En Banc CMCR: A Stalling Tactic or a Noteworthy Development?

Apparently lost in the pre-Labor Day weekend rush on Friday was the story that the Court of Military Commission Review (CMCR) has decided to hear the appeal of Salim Hamdan's military commission conviction en banc, rather than before a three-judge panel. Although this isn't that unusual a step in the abstract, it's a bit surprising here, if for no other reason than that the appeal was argued to a three-judge panel in January--almost eight months ago. There's no obvious (public) development that would explain both (1) why the panel would feel the need to go en banc at all (indeed, it's not like there's a lot of prior precedent to bind it); and (2) why it would decide to do so now

The most optimistic explanation might be that the panel has come to appreciate the structural significance of the issues raised in Hamdan's appeal, especially his challenges to (1) Congress's power to make certain offenses triable by a military commission; and (2) Congress's power to apply those definitions retroactively--i.e., to conduct that pre-dated the Military Commissions Act of 2006. And whatever the answers to these questions are, there can be little doubt that their significance transcends Hamdan's case--indeed, they pervade virtually every military commission proceeding currently underway. By that logic, allowing these issues to go to the en banc CMCR as an initial matter might make good sense, given that the answers will matter in virtually every case this court hears. (That still doesn't explain the delay, of course.)

But the downside is that going en banc probably means still more delay before the CMCR decides these issues, at which point they can (and surely will) be appealed to the D.C. Circuit. I've written at some length both about the substance of the jurisdictional issues plaguing the military commissions, and, as importantly, the extent to which their continuing lack of resolution (one way or the other) has a dramatic impact on current debates over civilian courts vs. military tribunals, especially for the 9/11 defendants. Unfortunately, Friday's news suggests that we're no closer to making progress.

Posted by Steve Vladeck on September 5, 2010 at 02:50 PM in Constitutional thoughts, Criminal Law, Steve Vladeck | Permalink | Comments (0) | TrackBack

Wednesday, September 01, 2010

Course Releases vs. Reducing the Teaching Load

As usual, I should begin with an apology for my sporadic (if ever there was a euphemism) blogging here as of late.  Part of it has been guest-stints elsewhere; part of it has been a little bit of writing (why can't book reviews have 24,000 words?!?).  But I hope to resume relatively normal Prawfs status shortly, and am bolstered in my hopes by the fact that I have a course release this fall, meaning that I'm teaching one class, as opposed to our usual two (we're a fairly strict 2+2 school, regardless of credits or enrollments).

This is the first time in my career that I've had a course release. Miami (where I started) had a strict 10-credit-per-year program for juniors, and American had not, until this year, allowed tenure-track juniors to participate in the course release program available to tenured profs, at least in part because entry-level folks get a course release their first two years anyway (which I missed by spending my first two years somewhere else). I'm not trying to generate sympathy; I love teaching, and actually miss having a big class this semester to go along with my seminar--or at least I will until grading time. 

Needless to say, because I have too much time on my hands, this got me thinking about the merits of course-release programs. In one sense, they're awesome. They give their beneficiaries time to write, to blog, and to otherwise catch up on the myriad projects on which they might have hypothetically fallen behind while teaching 14 credits last year. And at American, at least, this has all been with an eye toward slowly moving our faculty toward a three-course teaching load. The strongest counterargument, I have to think, is that they're not great for students--the more of us who have courses "released," the fewer courses we can offer collectively, and so either our offerings become less diverse, or we become more dependent upon visitors or adjuncts.

But it seems to me there's another negative, too, and this one affects the released professors more directly: Yes, course releases give the illusion of a reduced teaching load, but they do it in a way that is both imperfectly transparent (leaving open the possibility that good institutional citizens will be treated better when it comes to releases than bad ones--something that I don't think actually happens that often, but could), and that cures the symptom (occasionally overstaffed faculty) without seriously addressing the disease. If anything, doing course releases on a year-to-year, ad hoc basis may also hide some of the true curricular needs of the faculty, since it's more difficult for associate deans to think long-term about where there might be gaps based upon frictional releases, rather than those that would arise from an across-the-board teaching reduction.

So here's my question: am I just looking a gift horse in the mouth, or is there something to the notion that course releases are a relatively easy way for law schools to avoid harder--and more important--conversations about teaching loads?

Posted by Steve Vladeck on September 1, 2010 at 11:47 AM in Blogging, Life of Law Schools, Steve Vladeck, Teaching Law | Permalink | Comments (2) | TrackBack

Monday, June 07, 2010

Paging Dr. Mengele: Medical Experimentation and the CIA Detainees

[Cross-Posted on Balkinization.]

It had seemed, at least until late last week, that intervening events had taken most of the attention away from one of the most significant controversies of President Obama’s first year in office—whether senior Bush Administration officials should be investigated for their role in the documented torture and other abusive treatment of non-citizens detained as terrorism suspects. President Bush himself may have rekindled the controversy with his surprisingly candid comments about waterboarding, but that pales in comparison to the implications of a new report, released this morning by Physicians for Human Rights (PHR) (and available through this link).

In the report, titled “Experiments in Torture: Evidence of Human Subject Research and Experimentation in the 'Enhanced' Interrogation Program,” PHR marshals strong evidence that doctors working for the U.S. government conducted “illegal and unethical” human experimentation and research on detainees in CIA custody. In particular, the report concludes that

Health professionals working for and on behalf of the CIA monitored the interrogations of detainees, collected and analyzed the results of those interrogations, and sought to derive generalizable inferences to be applied to subsequent interrogations. Such acts may be seen as the conduct of research and experimentation by health professionals on prisoners, which could violate accepted standards of medical ethics, as well as domestic and international law. These practices could, in some cases, constitute war crimes and crimes against humanity.

In other words, because medical professionals were intimately involved in the EIT program, and appear to have used prior experiences with individual detainees to suggest ways of increasing the effectiveness of the techniques going forward, these individuals were effectively conducting the very kind of research and experimentation that ethical codes, federal regulations, and international law all prohibit.

The Report is quite clear that many of its conclusions are based on inferences and other circumstantial evidence (much of the crucial information remains classified), and avoids reaching final conclusions as to whether any of these codes, rules, or laws were broken. Nevertheless, as the Report concludes, "a comprehensive federal investigation is required to answer the questions this evidence raises."

Regardless of whether the EITs themselves were violations of federal or international law (on this point, at least, I don't imagine I'll convince anyone of a view distinct from that which they already have), there seems far less room for debate over the propriety of human subject research and experimentation. The so-called "Common Rule," which applies to the CIA and the Department of Defense (along with a number of other major federal agencies), bars such research without the consent of the subject. And the United States was not just instrumental in creating the body of international law that prohibits the practice; it was a U.S. military commission at Nuremberg that tried 23 Nazi officials (20 of them doctors) in the "Doctors' Trial" after World War II, convicting 16 of the defendants (and executing seven) for war crimes and crimes against humanity arising out of their involvement in medical experimentation on, inter alia, concentration camp internees. In the process, the Nuremberg Military Tribunal (NMT) articulated what has since become known as the "Nuremberg Code"--10 principles to set the permissible boundaries of human subject research. We, in other words, set the precedent that such conduct by medical professionals is more than just unethical and illegal, but is in fact a war crime. [And then we watered down the War Crimes Act in the Military Commissions Act of 2006, but I digress . . .]

Given that so much of the critical information remains classified (including, as the PHR Report notes, the unclear role of OLC with regard to the medical professionals), it would be imprudent to speculate on what specifically happened, or who may actually be liable. The larger point, though, is that these charges only reinvigorate a point that I'm neither the first nor last to make: We still don't know what we don't know about the EITs, about who was behind them, and about how they were implemented. Thus, this Report is not about the well-worn debate over whether or not torture was committed, or, alternatively, whether individual techniques constituted "torture." Regardless of the legality of the individual interrogation techniques, any non-consensual medical experimentation would have been against both federal and international law. And as PHR's Report concludes,

The use of health professionals to monitor intentionally harmful interrogation techniques places them in the service of national security objectives which are in conflict with the interests of those who they are monitoring. The result has been a co-opting of health professionals by the national security apparatus and a violation of the highest medical admonition to “do no harm.” Until the questions examined in this paper are answered and, if ethical violations or crimes were committed, those responsible are held accountable, the misuse of medical and scientific expertise for expedient and non-therapeutic goals jeopardizes the ethical integrity of the profession, and the public trust in the healing professions risks being seriously compromised.

Posted by Steve Vladeck on June 7, 2010 at 12:01 PM in Constitutional thoughts, Criminal Law, Current Affairs, Steve Vladeck | Permalink | Comments (4) | TrackBack

Saturday, June 05, 2010

Samantar and the TVPA

In case you haven't noticed (as the fictional Harry Doyle would say "and, judging by the attendance, you haven't!"), I'm going to be guesting for a little while over at Balkinization. My latest post -- wondering out loud whether the Torture Victim Protection Act has a lot more to do with Monday's Supreme Court decision in Samantar than the Court itself seemed to realize, is available here.

Posted by Steve Vladeck on June 5, 2010 at 12:38 AM in Blogging, Steve Vladeck | Permalink | Comments (1) | TrackBack

Tuesday, May 25, 2010

Congressional Hearing on Stevens and the Future of "Crush Video" Legislation

Tomorrow at 10:00 a.m., I'm scheduled to testify at a hearing before the Subcommittee on Crime, Terrorism, and Homeland Security of the House Committee on the Judiciary, on the implications of the Supreme Court's decision in last month in United States v. Stevens, in which the Court invalidated the federal law banning the sale of depictions of animal cruelty

My written testimony is available here. In short, though, my view is that the decision has three significant implications going forward:
  1. In refusing to add depictions of animal cruelty to the previously identified categories of unprotected speech, the Stevens majority signaled that future legislation seeking to destroy the market for crush videos will have to survive ordinary First Amendment analysis. Since such legislation is almost certainly going to be content-based, it will have to survive strict scrutiny.
  2. As importantly, Stevens is significant because of its implicit but undeniable reaffirmation of traditional First Amendment facial overbreadth analysis, even though such analysis had fallen somewhat out of vogue in the first few terms of the Roberts Court (in favor of narrower "as-applied" challenges).
  3. Given that traditional First Amendment facial overbreadth analysis will govern, the absence of any kind of intent requirement, or at the very least, a required connection between the individual who distributes the image and the underlying act of animal cruelty, will likely prove fatal to any future attempt to ban the distribution of depictions of animal cruelty.
In addition to me, the Subcommittee will also hear from Nate Persily from Columbia Law, and J. Scott Ballenger, a partner at Latham & Watkins and counsel of record for the brief amicus curiae of the Humane Society in Stevens. Should be fun!

Posted by Steve Vladeck on May 25, 2010 at 05:00 PM in Constitutional thoughts, Criminal Law, Steve Vladeck | Permalink | Comments (0) | TrackBack

Me on Balkinization on the War on Lawyers and the 2011 NDAA

Over at Balkinization, I have a guest post up about the extremely troubling anti-lawyer language in the current draft of the National Defense Authorization Act for FY2011, and Congress's attempt to chill the work of the Guantanamo lawyers...

Posted by Steve Vladeck on May 25, 2010 at 11:04 AM in Blogging, Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink | Comments (0) | TrackBack

Monday, May 24, 2010

The ACORN Case and the Bill of Attainder Clause

In a few weeks, the Second Circuit will hear argument in an important test case for one of the less-frequently litigated constraints on Congress's power--Article I, Section 9's Bill of Attainder Clause, which generally prohibits the legislative imposition of "punishment." (Section 10 includes a similar ban on state legislatures.) What's specifically at issue are the "de-fund ACORN" provisions enacted into various of the appropriations bills passed late last year (e.g., "[n]one of the funds made available under this Act may be distributed to the Association of Community Organizations for Reform Now (ACORN) or its subsidiaries.”). 

In March, Judge Gershon of the U.S. District Court for the Eastern District of New York struck down these provisions, reasoning that they singled out ACORN for punishment, and that they could not be justified as serving a valid, non-punitive purpose. Whatever one thinks of ACORN and the charges that have been leveled against it, there's a fairly compelling argument that this is exactly why we have a Bill of Attainder Clause--to protect against the concern the Supreme Court worried about in Nixon, i,e,, “that the legislature, in seeking to pander to an inflamed popular constituency, will find it expedient openly to assume the mantle of judge or, worse still, lynch mob."

The Government's brief to the Second Circuit is here; ACORN's response is here; and I've co-authored an amicus brief on behalf of a handful of prominent constitutional law scholars (here). The briefs are worth reading in their own right, but I think it's safe to say that there are three critical questions at play:

  1. Does the Bill of Attainder Clause protect corporate entities, and not just private persons?
  2. What must Congress show to demonstrate that its purpose was not punitive? 
  3. Can the deprivation of access to governmental benefits constitute "punishment"? 

What's telling about this appeal is that the Second Circuit has already answered the first question--and in the affirmative. So if the Government is to prevail on that point, it would have to be either en banc or in the Supreme Court (as we note in our brief, both the limited case law and the deeper purpose of the Bill of Attainder Clause suggest that it should apply to any private entity susceptible to legislative punishment). And as for the third question, one of the few Supreme Court precedents on attainder--the 1946 decision in the Lovett case--seems to support the proposition that the denial of access to a benefit (there, government employment) can be "punishment." If so, then everything boils down to the second question, on which the case law is surprisingly unclear. If the standard is just rational basis review (i.e., does Congress have any plausible non-punitive purpose), it's easy to see both (1) what Congress's rational basis might have been here; and (2) why that would render the Bill of Attainder Clause all-but a dead letter. On the flip side, no court has ever suggested that strict scrutiny is the appropriate standard.


What we ended up arguing in our brief was somewhere in between, drawing an analogy to the "congruence and proportionality" standard articulated in Boerne. As we put it, "legislation challenged as imposing punishment on identifiable individuals or groups must not only have a nonpunitive purpose, but that nonpunitive purpose must itself support the singling out of the targeted individuals or groups." In other words, there's a tailoring requirement with respect to the relationship between the identified non-punitive purpose and the basis for singling out the group that is singled out. By that logic, here, Congress overstepped its bounds.


But regardless of the answer, my own view is that this question is the key, and so this case may be destined for the Supreme Court regardless of how the Second Circuit decides the Government's appeal. If, like me, you don't spend a whole lot of time (re: none) on the Bill of Attainder Clause in your Constitutional Law courses, this could certainly be a fun, intriguing, and potentially important diversion!

Posted by Steve Vladeck on May 24, 2010 at 09:26 AM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink | Comments (0) | TrackBack

Friday, May 21, 2010

Out-of-Theater Capture (or, Why Maqaleh's Narrow Reasoning Sweeps So Broadly)

Entirely appropriately, the big legal news of the day has been the D.C. Circuit's 3-0 decision in Maqaleh, rejecting the jurisdiction of the federal courts to entertain habeas petitions by non-citizens detained at Bagram. There's lots to say about Chief Judge Sentelle's opinion, much of which has already been said by others. I hope to provide more analysis over the weekend, but let me drive home one point off the top:


Although Sentelle's opinion reads like a very careful, nuanced treatment of Boumediene, and so may seem to be rejecting the extreme arguments made by both sides, there's actually very little middle ground in this case. The Court of Appeals relies heavily on the fact that Bagram is "in theater," and that this means that its analysis doesn't necessarily reach other places outside the United States where we might hold non-citizen detainees. While this is descriptively true, it belies the most significant facts of the case--that the three detainees were neither picked up in Afghanistan nor were they from Afghanistan. The fact that they were held "in theater" resulted only from the Government's decision to move them there. Thus, Maqaleh will stand for the proposition that location of capture is less important than location of detention--and that, so long as the latter is in a zone of active combat operations, there will be no habeas. 


To be fair, the panel went out of its way not to decide whether the same analysis would hold in cases where the Government seemed to be moving the detainees deliberately to avoid judicial review. But (1) how would the detainee ever prove that? And (2) why else would the Government voluntarily move detainees into a zone of active combat operations? Put another way, if this isn't that case, what will be?


At the end of his dissent in Boumediene, Justice Scalia emphasized the perverse incentive that today's decision supports. As he put it, had the executive branch known that Guantanamo would be "special," "the military surely would not have transported prisoners there, but would have kept them in Afghanistan, transferred them to another of our foreign military bases, or turned them over to allies for detention. Those other facilities might well have been worse for the detainees themselves." 

Indeed.


Update: Just to clarify, let me note that the one case this logic would not apply to is a case where the detainee is picked up somewhere where there would be habeas jurisdiction (e.g., inside the U.S.). There, precedent is fairly clear that the Government can't transfer to defeat jurisdiction. But any non-citizen picked up anywhere else in the world could be held in Afghanistan, and, according to the D.C. Circuit, beyond the process of U.S. courts.

Posted by Steve Vladeck on May 21, 2010 at 03:08 PM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink | Comments (11) | TrackBack

Thursday, May 20, 2010

VOPA v. Reinhard and Ex parte Young: Why Cert. Should (and Will) Be Granted

For Federal Courts fans, one of the more intriguing cases in which a cert. petition is currently pending is a little-noticed lawsuit out of the Fourth Circuit, Virginia Office of Protection & Advocacy v. Reinhard. In Reinhard, the Fourth Circuit, in an opinion by Judge Wilkinson, held that state-created public agencies are not entitled to invoke the Ex parte Young exception to Eleventh Amendment immunity in suits against state officials in their official capacities--that sovereign immunity in general precludes the federal courts from resolving such "intramural" conflicts, even those arising under federal law.


To be blunt, such a conclusion is rather inconsistent with the doctrine of Ex parte Young (which has never looked to the identity of the plaintiff, but has instead turned on what Justice Scalia described in 2002 as "a straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective."). More than just a problematic application of Ex parte Young, though, such analysis could also open the door for courts to identify additional previously unrecognized requirements for Young actions. With those concerns in mind, Reinhard first unsuccessfully sought rehearing en banc (with the support of the United States as amicus curiae), before filing a petition for certiorari. [Full disclosure: I co-authored an amicus brief on behalf of a group of federal courts scholars in support of certiorari.]


Rather than dispose of the cert. petition, the Court called in January for the views of the SG as to whether cert. should be granted. This maneuver was particularly curious at the time, since the Government had already taken a position in this case--arguing in favor of rehearing en banc in the Court of Appeals. Thus, whether or not the Court would be swayed by the SG's view as to cert., it seemed rather clear what that view would be.


But, although the government has yet to share its views, a little-noticed development three weeks ago probably sealed the deal: The Seventh Circuit, sitting en banc in Indiana Protection & Advocacy Services v. Indiana Family & Social Services Admin., expressly disagreed with the Fourth Circuit's analysis. Although Judge Easterbrook dissented from other parts of the opinion (which was otherwise 8-1), the Seventh Circuit was unanimous in concluding that state-created agencies may, in fact, invoke Ex parte Young against their own state's officers, especially to enforce the statute at issue in these cases--the Protection and Advocacy for Individuals With Mental Illness (PAIMI) Act. Indeed, as Judge Hamilton explained,

Indiana's use of IPAS's status as an independent state agency to support the State's late reliance on the Eleventh Amendment to block this lawsuit also seems, frankly, unfair. Congress gave each state the choice to establish a protection and advocacy system as either an independent state agency or a private not-for-profit entity. Indiana made the choice to set up IPAS as an independent state agency. If we gave that choice any weight in the Eleventh Amendment inquiry, we would be permitting Indiana to use its own choice to set up an independent state agency as a means to shield its state hospitals and institutions from the very investigatory and oversight powers that Congress funded to protect some of the state's most vulnerable citizens. That result would be strange indeed. The combination, moreover, of the state's choice to set up an independent agency and its failure to raise the Eleventh Amendment issue itself also makes it difficult to see how this lawsuit poses a serious threat to any special sovereignty interest of the state.

Whatever the merits, then, there is now a clear and sharp circuit split on a potentially significant--but usefully narrow--question concerning the scope of Ex parte Young remedies. Moreover, the split is among judges whose views tend to receive particular attention on the Court--Posner and Easterbrook in support of the Seventh Circuit's analysis (Posner penned a separate concurrence); Wilkinson in the other direction. Finally, the Supreme Court has not really taken a significant state sovereign immunity case since Justice O'Connor's parting gift in Central Virginia Community College v. Katz in 2006. It will be interesting to see whether the three new Justices (and by then, perhaps four) have views that materially differ from their predecessors. [In 2006, then-Judge Sotomayor wrote an opinion for the Second Circuit closely resembling the Seventh Circuit's analysis in IPAS.]


One last thought: Because the SG's office no doubt authorized the government's amicus brief in the Fourth Circuit, it's entirely possible that, if confirmed, then-Justice Kagan would recuse. I still don't think that hurts the chances for cert., though. After all, Justices Scalia and Thomas have repeatedly written in favor of the traditional understanding of Ex parte Young, and, of the current Justices, only Justice Kennedy seems more positively disposed toward Judge Wilkinson's approach.


All of this is a long way of saying that I suspect there will be some fun and serious heavy lifting later this year on the continuing meaning, relevance, and force of Ex parte Young. Future Federal Courts students, beware! 

Posted by Steve Vladeck on May 20, 2010 at 02:49 AM in Constitutional thoughts, Steve Vladeck | Permalink | Comments (3) | TrackBack

Friday, May 14, 2010

Judge Brown's Sleight-of-Hand in Al-Bihani--And Why It Matters...

It can be very difficult these days to follow all of the developments in the Guantanamo litigation, even for those of us who are fairly active in it.  Thus, I thought I'd take a minute to blog about the Government's very significant brief in response to the Petition for Rehearing En Banc in al-Bihani v. Obama, filed yesterday in the D.C. Circuit (and discussed by Lyle Denniston @ SCOTUSblog here).  [Full disclosure: I co-authored an amicus brief in support of rehearing en banc.]

The Government's brief is telling in two distinct respects.  First, as Lyle notes, the Government all-but concedes the principal ground on which al-Bihani is seeking rehearing en banc -- i.e., that the panel's sweeping holding that detention authority under the September 2001 Authorization for Use of Military Force (AUMF) is not informed (or constrained) by the laws of war is thoroughly inconsistent with the Supreme Court's analysis in Hamdi (and, to a lesser extent, Hamdan). 


But the second telling feature of the Government's brief, which is perhaps even more significant, is its full-bore defense of the al-Bihani panel's procedural discussion (which held, in effect, that Guantanamo detainees are entitled to exceedingly few procedural protections in their habeas cases notwithstanding Boumediene). In particular, at page 13 of their brief (page 17 of the PDF), the Government notes that "The panel simply recognized – correctly – that the habeas review mandated by Boumediene need not match the procedures that apply to habeas challenges to criminal convictions."


This statement is an entirely fair summary of what the al-Bihani majority actually held. But, like the panel opinion itself, it is an incredibly deceptive reading of Boumediene. Here's the relevant passage from al-Bihani, with citations omitted (and emphasis added):

Habeas review for Guantanamo detainees need not match the procedures developed by Congress and the courts specifically for habeas challenges to criminal convictions. Boumediene’s holding explicitly stated that habeas procedures for detainees "need not resemble a criminal trial." It instead invited ‘‘innovation’’ of habeas procedure by lower courts, granting leeway for ‘‘[c]ertain accommodations [to] be made to reduce the burden habeas corpus proceedings will place on the military.’’ Boumediene’s holding therefore places Al–Bihani’s procedural argument on shaky ground. The Suspension Clause protects only the fundamental character of habeas proceedings, and any argument equating that fundamental character with all the accoutrements of habeas for domestic criminal defendants is highly suspect.

Do you see the sleight-of-hand? In the quoted passage, Boumediene was referring to the procedural protections that attach to criminal trials themselves, not to "habeas challenges to criminal convictions." Indeed, the procedural protections that attach to post-conviction proceedings (especially non-capital cases) pale in comparison to those that the Constitution and various statutes require in criminal trials, especially these days. So, the al-Bihani majority conflated criminal trials with criminal (post-conviction) habeas, suggesting that, because Boumediene held that Guantanamo habeas petitions need not have the protections attendant to criminal trials, they also need not have the (far lesser) protections attendant to post-conviction habeas petitions.


More than that, though, a closer read of Boumediene suggests that the opposite should be true--i.e., that more process is due in the context of Guantanamo habeas than normal post-conviction habeas. Consider this (long) passage from Justice Kennedy's opinion:

[W]here relief is sought from a sentence that resulted from the judgment of a court of record, . . . considerable deference is owed to the court that ordered confinement. Likewise in those cases the prisoner should exhaust adequate alternative remedies before filing for the writ in federal court. Both aspects of federal habeas corpus review are justified because it can be assumed that, in the usual course, a court of record provides defendants with a fair, adversary proceeding. In cases involving state convictions this framework also respects federalism; and in federal cases it has added justification because the prisoner already has had a chance to seek review of his conviction in a federal forum through a direct appeal. 

The present cases fall outside these categories, however; for here the detention is by executive order. Where a person is detained by executive order, rather than, say, after being tried and convicted in a court, the need for collateral review is most pressing. A criminal conviction in the usual course occurs after a judicial hearing before a tribunal disinterested in the outcome and committed to procedures designed to ensure its own independence. These dynamics are not inherent in executive detention orders or executive review procedures. In this context the need for habeas corpus is more urgent. The intended duration of the detention and the reasons for it bear upon the precise scope of the inquiry. Habeas corpus proceedings need not resemble a criminal trial, even when the detention is by executive order. But the writ must be effective. The habeas court must have sufficient authority to conduct a meaningful review of both the cause for detention and the Executive’s power to detain.

In short, then, Boumediene contemplated more process for the Guantanamo detainees than typical post-conviction cases, not less. Thus, the baseline of the D.C. Circuit's analysis in al-Bihani is fundamentally flawed, in ways that could deeply prejudice current and future cases. What's worse, whether the panel's misreading of Boumediene was accidental or deliberate, the Government compounds the error by invoking it as a reason for denying rehearing en banc.


There are still hard questions in these cases about how much process is due. But al-Bihani badly misread Hamdi on the relevance vel non of the laws of war, and misread Boumediene even more fundamentally on the underlying baseline for assessing the appropriate procedural protections. It's baffling to me that the Government would (1) concede the former, but not the latter; and (2) still oppose rehearing en banc anyway.

Posted by Steve Vladeck on May 14, 2010 at 10:07 AM in Constitutional thoughts, Criminal Law, Current Affairs, Steve Vladeck | Permalink | Comments (2) | TrackBack

Thursday, May 13, 2010

Announcement: Third Annual Junior Federal Courts Faculty Workshop

I'm very pleased to post the following announcement from my friend and colleague Jamelle Sharpe from the University of Illinois. My colleague Amanda Frost and I put on the "first" of these shindigs two years ago, and it's a real joy to see the continuing success of this venture:


The Third Annual Junior Federal Courts Faculty Workshop 


The University of Illinois College of Law is pleased to announce that the Third Annual Junior Faculty Federal Courts Workshop will take place at the Club Quarters, Central Loop, 111 W. Adams St., Chicago, IL on October 7-8, 2010.  Last year’s workshop, held in October 2009 at the Michigan State University College of Law, was a resounding success attended by junior scholars from 30 law schools, resulting in publications in numerous preeminent journals. We aim to continue this tradition.  


The workshop pairs junior and senior, federal courts scholars in a day-long, works-in-progress workshop. Senior scholars who have confirmed their attendance for this year’s workshop are Richard Freer (Emory School of Law), Jim Pfander (Northwestern Law School), Martin Redish (Northwestern Law School), and Louise Weinberg (University of Texas School of Law).


Workshop Agenda


Drafts of papers will be distributed to participants prior to the workshop, which begins with dinner on Thursday, October 7. On Friday, October 8, following breakfast, two panels of junior scholars, composed of three to four persons each, will present papers in the morning.  After lunch, two panels of junior scholars will present papers in the afternoon.  Each panel will be assigned a senior scholar who will provide commentary on the paper and lead the group discussion.  


The workshop is open to non-tenured, or newly tenured, academics who teach Federal Courts (or an equivalent course) or whose scholarly agenda encompasses topics ordinarily associated with such a course.  Those who do not currently hold a faculty appointment but expect that they will during the 2011-2012 academic year are also welcome.  There is no registration fee for this workshop.


Meals and Accommodations

The University of Illinois College of Law is pleased to provide all the attendees with meals while attending the workshop. Additionally, the College of Law has arranged for the Club Quarters to provide a block of rooms for workshop attendees at a discounted rate.  Please see the workshop website listed below for more information. 

Registration and Abstract Submissions

Those who plan to attend the workshop are asked to fill out the workshop’s online registration form, which is located at http://www.law.uiuc.edu/faculty-admin/federal-court-workshop.asp no later than July 31, 2010.

Persons wishing to present a paper may upload an abstract to the workshop’s online registration page, or e-mail it to Jamelle C. Sharpe at [email protected].  All abstracts must be submitted by June 30, 2010.  A committee of past participants will select papers no later than July 15, 2010.

Posted by Steve Vladeck on May 13, 2010 at 06:57 PM in Steve Vladeck, Teaching Law | Permalink | Comments (0) | TrackBack

Thursday, May 06, 2010

More on the Terrorist Expatriation Act: The Vagaries of Material Support

As I noted earlier, much attention inside the beltway today has been on the proposed Terrorist Expatriation Act, introduced this afternoon by Senators Lieberman and Brown (along with a host of House members). In my first post, I outlined the most striking problem with the bill -- the fact that it doesn't require a conviction, but rather a mere administrative determination by the Secretary of State that one has provided material support to a designated foreign terrorist organization.

To be clear, though, I believe that the bill would be pretty terrifying even if it made denaturalization or expatriation contingent upon a conviction for violating the material support statutes, 18 U.S.C. 2339A and 2339B, for three reasons I'd like to briefly lay out below:

First, I have trouble, in general, with the proposition that breaking a criminal law provides the requisite "voluntariness" that the Supreme Court has always held to be the touchstone for denaturalization or expatriation. It's one thing to take an oath to support a foreign sovereign, or to enlist in the armed forces of a foreign state (that's not even enough, by the way, under Section 1481, unless we're at war with said state). But committing a crime under U.S. federal law could have any number of motivations, none of which have anything to do with a specific intent to renounce one's citizenship. So, part of my problem is with all of Section 1481(a)(7), and the notion that a criminal conviction is ever sufficient to justify denaturalization or expatriation.

But even if some crimes could be taken as manifesting that intent (treason being the most obvious example), presumably there must be some element of the crime that presupposes a desire actively to wage war against the United States. And that brings me to...

Second, even if some crimes embrace the kind of affirmative renunciation of adherence to the United States sufficient to constitute "voluntary" denaturalization or expatriation, it seems to me that those crimes must include as elements (1) an intent to engage in hostilities against the U.S. government; and (2) affirmative conduct in furtherance of that intent.  Providing material support to terrorist organizations under 2339B includes no such requirements. Rather, it requires only that the defendant knowingly provide "any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, . . . and transportation, except medicine or religious materials." It's a bit more technical than that, but you get the gist. The support need not be violent, and, as importantly, it need not be with the intent of harming the United States, let alone supporting hostilities against the United States. Thus, if "material support" can be a crime that subjects a defendant to denaturalization or expatriation, it's hard to imagine a violation of federal law that couldn't be.

Third, and more specifically with regard to the material support statute, there are substantial (pending) issues with regard to its scope, given that the Ninth Circuit invalidated the "service," "training," and "expert advice or assistance" provisions on vagueness grounds.  That ruling is the subject of the Humanitarian Law Project case currently before the Supreme Court that I referenced earlier, one particular snippet of which bears mention here:

At one point, Justice Kennedy asked Solicitor General Kagan if filing an amicus brief on behalf of a designated foreign terrorist organization would constitute "service" under 2339B, and thereby subject the brief's author to criminal prosecution [see pg. 47 of the transcript]. General Kagan's answer, to perhaps everyone's surprise, was "yes." Specifically, as she put it, "to the extent that a lawyer drafts an amicus brief for the [designated groups], . . . then that indeed that would be prohibited."

So, putting this all together, under the prevailing view of the material support statute, a lawyer who files an amicus brief on behalf of a designated foreign terrorist organization could not just be prosecuted for violating 2339B, but could be expatriated (under the Lieberman bill), and without even having to go through the hassle of a criminal trial.  I guess that's one way to get rid of the lawyers...

Lots of people far more eloquent and erudite than I am have written passionately about the signal importance of the Citizenship Clause of the Fourteenth Amendment.  And there are any number of epigraphs one could select from the Supreme Court's jurisprudence interpreting that provision (and extolling its significance).  All I'll say here is that we start to enter exceedingly dangerous territory when we discuss relaxing time-honored standards for depriving our fellow citizens of their birthright. If they are guilty of the crimes with which they are charged, then they should spend a very long time in prison. As American citizens.

Posted by Steve Vladeck on May 6, 2010 at 09:38 PM in Constitutional thoughts, Criminal Law, Current Affairs, Steve Vladeck | Permalink | Comments (1) | TrackBack

Why the Terrorist Expatriation Act is Unconstitutional: Early Thoughts

D.C. is atwitter today with news of Congress's latest foray into counterterrorism policy: the Terrorist Expatriation Act of 2010, a measure introduced by Senator Lieberman (with bipartisan and bicameral support) that would provide for the denaturalization or expatriation of a U.S. citizen upon a finding by the Secretary of State that s/he has provided material support to terrorism, in violation of the federal material support statutes (18 U.S.C. 2339A and 2339B). (I'll try to link to authoritative text once it's available.)

Leaving aside the myriad issues with the material support statutes (several of which are currently before the Supreme Court in the Humanitarian Law Project case), it strikes me that there is an obvious flaw in the bill:

Under existing law (see 8 U.S.C. 1481), citizens can be denaturalized or expatriated if they commit one of seven sets of acts. The first six are all classical examples of voluntary indicia of a citizen's intent to adhere to a foreign nation, including "taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof, after having attained the age of eighteen years," or "entering, or serving in, the armed forces of a foreign state if (A) such armed forces are engaged in hostilities against the United States, or (B) such persons serve as a commissioned or non-commissioned officer," among others. Voluntariness, as the Supreme Court has repeatedly held, is the constitutional predicate to denaturalization or expatriation.

The seventh category is the tricky one.  

Pursuant to it, citizens can be denaturalized or expatriated by

committing any act of treason against, or attempting by force to overthrow, or bearing arms against, the United States, violating or conspiring to violate any of the provisions of section 2383 of Title 18, or willfully performing any act in violation of section 2385 of Title 18, or violating section 2384 of Title 18 by engaging in a conspiracy to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, if and when he is convicted thereof by a court martial or by a court of competent jurisdiction.

The emphasis is my own, and it highlights the key language--that one can be denaturalized or expatriated only _after_ a conviction, which requires proof beyond a reasonable doubt (and, in the case of treason, the testimony of two witnesses to the same overt act).

Whatever one may say about analogies (or the lack thereof) between providing material support to terrorism and the egregious offenses delineated in 1481(a)(7) (more on that later), it strikes me as a monumentally significant distinction to allow denaturalization or expatriation based not on conviction for a crime, but merely the Secretary of State's administrative finding that you have provided material support to designated foreign terrorist organizations.

Don't get me wrong--I'd have issues with the TPA even if it required a conviction under 18 U.S.C. 2339A or 2339B before expatriation or denaturalization. But those issues simply pale in comparison to the problems with the bill as currently drafted.

Update: Here is a link to the bill.

Update II: Because I couldn't resist, here is the Supreme Court from Kennedy v. Mendoza-Martinez (1963), a remarkably comparable case: "[T]he Fifth and Sixth Amendments mandate that this punishment cannot be imposed without a prior criminal trial and all its incidents, including indictment, notice, confrontation, jury trial, assistance of counsel, and compulsory process for obtaining witnesses. If the sanction these sections impose is punishment, and it plainly is, the procedural safeguards required as incidents of a criminal prosecution are lacking."


Posted by Steve Vladeck on May 6, 2010 at 02:21 PM in Constitutional thoughts, Criminal Law, Current Affairs, Steve Vladeck | Permalink | Comments (3) | TrackBack

Tuesday, January 05, 2010

Al-Bihani, "Common-Law" Habeas, and a Plug for an AALS Panel

If you have a chance, it's worth reading today's D.C. Circuit opinion in Al Bihani v. Obama, by far the most important decision vis-a-vis Guantanamo from a federal court in the almost 19 months since Boumediene. Lyle Denniston already has a thorough summary here, and Deborah Pearlstein has some thoughts on, inter alia, the hard-to-follow (if not non-sensical) international law discussion here.

I wanted to write separately, though, to flag Judge Brown's separate (and solo) concurrence. Although there have been suggestions almost since Boumediene that Congress should get more involved in these cases by providing clearer substantive and procedural rules to govern habeas petitions brought by detainees (e.g., this op-ed by Ben Wittes and Jack Goldsmith), Judge Brown seems to think that there is little for courts to do in the interim--that "common law habeas" is not the appropriate forum within which to have these rules articulated by courts.  First, there is this passage on page 1 of her opinion:

it is important to ask whether a court-driven process is best suited to protecting both the rights of petitioners and the safety of our nation. The common law process depends on incrementalism and eventual correction, and it is most effective where there are a significant number of cases brought before a large set of courts, which in turn enjoy the luxury of time to work the doctrine supple. None of those factors exist in the Guantanamo context. The number of Guantanamo detainees is limited and the circumstances of their confinement are unique. . . . And, in the midst of an ongoing war, time to entertain a process of literal trial and error is not a luxury we have.

Then, there is this passage on page 2:

War is a challenge to law, and the law must adjust. It must recognize that the old wineskins of international law, domestic criminal procedure, or other prior frameworks are ill-suited to the bitter wine of this new warfare. We can no longer afford diffidence. This war has placed us not just at, but already past the leading edge of a new and frightening paradigm, one that demands new rules be written. Falling back on the comfort of prior practices supplies only illusory comfort.

To me,there is an enormous difference between the normative desirability of having Congress legislate here and the role the courts should play in the absence of legislation. Unless Boumediene is wrong -- and the D.C. Circuit is hardly in a position to say that it is -- then I think it's clear that the Constitution requires the courts to do what the D.C. district court has spent the last year and a half doing, and that, absent more specific legislation, courts have both the ability and the responsibility to balance the rights of the detainees with the government's national security concerns.

Put differently, while I think we can all have different views about whether the district courts have been getting the answers right in the post-Boumediene cases, and on whether we'd be better off with clearer statutory rules from Congress, we have the hand that we've been dealt. What is the alternative here? No judicial review for anyone? There is a lot about today's majority opinion that is, in my view, incorrect. But Judge Brown's concurrence is, to me, dangerous and myopic. What's the point of having habeas corpus at all if it's not up to courts to fill in the gaps left by the political branches?

All of this leads me to a plug for one of the three panels I'll be participating in at AALS: Friday afternoon, from 4 to 5:45 p.m., the Section on Legal History is holding a session on "Habeas Corpus: The Enduring Issues." In particular, one of my favorite scholars -- Eric Freedman from Hofstra -- and I will be presenting new work we've both been doing on habeas's history, with Bob Cottrol from George Washington moderating. Both Eric and I plan to explain the relationship between some of the new history being written (especially by Eric and by Paul Halliday at UVa) and the contemporary cases, and I suspect Al-Bihani will now get added to the mix as well. Not to give too much away, but I think it is safe to say that Eric and I both believe that "common law" habeas is a critical part of our constitutional system, and one that has been neglected by courts and commentators largely because of fortuitous circumstances that, until recently, rendered it unnecessary

Posted by Steve Vladeck on January 5, 2010 at 04:37 PM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink | Comments (0) | TrackBack

Tuesday, December 15, 2009

A Quick Thought on Thomson, Padilla, and Ex parte Endo

With today's news that some large percentage of the individuals still detained at Guantanamo are going to be relocated to a federal prison in Thomson, Illinois comes the obvious (if geeky) jurisdictional question: Does this mean that all of the habeas petitions in these cases currently pending before the D.C. district court will have to be be transferred to the U.S. District Court for the Northern District of Illinois (and then, presumably, the Seventh Circuit)? [See 28 U.S.C. 93(a)(2) -- Thomson is in Carroll County.] If so, that's an awful lot of heavy lifting and wasted effort, given how much time and energy the D.D.C. judges have devoted to these cases in the past eighteen months.

The answer, I think, is no, even in light of the Supreme Court's 2004 decision in Rumsfeld v. Padilla.  There, the Court held that a habeas petitioner must name his "immediate custodian" as the respondent, and that the district court must have personal jurisdiction over _that_ official in order to have jurisdiction over the petition. [The rule doesn't apply in cases in which no district court has personal jurisdiction over the immediate custodian, which is how the Guantanamo cases ended up in D.D.C. in the first place.]

So, it seems clear that, were a Thomson detainee to file a new habeas petition, it would have to be filed in the Northern District of Illinois. But what about pending petitions? The Court in Ex parte Endo (the companion case to Korematsu) held that transfer outside the district cannot defeat jurisdiction so long as the district continues to have jurisdiction so long as _someone_ "in whose custody [the petitioner is] remains within the district." As Chief Justice Rehnquist more succinctly described in Padilla, "Endo stands for the important but limited proposition that when the Government moves a habeas petitioner after she properly files a petition naming her immediate custodian, the District Court retains jurisdiction and may direct the writ to any respondent within its jurisdiction who has legal authority to effectuate the prisoner's release."

All this means that the pending cases can--and will--remain in D.D.C.  But it also suggests that there is no barrier to a detainee filing a new petition (perhaps raising a conditions of confinement claim) in a jurisdiction that might be more receptive to the argument that the petitioner has some modicum of constitutional rights (an argument rejected by the D.C. Circuit in Kiyemba I), especially once the petitioner is physically present within the United States.

Posted by Steve Vladeck on December 15, 2009 at 03:02 PM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink | Comments (0) | TrackBack

Friday, October 23, 2009

MCA 2009: (Accidentally) Opening the Collateral Review Floodgates?

Any moment now, the National Defense Authorization Act for Fiscal Year 2010 is going to become law, and with it, Title X, Subtitle D thereof, better known as the Military Commissions Act of 2009. (I'll try to post authoritative text once I see it). [Update: I'm reliably informed that this is the language that passed the Senate Thursday night.]

There is a lot to say about the new Military Commissions Act, and both how it differs from and how it is distressingly comparable to the Military Commissions Act of 2006.  In particular, I am disappointed that the 2009 MCA doesn't make much more than a token effort to harmonize either the personal or subject-matter jurisdiction authorized by Congress in 2006 with that which is recognized under international humanitarian law, even though my own view is that Congress lacks the constitutional authority to subject to military jurisdiction (1) individuals who are not belligerents under IHL; for (2) offenses that are not violations of the laws of war.

To be sure, folks may disagree with me on these points, but I think it's at least an open question whether Congress may confer jurisdiction over military commissions that is at least arguably inconsistent with IHL.

And yet, as I've written about previously, one of the most distressing features of the 2006 MCA is the extent to which it precludes "collateral" challenges to the jurisdiction of military commissions, through the provision that was codified at 10 U.S.C. § 950j(b):

Except as otherwise provided in this chapter and notwithstanding any other provision of law (including section 2241 of title 28 or any other habeas corpus provision), no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action whatsoever, including any action pending on or filed after the date of the enactment of the Military Commissions Act of 2006, relating to the prosecution, trial, or judgment of a military commission under this chapter, including challenges to the lawfulness of procedures of military commissions under this chapter.

There is fairly compelling pre-MCA precedent that individuals may use habeas corpus collaterally to attack the jurisdiction of a military tribunal before trial (precedent that arguably calls the constitutionality of this provision into question). Nonetheless, two different district court judges threw out such challenges to post-MCA commissions (in Hamdan and Khadr, respectively), holding that any such claims had to be brought on post-conviction appeal.

Well, here's the punchline: The MCA 2009 rewrites 10 U.S.C. § 950, and leaves what was 10 U.S.C. § 950j(b) out altogether. Not only that, but the MCA 2009 reincorporates what had been 10 U.S.C. § 950j(a) word-for-word as new 10 U.S.C. 950i, suggesting that Congress did not simply forget this provision altogether.

Why does this matter? Because as a result, there is no longer a statutory bar to a Guantanamo detainee mounting a pre-trial challenge to the jurisdiction of a military commission. As a result, any defendant with such a claim may now go directly to the D.C. district court (or, as in bin al Shibh, pursue mandamus relief in the D.C. Circuit), rather than waiting for proceedings in the military commission to run their (slow and unpredictable) course.

I, for one, am glad that the serious jurisdictional questions raised by the MCA might finally receive a full airing, whatever their ultimate answer turns out to be.  That being said, it's hard to believe Congress actually intended this.. Floodgates, consider yourselves opened.

Posted by Steve Vladeck on October 23, 2009 at 01:24 AM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink | Comments (0) | TrackBack