PrawfsBlawg

The Moment of Truth for Military Commissions, and the Jurisdictional Bar that Might Get in the Way...

How Appealing and SCOTUSblog have both already noted the petition for a writ of mandamus filed yesterday in the D.C. Circuit by military lawyers for Ramzi Bin Al-Shibh, seeking to have some of the central provisions of the Military Commissions Act of 2006 invalidated -- and seeking, in effect, to bring the military commission process to a screeching halt.  As the petition argues,

Not only is the MCA unconstitutional on its face, but the proceedings themselves have been “irregular” in every sense. In fact they have been a travesty of justice, a “system” -- in the military judge’s own words -- “in which uncertainty is the norm and where the rules appear random and indiscriminate.”

I happen to think there is substantial merit to many of the substantive arguments advanced in the petition, for reasons I hope to write more about next week.  In the interim, though, I wanted to flag what I suspect the government's response will harp upon -- the argument that the D.C. Circuit lacks jurisdiction to even consider the petition's claims.

Although the Military Commissions Act confers jurisdiction upon the D.C. Circuit to review final judgments of military commissions, it constrains both the scope and timing of that jurisdiction (see 10 U.S.C. 950g). Mandamus might lie in any event under the All Writs Act (if the underlying claims have merit), since there is a solid argument that it would be appropriate to protect the appellate jurisdiction that the MCA already gives the D.C. Circuit after the fact. 

The problem is a separate provision of the MCA -- 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 . . . 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.

Bin Al-Shibh's petition offers several arguments for why 950j(b) may not apply to his case.  If it does, though, it may well be unconstitutional. I have argued elsewhere that part of what the Suspension Clause protects is a right to collaterally attack one's amenability to military jurisdiction--and to do so before trial, to vindicate one's right not to be tried. If that's true (the Supreme Court has often hinted at this, but never explicitly so held), then 950j(b) would be unconstitutional to the extent that it precludes pre-trial challenges that go to the commission's jurisdiction.

So, this may be the moment of truth for military commissions--or, at the very least, for whether those who are protected by the Suspension Clause have a concomitant right to contest the jurisdiction of a military tribunal before being subjected thereto...

An Unusual (and Uncomfortable) Appointments Question

One of the many joys of serving on a hiring committee (which I've been privileged enough to do three of my five years in the academy, including this year) is the chance to see familiar names (and, eventually, faces) among the massive stacks of resumes. It's always a treat to see the interesting work that old comrades have been doing -- only the more so when that work also catches the eye of other members of your committee.

Knowing lots of people in the pool, though, raises a potential problem that I hadn't encountered (or even anticipated) until recently: What should you do when you come across representations in a candidate's FAR form (or resume) that you know for a fact are either incorrect or at the very least seriously misleading? Some are easy enough to check (e.g., whether an article was co-authored; whether it was a student note; etc.). For others, though (e.g., employment information), what's obvious to me (e.g., that the candidate misrepresented the nature of their position, or the reason for termination, etc.) might be very difficult for those unfamiliar with the candidate to check, especially if that employer isn't one of their references.

So what's my responsibility in that instance? If other members of my committee want to consider that candidate, do I have a responsibility to tell them that I think the candidate is misrepresenting something? If the candidate doesn't grab our attention, do I just snicker to myself and move on? Has anyone encountered a similar problem before?

Chief Judge Easterbook and the Problem of Amicus Briefs Supporting Rehearing En Banc

Thanks to Howard Bashman, I just stumbled across this "in-chambers" opinion filed yesterday by Chief Judge Easterbook, explaining why he rejected as untimely an amicus brief filed in support of a petition for rehearing en banc in the Seventh Circuit [disclaimer: I know nothing about the case on which rehearing has been sought, and have not read the briefs].  According to Easterbook, amicus briefs in support of rehearing en banc must be filed no later than the petition for rehearing itself, notwithstanding Fed. R. App. P. 29(e), which provides that “[a]n amicus curiae must file its brief, accompanied by a motion for filing when necessary, no later than 7 days after the principal brief of the party being supported is filed.” (A deadline with which the amici in this case complied, at least vis-a-vis the petition for rehearing.) For Easterbook, the "principal brief" is not the petition for rehearing (which, he argues is not even a "brief"), but the opening merits brief of the party before a three-judge panel.

Leaving aside the expediency-based reasons that Judge Easterbook invokes to support his reading of Rule 29(e) (at least some of which strike me as easily preserved through other means), this strikes me as a ruling that is both silly and likely to cause mischief: Silly because a petition for rehearing en banc is very much a "brief," full of legal arguments for why the original panel opinion should be reconsidered by the entire court. Indeed, is a "petition for certiorari" any less a brief because it is a "a request for discretionary relief" that's not called a "brief"?

And it's likely to cause mischief because one of the central utilities of amicus briefs is to advance arguments _not_ made in the relevant filing by the party (and how could the amicus know what the party was arguing before their brief is actually filed?). Instead, Easterbrook's bizarre reading will encourage the very kind of substantive and logistical coordination between parties and their potential amici that both the FRAP and the Supreme Court's rules in various places (rightly, in my mind) attempt to discourage.

I have a great deal of respect for Chief Judge Easterbrook, but this strikes me as a very unfortunate ruling--and one that I hope his colleagues successfully persuade him to reconsider.

Certifying Questions to the Supreme Court: Is Seale the Perfect Storm?

By now, you've surely learned from How Appealing or SCOTUSblog of the en banc Fifth Circuit's decision to certify to the Supreme Court the following question: "What statute of limitations applies to a prosecution under 18 U.S.C. § 1201 for a kidnaping offense that occurred in 1964 but was not indicted until 2007?"

The merits of this question aside, and the broader political significance of the prosecution of James Ford Seale (in which it arises) notwithstanding, it strikes me that this provides a rare opportunity to reflect upon the utility of this oddest of vehicles through which to obtain Supreme Court review.

The last time the Supreme Court accepted a certified question from a court of appeals was in 1981, in the immediate aftermath of Dames & Moore v. Regan (a case that came to the Court in one big hurry).  In a related (but distinct) case arising out of the Second Circuit (Iran National Airlines Corp. v. Marschalk Co.), the Court answered three questions, two with one word ("yes"), and with cursory citations to Dames & Moore, and a third with a short explanation and a cite. Three Justices (led by Powell) dissented, arguing that the wiser course would have been simply to vacate and remand the Second Circuit's decision for further consideration in light of Dames & Moore, rather than answering the questions abstractly (and without the benefiit of additional briefing and argument).

To me, at least, Powell had it exactly right. Indeed, the Court's far-more-common practice is (as it was in 1981) to send cases back down for full reconsideration (and new briefing in light of the intervening decision) on the assumption that the issues might differ, if ever so slightly (in my view, at least, this was true in Marschalk).  One might justify what the Court did in Marschalk as stemming from the same pressures that led to the quick and decisive resolution of the Iranian claims isssue that prompted Dames & Moore itself, but in the typical case, a "GVR" in light of the new decision seems right on.

Same, too, with the most recent well-known effort by a court of appeals to have the Supreme Court answer a certified question -- the en banc Second Circuit's 2005 certificate in United States v. Penaranda, asking the post-Blakely sentencing question that the Court would soon answer in Booker. There, it was only a matter of time before the question presented would arise on the merits of a properly presented cert. petition, and so the Court knew it could wait, however briefly, for the issue to ripen.

In marked contrast, here we have a pure, discrete, stand-alone legal question wholly unrelated to any other cases currently pending before the Court, and one that would, for obvious reasons, materially advance (and perhaps pretermit) the litigation in the lower courts (the original Fifth Circuit panel would have acquitted Seale). 

To be sure, it would be better if the Fifth Circuit was not evenly divided and was capable of resolving this question on the merits. But where the court of appeals can't act, where the defendant has already been convicted under the arguably time-barred claim, and where the issue may not properly come to the Court in a cert. petition before the defendant is potentially harmed by such a result, it strikes me that we might have the perfect facts for certification.

Put another way, if certification is ever going to be used again, isn't this the case for it?

Can a District Court Commit "Plain Error" By Choosing One Side of a Circuit Split?

This is the fascinating issue that divides a panel of the D.C. Circuit in a decision handed down today. The specific question is whether federal sentencing law bars a district court from choosing a longer jail sentence in order to further the defendant's opportunities for rehabilitation.  The majority (Judges Tatel and Garland) answers this question in the affirmative, reasoning that the plain language of 18 U.S.C. 3582(a) compels such a conclusion. 

But whatever the merits of their (persuasive) analysis, what makes this case interesting (at least to me) is that the court finds that the district court's error (in concluding to the contrary) was "plain," even though, as the majority points out, there is a circuit split on the question. As Judge Henderson objects in her dissent, "Whoever has the better reading [of the statute], courts have read it differently—and with conflicting results—which manifests, at least to me, that any court that has read it erroneously has not done so plainly."

Is Judge Henderson right that it is generally inappropriate, on plain error review, to find such "plain" error where the district court relied on precedent from several circuits? Or, to the contrary, is it refreshingly honest for one circuit court to admit, however implicitly, that its sister circuits are sometimes "plainly" wrong? I tend toward the latter view (after all, precedent should never be followed blindly), but think this is a fascinating issue that may well warrant further discussion.

Trying Terrorism Suspects in Article III Courts

In April, I participated in a workshop convened by the ABA Standing Committee on Law and National Security on "Trying Terrorists in Article III Courts" that brought together 33 judges, prosecutors, defense attorneys, other governmental counterterrorism officials, and academics to discuss both the pros and cons of using the Article III civilian courts to prosecute terrorism suspects currently detained without charges at Guantanamo and elsewhere.

One of the fruits of that workshop -- the workshop report -- was released today, and is available here. [The ABA release is here.] As the report notes,

While the workshop participants did not reach substantial agreement that the Article III system is capable of handling all terrorism trials, they did note generally that the courts have resolved past cases in a satisfactory manner. Some discussants remarked that many of the challenges facing the courts have been considered and managed in other contexts, implying that the courts need not create an entirely new procedural framework for most terrorism trials. Looking ahead, the discussants noted that legislation may not be appropriate to resolve all of the known issues and that the Article III courts may be better suited to resolve some of the issues without legislative intervention.

As Larry Solum would say, highly recommended!

Welcome to the World, Military Commission Reporter

Later this fall, I hope to post a series of reflections on the pending revisions to the military commissions process, especially the bills pending in both the House and Senate that would substantially revise (and in my view, improve) the Military Commissions Act of 2006 (to be fair, it could only go in one direction).

In the interim, though, I'm very pleased to note the publication of a new (unofficial) reporter of every military commission decision rendered under the MCA, put together by the folks at the National Institute for Military Justice.  For more on the reporter (including a PDF of Volume 1 in its entirety), see here. This is a fantastic resource for those who write about these decisions, none of which have been previously compiled in such a readily accessible form (indeed, many of the decisions in the Reporter were not previously available in any electronic forum).

I leave it to y'all, though, to figure out its proper Bluebook citation form. :-)

To Erie or Not To Erie?

I'm teaching two courses this fall: a seminar on the Constitution and Military Jurisdiction, and my absolute favorite course to teach -- Federal Courts -- for the fifth time in my five years of teaching.

As much fun as I have with Federal Courts, I find myself confronting the same syllabus question each time I teach it: In my unit on federal common law, just how much Erie doctrine should I include?

The reasons for including Erie and its progeny are pretty obvious: Insofar as the relationship between state and federal courts, there are few more significant cases, and Justice Brandeis's opinion is as important for why it might be wrong on the constitutional issues as it is for the result it produces.  And on a deeper level (and what's Federal Courts but for a whole bunch of deeper levels), Erie raises a series of interrelated and fascinating questions about the lawmaking powers of both state and federal courts (and Congress's role vis-a-vis the latter). Lastly, Erie is a great segue into federal common law in general, and the units on implied statutory and constitutional causes of action in particular.  Without Erie, those units often seem a strange and sharp break from what we've been doing up to that point in the semester.

But for as interesting as Erie is, there are at least as many reasons to leave it out: First, virtually all of my students will have encountered it in their Civil Procedure coursework as a 1L (where it arguably belongs, since it also profoundly affects tactical choices parties make in civil litigation).  Second, to do Erie "right" means also doing its successor cases (especially Hanna v. Plumer), and may also require discussion of its forerunners, especially Swift v. Tyson and Black and White Taxicab... And third, my syllabus is already quite crowded, and so the more I add about Erie, the more I have to cut from elsewhere.

I know this is a Federal Courts-specific question, but I'd love to hear what y'all think... In general, does it make sense to go back over cases like Erie in upper-level courses? Specifically, should Erie be part of the Federal Courts canon at a school where it's covered in Civil Procedure?

The First Day of an Upper-Level Elective

It's getting to be that time of the year again -- when we all turn to our syllabi for the upcoming fall semester and figure out what, exactly, we're going to do for 28 class sessions.  I thought I'd take this opportunity to ask a question about how we deal with shopping period, and how we ought to.

My approach to my upper-level electives has always been to make the first class meeting its own standalone class, and not part of the overall flow of the semester. So, I may assign an interesting recent case that raises a host of issues central to the overall topic for the semester, or a particularly thorny problem that might introduce a theme we'll encounter at various points -- but never the foundational beginnings of the doctrine; I save that for class meeting #2.

I do this for two reasons: First, as a way of giving the students a feel for the entire course before they commit to it, and second (and more importantly), to accommodate both those students who aren't sure if they want to stay in the course (who, as such, don't have to purchase the materials), and those who might come to the course after the first day, having made a similar decision about another class.

What do others do with that elusive first day? Do you dive right in? Do you assign more thematic material? Do you try your best to scare people away?

Full Professor, Without Tenure

At the beginning of the upcoming school-year, I become a bit of a strange creature within our profession (if I wasn't already) -- a full professor without tenure.  The reason is simple enough to explain -- American University has a rigid and inflexible (six) years-of-academic-service requirement before one becomes eligible for tenure, but the only time requirement for promotion to full professor is (two) years of service at the associate professor level.  Because I was already an associate professor when I moved laterally to American two years ago (and wasn't demoted), I satisfied the latter requirement earlier than is typical for folks who start at AU, who usually don't get promoted to associate professor until after their fourth year of teaching.

I raise this, though, because it leads me to wonder about the professional etiquette of being a full professor without tenure. For instance, do I need to note on my cv (and elsewhere) that I don't yet have tenure, since most will naturally assume, based upon the title, that I do?  Does that, in turn, send perhaps the opposite message -- that I was denied tenure, and am now effectively "of counsel" at my law school? (A fate which may yet await me...)

More generally, isn't it usually the other way around -- that folks get tenure based upon their professional accomplishments before they are promoted to full professor?  That's certainly true in other academic disciplines, isn't it?  If so, does that suggest that tenure based on a rigid years-of-service requirement causes more problems than it solves?

I'm torn on the tenure question, because I totally get the egalitarianism of not allowing folks to come up for tenure early, since that would create very strange and informal pressures on both the rank and tenure committee and on the junior deciding whether or not to go up early.  But it seems equally strange to have promotions and tenure so thoroughly unrelated to each other.  What's the magic bullet, here?

The Attorney-Client Privilege and the Collateral Order Doctrine

It wouldn't be a blog post from me without an apology for disappearing for a year and a day, but it's been a surprisingly busy summer thus far.  Part of what I've been preoccupied with is an amicus brief that a team of lawyers from Proskauer Rose and I filed today in a fascinating case on the Supreme Court's docket for the 2009 Term.

The issue in Mohawk Industries v. Carpenter is whether a district court decision finding waiver of the attorney-client privilege is immediately appealable under the so-called collateral order doctrine that the Supreme Court has read into 28 U.S.C. 1291 in a series of cases dating back to Cohen v. Beneficial Industrial Loan Corp.  Both the district court and the Eleventh Circuit said no, but the Court granted cert. anyway, ostensibly to resolve a circuit split that has arisen over the issue.

What's fascinating to me about this case is that I doubt it would even be an interesting question if it were any other evidentiary privilege.  It's well-established that the run of discovery orders are largely within the discretion of district courts, and are not subject to immediate appellate review except in extraordinary cases (e.g., where the discovery order raises serious separation of powers questions--and even then, only through writs of mandamus). This general rule makes sense, since litigation would be far more costly and take far more time if parties could run to the court of appeals over every little discovery ruling.

So is there a legal argument for why the attorney-client privilege is different? The American Bar Association thinks so, as it argues in its amicus brief in support of the Petitioner.  So too, the U.S. Chamber of Commerce. But I'm not so sure. Our brief, which is signed by a group of 25 former federal judges and/or senior experts on the federal courts, argues that the attorney-client privilege is not distinguishable from other comparable evidentiary protections, and that extending the collateral order doctrine to this case could therefore have disastrous consequences for the workload of the courts of appeals and for civil litigation more generally.

Leaving aside the specific doctrinal issues vis-a-vis the collateral order doctrine, I'm curious what folks think about the underlying issue, i.e., whether there's something fundamentally different about the attorney-client privilege, as compared to the work-product rule, the priest-penitent privilege, the spousal privilege, etc. Are lawyers special, in this regard?

In the Mail: Looseleaf Casebooks!

In going through a 10-day backlog of mail at the office yesterday, I was psyched to receive binders containing looseleaf copies of two of my casebooks for next year: Dycus et al.'s National Security Law, and the brand-spanking-new sixth edition of Hart & Wechsler's The Federal Courts and the Federal System.

Is it just me, or are looseleaf casebooks the coolest thing since sliced bread?

The Troubling Implications of Justice Thomas's Dissent in Haywood v. Drown

For various reasons, the Supreme Court's 5-4 decision on Tuesday in Haywood v. Drown -- a case in which I co-authored an amicus brief in support of the Petitioner -- has gone mostly overlooked by the media and the blogosphere (for previous posting on the case, see here).  I guess between the Sotomayor nomination, the Prop 8 ruling, and the Supreme Court's overruling of Michigan v. Jackson, we fed courts geeks get left behind...

But before the decision fades into obscurity, I wanted to flag the one thing about it that I found noteworthy -- Part II of Justice Thomas's dissent.

By way of introduction, the issue in Haywood is a classic fed courts problem: Under New York law, the State substitutes itself as the defendant in any damages action against a corrections officer brought in the New York state courts.  But because states cannot be defendants to claims under 42 U.S.C. 1983, the New York law has the effect (although not the purpose) of barring a certain subset of 1983 claims from the state courts. The question presented was whether, as such, the New York law in question violates the Supremacy Clause (the New York Court of Appeals said no, albeit in a sharply divided 4-3 ruling).

For the majority, Justice Stevens reversed, concluding that the New York law is not a neutral jurisdictional rule, and therefore violates the antidiscrimination principle set out in the Court's prior precedents (e.g., Testa v. Katt), pursuant to which states may not discriminate against federal question suits.  Justice Thomas dissented, and in the only part in which he was joined by the other three dissenters (the Chief Justice and Justices Scalia and Alito), he argued for why he believes New York's statute was "neutral," disagreeing with the majority's application of precedent.

More interesting, though, is Part II of Justice Thomas's dissent (in which he was writing only for himself).

  Leaving aside his disagreement over the application of precedent, Justice Thomas apparently takes issue with the Court's entire jurisprudence in the field, arguing that "There is no textual or historical support for the Court’s incorporation of this antidiscrimination principle into the Supremacy Clause." He then proceeds to devote half of his 37-page dissent (to a 12-page majority opinion) to explaining why "The supremacy of federal law . . . is not impugned by a State’s decision to strip its local courts of subject-matter jurisdiction to hear certain federal claims." Put another way, Justice Thomas sees no constitutional problem whatsoever with states deciding for themselves whether -- and with what conditions -- federal question lawsuits can proceed in their courts, even when the same state courts are open to comparable claims under state law.

To me, this is a startling argument. Reasonable people will disagree about whether state courts ever have to hear any class of federal question lawsuits without respect to their jurisdiction over comparable state-law claims, and the Supreme Court has assiduously avoided answering that question. But to suggest that states are free to discriminate against federal question lawsuits under almost any circumstance is to turn the Madisonian Compromise on its head, and to invert the Founders' unquestioned belief that state courts, rather than the lower federal courts, would be the more frequent and reliable adjudicator of federal questions.

I often get in trouble with some of my friends because I find deep principles behind a lot of Justice Thomas's jurisprudence, even when I fundamentally disagree with the assumptions behind those principles.  Here, though, I'm not sure what the deep principle is, other than an absolute defense of state autonomy at the expense of the supremacy of federal law... If anything, though, such an absolutist view is actually demeaning to state courts, because it undermines the significant role they were always meant to play in interpreting federal law -- just so long as they came to the federal law neutrally.

Can a Run Really Count When the Runner Never Crosses Home?

So I'm taking a break from grading con law exams to watch my favorite team (the Mets) beat up on my least favorite local team (the Washington Don't-Call-Them-"Natinals"), and there was an odd play in tonight's game:

With no one out and Gary Sheffield on first base in the bottom of the sixth inning, Daniel Murphy hit a ball that appeared to glance off the facade of the second deck before landing in fair territory. On the field, the umpires ruled that it was in play (and so must not have hit the facade), and Sheffield was thrown out at home trying to score. After going to the video, the umpires overturned the call, and ruled it a two-run homer.  Murphy, who stopped at third, finished trotting around the bases, and the Mets took a 5-3 lead.

Here's my question, though:  What about Sheffield, who was thrown out at home before the replay?  Doesn't he have to go back and touch home at some point? If not, is it possible that I witnessed the first time (or, at least, one of the first times) in major league baseball history that a run "scored" without ever crossing home? 

I raise this because baseball's rules are notoriously formalistic when it comes to crossing home -- think back to Robin Ventura's "Grand Slam Single" in the 1999 NLCS.  So even if Murphy's shot is a homer, doesn't Sheffield have to cross home before his run can count?

Or is this just proof that technology will overcome even the most fundamental of all rule-based systems? Where are our jurisprudence scholars when we need them??

Live Chat on Investigating (and/or Prosecuting) Bush Administration Officials

Hi all -- Just wanted to flag that I'll be doing a live chat today at 1:30 p.m. (EDT) over at WashingtonPost.com on whether (and to what extent) Congress and/or the Obama Administration should investigate and potentially prosecute Bush Administration officials. My own views are a bit complicated, but it should be a fun discussion!

2008 Newsletter for AALS Section on New Law Professors

In my (now-expired) capacity as Secretary for the AALS Section on New Law Professors for the 2008 calendar year, I had the privilege to put together the section's annual newsletter, which includes fun little pieces about tenure, name-calling (the good kind), and reprints. For those who are interested, I thought I'd post a copy here!

Is Kiyemba Cert.-Worthy?

My initial reaction to the news of the D.C. Circuit's decision this Wednesday in Kiyemba v. Obama, holding that the federal courts have no power to order the release of the Uighurs held at Guantanamo into the United States, was that the Supreme Court would never go near this decision, especially given the sui generis nature of the case (since, unlike most of the remaining Guantanamo detainees, there is nowhere for the Uighurs to go).

Then, I read Judge Randolph's opinion. It was mostly as expected, but one passage particularly caught my eye. Randolph rejects the detainees' due process claim because, in his words, "Decisions of the Supreme Court and of this court . . . hold that the due process clause does not apply to aliens without property or presence in the sovereign territory of the United States." He then cites a number of precedents in supoort, including Zadvydas, Verdugo-Urquidez, and Johnson v. Eisentrager (and a bunch of D.C. Circuit decisions, among others), and admonishes the district court for failing to follow binding precedent.

What's fascinating--and ironic--of course, is that he nowhere cites Boumediene in this discussion. To be sure, Justice Kennedy was extremely careful to limit his analysis in Boumediene to the particular question of whether the Suspension Clause applies in Guantanamo, and to thereby leave open the question of whether other constitutional protections apply to non-citizens detained there. But to say it's an open question is not the same thing as concluding--as Randolph apparently must have--that Boumediene in no way calls these earlier cases (Verdugo-Urquidez and Eisentrager, especially) into question. Indeed, as Orin already noted, Boumediene was the third time that the Supreme Court has reversed a Randolph opinion taking a skeptical view of the legal rights of the detainees (see also Rasul and Hamdan). At some point along the way, don't some of these precedents become worth revisiting?

All of this leads me to wonder if Randolph may have written an opinion that the Court--which might otherwise have been inclined to duck this case--cannot ignore. To say that the Due Process Clause categorically does not apply to Guantanamo is to suggest that the very review that Boumediene mandates need only be superficial. What's more, such a conclusion wasn't necessary to reject the Uighur's claims, so long as Randolph's analysis of the immigration laws is correct (my own view is that this, too, was an open question).

It's a messy case with unique facts and a very possible political solution in the offing that would moot the petitioners' claims. But I just can't see how Randolph's cursory and wholly unconvincing analysis of the detainees' due process rights can be left intact, either by the en banc D.C. Circuit or, if necessary, by his admirers on all-things-Gitmo: the Supreme Court.

Civilian Contractors and the Limits of Military Jurisdiction

With a big hat tip to CAAFlog (a name that'll make sense in a second), I thought I'd pen a few quick thoughts on a fascinating habeas petition filed last week in the D.C. federal district court by a civilian contractor who is being subjected to court-martial proceedings in Iraq for his alleged role in a fire that took place during maintenance of an unmanned Predator drone. Although the contractor in question was formerly enlisted in the U.S. Air Force, there is no question that he is not currently a member of the U.S. military.

As such, subjecting him to military jurisdiction seems to run right into a long line of Supreme Court decisions suggesting that the Constitution categorically bars the exercise of military jurisdiction over civilians (indeed, this is part of the argument in al Marri). The government will argue, I'm sure, that contractors performing what are effectively military-like functions (such as the maintenance work the petitioner was contracted to perform here) should fall on the other side of that line (especially in light of a 2006 amendment to the UCMJ that supports such a reading), but the Court's most recent pronouncement on the subject -- its 1987 decision in Solorio -- seemed to suggest that form matters much more than function. There, the Court overruled the so-called "service connection" test, holding that servicemembers could be subjected to military jurisdiction for any offense committed while in military service, because the Constitution draws such a bright line between servicemembers and civilians.

Moreover, although these facts seem to present the perfect case for reliance upon the Military Extraterritorial Jurisdiction Act of 2000 ("MEJA"), the Justice Department declined to pursue charges against the petitioner in the civilian courts, sending the case back to the Air Force. Suffice it to say, this should be a really interesting -- and potentially important -- case going forward...

The Great OLC Document Dump of 2009

Courtesy of a colleague in the know, I came across this website, where DOJ has today posted a whole bunch of heretofore classified or otherwise undisclosed OLC opinions about lots of interesting war-on-terror and war-in-Iraq stuff, including the original November 2001 memo defending the constitutionality of military commissions, the controversial Goldsmith memo on the applicability of the Fourth Geneva Convention in Iraq, and a host of other goodies.

And twenty minutes before the AALS Prawfs (et al.) Happy Hour, to boot!

Lots of food for fodder, methinks.

A (Perhaps Ignorant) Question About Cold Offers and Fraud

I had fun the last few days kicking around my old stomping ground at the University of Miami, and catching up with some former colleagues.  Somehow, one of them and I ended up on the topic of "cold offers" (something he hadn't heard about), and the notion that firms may sometimes tell their summer associates that, even though there won't really be a permanent job for them at the firm, the summer associate may tell other employers that s/he does have an offer, and may even so note on their resume.

Assuming that this is an accurate understanding of how cold offers work (and, given how little I know about firms, I concede that it might not be), why isn't it fraud for the summer associate to so describe such an offer? At least at common law [with some variance among jurisdictions], fraud requires (1) that a material representation was made; (2) the representation was false; (3) when the representation was made, the speaker knew it was false or made it recklessly without any knowledge of the truth and as a positive assertion; (4) the speaker made the representation with the intent that the other party should act upon it; (5) the party acted in reliance on the representation; and (6) the party thereby suffered injury.

So, if a summer associate relies upon a cold offer to get hired by a different firm, and if the new firm can show injury (perhaps by showing that they would not have hired that individual if he did not represent that he had a permanent offer), doesn't that make out a case for common-law fraud?

Believe me -- I am incredibly sensitive to the pressures of the current job market, and to the significance of individuals being able to avoid the appearance that the reason they did not receive a permanent offer was performance-based. But at some point, isn't some of this very very shady?

Has Senator Leahy Forgotten Something Rather Important?

Okay -- I get that we're all in a big hurry to get the new Administration underway, but this is getting ridiculous!

Courtesy of CQ Politics (my emphasis added):

Senate Judiciary chairman Patrick J Leahy told reporters today that he intends to hold a confirmation hearing for Eric H. Holder Jr. to be Attorney General during the week of Jan. 5.

Well, riddle me this: Exactly who will have nominated Holder to be the AG by the week of January 5?  Unless there has been a back-room deal pursuant to which President Bush submits the names of President-Elect Obama's nominees (and wouldn't that be a story!), there will literally be no nomination on which the Senate Judiciary Committee can hold a hearing until President (as opposed to President-Elect) Obama submits names to the Senate, so, not before 12:01 p.m. on January 20...

Put another way, isn't it true that President-Elect Obama has no more constitutional power to nominate someone to a Senate-confirmable job than I do?

A Different Take on the Haywood Argument

I hope to have more to say over the weekend about today's cert. grant in al Marri (disclosure: I co-authored an amicus brief in support of certiorari on behalf of a group of law professors--apropos Adam Chandler's piece about the disparity in amicus briefs in support of cert.), and a Third Circuit decision from today about torture, diplomatic assurances, and due process that I think is pretty significant... But first, in crawling out from under a rock, I wanted to chime in about a SCOTUSblog post from yesterday that I take some issue with.

The post is the recap of Wednesday's oral argument in Haywood v. Drown, a case I've been following pretty closely for awhile (and in which I co-authored an amicus brief on behalf of a group of law professors). David Owens, the Stanford law student who did the write-up, did a thorough job of summarizing the exchanges (the transcipt is available here), but as someone else who was there, I think there is a disconnect between the summary and the analysis that manifests itself in the first and last paragraphs.

First, Owens writes that "Though briefed primarily as a case about whether Section 24 of New York Correction Law violates the Supremacy Clause, the oral argument revolved more heavily around an issue the Court has recently been grappling with: determining what the characteristics of “jurisdiction,” are." True, but the "jurisdiction" question in Haywood was hardly unexpected -- it goes to the heart of the Supremacy Clause issue, since the states are generally free to adopt neutral jurisdictional rules so long as they treat state and federal causes of action similarly. Under the Court's longstanding precedent in this area, it's only if the state rule is neutral in its impact on federal claims that we reach the second question--i.e., whether the state had a "valid excuse" for the rule.

That leads me to the write-up's last paragraph:

Though short, Murtagh’s rebuttal provided one interesting insight that might indicate which way Justice Breyer is leaning.  After mentioning the state’s asserted “neutral reasons,” Justice Breyer explicitly rejected Murtagh’s suggestion to look at the motives or, in other words, his “New York thinks this is ‘bad policy’ argument-”forget all of the characterizations”-and, instead, seemed willing to rely on Underwood’s “neutral” justification provided in the course of litigation (the clogged courts rationale) for the permissibility of Section 24.  Coming back to his major theme Murtagh replied that the State cannot “shuttle Federal claims off to the Federal courts and close its doors for a hearing on similar State claims.”

Again, the description of the exchange is accurate, but it's important to remember that the "valid excuse" question simply doesn't matter if the state rule is not neutral in its impact. Given the tenor of New York SG Barbara Underwood's exchanges with him, I left the argument with the clear impression that Justice Breyer wouldn't even get to this question--that he believes the state law does discriminate against Section 1983 claims--and that he won't be alone (and perhaps won't even be in the minority) in that regard.

RFK and the Mindless Menace of Violence

I don't know why (okay, yes I do), but with the late news of tonight's outcome, my mind turns to a speech RFK gave 40 years and seven months ago tomorrow (given what happened 40 years and seven months ago today), titled "The Mindless Menace of Violence." The whole speech is here. Here's an excerpt:

[W]e know what we must do. It is to achieve true justice among our fellow citizens. The question is not what programs we should seek to enact. The question is whether we can find in our own midst and in our own hearts that leadership of humane purpose that will recognize the terrible truths of our existence. We must admit the vanity of our false distinctions among men and learn to find our own advancement in the search for the advancement of others. We must admit in ourselves that our own children's future cannot be built on the misfortunes of others. We must recognize that this short life can neither be ennobled or enriched by hatred or revenge. Our lives on this planet are too short and the work to be done too great to let this spirit flourish any longer in our land. Of course we cannot vanquish it with a program, nor with a resolution. But we can perhaps remember, if only for a time, that those who live with us are our brothers, that they share with us the same short moment of life; that they seek, as do we, nothing but the chance to live out their lives in purpose and in happiness, winning what satisfaction and fulfillment they can. Surely, this bond of common faith, this bond of common goal, can begin to teach us something. Surely, we can learn, at least, to look at those around us as fellow men, and surely we can begin to work a little harder to bind up the wounds among us and to become in our own hearts brothers and countrymen once again.

We're still learning, methinks, but these are the words I can't get away from on this most intriguing evening.

Oh, Major League Baseball...

As a die-hard baseball fan, of course I'm glued to the World Series. And so I had to write something to note the absurdity of the way MLB is spinning the current rain delay in Philadelphia: "We had to delay the game based upon these conditions, and so we're lucky that Tampa scored in the top of the sixth. Now, the game would be suspended if we couldn't resume play, rather than having to call the game in the Phillies' favor."

I call BS. Had the game been tied two or three innings ago, they would've thrown the tarp on the field then. The conditions were horrible, and unfit for a little league game, let alone a regular-season major league game (or, dare I say, the World Series). They didn't call a rain delay precisely because they were waiting for Tampa to tie (or go ahead) so they could do exactly what they did. It's the right thing to do now, but letting the teams play through two-plus innings of simply unplayable conditions absolutely wasn't--and they're lucky no one got hurt.

Once again, MLB is doing its best to ruin The Game.

A Dissenting Opinion on the Chief Justice's "Noir" Moment

I decided to make a momentary re-appearance in blog-land because I've been a bit perturbed by the various blog coverage of the Chief Justice's dissent from the denial of certiorari today in Pennsylvania v. Dunlap.  Everyone's obsessed with the creativity of the film-noir (or Dragnet-style) opening to the dissent, with a substantial amount of praise for the Chief Justice for doing something original (what does _that_ say about the predictability of Supreme Court opinions that we go nuts for anything remotely different?).

I want to raise one note of dissent from the praise. It's not that I don't think it's clever and fun to read--like most of the Chief Justice's writing, it is clear and to the point. It's that I think the opinion, especially the opening stanza, is to some degree contemptuous of both the defendant and the state courts...

• Maybe it's that I'm bothered by the whole idea that the Court's probable cause jurisprudence cares what neighborhood you live in--should the same transaction among sketchy-looking characters have different legal consequences in Northwest DC than in Southeast?
• Maybe it's that the Chief Justice seems to suggest, however implicitly, that all criminal procedure is like Dragnet (and how many times were _those_ searches thrown out by the courts)? That there is an obviousness to what the police officer saw, and that obviousness = probable cause (as opposed to reasonable suspicion, which may well have been present here). Does probable cause really arise from every commercial transaction on a street corner where the product sold might be drugs? Really?
• Maybe it's that the Chief Justice suggests this is so obvious when the state supreme courts--as he himself notes--have so bitterly divided on the issue.

I'm not sure--and I'm no literary critic. But something about the opinion just rubbed me the wrong way... am I crazy?

Does the Third Amendment Prohibit More Than Just Quartering?

There's an interesting -- if somewhat self-indulgent -- student note recently posted to SSRN that argues that everyone's other favorite forgotten constitutional provision (the Third Amendment) might actually do more than simply prohibit the quartering of troops in private homes during peacetime (and require congressional authorization for such conduct during wartime).  According to the note's author, Joshua Dugan, the way quartering was understood to revolutionary-era America was as more than just the physical act of housing troops; it included the general enforcement of the laws by the military, especially in any area of private life. Dugan's real target is the NSA wiretapping program, and his punchline is why the Third Amendment (and not the Fourth) provides the better constitutional argument against the surveillance. But my interest is on his analysis of the "original understanding."

In particular, there's a lot in the note that I agree with,especially the thematic idea that the Third Amendment is important in reiterating the significance of keeping the military out of everday civilian life. But it strikes me that he takes way too little notice of the Constitution's Militia Clauses, the first of which expressly empowered Congress to provide for the callling forth of the militia "to execute the laws of the union, suppress insurrections, and repel invasions." Put another way, the Constitution squarely contemplated that the militia might be needed to execute the laws of the union, and Congress enacted a series of statutes specifying the means by which the President could so call out the troops. Moreover, as I (and others) have discussed, Congress broadened its delegation of such authority to include the federal regulars in 1807, apparently without serious constitutional objection.

To his credit, Dugan is aware of this inconsistency. But he deals with it primarily in a footnote, noting that

The point I wish to make here is obviously not that the Anti–Federalists negated Congress’s Article I power to call forth the militia to execute the laws, but rather that they sought to clarify and limit the ways in which this power could be lawfully used.

The problem is that there is no hard evidence supporting this claim. True, the Anti-Federalists repeatedly articulated fears of a standing army and concerns that the federal government had too much power to use the military to interfere with the private lives of civilians. But I would've expected that if the Anti-Federalists believed the Third Amendment affirmatively limited the power of the federal government to use the military to execute the laws of the union, that argument might have arisen in the rich legislative debates just one year after the Third Amendment was ratified, leading up to the Calling Forth Act of 1792, and later its successor, the Calling Forth Act of 1795.

My own research, though, uncovered no such arguments, and Dugan himself points to none. There actually _were_ serious concerns over the grant of power contained within the 1792 Calling Forth Act, but none of them were couched in terms of the then-brand-new Third Amendment. And if the Anti-Federalists believed the Third Amendment more generally constrained the power to use the military to execute the laws of the union, wouldn't one of the proponents of such a reading have made that point in arguing against a statute that authorized the President to do precisely that which the Third Amendment purportedly precluded?

It's a very good note -- all the more so for raising this exact question and for prompting me to write this post. And I've written elsewhere that it's actually somewhat scary just how little the Constitution protects against the domestic use of the military. But I'm one who actually believes that there is a lot to learn, at times, from dogs that didn't bark, and this strikes me as one such case.

Thursday Morning Randomness: On the Naming of Supreme Court Cases

I once heard a story, although I forget from whom, about why Bush v. Gore is captioned "Bush v. Gore." After all, the particular lawsuit that ended up in the Supreme Court was captioned "Gore v. Harris" in the Florida state courts, since it was an attempt to contest Katherine Harris's certification of the election... according to the story, the Supreme Court's reporter of decisions -- Frank Wagner -- decided that the case "had" to be called Bush v. Gore, because that's really what it was. (In contrast, the Supreme Court's earlier per curiam decision sending the case back to the Florida courts was captioned "Bush v. Palm Beach County Canvassing Board.")

Anyway, this got me thinking about why we don't choose "appropriate" or "more accessible" case names for more major Supreme Court cases. After all, in the "old" days, it was common to do so -- just consider the Legal Tender Cases, the Slaughterhouse Cases, the Civil Rights Cases, the Chinese Exclusion Case, the Japanese Immigrant Case, the Selective Draft Law Cases, and the Gold Clause Cases, just to name a few, none of which are remembered by the names of the actual litigants, even where that's how they're memorialized in the U.S. Reports... (curiously, the Slaughterhouse and Civil Rights Cases are actually so captioned).

Why, except for Bush v. Gore, don't we do that anymore? Is Frank Wagner right (if the story is true) that cases should be captioned in a manner that makes them more publicly accessible whether or not it's a technically correct statement of the parties? If so, any suggestions for recent decisions of note?

On Publishing and Professorial "Happiness"

One of the benefits of conferences like SEALS is the chance to have searching conversations with lots of folks you don't usually get to speak to, and then to reflect on those discussions. Here's one such reflection:

Increasingly, I've noticed that I tend to get introduced at conferences and the like as "prolific," a moniker that I believe the speaker usually intends as a positive -- as indicative of a productive scholar who writes a lot (and, to be fair, I do) in a discipline where publishing is generally valued above almost anything else, whether or not it should be.

But every now and then, folks ask me whether I think I publish "too much," which I take as asking whether I fear that the quality of what I publish is undermined by the quantity. Of course, I'm in no position to answer that question objectively, and would not dare to even try, save to point out that I'm not sure one could assume there is a negative correlation between quantity and quality without actually reading at least some of the writing...

Such questions do lead me, though, to reflect upon why I do what I do, including why, as I've discussed before, I am perhaps overeager in accepting symposium invitations and other chances to publish solicited papers, especially if, in the view of some, that's actually the mark of an un-careful scholar, and someone perhaps not to be taken as seriously...

I imagine that for most of us, writing, like blogging, is useful as means to an end. Where I think I may differ is in what the "end" is. For many, I suspect the end is the most prestigious teaching job they can find, or at least a job at the most prestigious school in a particular geographic region. So the brilliant essay that takes three years to fine-tune, but that ends up in a top-tier journal, might be the most expedient way of realizing that goal. I think that's laudable, and s a very important part of the world in which we live.

I like to think, though, that I write for a slightly different reason: I write to be a part of the conversation, because that to me is what is so rewarding about academia. I see a symposium as a chance to spend a day (or two) with lots of very smart people having lots of really fascinating conversations, many of which take place in bizarre short-hand. [For just one current example, consider the symposium currently underway over at OpinioJuris on Ben Wittes's new book.]

I see a conference as a chance not to show-off about where my latest piece is being published, but as a chance to find out what the next hot topic is in my fields of interest (indeed, even in fields I don't usually pay attention to). I love panels that consist of a dialogue among the speakers (like the one I was lucky enough to participate in this afternoon on "Affirmative Visions of the Judicial Role"), rather than (or at least in addition to) seriatim presentations of papers that the audience probably has not read.

So construed, I see writing as a further piece of that puzzle -- as adding to the conversation, even if the paper I write does not become Larry Solum's "download of the week," or the hottest constitutional law piece on the August and February submissions markets.

To be clear, my point here is not to advocate publishing anything and everything, nor is it to advocate quantity over quality.  I think both are important. What I resist, though, is the implicit assumption that the two are inversely correlated. To that end, I wonder sometimes if some of us have lost sight of why we do what we do... I do this job because I love it, and because it's fun. And part of what's fun is writing, even if it's a 15-page Green Bag essay and a 25-page symposium response, rather than a 60-page lead article. And while I recognize, as I must, that we all do this job for different reasons, at the end of the day, I wonder why that can't be one of them?

The En Banc Fourth Circuit Decides al-Marri, Sort Of...

I suspect very few people will make it all the way through the en banc Fourth Circuit's 216 pages of opinions handed down today in al-Marri (who is the one non-citizen held as an "enemy combatant" in the United States), so here's the short, short version:

One 5-4 majority held that the AUMF authorizes al-Marri's detention. But Judge Traxler, who was in the majority on the authorization question, joined the four dissenters from that holding in concluding that al-Marri received constitutionally insufficient process to challege the determination that he is an "enemy combatant." Importantly, Judge Traxler's 36-page opinion (which probably controls on this point) concludes that the Supreme Court's analysis in Hamdi does not control for individuals captured and held within the United States, and that more process is required.

There is every reason to suspect that this case is headed to the Supreme Court, and that al-Marri will seek certiorari on the first of the en banc court's holdings (i.e., that the AUMF authorizes his detention if he is who the government says he is). But I wonder what the impact will be of Judge Traxler's conclusion (along with Judges Michael, Motz, King, and Gregory) that al-Marri received constitutionally inadequate process (and that more process than that required by the Hamdi plurality is warranted)?  Might that holding mitigate -- at least to some degree -- the significance of the Supreme Court hearing al-Marri's case now, as opposed to after remand?

I still happen to think that the dissenters on the authority issue have the better of the argument, and I'd still prefer to see that issue go to the Supreme Court sooner rather than later. Still, for a majority of the en banc Fourth Circuit to express the degree of skepticism concerning the evidence marshaled to date against al-Marri is immensely significant in its own right.

District Court: FISA Preempts the State Secrets Privilege for Wirtetapping Suits

Late this afternoon, the U.S. District Court for the Northern District of California released this fascinating decision in the Al-Haramain litigation (a challenge to the warrantless wiretapping program), on remand from the Ninth Circuit (the Ninth Circuit's decision is available here).

Specifically, the district court held that the cause-of-action provisions of the Foreign Intelligence Surveillance Act displace the state secrets privilege in cases alleging violations of FISA, but that the plaintiffs can only benefit from the FISA remedy if they can demonstrate that they are an "aggrieved person" within the meaning of the statute.

The first part of the holding strikes me as potentially very significant, as it calls into question the applicability of the state secrets privilege in any lawsuit claiming a violation of FISA.  It's also an argument that Heidi Kitrosser (Minnesota) and I fleshed out in this amicus brief to the Ninth Circuit in what was then a companion case last spring...

But the second part leaves things back where they started. Until and unless one can prove that they were the subject of an unlawful wiretap, the real hurdle in these cases continues to be standing...

One Heller Snark...

Everyone else is going to say lots of substantive things about today's Supreme Court decision in Heller, the Second Amendment case. My own views are a bit complicated. But I just wanted to make one snarky observation:

Neither of the dissenting opinions suggests of Justice Scalia's majority opinion that "[i]t will almost certainly cause more Americans to be killed," Boumediene v. Bush, No. 06-1195, 2008 WL 2369628, at *65 (U.S. June 12, 2008) (Scalia, J., dissenting), even though I think that would not be an unfair characterization, whatever one believes about the Second Amendment.

Just a thought.

A Critique of "National Security Courts"

Although I've written before about my concerns with the idea of  "national security courts" for terrorism cases (including challenges to detention and trials for criminal offenses), we've already seen calls for such hybrid tribunals in the aftermath of the Supreme Court's decision 11 days ago in Boumediene, and I imagine those calls will only increase as the summer goes on.

With that in mind, I wanted to flag an important new statement out today from the Constitution Project's Liberty and Security Committee and its Coalition to Defend Checks and Balances, both of which are groups of fairly high-profile folks from all points along the political spectrum. The statement, titled A Critique of "National Security Courts," identifies some of the more serious flaws with such proposals, and ultimately takes a very skeptical view of their utility and their viability. [Full disclosure: I am the group's "Reporter."]

There's much more to be said about this debate, but given that almost all of the discussions out there thus far have been in favor, I thought I'd flag this important, dissenting view.

A Fascinating Day at the Court for Fed Courts

Two of the three cases in which the Court granted certiorari this morning raise fascinating Federal Courts issues, and should make for interesting topics for next year's Fed Courts classes.

The first is the more famous case -- Ashcroft v. Iqbal, which raises a host of complicated questions about qualified immunity and Bivens.

The second is a case I've blogged about, but has  otherwise flown under the radar -- Haywood v. Drown, which raises the constitutionality of a provision of the New York corrections law that diverts all damages suits against corrections officers (including 1983 suits) to the New York Court of Claims, and replaces the officers as defendants with the State of New York. I wrote about the New York Court of Appeals' decision here, and why cert. should be granted here. [Update: As Jason Solomon rightly points out, my earlier coverage misreported the vote in the New York Court of Appeals. I noted that the decision was 6-1; it was actually 4-3.]

Combined with what's already on the docket for next Term, including Pearson v. Callahan (the Saucier v. Katz case), the 2008 Term is shaping up to be a very busy one for Fed Courts folks...

Who's Afraid of a Little Process?

If one peruses various of the comment threads to posts about the Supreme Court's decision last Thursday in Boumediene (see, for example, the comments to this post or to this one), one finds a similar criticism of Justice Kennedy's opinion repeatedly echoed in various places -- that "foreign enemy combatants" are not part of "We the People," and so therefore are undeserving of constitutional protections (including access to the writ of habeas corpus). I suspect that most -- if not all -- of the comments are actually by the same person, but whether they are or not is, ultimately, beside the point.

Instead, what has really gotten to me, and what I wanted to write about, is when/how we, as a legal community, forgot about the significance of process. The commenter(s) repeatedly assert(s) that it is "clear" that the detainees are bad guys, and that the process provided by the Military Commissions Act and the Detainee Treatment Act is more than adequate to assuage any fairness concerns.

The problem, as Kennedy's majority opinion recounts fairly forcefully, is that there is no meaningful chance to contest the government's allegations in the DTA/MCA process. Consider this passage, from page 61 of the opinion:

One of the petitioners, Mohamed Nechla, requested at his CSRT hearing that the Government contact his employer. The petitioner claimed the employer would corroborate Nechla’s contention he had no affiliation with al Qaeda. Although the CSRT determined this testimony would be relevant, it also found the witness was not reasonably available to testify at the time of the hearing. Petitioner’s counsel, however, now represents the witness is available to be heard. If a detainee can present reasonably available evidence demonstrating there is no basis for his continued detention, he must have the opportunity to present this evidence to a habeas corpus court. Even under the Court of Appeals’ generous construction of the DTA, however, the evidence identified by Nechla would be inadmissible in a DTA review proceeding. The role of an Article III court in the exercise of its habeas corpus function cannot be circumscribed in this manner.

So here's my question: Whatever happened to the significance of process?

Why are so many of the critics of Boumediene "convinced" that the detainees are "evildoers," notwithstanding the well-documented defects in the process provided by the DTA and MCA? Haven't we learned the hard way, too many times, that arbitrary governmental decisions have an incredibly high risk of error? Perhaps most simply, what of Justice Frankfurter's famous maxim that ""the history of liberty has largely been the history of observance of procedural safeguards." Granted, many of the detainees were picked up by the U.S. military "on the battlefield," in the midst of combat operations against our soliders. But just as many weren't, including Boumediene himself. And it's important to keep that in mind...

I recognize, as I must, that reasonable people will disagree on the ultimate merits questions in these cases -- on whether individuals affiliated with al Qaeda can be held indefinitely, or potentially tried by military commissions, etc. But doesn't all of this depend on at least some faith that the individuals in question are in fact who the government says they are? If the answer is "yes," why be so upset at a Supreme Court decision giving the detainees a reasonable opportunity to contest that allegation? if the answer is "no," then what, other than the good graces of the Executive Branch, keeps us from being next?

Postscript: Apropos the above, and the importance of process to separate the innocent from the guilty, consider this McClatchy story posted today...

Munaf's Mixed Bag: FARRA, the Rule of Non-Inquiry, and the Significance of Belbacha

So, I had been holding off writing about the "other" major Supreme Court decision yesterday in Munaf v. Geren, both because Boumediene understandably came first, and because there are layers of nuance to Munaf (even though it's unanimous) that aren't shared by the much longer, much more divided decision in the Guantanamo cases...

Ultimately, I think Munaf is a bit of a mixed bag. The jurisdictional analysis strikes me as somewhat superficial, though ultimately reaching the correct result. As I've explained elsewhere, I think it is difficult to distinguish Hirota on citizenship grounds (even though that's one of the Chief Justice's two bases for distinction); and I also think it's largely indistinguishable on the chain-of-command argument (unless one really thinks General MacArthur was not answerable to his superiors, an ironic conclusion given the classic charge against the IMTFE that it was more an American institution than a truly international one). But an amicus brief I co-authored set out the doctrinal argument for how Hirota might otherwise be sidestepped, and whether they relied upon it or not, the Court certainly seemed to reach the same conclusion.

The more interesting--and more complicated--part of Munaf has to do with the Court's odd decision(s) on the merits of the two cases, odd both because of its substance, which I'll discuss below the fold, and because the Court didn't even need to reach the merits--Omar came up on a preliminary injunction; Munaf came up from lower courts that dismissed for lack of jurisdiction without reaching the merits... But, reach the merits the majority did, and so the question is, what are we to make of its conclusion that neither petitioner has stated a viable claim?

The answer is trickier than it looks. Consider the cogent comments of Deborah Pearlstein:

The detainees' key claim was that they were likely to face torture if transferred to the Iraqis for prosecution. The court concludes that this claim is "of concern," but that it is primarily up to Congress and the executive to determine how to handle it. Since the State Department has determined here that the Iraqi detention facilities are good enough, the court decides it is in no position to challenge that determination

Souter, Ginsburg, and Breyer concur separately in an attempt to limit the scope of the decision—emphasizing that the court is reserving judgment on whether the outcome would be the same in the "extreme case in which the Executive has determined that a detainee [in U.S. custody] is likely to be tortured but decides to transfer him anyway." But given the briefing the court had before it in this case, including this amicus brief detailing all the reasons why torture was likely in this case, it's a little hard to imagine just what kind of exceptional circumstances they have in mind.

Deborah is right, of course, that the majority used fairly unconvincing language to explain why this is a matter "of concern," but nevertheless not one that is judicially cognizable (under what's usually referred to as the "rule of non-inquiry"). But there's another passage from the Chief Justice's opinion that I found striking. I won't quote it in full here (it's quite long), but it's the spillover passage on pages 25 and 26, along with all of footnote 6.

The gist of the Chief's point in this passage is that the petitioners might have a claim under the "FARR" (Foreign Affairs Reform and Restructuring) Act, but that they had failed to properly raise it below. (FARRA, enacted in 1998, implements the United States' obligations under the UN Convention Against Torture and Other Forms of Cruel, Inhuman, and Degrading Treatment, or "CAT".) [For a short discussion in the context of immigration law, see this old comment of mine, especially pp. 2009-10.] The Chief Justice's footnote raises the two major questions about whether the petitioners would have claims under FARRA, but the Court clearly reserves its answer thereto.

Which brings me to the D.C. Circuit's March decision in Belbacha v. Bush. The court remanded to the district court a FARRA claim by a Guantanamo detainee seeking to enjoin his transfer to Algeria on the ground that he credibly fears being tortured if transferred. Belbacha, then, is the merits issue that Munaf left undecided. Can an individual held as a non-immigration detainee use FARRA, and its implementation of Article 3 of CAT, to prevent his transfer either (a) to another country, as in Belbacha; or (b) from U.S. to Iraqi custody while in Iraq, as in Omar and Munaf?

The answer may ultimately be no (see, for example, this Fourth Circuit decision from last year, holding that FARRA isn't enforceable outside of the immigration context). It may ultimately be yes (which I think it is). The critical point for me, though, is that whatever the answer is, it does not follow from the Supreme Court's decision yesterday in Munaf.

More Boumediene: What About Military Commissions?

This will be my second (and last) pointer to the OJ's Insta-Symposium on Boumediene, but I wanted to briefly flag my second post, on what the decision means for the military commissions currently underway and the eponymous Military Commissions Act of 2006.

Later tonight, I'll post my thoughts on Munaf, which (thankfully) relegates Hirota back into the historical ether from whence it came, while simultaneously taking an awfully stilted view of the rather serious possibility that a U.S. citizen might be tortured in Iraqi custody...

Another Opinio Juris "Insta-Symposium," and My Contribution Thereto

Over at the OJ, there's another "Insta-Symposium" unfolding over today's somewhat important (ha!) decision in Boumediene. My own contribution thereto--on habeas corpus and error correction--is up here.

I also hope to have more to say later about the Iraqi cases, which were also decided today in a result I would never have predicted. But for now, must finish reading...

Why the Supreme Court Should Grant Cert. in Haywood

I think those of us who watch the Supreme Court for a living (or just a hobby) have increasingly come to rely upon SCOTUSblog for inside info about the Court, especially when it comes to upcoming cert. petitions of interest. That being said, there's an important case on the Conference list for next Thursday, June 12, that didn't make Tom Goldstein's "Petitions to Watch" cut (I assume the omission has nothing to do with any judgment as to its significance, but rather with the fact that it's an IFP case, and SCOTUSblog's Conference coverage is only for the paid petitions). As such, I wanted to briefly flag it here.

The case is Haywood v. Drown, No. 07-10374. The question presented (in my words) is whether a state law that requires that damages suits against corrections officers be filed against the state itself in that state's court of claims is unconstitutional, since such a law effectively precludes the maintenance of a § 1983 suit against such defendants in the state courts (because "states" cannot be defendants to 1983 actions).

Last November, the New York Court of Appeals upheld such a law by a 6-1 vote, albeit in an opinion that seems thoroughly inconsistent with the Supreme Court's precedents in this area. I blogged at length about the decision previously, and won't repeat the substantive analysis here. Suffice it to say, I think it would be an incredibly dangerous shift in the Court's jurisprudence on the enforceability of federal law in state courts (which falls under the rubric of the Supremacy Clause) to leave the state court's decision intact.

True, the New York law does not facially discriminate against 1983 claims, and true, the fact that states can't be defendants to 1983 suits is not New York's fault, but is instead the result of the Supreme Court's sovereign immunity jurisprudence. But that shouldn't matter, for purposes of the constitutional question. Where a federal statutory remedy is involved, especially one, such as 1983, that is used to litigate constitutional claims, states don't--and, in my view, shouldn't--get to pick and choose.

Justice Scalia's One-Way Ratchet: Congress and Federal Habeas Jurisdiction

I've just posted to SSRN a draft of a new (and short) essay that is to be published later this summer by The Green Bag. The essay, titled "The Riddle of the One-Way Ratchet: Habeas Corpus and the District of Columbia," tries to shed light on a missing piece of the ever-ongoing debate concerning Congress's power over the habeas corpus jurisdiction of the Article III courts.

To spoil some of the fun, the essay's central argument is that statutes such as the Military Commissions Act are constitutionally problematic entirely because there are no other courts in which detainees may otherwise bring habeas petitions. Ex parte Bollman arguably prevents detainees from going straight to the Supreme Court, and Tarble's Case, for better or worse, prevents detainees from pressing their claims in state courts. None of that, of course, is new.

But it's an obscure provision of the D.C. Code (section 16-1901(b)), and not a Supreme Court decision, that closes off the last possible escape valve -- the D.C. Superior Court. As the essay explains, the D.C. Superior Court would otherwise likely have the authority to issue a common-law writ of habeas corpus against a federal officer, which would vitiate any Suspension Clause-based challenges to statutes such as the MCA. In other words, what makes the constitutional question so tricky when Congress attempts to constrain the habeas jurisdiction of the Article III courts is that Congress already has constrained the jurisdiction of the one court that would otherwise be open...

In his dissent in St. Cyr, Justice Scalia suggested that Congress's power over federal habeas jurisdiction was necessarily plenary: "If . . . the writ could not be suspended within the meaning of the Suspension Clause until Congress affirmatively provided for habeas by statute, then surely Congress may subsequently alter what it had initially provided for, lest the Clause become a one-way ratchet.” As the essay concludes, such a statement is absolutely true, but thoroughly incomplete. The ratchet results only from the fact that Congress has itself already precluded access to the common-law writ in the D.C. local courts.

On Proctoring Your Own Exam...

I'm writing this post from my seat at the front of a classroom where half of my 140 first-year Constitutional Law students are taking their final exam (the other half is in the next room over). And other than trying to pass the time, sitting here also got me to thinking -- how common is it to proctor your own exam?

I have two reasons why I do it here at WCL: First, I save money. WCL has a policy pursuant to which professors must pay out of their own pockets to have someone else proctor their exam. Leaving aside the merits of this policy (which gives you one free proctor for every 70 students over 70, so someone else is proctoring the other room), for a relatively un-well-paid junior prawf like me, I'd rather keep the $100 ($20/hour, including set-up and collection time), and use this time to do work...

Second, I like being here. I'm always paranoid about something "going wrong" on the exam, either administratively or substantively, and feel like I can "do more" (or at least be less paranoid) if I'm in the room... of course, that leads to inevitable awkwardness, but better that than a panicked phone call, or a note from a student (or 20) who wasn't able to clarify something I could've clarified on the spot in 10 seconds.

But it leads me to wonder where others come down on proctoring your exams. Do you like to? Do you not like to? Does your school require you to choose between paying an outside proctor and doing it yourself?

The really sad part is that, come 5:30, they'll all be very happy to be done, and I'll have a pile of 140 exams to grade. Stairs, here I come!

A Friday Diversion--"Postcards from Yo Momma"

In the interest of a Friday distraction, and because I swear that some of them could have been e-mails from my own mother, I wanted to flag a new funny website that a friend of mine forwarded to me--"Postcards from Yo Momma."

Just don't read it in class...

Medellín: The Insta-Symposium

Over at Opinio Juris, there's already a series of posts on today's Supreme Court decision in Medellín, an "insta-symposium," as OJ calls it.

My own contribution, on the significance of the Court's new definition of "non-self-executing" treaties, is available here.

Next, we'll have live symposia as things are actually happening! Or better yet--symposia on what will happen!

On Omar and Munaf: The Washington Post [Well, You Know...]

I'm not nearly as clever (or tenured) as Sandy is, and so I can only borrow most of the title of his post from Sunday, but I had a similar reaction to a terribly disturbing editorial in this morning's Washington Post, "Imprisoned in Iraq," about the Omar and Munaf cases set to be argued before the Supreme Court tomorrow.

In short, the Post's editorial page "see[s] no basis for the court to grant the detainees access to U.S. courts. It is a well-established tenet of international law that no country has the right or power to interfere with the legal system of another sovereign country." That's certainly true... If only that were the issue.

As I (and others) have suggested before, this is not the classic case of U.S. citizens who commit crimes overseas and are tried before foreign courts. First, it's not at all clear that the Iraqi government even wants one of the two detainees (Omar). Second, both detainees are in American (or at least effectively American) custody, unless one really thinks the presence of a few Bulgarian soldiers makes the MNF-I a "true" multinational force. Third, there is a non-frivolous allegation that the two citizens fear torture and other forms of mistreatment in Iraqi custody. Any of these facts, on their own, should be enough to suggest that these are hardly typical cases, and that the "well-established" tenet to which the Post refers is entirely beside the point. And if custody really is the touchstone of the habeas inquiry, at bottom, the defects in the petitioners' claims run to the merits, not to jurisdiction.

Marty has his own (ever cogent) thoughts here. I've written about these cases before in some detail as well. But it boggles the mind that the Post would write such a callously myopic editorial. Toward the end, the piece notes that:

While the United States must allow the Iraqi legal system to work, it has a strong interest in seeing that Mr. Munaf and Mr. Omar are treated fairly -- inside and outside of an Iraqi court. The U.S. government acknowledges in court documents that "reports of torture remain a concern" in some sectors of the Iraqi government. If the two men are at some time turned over directly to the Iraqi government, the United States must use its considerable diplomatic muscle to ensure that its citizens are not subjected to such treatment.

I had thought we were long past the point where we took the sufficiency of a "diplomatic remedy" seriously where the rights of U.S. citizens were concerned. Apparently not.

A Tangential Thought on Heller: What About "Poor Joshua"?

I will confess to not having as strong a feeling about the D.C. gun control case as it seems most everyone else does, especially today. That being said, there's one idea/argument I haven't really seen anywhere that I'm curious about:

One of the major arguments in defense of an individual right, as I understand it, is the need for private self-defense -- for the ability of citizens to defend themselves from private, and not just governmental, violence. Taking that argument at face value, it seems to tie very closely together to the existence vel non of an affirmative right to governmental protection from private violence -- something the Supreme Court has treated with significant  (and, in my opinion, troubling) skepticism first in DeShaney v. Winnebago County and more recently in City of Castle Rock v. Gonzales.

So here is my potentially naive question: If one takes the private self-defense argument seriously, mightn't that argument inevitably depend upon DeShaney and Castle Rock? Put another way, might there not be a potentially significant connection between whether one believes that there should be a right to police protection and whether one believes that there should be a right to protect one's self?

Did Omar and Munaf Just Become the Same Case?

Over at Opinio Juris, Kevin Heller has news of an immensely important development -- the Iraqi Court of Cassation's reversal of Mohammed Munaf's conviction by the Central Criminal Court of Iraq (the "CCC-I"). Munaf's habeas petition is one of two brought by U.S. citizens detained in Iraq set to be argued before the Supreme Court later this month (and in which I co-authored an amicus brief in support of the federal courts' jurisdiction).

Significantly, the distinction between Munaf and the other detainee -- Omar -- relied upon by the D.C. Circuit was Munaf's conviction by the CCC-I... the lower courts concluded that, where the U.S. citizen-detainee had not been tried and convicted (Omar), there was jurisdiction; where he had, there wasn't (Munaf).

If Munaf's conviction has now been reversed, that has the potential to change the whole complexion of the two cases; now, both present a challenge to "pure" executive detention, without the wrinkle added by Munaf's conviction (subsequent to the filing of his habeas petition). Indeed, Munaf's almost becomes the stronger case, since his, unlike Omar's, is not in the posture of a grant of a preliminary injunction...

How will the government respond? Will the Supreme Court now just decide Omar, and vacate and remand Munaf for further proceedings not inconsistent therewith?

One thing is for sure: If this all pans out, the reversal of Munaf's conviction serves to reinforce the deep flaws in his trial in the first place, and the reason why federal judicial review of his detention via habeas was--and continues to be--so critical in his case.

The New York Court of Appeals, Corrections Officers, and § 1983

Although it’s several months old, I just came across this fascinating (and rather disturbing) decision by the New York Court of Appeals from last November. In short, the Court of Appeals upheld section 24 of the N.Y. Correction Law, even though that statute precludes the New York state courts from entertaining any damages actions (including § 1983 claims alleging federal constitutional violations) by state prisoners against state correctional officers. In other words, the court sustained a state law that precluded state courts from entertaining, inter alia, federal question lawsuits raising constitutional claims.

To be fair, the statute, along similar lines to the federal Westfall Act, provides that any damages claim arising out of the official acts of a corrections officer can be brought in the New York Court of Claims as a claim against the state itself. But there’s a very serious constitutional question here: May states so thoroughly constrain (and perhaps even preclude) their own courts from entertaining such a federal question lawsuit?

I think the answer is a resounding “no,” but it requires a little bit of unpacking, which I attempt below the fold.

It is axiomatic that, as a general matter, the state courts are not just entitled, but obliged, to entertain federal question lawsuits by virtue of the Supremacy Clause. As a result, there are three general principles (as enunciated by Justice Stevens in 1990) that govern attempts by states to preclude enforcement of federal questions in state courts:

1. A state court may not deny a federal right, when the parties and controversy are properly before it, in the absence of “valid excuse.”
2. An excuse that is inconsistent with or violates federal law is not a valid excuse.
3. When a state court refuses jurisdiction because of a neutral state rule regarding the administration of the courts, [the Court] must act with utmost caution before deciding that it is obligated to entertain the claim.

With regard to the New York statute at issue here, the Court of Appeals concluded that the statute was “a neutral state rule regarding the administration of the courts,” and thereby upheld it. According to the majority, “if a state does not extend jurisdiction to its courts to litigate a certain type of claim, it may deprive those courts of jurisdiction over a related federal claim. In that situation, there is no Supremacy Clause violation because there is no discrimination against the federal claim in favor of similar state claims.” Indeed, “[b]y restricting the forum for a certain type of claim to a particular state court, the Legislature did nothing more than exercise its prerogative to establish the subject matter jurisdiction of state courts in a manner consistent with New York's conditional waiver of sovereign immunity, which does not allow civil rights claims to proceed against the state in Supreme Court.”

There is a certain logic to the majority’s argument: New York isn’t facially discriminating against § 1983 claims; it is funneling all damages claims against corrections officers to the New York Court of Claims (where it substitutes the state for the officer-defendants). That’s why I think this presents something of a close case… But there are three independent arguments for why I think the majority’s analysis is ultimately incorrect:

First, section 24 of the New York Correction Law has the effect of immunizing officer-defendants in the Court of Claims. Because the statute substitutes the State of New York as a defendant in the Court of Claims, it effectively (if not formally) bestows absolute immunity upon state corrections officers from suit under § 1983. But as the Court held in Martinez v. California in 1980, “Conduct by persons acting under color of state law which is wrongful under 42 U.S.C. § 1983 . . . cannot be immunized by state law. A construction of the federal statute which permitted a state immunity defense to have controlling effect would transmute a basic guarantee into an illusory promise; and the supremacy clause of the Constitution insures that the proper construction may be enforced.” (emphasis added).

Second, the State of New York cannot be held liable under § 1983, even in the New York Court of Claims. A long line of cases, dating back to Monell v. New York City Dep’t of Social Services and Will v. Michigan Dep’t of State Police holds that states are not “persons” within the meaning of § 1983. Thus, even though the New York Constitution waives New York’s sovereign immunity from § 1983 suits in the New York Court of Claims, § 1983 cannot be invoked against a State—sovereign immunity or no sovereign immunity. In other words, section 24 both (a) immunizes the officer-defendant; and (b) read together with the Supreme Court’s interpretation of § 1983, prevents the maintenance of a § 1983 claim against the State itself. In total, then, section 24 does not transfer jurisdiction over § 1983 claims against state correction officers from the New York Supreme Court to the New York Court of Claims; it eviscerates them.

Third, and related to the first two points, I’m pretty sure the Supreme Court has already rejected this argument—and unanimously at that—in Howlett ex rel. Howlett v. Rose, in 1990. There, the Court concluded that “the Florida court's refusal to entertain one discrete category of § 1983 claims, when the court entertains similar state-law actions against state defendants, violates the Supremacy Clause." One of the arguments presented in Howlett was that “a federal court has no power to compel a state court to entertain a claim over which the state court has no jurisdiction as a matter of state law.” In responding to this idea, Justice Stevens invoked a series of analogies:

It is settled that a court of otherwise competent jurisdiction may not avoid its parallel obligation under the Full Faith and Credit Clause to entertain another State's cause of action by invocation of the term “jurisdiction.” A State cannot “escape this constitutional obligation to enforce the rights and duties validly created under the laws of other states by the simple device of removing jurisdiction from courts otherwise competent.” Similarly, a State may not evade the strictures of the Privileges and Immunities Clause by denying jurisdiction to a court otherwise competent. As our discussion of Testa, McKnett, and Mondou establishes, the same is true with respect to a state court’s obligations under the Supremacy Clause. The force of the Supremacy Clause is not so weak that it can be evaded by mere mention of the word “jurisdiction.” Indeed, if this argument had merit, the State of Wisconsin could overrule our decision in Felder v. Casey, 487 U.S. 131 (1988), by simply amending its notice-of-claim statute to provide that no state court would have jurisdiction of an action in which the plaintiff failed to give the required notice. The Supremacy Clause requires more than that.

In other words, as Judge Jones wrote in his dissent in the New York Court of Appeals, “once a state opens its courts to hear section 1983 actions, it may not selectively exclude certain section 1983 actions by denominating state policies as jurisdictional.” Judge Jones's dissent also quotes an ABA guide to § 1983 litigation in state court for the proposition that: “The most flagrant example of a state court system selectively excluding § 1983 cases is the refusal of the New York courts to entertain § 1983 actions against state correctional officials.”

So it seems. And given the analysis above, I cannot see how such a hostile attitude to federal claims is possibly constitutional.

For Our Hanover, New Hampshire-Area Readers...

I'll be speaking later today at a neat-looking conference at Dartmouth College co-sponsored by the Ford Foundation, titled "The Gaze & the Veil: Surveillance and the Legacies of Orientalism." My topic, specifically, is "Hamdan v. Rumsfeld and the Marginalization of Individual Rights," a paper to which I've alluded before, and about which I hope to blog more shortly.

In the meantime, it's frickin' cold here! When I got on the plane this morning, I almost got off when the pilot said it was -12 at our destination (Lebanon Municipal Airport). Fortunately, by the time we landed, it had "warmed up" to -10.

At least there's EBA's!!!

Law Professor Amicus Brief in Omar and Munaf

I'm extremely pleased (and, perhaps more importantly, relieved) to post a copy of the amicus brief filed today on behalf of a group of federal courts and constitutional law professors in the Iraqi detention cases currently before the Supreme Court -- Geren v. Omar and Munaf v. Geren.  I had the privilege of co-authoring the brief along with Judith Resnik (Yale) and a team of lawyers from Davis Polk...

I've written a lot about these cases before, both on the blog and in print. In a nutshell, the brief argues that the Supreme Court's habeas jurisprudence, though not always completely consistent, has evolved in such a manner so as to produce a series of principles that support the exercise of jurisdiction in both of the current cases (although the brief takes no position on the merits).

Confounding the Founding: Why Separated Powers?

For an article I'm working on (about which I hope to blog further soon), I came across the following quote, delivered by the current Attorney General in a 2004 speech. Referring to the Founding, then-Judge Mukasey suggested that the Federalists:

resisted pressure from people like Patrick Henry . . . to include the substance of what later became the Bill of Rights in the Constitution itself because they understood that if you give equal weight to a citizen’s rights against the government . . . and to the definition of government itself, it becomes correspondingly harder to command support for that government and correspondingly easier for people to simply go where their rights, and their interests, seem to take them.

Mukasey made a slightly weaker form of the same argument in a Wall Street Journal op-ed published a few months later, suggesting that "the hidden message in the structure of the Constitution . . . is that the government it establishes is entitled, at least in the first instance, to receive from its citizens the benefit of the doubt."

Here's what's troubling me: Isn't this entirely backwards? I had always understood the consensus narrative of the Founding to be that (1) the Constitution's structural features, especially the separation of powers, were crafted largely (although perhaps not entirely) for the purpose of protecting individual rights; and (2) the reason why the Federalists were opposed to a Bill of Rights wasn't because they thought that individual rights were not entitled to "equal weight"; quite to the contrary, they feared that whatever rights remained un-enumerated might not be protected...

So I guess I have two questions:

1. Was Mukasey re-writing history (or, put another way, am I just wrong)?
2. If he was (and I'm not), how pervasive is this idea in contemporary understandings of the Founding?

I have my own ideas, but am curious for others' thoughts...

When the N.Y. Times Becomes the Paper of Gloom-and-Doom (or at least of Season One of "24")

Buried among the Oscar coverage (by the way, I totally had Atonement for best picture in my Oscar pool -- oops!), was this story from yesterday's New York Times that, for some reason, totally rubbed me the wrong way:

The headline was innocuous enough: "In Painful Past, Hushed Worry About Obama." Who knew that the article would be about the assassinations of JFK, RFK, and MLK (the latter two, in particular), and the (apparently inevitable) comparison to Obama's candidacy and the shadow of assassination?

The article struck me as incredibly ominous, and unnecessarily so -- the discussion of passing through Daley Square, in particular... Is the Paper of Record trying to scare the crap out of all of us? Is there any reason why this is a story now? (The article itself suggests not...).

Update: Over at Discourse.net, my friend and former colleague Michael Froomkin has more details on the story, including a better (to me, anyway) explanation for why the Times would run such a story in the first place. The odd thing, as Michael's post implicitly suggests, is that the apparent real impetus for the story (the odd security issues in Dallas) is totally left out of the story... still creepy. Now, perhaps, even creepier.