Attorney General Eric Holder at May 7 White House briefing on judicial vacancies

Felix Frankfurter could never be confirmed as a Supreme Court justice in today’s America.  He was a prolific scholar, leaving a trail of law review articles and books that even his contemporaries at Harvard Law School branded as radical.  He was a principled activist.  He organized an investigation into the notorious Palmer raids, orchestrated by a young ambitious J. Edgar Hoover.  Frankfurter and a small group of colleagues published “Report to the American People,” May 28, 1920, in which they accused then Attorney General Alexander Mitchell Palmer and Hoover of an “assault upon the most sacred principles of our Constitutional liberties.”  Weiner, Tim (2012). Enemies: A History of the FBI. Random House, Inc.  (The Palmer raids accurately foreshadowed the American response to 911.)

The Palmer raids rounded up thousands of mostly immigrants who were suspected of being Communists and anarchists.  No one knows for sure how many people were pulled off the streets, out of their homes, and away from their families.  Those men and women were beaten, tortured, and held incommunicado.  Over five thousand men and women is the estimate.  Those who were born abroad were summarily deported after only cursory hearings.  All of the detainees, most of whom were rounded up without warrants, were denied access to lawyers.

Professor Frankfurter challenged the power of the Attorney General of the United States and his emerging bully, J. Edgar, in court proceedings held in Boston.  Hoover arrived but never came into the courtroom after Palmer was humiliated during questioning.  Instead Hoover quietly fled back to D.C. and later denied that he had indeed run every aspect of the Palmer Raids.

More activism, more commitment to social justice and the fair administration of the law.  Frankfurter, after reviewing the trial transcript, defended Sacco and Vanzetti in an impassioned essay in the Atlantic Monthly.  The prosecution and judge, accused Frankfurter, had played on anti-immigrant sentiments within the jury, and the case violated “all…notions of Anglo-American procedure.”  Then Harvard President A. Lawrence Lowell was appointed by the Massachusetts governor to review the conviction, and found that there was no viable claim of misfeasance nor should there be clemency.  Here’s where academic freedom is essential: Frankfurter remained on the Harvard Law faculty from 1914 through 1939, when he was appointed to the U.S. Supreme Court by President Franklin Delano Roosevelt.

Imagine what his confirmation hearings might look like today!  (Think Goodwin Liu for the Ninth Circuit or Dawn Johnsen for Director of Office of Legal Counsel.)

Every president is entitled, under the constitution, to a very specific legacy.  The power of the president to nominate qualified candidates to the federal judiciary for life, subject, of course, to the advise and consent of the Senate, is one of the most important presidential powers written into the Constitution.  Yes, originalists, written into the Constitution from the very beginning!  The judicial appointments process has bogged down in politics.  Depending on which political party is telling the history, the blame for escalating obstruction gets bandied back and forth.  It seems more prominent, or at least, more effective, during Democratic administrations.

But this much we know: It’s gotten so bad that President Obama has the worst confirmation record of any recent president, not because he is nominating unqualified candidates, but because the confirmation process has been quietly and anonymously hoodwinked by partisan politics.

Just the facts, please.  OK, by May 1 of his fourth year in his first term, Reagan had only a 3% vacancy rate in the federal district and circuit courts.  It looks deceptive to leave unexamined the H.W. Bush figure of 14%; this figure was high because the 1990 Judicial Improvements Act created 85 new positions, and by the close of his first and only term, H.W. Bush had a record 192 confirmations.  Clinton, who like Obama was targeted immediately in a campaign to slow his appointments process, had what was considered an astonishing 7% vacancy rate, whereas George Bush had only a 5% figure.

As of May 1, 2012, Obama has a 9% vacancy rate.  And it isn’t, as the President’s distractors claim, because the White House is slow to nominate.  It’s because the Senate is using every tool available to shut the entire process down: from senators failing to cooperate with the customary courtesy of submitting the names of qualified nominees from a Senator’s home state, whether a Democrat or not; refusing to schedule hearings on pending nominees; avoiding a vote to bring the nominee out of Committee; and preventing a full vote in the Senate.  At each stage of the process, there are opportunities to anonymously and secretly stop the nomination from moving forward.  Ah, wax nostalgic for the days when Senators had to read from telephone books to filibuster.  At least we could hear and see who was responsible.

Judicial vacancies restrict access to the federal courts, make litigation more expensive, and insidiously undermine the credibility of government.  And a confirmation process that prevents the qualified candidates of an elected president’s party from taking office sways the judiciary further to the right despite an election where voters confirmed that civil liberties, clean air, privacy, reproductive rights, social justice, and corporate accountability were important issues they wanted our federal government to maintain and safeguard.

The Alliance for Justice has created a fantastic resource to help educate voters and civic leaders about the state of judicial nominations.  The Judicial Selection Project has a running count of vacancies in the district and circuit courts, along with profiles of all of the current nominees.  It’s a great lesson in the advise & consent function of the Senate, or at least what can go wrong with it.  There is another site, too, hosted by ACS, called JudicialNominations.org, that has similar information.

These sites are worth more than a browse; they’re worthy of checking to see if the federal district or circuit court in your home region is missing a judge or two.  Then it’s worth writing to your Senators and asking the question: why!  (Just a note: The Thurmond Rule is used as an excuse to stop all judicial confirmations so close to an election, but it’s being misused.)  Read about The Myth of the Thurmond Rule.

Take a moment to reflect upon the recent arguments before the U.S. Supreme Court in the healthcare and Arizona immigration cases.  With the Supreme Court hearing fewer cases, we need to improve the quality of justice before federal district and circuit courts, which affect thousands of people now and for years to come.

What law do you want to teach as a professor?

Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law

I am moved to write about several aspects of the current conflict in this space as part of what I perceive as my duty as a professor of international law and an American citizen living and working in Toledo, Ohio.  What I have to write may take some time and be over several posts, but I will endeavour to give the same name and give the different aspects of these posts.  I would be happy if people would feel free to link to these articles if they find them of interest.

I. Military Commissions Generally

With the arraignment this morning of KSM and the other alleged 9/11 plotters, the next act of the military commission endgame plays out with the whole world watching. We are asked to watch and see the quality of the system and judge for ourselves (Brig Gen Mark Martins Remarks May 4, 2012 http://www.lawfareblog.com/2012/05/live-blogging-tomorrows-arraignment-in-united-states-v-ksm-et-al/#more-7092).  There are those who have watched past proceedings who assure us they were fair (Benjamin Wittes, Will Military Commissions Survive KSM? The Washington Post, May 4, 2012, http://www.washingtonpost.com/opinions/ksm-trial-will-put-military-commissions-to-the-test/2012/05/03/gIQAXeE0zT_story.html) and there are those who have worked in them who  challenge their fairness (Morris Davis, Khalid Sheikh Mohammed Gets His Way, Salon, May 2, 2012, http://www.salon.com/writer/morris_davis/).

 Is it true that  ”Quietly and gradually, the commissions have become a real court?”

Back on September 25, 2006, after the Supreme Court had decided Hamdan v/ Rumsfeld that summer stating that at least Common Article 3 applied to the detainees and striking down on statutory grounds the military tribunals created under the President’s Military Order of Novermber 13, 2001 I wrote a lengthy annotated analysis of the then proposed compromise draft of the Military Commissions Act of 2006 in a Jurist post (‘All the Laws But One’: Parsing the Military Commissions Bill, September 25, 2006, http://jurist.law.pitt.edu/forumy/2006/09/all-laws-but-one-parsing-military.php) .  

I republish here the lengthy introduction to that annotated analysis because the introduction speaks to the spirit of the military commission process in the Presidential Military Order and the Military Commission Act of 2006 periods or what might be called the Bush phase.

 In this essay I offer an annotated review of the compromise version [PDF] of the Military Commissions Act of 2006 released late last week. My focus, however, is not on the sections that have so far been the subject of great discussion (classified information, common article 3, habeas corpus, offenses, etc.) but rather on what the compromise drafters are trying to do overall.

It appears that what is going on here is broader than what I have seen described. The compromise drafters appear to be decoupling these military commissions from international law, from domestic courts-martial, from other types of traditional military commissions, from any other law. These alien unlawful enemy combatants, these human beings, are in fact being decoupled from “all the laws but one,” in the words of President Lincoln. The power of this effort should not be underestimated because as the lone superpower, the act does no less than push out to the world a state practice that would bring us back to pre-Geneva Convention standards for these people, worthy of only “special process”.

From this view, these individuals have committed such heinous crimes that their process and punishment should be in a carefully controlled hermetically sealed environment that should not contaminate any other procedures that might impact more “deserving” characters. In the 18 sections below I examine the provisions that struck me that – taken as a whole – give us the outline (if we wish to look) of this “special process”. We must remember that this special process is being created using all the ordinary words we have seen before. That is in one sense the genius of this effort. By carefully pulling together points strewn in many places including Hamdan v. Rumsfeld, words that are familiar are able to create a unfamiliar “special process”.

For this special process, this group of human beings is segregated from the rest of mankind. They are segregated and by that segregation they are declared a different type of human being. Based on the responses of Republicans and Democrats, the American Congress, the President and by extension all the American people are willing to have these people declared as different. Moreover, the United States Government is willing to have these rules applied to aliens and in that sense is making a statement to all countries who might seek to invoke diplomatic protection for these non-Americans. Those countries must now consider (“are you with us or against us?”) whether their countrymen are truly a different type of human being such that they will acquiesce in the American determination of segregation.

This, I would suggest, is the essence of the decision that is going to be made this week by this Congress on this legislation. Is America going to declare certain human beings beyond “all the laws but one” depriving them of common levels of human dignity? This type of separation resonates in American history at many points – in the Constitution in its treatment of slaves, in the reservations for Native Americans, in the exclusion of Asians, in the status of women. It resonates in other countries’ histories also, such as in the Black Codes in France, the treatment of Algerians by the French and the laws for the overseas territories, the time of apartheid in South Africa, and the Nuremberg Laws in Nazi Germany. These are only some examples and others can think of more ancient historical references (such as who was a citizen of Athens in the days of its empire).

It points a question mark at the Universal Declaration of Human Rights and the rest of the International Bill of Rights. We are asked to think that this might only be for the current “difficulties” but the legislation does not have any sunset provision. A permanent track is created and any Congressperson or Senator who might seek to amend it in the future is likely to be immediately excoriated for being “soft on terror”. Much power is centered in the President and the unitary executive in the implementation of the process with extremely limited judicial review.

This is what bothers me greatly. For on every occasion I can remember where this kind of special process occurs there is a person who stands up in front of the all powerful in that process and asserts his human dignity. A person like David Wainapel, the late husband of a late friend who challenged a Nazi camp commander in the center of his concentration camp. David Wainapel was considered by that special process as a non-human, but David asserted his humanity. I suspect that these alien unlawful enemy combatants and their lawyers will assert their humanity in front of this special process and the question will be whether we are capable of seeing that humanity (which is to see the evil of which we are each capable for those of them who are guilty) and whether we deny what we are capable of by denying their humanity. And by that denial, I fear we produce an abomination in our lust to end the presence of these persons. In a sense, their victory will have been complete in having us put such effort in creating such a special process for them. We give them their status by our treatment of them – the strangest aspect of all this.

Something deep in the American soul was stirred by the 9/11 events. Something that reminds me personally of what one sees in the eyes of lynch mobs in the old pictures. Except, now those standing are not exclusively white but are a rainbow coalition to ban certain aliens from the benefits of human dignity. There is a coldness to the hate. There is a precision to the process of destroying these persons. There is a determination and an exquisite intelligence with which this is done – through processes that are oh so democratic.

Those pushing this special process have so much power to sway us. All politicians are afraid if they stand against this that millions of dollars will come raining down on them from “the other side” (Republican or Democrat) for being “soft on terror”. Persons of great stature have bought into this compromise (McCain et al) giving psychic cover for those to vote for this language. The rest of the world could make an outcry but one feels that the efforts so far are perfunctory – half-hearted – maybe because the rest of the world wants this special process to develop that they can apply to their special group.

It might be possible for some lone Senator or some lone Congressperson to stand up and say “This is too much for mankind. We have fought too long to not create these kinds of special processes.” We await that champion of human dignity in all its frailness. My fear is that there is no one.

In 2008, I wrote an article entitled No Third Class Processes for Foreigners, 103 Northwestern U. L. Rev. Colloquy 88 (2008) in which I referred in particular to Salim Hamdan’s effort to block his military commission from being started and the judgment of the United States District Court Judge James Robertson as well as the decisions of the military judge (Judge Keith Allred) in Hamdan’s military commission in the motion to suppress hearing.  I refer anyone reading this to the discussion in that article but for here I will present the takeaway, to wit:

The Salim Ahmed Hamdan military commission recently concluded at Guantánamo. This is the second military commission, the first having been the subject of a plea agreement made by the Australian detainee David Hicks.[12] I opposed these military commissions as being fundamentally unfair when they were being considered by Congress back in 2006. The MCA appeared to disconnect these detainees from domestic and international law, subjecting them to a hermetically sealed process under the MCA alone. Since then, in Boumediene, the Supreme Court has pried open this process by finding constitutional habeas corpus to be available.[13] The contours of such habeas relief are now being worked out in the lower courts.[14] In light of the torture found to have been conducted by the United States and its allies on detainees, one of the major questions for these military commissions has been the manner in which coerced evidence and hearsay evidence will be treated. The Hamdan military commission provided the first glimpse at how the Military Commissions will handle evidentiary matters in an actual trial. While the MCA represents a great deal of understanding of the interstices of U.S. law, because of the departures in the act from what would occur in courts or courts-martial, I have been worried that the process would be unfair “as applied.”

The Hamdan military commission confirmed that this process is not consistent with fundamental norms of American justice. I came to this conclusion early in the proceedings, through an examination of the Memorandum Order of Judge James Robertson of July 18, 2008 and the Ruling on Motions to Suppress of Military Judge Keith Allred two days later on July 20, 2008. This Essay walks through these two orders because they appear to be foundational for the Hamdan military commission and likely will also be foundational for subsequent proceedings with “bigger fish.” My conclusion is that in contrast to courts that provide first class process, or courts-martial that provide second class justice, these separate and unequal military commissions are a third class process for foreigners in an almost hermetically sealed container. They are procedures aimed at hiding and turning a blind eye to the policy of cruelty towards detainees, not about providing meaningful due process.

With the ending of the Bush phase of the Military Commissions marked for me by the Hamdan and the Boumediene Supreme Court decisions, the Obama phase of the Military Commissions has begun.  As many know, the KSM military commission that started eight minutes ago is being conducted under the Military Commission Act of 2009, an act which was created further to a detailed review by the Obama Administration and bipartisan passage in Congress.  Chief Prosecutor Brig Gen Mark Martins,  in the above post, several speeches at Harvard Law School and other venues, in press briefings during the recent military commissions for Al-Nashiri, etc. has highlighted the significant improvements in the military commissions thanks to the revisions of 2009 and asked us to watch how these commissions proceed to make our own determination about their fairness.  Even last night, to counter concerns about evidence from torture and cruel inhuman and degrading treatment being introduced, Brig Gen Martins felt it important to highlight to those in the press at Gitmo that:

 Second, some have said that any attempt to seek accountability within the military commissions system must inevitably be tainted by torture.  To those who have these concerns, we say, “we acknowledge your skepticism,” but we also say that the law prohibits the use of any statement obtained as a result of torture or cruel, inhuman, or degrading treatment, and we will implement the law.  These proceedings will be fair, and I submit that we military judge advocates who are carrying out assigned duties in this reformed process have some standing to maintain that they will be fair.   Let me be clear: we will not use statements obtained as a result of torture or cruel, inhuman, or degrading treatment.  It was Judge Advocate General of the Army George Davis who denounced the use of the euphemistically named “water cure” during the Philippine Insurrection more than a century ago, and United States military lawyers since that time have been an important voice for the principle that confessions of an accused must be voluntary.  And the prohibition applies to so-called “admissible hearsay” as well: even otherwise probative and reliable out-of-court statements will not be admitted if unlawfully obtained or if the will of the speaker was overborne.

On these and other matters, I am not saying simply “trust us.”  I am asking you to withhold judgment for a time and to watch and to listen.  If you do, I believe you will see a system worthy of your and the public’s confidence.  And now, I will take questions.

       *      *     *     *     *

In closing, I have come to see firsthand from observing justice systems around the world that what matters is not the majesty of the physical surroundings or the trappings of the courthouse, but rather the wisdom of the court and the quality of its justice.  Austere locations are nothing new to justice, and particularly to military courts, and I am confident that this one will achieve fairness and justice despite the modest setting.  It is encouraging that all of you have elected to endure the inconveniences and the austerity of the setting to watch these proceedings.

 Of course, the efforts here is focused on those who are in Guantanamo for the KSM or 9/11 defendants military commission.  But just watching the KSM military commission is not good enough.  Already, the military commissions of high value detainees Majid Khan of February 29, 2012 and Abd Al-Rahim Hussein Muhammad Abdu Al Nashiri Motion hearings of April 11-13, 2012 done under the Military Commission Act of 2009 have had some troubling aspects to them. 

On February 29, 2012, Majid Khan pled guilty under the Military Commissions Act of 2009 to conspiracy, murder in violation of the laws of war, attempted murder in violation of the laws of war, material support for terrorism, and spying.  I will discuss below the broader issue of whether a military commission of this kind can charge someone with the substantive crimes to which he pled guilty, issues of great significance.  For now, working from the transcriptions provided by lawfareblog.com, I commend to all to read the Majid Khan Arraignment transcritpions and in particular the Majid Kahn Arraignment # 4 (http://www.lawfareblog.com/2012/02/majid-khan-arraignment-4/). 

 The manner in which Khan is taken through and responds to the recital of the various charges against him and the paragraphs of the Pre-Trial Agreement troubled me both for what was said and for what was blotted out.  While the entire arraignment summaries are of great interest, I was struck in particular by a particular section, to wit:

Judge Pohl verifies that Khan waives his appeals rights and gives up the right to collaterally attack his conviction. He also verifies that Khan understands that under the PTA, he can’t litigate or challenge the circumstances of his capture or detention—except that after he has served his approved sentence, he retains the right to challenge any continued detention through habeas. Khan says he understands that he can’t sue the CIA for what happened in the past and that the government can still hold him after he does his time—that this agreement does not guarantee that he will ever go free.

“I’m making a leap of faith here, sir,” he says.

Judge Pohl also clarifies that Khan has agreed to seek dismissal of his pending habeas petition without prejudice.

At this point, the audio gets blocked, presumably because Khan has mentioned his CIA detention. When it comes on again, Judge Pohl instructs him not to discuss any individual agency of government—whereupon the feed briefly goes out again.

When it returns, Judge Pohl asks Khan whether he agrees to join the government in the request for a four year sentencing delay. He does and waives any speedy trial rights. He also affirms that he has agreed not to offer live testimony of any Guantanamo detainees at his sentencing hearing, when it does take place. He agrees that the agreement is binding and that the government could prove him guilty. And he once again waives the right to trial and the right against self-incrimination and affirms that he is satisfied with his representation. He affirms again that he has been fully advised of the charges against him and the legal effects of his plea and that he understands that he can withdraw his plea at any time before his sentence is announce but would then lose the benefits of his plea agreement.

After going over a few other matters and reiterating—and receiving Khan’s assurance—on several questions related to the voluntariness of the plea, Judge Pohl accepts the plea and finds Khan guilty.

I presume that this is the kind of voluntary plea to which Brig Gen Mark Martins was referring in his comments last night.  And, maybe in the lexicon of criminal law specialists all of this looks quite normal and consistent with due process.  What struck me though was that in this crucial moment of Mr. Khan’s pleading guilty, Mr. Khan goes back to his detention at the hands of the CIA and that treatment.  Brig. General Martins has wanted us to understand that evidence from torture and cruel inhuman and degrading treatment will not be admissible but what clearly is present (even if the mike is muted for the world) in the proceeding is the memory of the CIA detention.  That CIA detention clearly weighed on Mr. Khan’s mind as he spoke of it as he was pleading guilty.  Moreover, as evidenced by the agreement, that CIA detention also weighed on the mind of the prosecutor and Judge Pohl of the court pursuant to the specific discussion of the waivers that are in the plea agreement. 

Put another way, while no evidence derived from torture and cruel inhuman or degrading treatment is admitted into the military commission, the memory of that treatment and renouncing doing anything about that treatment forms a central part of the plea deal.  One could imagine the nature of the voluntariness of the plea agreement if it had been given in the absence of that torture and cruel inhuman or degrading treatment as compared to the nature of this voluntariness in the shadow of that torture and cruel inhuman and degrading treatment as was demonstrated in this arraignment.  The absence of introduction of evidence does not eliminate the effects of that treatment and its impact (some might say taint) on the whole process.  The Obama phase guilty plea is fruit of the Bush phase torture and changing the atmospherics of the court rules does not alter that straight line – and therein lies a dilemma.  One might see this dilemma as being whether nothing can be done in a judicial proceeding, to rid the result of the taint of that torture and cruel, inhuman and degrading treatment to make sure that both judicial forms and judicial norms (using Justice Robert Jackson’s famous phrase from his “The Rule of Law Among Nations” speech of April 13, 1945, http://www.roberthjackson.org/the-man/speeches-articles/speeches/speeches-by-robert-h-jackson/the-rule-of-law-among-nations/) are respected, even in or maybe especially in circumstances of a voluntary plea such as that of Mr. Khan.  We all have in our memories the show trials of Stalin in which the defendants pled guilty in the court proceeding but whose pleas were considered derived from torture and disregarded.  Once again, the treatment is in the court and even without evidence being introduced taints the process.

In the second military commission under the Military Commission Act of 2009 of Mr. Al-Nashiri the motion hearings are the subject of a series of transcriptions over at lawfareblog.com that I also commend to readers.  Here the rules of the Military Commission Act of 2009 are applied and the counsels wrestle with them.  These procedural battles may cause the non-lawyer (and maybe lawyers who hate procedure) to be completely bored.

There are a few points that are of relevance. 

An early part of the motions are concerned with defense counsel being able to meet with Mr. Al-Nashiri without him being shackled and for Mr. Al-Nashiri to appear in the court without being shackled.  The concern being raised by the defense with regard to that is that the shackling reminds Mr. Al-Nashiri of his treatment as a high-value detainee by the CIA and troubles him.  The back and forth on this brings back the distinction between what are conditions of confinement as opposed to interrogation techniques.  For the uninitiated, this may seem arcane, but for those following this topic for some time, not only is the treatment at the CIA black sites being brought into the courtroom but also the memos of particularly Stephen Bradbury and John Yoo and possibly others that made distinctions between conditions of confinement and permissible interrogation techniques.  It should be obvious that shackling can be viewed as a security condition of confinement, but it, like all other aspects of the confinement,  form part of the manner in which the individual subject to interrogation techniques experiences the detention.  For example, when my godfather Romeo Horton, was held by the Doe government in Liberia after that coup, he was held in the dark.  Being held in the dark might be a condition of confinement (just like being held in a place that is light all the time, or noisy) and is not per se interrogation but forms obviously a part of the experience of detention with impact on the detainee.  While there are differences between confinement conditions and interrogation techniques, the point is that the shackling is a dual use type of procedure when it is part and parcel of a condition of confinement and part and parcel of the process of torture and cruel, inhuman or degrading treatment.  In this sense, once again, the CIA black sites experience is back in Mr. Al-Nashiri’s military commission even in no evidence from the period of his or others detention and torture or cruel inhuman or degrading treatment is admissible. 

These issues of the shackling further cause the CIA black site experience to come into the military commission because the press are seeking that any hearings on the treatment of Mr. Al-Nashiri at the black sites be open to the press so that there can be transparency and government misconduct not be allowed to be hidden under an argument of national security (as happened in the United States v. Reynolds, 345 U.S. 1 (1953) case in which the state secrets privilege was originally developed by the Supreme Court).  Judge Pohl had the dilemma of if he wanted to hear evidence he had to also decide on press access to what the government would be seeking to be closed hearings.  Judge Pohl found an elegant solution to avoid having to have that CIA treatment evidence come and avoid the dilemmas of holding a hearing.  For me, the significant point is that the CIA treatment reared its head again, public scrutiny of that treatment was risked, and then the judge found a creative way to make that particular evidence not intrude into either the public or classified aspects of the case.  And, this significant point again shows how that treatment weighed on the process of the military commission, weighed on Mr. Al-Nashiri’s experience of that process as a defendant subject to possible death penalty, and has weighed on the government in formulating its approaches to the case.

But, there is more in Mr. Al-Nashiri’s motion hearings.  Mr. Al-Nashiri’s lawyers challenge the admissibility of some evidence and the argument is made that, pursuant to the Military Commissions Act of 2009 rules (my emphasis added), the challenge is premature.  The defense asserts that if they do not make such a challenge now, once the judge has allowed the evidence in, the defense is precluded under the rules from raising a challenge to that evidence.  This issue is raised pursuant to the way the Military Commissions Act of 2009 rules operate as well as as a constitutional matter.  Judge Pohl asks whether, under the Military Commission Act of 2009 rule, if the evidence is admitted the judge can sua sponte (i.e. on the court’s initiative and not by a party) raise these concerns about the evidence and it is conceded by the parties that the judge can raise such points sua sponte. 

Now someone might find it perfectly fine that the judge can do this on his initiative, but there are two problems.  First, as a statutory matter the judge can raise this issue on his own, this is within the judge’s discretion and the judge may not exercise his discretion to raise the issue.  If the judge does not exercise his discretion to raise the issue the result is that before the admission, the defendant’s motion is premature and after the admission of the evidence the defendant is not able to challenge its admission.  If that is not a statutory Catch 22, I do not know what is.

But some out there might say “what about due process?” and that is where it gets even more interesting.  The defense in making its motions is arguing several Constitutional grounds at various points including due process as well as equal protection.  But, and this is very important to remember, we are at Guantanamo and while the Supreme Court in 2008 in Boumediene settled the fact that detainees at Guantanamo were entitled to habeas corpus review (more on that later), the Supreme Court did not settle what other aspects of the Constitution apply at Guantanamo.  This reality becomes painfully clear when Judge Pohl states his understanding that the rights of the detainees are statutory (meaning flowing from the Military Commissions Act of 2009 and other relevant Congressional acts). 

As noted by Professor Bobby Chesney, in his April 18, 2012 lawfareblog.com post “GTMO, Civil Suits, and Qualified Immunity: The Problematic Analysis in Hamad v. Gates” (http://www.lawfareblog.com/2012/04/gtmo-civil-suits-and-qualified-immunity-the-problematic-analysis-in-hamad-v-gates/), the extent of the Constitution’s application at Guantanamo beyond the Suspension Clause has not been settled.  And it does not appear to have been settled in the habeas litigation in the D.C. Circuit or in a Supreme Court decision in the post-Boumediene period.  The DC Circuit has distinguished Guantanamo from the Philippines and the Insular Cases fundamental rights jurisprudence at the early part of the 20th century.  I personally think that DC Circuit judges who limit Constitutional extension to Guantanamo who hang their analysis on the distinction of the de jure status of the Philippines being US is suspect.  In the early 1900′s, at the time of the Insular Cases, the US intention was to relinquish control of the Philippines and not to graft too much of our Constitutional and common law traditions on a then territory with a longstanding Spanish civil law tradition.  Yet, fundamental rights were said to apply there.  Contrast that with Guantanamo ( a territory with the de facto status by treaty of being subject to the long-term exclusive jurisdiction and control of the United States) where fundamental rights beyond the Suspension Clause are not clearly said to apply.  Such an approach truly raises form over substance that I think is problematic for a jurisdiction to adjudicate.  But those are my preferences.

Whatever my preferences, Professor Chesney notes very clearly in his analysis that:

Note the dates that are in issue.  Hamad was at Guantanamo from March 2003 until December 2007.  That is to say, he was transferred out of GTMO some seven months prior to the Supreme Court’s decision in Boumediene concluded that GTMO detainees are protected by the Constitution’s Suspension Clause.  Nevermind that Kennedy’s opinion in Boumediene pointedly does not confirm whether or not any other constitutional protections apply beyond the Suspension Clause, and the ongoing debates surrounding that question over the past four years.  Even if Boumediene were clear on the point, government officials could hardly be faulted for not anticipating that this fiercely contested litigation (which had broken strongly in the government’s favor at the Circuit Court level) would turn out that way in the end.   The idea that it was clear in 2006-2007 that the Fifth Amendment applied at GTMO—i.e., that Johnson v. Eisentrager did not control on this point—and that any reasonable person would have understood this at the time is simply preposterous.

The court’s response on this point?  It is brief.  Very brief.  The court simply cites the Supreme Court’s 2004 ruling in Rasul v. Bush, claiming based on it that “the Supreme Court specifically recognized a Guantanamo detainee’s right to constitutional protections as early as 2004” (slip op. at 8).  That is an astonishing misstatement; Rasul was, famously, a matter of statutory interpretation involving the federal habeas statute, not any constitutional claim.  True, Justice Stevens included a footnote in Rasul stating:

(this is a cite made by Prof. Chesney) Petitioners’ allegations–that, although they have engaged neither in combat nor in acts of terrorism against the United States, they have been held in Executive detention for more than two years in territory subject to the long-term, exclusive jurisdiction and control of the United States, without access to counsel and without being charged with any wrongdoing–unquestionably describe “custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). Cf. United States v. Verdugo-Urquidez,494 U.S. 259, 277—278 (1990) (Kennedy, J., concurring), and cases cited therein. (this is the end of the cite made by Prof. Chesney)

That bit of ambiguous dicta is an extremely thin thread from which to hang the claim that it was clearly established from 2004 onward that GTMO detainees had constitutional rights, particularly bearing in mind that the Suspension Clause issue alone would take another four years of litigaiton (including, along the way, a Circuit Court ruling rejecting such claims).  In any event, the Hamad court’s pincite to Rasul does not refer to this footnote in any event, but rather to the core statutory holding on access to habeas (i.e., it cites to page 481 of the opinion, not page 483 n. 15), suggesting that the Hamad court did not necessarily mean to rely on the footnote.

The court’s engagement with the substance of the alleged Fifth Amendment violation itself also is troubling.  First, it is not clear whether the court means to suggest merely that it would violate the Fifth Amendment to take more than two years to effectuate a transfer out of GTMO after an ARB determines that a person can be released, or more broadly that detention without criminal charge at GTMO is itself unconstitutional from the outset.  The latter position obviously would be incorrect, given the now sprawling body of habeas decisions affirming the legality of military detention in the abstract.  The former position is a much more interesting question, in contrast, but the premise seems flawed in this instance.

Mr. Al-Nashiri’s motion discussion points out that the lawyers are arguing their cases in a statutory space over which the extent, if any, of Constitutional protections for this defendant facing the death penalty is uncertain.  As an international lawyer, I might hope that US treaty obligations including and beyond Common Article 3 (Hamdan said that at least applied) in international humanitarian law and international human rights law might be seen to apply here and customary international  law requirements of a minimum standard of international justice might also be seen to apply here.  But, given the allergy to international law’s applicability of the United States internally (Medellin as an example) and the Military Commission Act of 2009 probably being seen as the implementing legislation for Common Article 3 etc, you see where we end up – back in a statutory space only.  Of course, it is elemental that the United States can not extract itself from international obligations through its internal law (Articles 26 (“Pacta Sunt Servanda” and 27 (“Internal Law and Observance of Treaties”), Vienna Convention on the Law of Treaties of 1969) even if we leave to the side the debates about Charming Betsey doctrine applicability (or lack thereof) in the DC Circuit (Judges Brown and Kavanaugh do not convince).  However, that rule of international law does not mean that the United States may not try to act inconsistent with international law or make interpretations of international law that might strain credulity in terms of good faith (more later).  We might also imagine an argument made contra to the Military Commissions Act of 2009 on the basis of a vested rights in treaties type analysis (Professor Jordan Paust has made this point looking at some of the Chinese Exclusion Cases of the late 19th Century), but to get there you have to go through that Constitution and – you see – the unresolved issue of the extent of the applicability of the Constitution at Guantanamo comes back to haunt us again.

From Mr. Al-Nashiri’s motions one might think there is no need to worry about these statutory, Constitutional and international law concerns because we have able counsel on both sides and a remarkable military judge in Judge Pohl who is presiding.  But, as we saw in Mr. Al-Nashiri’s case able counsel can only go so far under a legal regime.  Lawyers who argued cases under apartheid in South Africa worked endlessly to protect the rights of their non-white clients but were fighting within a constructed system that put limits on attacks on pass laws etc.  While not the same, the example hopefully gives one a sense of the task.

So then we come to Judge Pohl as the guarantor of the trial.  But, as we saw with Judge Allred in the Hamdan motions described above and Judge Pohl in the Majid Khan case, a military judge is likely going to do his or her best to avoid moving beyond the statute or currently settled Supreme Court and possibly Court of Military Commission Review precedent in making his decisions.  In such a charged atmosphere can we expect more than that from an Article I judge?  I think not.  I do not doubt that he will continue to find or attempt to find pragmatic solutions within his discretion in order to provide some modicum of due process that he thinks is consistent with the Military Commissions Act of 2009 statute and rules and as close as possible to his prior experience (experience such as the Abu Ghraib cases (Judge for Guantanamo 9/11 trials also handled Abu Ghraib abuse case, Mcclatchy, April 30, 2012   http://www.mcclatchydc.com/2012/04/30/147110/judge-for-911-trials-at-guantanamo.html#storylink=cpy)  (hat tip Benjamin Wittes)).  For Abu Ghraib, Judge Pohl was hearing those cases under both statutory (Uniform Code of Military Justice) and Constitutional law that was applicable to the soldiers charged under them.

Of course, Abu Ghraib was not the CIA black sites and, since Abu Ghraib broke, Bush phase high-level civilians (as recently as this week by Jose Rodriguez the former head of the CIA Counterterrorrism Center who destroyed the CIA videotapes of the interrogation of Abu Zubaydah and Al-Nashiri as “ugly visuals” and admits fully being involved in all aspects of the enhanced interrogation techniques including waterboarding and briefing Congress such as Congresswoman Pelosi on waterboarding in September 2002 – something which she denies) have been insisting that what was done at the CIA black sites was not torture and not the kind  of barbarism we saw in the pictures at Abu Ghraib.  Watching a program last night with Sean Hannity there was a whole panel including former Attorney General Michael Mukasey, Oliver North, Debra Burlingame (head of keepamericasafe.com and sister of one of the commecial pilots who died on 9/11), other former military who had experienced SERE training who all (with the exception of one woman at the back who spoke at the beginning once and thenkept her peace) assured ust hat, unlike Abu Ghraib, the CIA black site treatment including waterboarding was not torture (more on this in due course).

If what they are saying to distinguish the CIA black site treatment from the Abu Ghraid treatment is true, the significance of the Abu Ghraib experience of Judge Pohl would appear to not be substantial because the CIA black site treatment is supposed to not be torture and the Abu Ghraib cases were about detainee treatment.  The miiltary commissions in the Obama phase are not about detainee treatment by the defendants, but about law of war crimes alleged against the defendants that (with the exception of the Daniel Pearl killing) are not about mistreatment of detainees.  That Judge Pohl has been selected and his Abu Ghraib experience highlighted, however, might also be looked at as evidence of how the detainee treatment at the CIA black sites shapes these military commissions in at least the manner I have described occurred in the Obama phase Majid Khan and Al-Nashiri military commissions from earlier this year.  Again, it is not about the admissibility of evidence – just as that would not have been the case at the Abu Ghraib cases as there is no allegation the soldiers were abused or tortured by the United States – but rather about the impact of the abuse on the military commission.

Is there anything else to say about Judge Pohl?  There are two things that Mcclatchy noted that raise issues, for me at least.  I will address each of them one by one.

Omitted from Pohl’s terse court biography is that he was sworn in as a judge on May 19, 2000, after completing the Army’s “Military Judge Course” with perfect scores on his final exams and graded practical exercises. That makes him the longest serving judge currently in the U.S. military. His biography also does not mention that he’s been retained past his retirement date, Oct. 1, 2010, and serves in a special status that requires renewal each year.

 Whether Judge Pohl is active duty or is something else (he is not retired), he is subject to the Uniform Code of Military Justice.  An Article III district court judge hearing a case has life tenure and, unless called back to active duty, would not be subject to the Uniform Code of Military Justice.  Second, Judge Pohl is subject to renewal each year.  An Article III district court judge hearing a case has life tenure and holds his/her office during good behavior (Article III, Section I).  That life tenure is part of how we assure judicial independence.  I am less familiar with the military judges in the Uniform Code of Military Justice structure but I do know that the 1958 act was adopted precisely to address concerns with unlawful command influence.  Provisions of the Military Commissions Act of 2006 and 2009 address concerns about unlawful command influence.  The point that I raise is that given the one year renewal requirement, Judge Pohl is structurally in a further very different position from an Article III judge and as he is acting under the Military Commission Act of 2009 it is uncertain to what extent Uniform Code of Military Justice precedents on unlawful command influence apply in the military commissions space.

It is reported in the same article, to wit:

Judicial independence
Judge Pohl comes to the 9/11 case from the peculiar position of having been passed over for promotion to general and retained past retirement, meaning “he’s got nobody he has to please,” says retired Lt. Col. Victor M. Hansen, who spent 20 years as an Army lawyer and now teaches at New England Law School.

Read more here: http://www.mcclatchydc.com/2012/04/30/147110/judge-for-911-trials-at-guantanamo.html#storylink=cpy

I am not sure whether being passed over for promotion to general and retained past retirement and “he’s got nobody he has to please,” but at a minimum his one year renewal status is different from the “he’s got nobody he has to please” status of an Article III judge with life tenure and I am uncertain about the cabining provisions applicable in the military commissions as opposed to the court-martial space.

What we do know is that when he served on the Abu Ghraib cases it is reported that:

In the same hearing Pohl ordered numerous officers in the military chain of command, notably the Central Command’s chief, Army Gen. John Abizaid, to undergo questioning by defense lawyers trying to make the case that the guards were following policy by posing detainees for humiliating photos. (They weren’t and all the soldiers were convicted.)
“I was shocked,” Graveline said. “I was a captain at the time. I had to go back and tell my boss!”
The judge drew the line, however, when lawyers asked to question Defense Secretary Donald Rumsfeld and Stephen Carbone, his undersecretary for intelligence.

Pohl ruled the defense had not drawn a clear enough line to the political hierarchy to merit a subpoena. But, he told them, if they could make a better case for it later, he’d reconsider the request — not unlike what he’s been telling defense lawyers in the USS Cole case when their motions fail.

Read more here: http://www.mcclatchydc.com/2012/04/30/147110/judge-for-911-trials-at-guantanamo.html#storylink=cpy

The dilemma with the “clear enough line” to the political hierarchy is a dilemma that defense lawyers in these cases will face because the Executive controls all aspects as an Article I including military, intelligence, prosecutorial and justice arenas.  What is classified about these cases is no doubt substantial and what is classified to an extent that deprives the defense of information is a concern.  Subsequent to the court-martials in Abu-Ghraib evidence has been released in various settings providing more details about the manner in which interrogation techniques were put in place.  At a minimum there is the information in the November 20, 2008, Inquiry into the Treatment of Detainess in U.S. Custody http://documents.nytimes.com/report-by-the-senate-armed-services-committee-on-detainee-treatment which highlighted the reverse engineering of the SERE techniques as early as December 2001 and the migration of those techniques across the battlefield space including Iraq.  There are also the books by interrogators such as Ali Soufan formerly of the FBI, Jose Rodriguez formerly of the CIA, and Glenn Carle, formerly of the CIA which shed light on the highest levels of the political hierarchy involvement.  There are the Inspector General Reports of the CIA and of the Department of Justice.  The point is not to relitigate the courts-martial of the Abu Ghraib case but to raise the question whether there is information that is now classified and unavailable to the military commission defense teams just as there was information that was classified and unavailable to the Abu Ghraib defense teams that might permit the establishing of a “clear enough line.”

Another concern with the “clear enough line” approach is the extent to which this approach is similar to the “Beyond debate” language of the decision just handed down this week in the Padilla v/ Yoo case in which the 9th Circuit granted John Yoo qualified immunity for his role in the abusive treatment of Jose Padilla – an American citizen being so treated on US soil. 

“We assume without deciding that Padilla’s alleged treatment rose to the level of torture. That it was torture was not, however, “beyond debate” in 2001-03. There was at that time considerable debate, both in and out of government, over the definition of torture as applied to specific interrogation techniques.”

http://www.ca9.uscourts.gov/datastore/opinions/2012/05/02/09-16478.pdf

That this kind of sleight of hand at high levels of getting a smart ambitious lawyer to write memos that are used to rationalize torture, that those positions foster reaction creating virulent debate, that such debate is used by a court to say the standard was not clear, that a US citizen is treated by his government like this, that the government  classification of him as an enemy combatant is used to further say all this is too unclear, and that these executive manipulations are allowed to have the effect of insulating those same and other higher up executive officials from civil suit by an American citizen subjected to this kind of treatment is troubling.  In this approach to an American citizen on American soil classified as an enemy combatant and an Article III court operating with all that independence, as noted by Professor Jordan Paust “no attention to the full set of cases that had already recognized certain types of interrogation are torture or the U.S. Country Reports on the human rights records of other states, etc. [was made in the decision] Compare cases, Reports, etc. in Jordan Paust, The Absolute Prohibition of Torture and Necessary and Appropriate Sanctions, Valparaiso University Law Review, Vol. 43, p. 1535, 2009 at http://ssrn.com/abstract=1331159 

While one might say that these alien enemy combatants in military commissions come to a process with different standing from an American citizen pursuing civil remedies, the point is that one doubts that the standards would be higher for a non-citizen and non-resident alien declared an enemy combatant than these standards applied to an American citizen.  That the Ninth Circuit said it was applying very recent Supreme Court and 4th Circuit precedent was particularly troubling as was noted by the New York Times, to wit:

Until a year ago, the law gave officials so-called qualified immunity to shield them when they performed responsibly. In holding them accountable for exercising power irresponsibly, it required simply that a reasonable person would have known about the right he violated. Last May, however, the Supreme Court ruled that “existing precedent” must put any question about such a right “beyond debate.”

That is an unworkable standard and the Ninth Circuit decision shows why. The Bush administration manufactured both “debates” — about torture and enemy combatants. Any future government can rely on this precedent to pull the same stunt as cover for some other outrage. (Beyond Debate, New York Times Editorial, May 3, 2012).

(I warned as much back in 2008, if not more, in my article Benjamin G. Davis, Refluat Stercus: A Citizen’s View of Criminal Prosecution in U.S. Domestic Courts of High-Level U.S. Civilian Authority and Military Generals for Torture and Cruel, Inhuman or Degrading Treatment, 23 St. John’s J. Legal Commentary 503 (2008) where I predicted this kind of trick or ploy.  As Professor Jordan Paust has note, this tricksterism is also done in law review articles where there is a fairly standard view of a topic and a bright person takes an exotic position and that is argued to create a controversy that, in the US foreign relations law space (and to some extent in  the internatinal law space), is used to say the law is unsettled (will speak to this in further sections on torture, targeting with drones, and detention in concepts such as “unable and unwilling.”  Have already done this to some extent also with regard to the torture memos some years ago – The Yoo Torture Memo: Break the Silence of the Lambs?  (April 8, 2008) at http://jurist.law.pitt.edu/forumy/2008/04/yoo-torture-memo-break-silence-of-lambs.php). )

One might say that the standard for the alien enemy combatant facing the death penalty or criminal penalties would be equal to that of the American citizen enemy combatant seeking civil relief, but we must remember that the rights here are only statutory under the Military Commission Act of 2009, unclear at a Constitutional level, unlikely to include invoking international  law, and little tested, if at all.  How will a “clear enough” standard apply in these military commissions?  I do not know.

All of these concerns that I raise in this section on Military Commissions bring us back to the question of why we even have this third iteration of a third rate process.  For me and many others, the reason that the military commissions were created was to provide for a process that would assure convictions of high-value detainees that were tortured or subjected to cruel inhuman and degrading treatment at the behest of the Executive and with the complicity of the key figures at the time in both Houses of Congress.  The hope of the Bush Executive and Congress and the Obama Executive and Congress is to  keep the torture away from the eyes of the world and Americans and the effort continues to be to avoid high-level accountability in terms of prosecution of high-level civilians for what actually transpired.  The Courts have played a complex role in this space. As noted above, tapes of waterboarding were destroyed by Jose Rodriguez, formerly of the CIA.  What is allowed to be seen is only what the Executive wants allowed to be seen or ordered to be released after arduous battles in Court by parties subject to the treatment and their public interest lawyers.  I find it perverse that in the week in which he who destroyed videotapes with ugly visuals with no subsequent criminal charges explains his actions,  videos of Salim Hamdan being interrogated in Afghanistan are freely given to the press yesterday by the Department of Defense so we can see what the interrogations looked like back in Afghanistan.  I may be the only person who sees that irony from the Bush and Obama phases but it is deeply troubling about just how sufficient the provision of information to the defense has been. 

Brig Gen Martins spoke to this yesterday on the KSM and 9/11 case that started this morning on defense preparations in stating:

Good evening.  I would like to address two topics that have attracted commentary not because of any specific proceedings, but in light of the use of military commissions generally.  First, some have suggested that detainees have not been given adequate opportunity to form an effective relationship with legal counsel and to prepare a defense.  To these suggestions and complaints—which we do not ignore, which are a healthy byproduct of our adversarial system, and which are all examined carefully—we offer that every detainee at Guantanamo has ample opportunity to get the help of lawyers, and there are notable examples of robust and functional attorney-client relationships being formed and of zealous, effective representation being provided.  A mentally competent accused who has been properly advised of his rights to counsel cannot be forced in this system, in the federal civilian system, and in every respected system of justice to be represented by an attorney.  You will doubtless hear more complaints about resourcing and the formation of an effective attorney-client relationship from dutiful defense counsel seeking to fulfill their professional obligations.   When you do, I trust that you will exercise your own professional obligations to seek out additional perspectives, including by reading government submissions to the court on the matter and by reviewing the facts about resources provided, counsel and investigative hours billed and paid, numbers of flights to Guantanamo available and not taken, opportunities for communication with client through a privilege team, and similar empirical data.  Such complaints will of course be taken up methodically by the judge when and as raised, but you have the opportunity yourself, from the web postings, to view the data and come to a conclusion about whether fairness is being achieved or denied.  And our Article III appellate courts can also view the same facts, as well as a verbatim record of the matter if any error is later alleged on appeal. http://www.lawfareblog.com/2012/05/live-blogging-tomorrows-arraignment-in-united-states-v-ksm-et-al/#more-7092

Whatever the process forward in this first part of my essay, I have tried to outline to the reader as part of what I see as my duty as an American citizen my concerns about this third class process for foreigners even in its newest version.  I have attempted to give you not only what is seen but the “evidence of things not seen” to quote a great writer.  My goal is to allow us as Americans to look ourselves in the eye and determine if this is what we truly are.  I still have other things to say about the relation between the American laws of war and international laws of war on the various substantive crimes that are in the Military Commission Act of 2009.  Professor Stephen Vladeck, Benjamin Wittes, Professor Kevin Jon Heller, Professor Jordan Paust, and Haridimos Thravalos and many others have written on these things and I want to add to that conversation.  I will stop now and get some lunch by ending with the following.

It is often stated that there is American Exceptionalism in the world and, in this time of Presidential elections, candidates of both parties will speak to that special role in the world of the United States.  I know people in other countries also think of their specialness (such as the French where I lived for 17 years, but also the Swiss, the Nigerians, the English, etc).  Still it is without a doubt that the United States has a unique role in the world as compared to these other countries.  It does seem to me, therefore, that in having such American Exceptionalism that it is incumbent on ordinary Americans like folks like me in Toledo, Ohio to reflect on what my country does in the world and to assert our modes sparkle of sovereignty derived from our citizenship to make sure that our leaders are held accountable for what they do. No doubt this is considered naive – truly I am the powerless – yet, at least for me, I take some succor from the fact that I live and work in Toledo, Ohio and every four years those seeking the highest office come here to Toledo seeking the vote of us and other Ohioans because we are a swing state among swing states (like a swing vote on the Supreme Court).  Foreigners may not know this but no  Republican wins presidential office without winning Ohio.  And Toledo is the center of the universe – ground zero so to speak – for these current presidential elections in which the candidates are in a dead heat. 

Whatever the results of those elections, in this part on military commissions and in further parts on the topics of Torture, Detention, and Drones that I hope to write soon while I am also in this period  of grading exams, completing articles, preparing to teach a summer course on public international law, and continuing writing and following what is going on in my world.

Or is it that we are what we have become.

One particular aspect of the “love” (more precisely, nostalgia) with which we may regard rural America is the tendency to think that bad things associated with cities–most notably crime–are largely absent in smaller towns, in nonmetropolitan areas.  That’s hardly accurate, as I’ve discussed here and here.  I wonder, though, if these rural myths are the reason that even more shocking crimes–crimes involving, for example, racial or ethnic animus–don’t get national attention.  For crimes like these, I would think that urban Americans might be anxious to publicize the crimes, to hold these acts up as justification for the “hate” (that is, disdain, contempt) part of the relationship.

I was reminded of all this last week when the New York Times ran a story headlined, “Black Man’s Killing in Georgia Eludes Spotlight,” dateline Lyons, Georgia, population 4,169.  Kim Severson’s story tells of a white man, Norman Neesmith, killing a black man, Justin Patterson, in Lyons last year “on a rural farm road, here in in onion country.”  Neesmith was arrested and charged with seven crimes, but he is expected to plead guilty to involuntary manslaughter and reckless conduct, for which he might be sentenced to just a year in “special detention,” which means no jail time.  Severson goes on to to compare the rural Georgia case to that of Trayvon Martin, which has attracted national and international attention:

In both cases, an unarmed young black man died at the hands of someone of a different race.

And [Justin Patterson's parents] began to wonder why no one was marching for their son, why people like Rev. Al Sharpton had not booked a ticket to Toombs County.  The local chapter of the N.A.A.C.P has not gotten involved, although Mr. Patterson’s farther approached them.

* * *

Why some cases with perceived racial implications catch the national consciousness and others do not is as much about the combined power of social and traditional media as it is about happenstance, said Ta-Nehisi Coates, a senior editor at The Atlantic who writes about racial issues.

Several events coalesced to push the Martin case forward:  an apparently incomplete police investigation, no immediate arrest and Florida’s expansive self-defense law.

The New York Times’ highlighting the overlooked Patterson case reminded me of another pair of cases last year that received grossly disparate media attention.

I learned quite by accident last summer of a federal conviction based on a 2010 hate crime in Carroll County, Arkansas.  It was especially odd to learn of the conviction by coincidence (from a UC Davis colleague whose distant relative in Arkansas sat on the jury!) because this was the first ever conviction ever under the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, a federal law passed in 2009.  Here’s what happened:  After encountering each other at a gas station in Alpena, Arkansas  (population 371) in the early morning hours in June 2010, three white men allegedly hurled racial epithets at five Latinos and then chased the Latinos in their car, while the white driver of the truck chasing them waved a tire wrench out his vehicle’s window.  The truck driven by the white men eventually ran the Latinos’ car off the road, where it rolled over and burst into flames.  All of the Latinos were injured, one very seriously, but all survived.  Less than a year later, a jury in a federal courthouse in Harrison, Arkansas–(population 12,943, about 20 miles from the events, and with a reputation as a long-time bastion of KKK activity) took less than an hour (!) to convict the driver of the truck, 20-year-old Frankie Maybee, of “five counts of committing a federal hate crime and one count of conspiring to commit a federal hate crime.”  One of his companions, 19-year-old Sean Popejoy, had already pleaded guilty to a single hate crime and a conspiracy count; he turned state’s witness.  The third man was not charged, apparently because of a lack of evidence that he was part of the conspiracy.  (In an effort to learn more about Carroll County matter last summer, I interviewed the Arkansas State Trooper who had helped investigate it, as well as the Arkansas Democrat-Gazette journalist who reported on it.  They provided some back story, which I’ll take up in a subsequent post.)

Several months after the convictions in this case, it had not yet been discussed anywhere except in local media.  The Arkansas Democrat-Gazette ran about half a dozen stories, starting in April, 2011, when the men were indicted, running through the trial itself, and ending with Maybee’s sentencing to 11 years in prison, in September, 2011.  Television stations in nearby Springfield, Missouri covered only the sentencing, and Reuters, too, had finally found the story by then.  In that way, the Arkansas case is similar to another Shepard/Byrd Act indictment that preceded the Arkansas conviction, this one in Farmington, New Mexico involving the torture of a developmentally disabled Native American by white men.  That case resulted in a guilty plea and was mentioned, along with other Shepard/Byrd cases, in this NPR story a few days ago.  (Other NPR coverage of the Shepard/Byrd law, which also mentions the New Mexico case post-guilty plea, is here and here).

Contrast that with the Shepard/Byrd charges against the three young white men who recently pleaded guilty in the death of James C. Anderson, a black man in Jackson, Mississippi.  New York Times coverage of that crime is here, here, here and here.  The Mississippi story is, of course, a huge one and deserves all the attention it got.  But the Carroll County story seems like a pretty big one, too (did I mention that it was the first Shepard/Byrd conviction!?!), as does the case out of Farmington, New Mexico.

What explains the disparate and decidedly after-the-fact media attention to these cases?  Perhaps coincidence.  Perhaps differences in the Department of Justice’s efforts to publicize the charges?  Perhaps the fact that the Mississippi crime resulted in death whereas the Arkansas and New Mexico crimes did not.  But as a ruralist, I can help wonder if the rural-ish settings of these crimes also obscured them from the national media?

Carroll County has a population of just 27,446, of which 12.7% are of Latino or Hispanic origin.  I know the area quite well because I grew up in a contiguous county, and I wrote a lot about Carroll County’s three-decade history of Latina/o migration in my 2009 article, Latina/os, Locality and Law in the Rural South.  In 2003, MALDEF entered into a settlement with the Rogers, Arkansas Police Department, in neighboring Benton County, to prevent racial profiling.

Farmington, New Mexico has a population of just over 45,000, but surrounding San Juan county is technically metropolitan, with a population of just over 130,000.   Indian reservations comprise more than 60% of San Juan County’s land area, and 36.6% of its populace are Native American.  Farmington has been the subject of major civil rights investigations over the course of four decades.

Like the relations between blacks and whites in Mississippi, then, both Carroll County, Arkansas and San Juan County, New Mexico have histories of racial and ethnic tensions.   I would think the racial/ethnic contexts of these two incidents would make them interesting to a national audience–as would they way they illustrate widely held perceptions of the “best” and “worst” of rural America.  The “worst” is that the hate crimes occurred–which confirms the image of rural folks as small-minded and bigoted.  The “best”–at least in the Arkansas case–is that a local jury of the defendant’s peers convicted the small-minded bigot–and they did so in no time flat.

Cross posted to UC Davis Faculty Blog and Legal Ruralism.

By Hugh Mundy

During its October 2011 term, the Supreme Court issued two well-publicized decisions severely curtailing the already tenuous Fourth Amendment rights of the accused and incarcerated.  First, in Howes v. Fields, the Court held that prisoner interrogations held “in private” about “events occurring outside the prison” do not require Miranda warnings.  In addition, in Florence v. Board of Chosen Freeholders, the Court sanctioned jailhouse strip searches of arrestees without reasonable – or any – suspicion of criminal activity.  Even as the Court further eviscerated the Fourth Amendment rights of those in custody, two other rulings, Maples v. Thomas and Martinez v. Ryan, extended the Sixth Amendment right to counsel for incarcerated litigants.  Still, unlike the obvious damage to prisoner’s rights wrought by the Fourth Amendment cases, the utility of the Maples and Martinez for inmates seems murky at best.

In Maples, the Court held that a death row inmate established good cause to excuse his failure to move for post-conviction relief after his lawyers missed a filing deadline in state court. While the case made headlines as Maples’ pro bono attorneys hailed from the prestigious New York firm of Sullivan & Cromwell, its precedential value appears limited.  Indeed, in determining that Maples demonstrated good cause for his delinquency, the Court narrowly tailored its ruling to the unique case facts surrounding the botched appeal.  Those “unusual and extraordinary circumstances” included a “mail room mix-up” at Sullivan & Cromwell, a failure by Maples’ local counsel to file a notice of appeal, and an admission by Maples’ trial attorneys that they “were stumbling around in the dark” during the sentencing phase of his trial.  In a concurring opinion, Justice Alito noted that Maples was entitled to relief due to the “perfect storm of misfortune” that engulfed his appeal.

Martinez, by contrast, received comparably little media attention.  The case may have been overlooked because it deals, in large part, with complicated state procedural rules governing access to federal habeas corpus review.  As a result, the opinion is not easily reduced to sound-bites or headlines.  More likely, Martinez’ low profile stems from the Court’s half-hearted ruling on the right-to-counsel issue.  While the Court held that Martinez was entitled to the effective assistance of counsel during his post-conviction appeal, it refused to declare a constitutional right to counsel at that stage.  Rather, the Court deemed the right an “equitable” one.  In essence, the fractured majority engaged in a time-honored ritual of reaching a tenuous middle ground at the expense of clarity and conviction.  Call it “Goldilocks jurisprudence.”  While the Court may have reached a solution that was “just right” to garner the necessary votes, its lukewarm endorsement of the right to counsel stands at odds with the vital need for competent representation at initial post-conviction proceedings.

In most states, an inmate may not raise a claim of ineffective assistance of counsel on direct appeal.  As a consequence, the first opportunity to challenge the effectiveness of trial counsel comes during collateral – or “post-conviction” – review.  To further hamper a petitioner’s plight, the right to counsel is not constitutionally guaranteed to wage a post-conviction attack on the effectiveness of a trial or appellate lawyer.  Thus, habeas petitioners, many of whom are indigent prisoners without access to counsel or adequate legal resources, must typically attempt to meet their high legal burdens alone.  Even when a petitioner has counsel to help navigate the post-conviction labyrinth, the right-to-counsel limitation prevents challenges to the effectiveness of post-conviction counsel on federal habeas review.  Put simply, without a constitutional right to post-conviction counsel, a prisoner cannot challenge whether his lawyer measured up to Sixth Amendment standards.  As a consequence, prisoners are faced with the choice between proceeding pro se or gambling on a post-conviction lawyer whose performance, no matter how poor, is unassailable.

The facts of Martinez cast a spotlight on the post-conviction conundrum for incarcerated and indigent litigants.  In that case, Luis Martinez was convicted of two counts of sexual conduct with a minor and sentenced to consecutive terms of thirty-five years to life.  Following the denial of his direct appeal, Martinez’ court-appointed counsel filed a Notice of Post-Conviction Relief asserting that “she had ‘reviewed the transcripts and trial file and [could] find no colorable claims[.]’”   The statute of limitations for pursuing post-conviction relief expired with no additional filings.  Represented by new counsel, Martinez later attempted to file a post-conviction appeal attacking the ineffectiveness of his trial counsel.   The Arizona Court of Appeals denied the petition on the basis that the claims “could have been raised in the previous post-conviction proceeding” but were not.   The Arizona Supreme Court declined to review the petition.

Martinez petitioned for federal habeas corpus relief, arguing that his first post-conviction counsel had rendered ineffective assistance by failing to challenge the effectiveness of his trial counsel.   The district court dismissed the petition and the Ninth Circuit affirmed the ruling.  Both courts held that the lack of a federal right to post-conviction counsel precludes a challenge for failure to raise a claim founded on ineffective assistance.   The Supreme Court granted certiorari on the question of “[w]hether a defendant in a state criminal case who is prohibited by state law from raising on direct appeal any claim of ineffective assistance of counsel, but who has a state-law right to raise such a claim in a first post-conviction proceeding, has a federal constitutional right to effective assistance of first post-conviction counsel specifically with respect to his ineffective-assistance-of-trial counsel claim.”

To the critical question of whether the Sixth Amendment requires competent counsel at first stage post-conviction appeal, the Supreme Court answered with a resounding, “Um, ah, sort of.”  For right-to-counsel proponents, the Court’s initial analysis was promising.  Writing for the majority, Justice Kennedy acknowledged that a petitioner’s first chance to raise ineffective assistance of counsel claims on post-conviction review makes such petitions “the equivalent of [a] direct appeal” and “marks a key difference” between initial post-conviction review and subsequent collateral proceedings.  He then endorsed a key piece of Martinez’ core argument – that incarcerated defendants “are generally ill-equipped to represent themselves,” especially without pleadings or a transcript from a prior court hearing to use as guidance.

From there, Kennedy’s taste for the Sixth Amendment cooled.  He opined that only “as an equitable matter” may a prisoner raise a claim of ineffective assistance of counsel at first post-conviction proceedings when he is “impeded or obstructed in complying with a State’s established procedures.”  An “equitable ruling,” said the Court, will provide post-conviction petitioners a potential avenue for habeas relief without providing “a freestanding constitutional claim [.]”  In essence, the Court recognized the necessity of effective counsel at first post-conviction proceedings but refused to characterize the need as a constitutional one.  To do so, Kennedy wrote, might impose undue administrative burdens on states forced to appoint counsel in post-conviction appeals or result in the reversal of pending state collateral cases.

Martinez’ middling approach to the right to counsel is reminiscent of another recent Sixth Amendment case, Booker v. Washington.  There, the Supreme Court declared that the mandatory application of the United States Sentencing Guidelines reflected an unconstitutional violation of the right to a fair trial.  Then, in the same opinion, the Court resuscitated the Guidelines as “effectively advisory.”  The promise of the so-called “Booker fix” has proved largely illusory.  Most district courts continue to apply the draconian sentencing ranges dictated under the Guidelines as if the ranges are binding.  Today, Booker represents “Goldilocks jurisprudence” at its most tepid.

Without question, compromise and consensus-building around controversial issues is necessary on an ideologically divided bench.  Nevertheless, Martinez, Booker, and other recent Sixth Amendment jurisprudence, stand in sharp contrast to the Court’s unabashed zeal for stripping the constitutional rights of prisoners in other areas.  As Justice Kennedy stated at the outset of his opinion, first-stage post-conviction counsel is just as critical as counsel at trial and on direct appeal.  Indeed, prisoners most in need of federal habeas relief – those with ineffective assistance of legal counsel at trial – are often barred from litigating important constitutional claims in federal court for failure to raise the same claim on state post-conviction appeal.  In some cases, the procedural default itself may be caused by incompetent, ill-prepared, or functionally absent post-conviction counsel.

While the “Martinez fix” may partially address these obstacles, the absence of a constitutional rule will likely allow courts to sidestep claims of post-conviction ineffective assistance of counsel.  To be sure, skilled government attorneys will argue in virtually every case that a petitioner was not “impeded or obstructed from complying with the State’s established procedures” and, as a result, equitable relief is unavailable.  Such arguments are routinely advanced in cases involving indigent litigants and “equitable tolling” of time-barred post-conviction claims.

While the “Goldilocks jurisprudence” of Martinez leaves prisoners vulnerable to ineffective representation, the story should not end here.  Rather, the Supreme Court would be well-served to extend the protections of the Sixth Amendment to prisoners with the same aggression it used to roll back the Fourth Amendment rights of the same population in Howes and Florence.  Only then will prisoners to have a meaningful avenue to challenge the constitutional effectiveness of state post-conviction counsel in federal habeas proceedings.

John Payton, former President and Director-Counsel at the NAACP Legal Defense and Education Fund

This morning NPR broadcast a report on the millionaire contributors to the various Super PACS which will only fuel the vitriol of this presidential election cycle.  The list of contributors, those who have given a million or more and to which PAC, is available on line.  Robert Smith, the NPR reporter, focused on Steven Lund, who had set up a phony corporation to hide the fact that he had given  $1 million to  Restore our Future, the Super PAC supporting Mitt Romney.   I could have easily slipped into cynicism, believing that Citizens United (2010) was indeed the death knell of our democracy.  I could have slipped deeper into despair thinking that the U.S. Supreme Court might overturn Citizens United, but not before the Super PACS had done their damage and gotten Obama out of office.  At first I tried to elicit Stephen Colbert’s satire, his Super PAC, Making a Better Tomorrow, Tomorrow.  But even Stephen’s wicked humor didn’t help.   That’s all I could conjure was a scene of depressed and disappointed would-be voters who might just sit out this election.  I was recognizing the symptoms: cynicism, passivity, and victimhood.  These are self-government’s deadly enemies.

That’s when I thought about John Payton, former President and Director-Counsel at the NAACP Legal Defense and Education  Fund (LDF),  who died too young and quite unexpectedly on March 22, 2012.

John Payton was the keynote speaker at the March 2010 “Vulnerable Populations, Economic Realities” conference organized and hosted by Golden Gate University School of Law and co-sponsored by SALT.  He had been invited to the conference by Golden Gate’s Dean Drucilla Stender Ramey.  After he brought an early morning crowd of law professors to our feet in rousing applause, Dean Ramey persuaded him to contribute his speech as the opening essay to the volume Golden Gate and SALT edited Vulnerable Populations and Transformative Law Teaching: A Critical Reader (Carolina Academic Press 2011).  Two interns who spent the summer 2010 with SALT, Madeline Zuckerman and Brian Elliot, were asked to go through the essay and complete it with citations to authorities.

The title of John Payton’s essay is “The Myth of Our Post-Racial Society.”  It is a guaranteed antidote against cynicism, and I wanted to share with you some of what John said that morning in 2010.  (Or you can read the entire essay in Vulnerable Populations and Transformative Law Teaching: A Critical Reader.  Make sure your library has a copy!)

The LDF was started by Thurgood Marshall with a mission that remains vital today: “to transform this country into the inclusive democracy it must be.”  Western Europe, with its history of homogeneity, is more comfortable with the “commonality of the word ‘we’, ”  John began.  Our country is heterogeneous.   “In our American terminology, racial diversity presents barriers to a sense of commonality.”

As a democracy, we depend upon being peers among ourselves, not necessarily equals, but peers: “people who have some equal respect about each other.  It depends on that sense of commonality… .”  Therefore, “we the people” must include everyone.  “…if you are excluded from power, and from political participation, or unable to participate in our economic life—you are not a peer in the sense that I have used the term, you are not in the “common” in the sense that I have used the term.”

“With respect to black people, obviously race was used to prevent all commonality.”  It was not just black enslaved people who were excluded, but free black people as well.  The Dred Scott (1856) decision made that very clear.  “Distrust, ‘otherness’ was baked right into our culture.”  Despite the Civil War, the passage of the Thirteen, Fourteenth, and Fifteen Amendments, this distrust and otherness continued as Reconstruction collapsed and Jim Crow took its place.  By 1896, the Supreme Court legitimized in Plessy v. Ferguson the phrase “separate but equal” which really meant “separate and degradingly unequal.”

As a trickle of black men became lawyers despite all of the barriers put up to stop them, they discovered the extraordinary power of the legal profession: the ability to serve subpoenas, require production of documents, ask questions of persons under oath, punish those people if they wouldn’t speak or spoke untruths.  “We are an empowered profession in exactly those ways.”  And so began the line of cases that we know so well: Missouri v. Gaines (1938) when an all-white law school was held unconstitutional; Shelley v. Kraemer (1948), white-only housing  held unconstitutional; Sweatt v. Painter (1950) inferior black-only law school held unconstitutional; and Brown v. Board of Education (1954) any enforced racial segregation in public education held unconstitutional.

Here is where the John Payton antidote to cynicism takes hold: “These cases weren’t about vindicating existing rights.  Black people had no rights.  Those cases were about creating new rights.”  There were no precedents, there were no cases to rely upon.  Armed with qualitative analysis from social science and the concept of social justice, the LDF lawyers challenged legislative power that used the force of the state to subordinate black people.

And so the LDF, through the assertive and aggressive use of law, revitalized the Fourteenth Amendment.  “More than that, these cases fueled a new sense of racial justice and equality.  And the steady establishment of rights in those cases brought about the power to assert those rights.  If you have rights, you have power.”

Here Payton distinguished between the rule of law and the rule of just law.  We must be committed to the just rule of law.

“I think lawyers have special responsibilities that come from our empowered status.  It is more than standing for the rule of law, it is standing for the rule of just law.  Black and white.  Latino, Asian-American, and Native American.  Men and women.  Straight and gay.  Rich and poor.  All of us.  I believe all of us must play a role in transforming our society into the inclusive democracy it must become.   Let’s get to work.”

Yes, let’s get to work.

http://youtu.be/S5puAN1PGQw

Well, I went home with the waitress
The way I always do
How was I to know
She was with the Russians, too

I was gambling in Havana
I took a little risk
Send lawyers, guns and money
Dad, get me out of this

I’m the innocent bystander
Somehow I got stuck
Between the rock and the hard place
And I’m down on my luck
And I’m down on my luck
And I’m down on my luck

Now I’m hiding in Honduras
I’m a desperate man
Send lawyers, guns and money
The sh*t has hit the fan

Send lawyers, guns and money…

(Warren Zevon – Send Lawyers Guns and Money)

At Guantanamo three days of motion hearings have just concluded in  the military commission of the alleged Cole bomber – Mr. Abd Al-Rahim Hussein Muhammad Abdu Al-Nashiri who is facing a potential death penalty.  Over at lawfareblog.com a blog of the exchanges of the lawyers for the government and Mr. Al-Nashiri with the military judge has been provided courtesy of Benjamin Wittes.  Also over at lawfareblog.com today, they posted further information about a civil suit seeking a declaratory judgment filed by Mr. Nashiri last November against the Military Commission Convening Authority for his orders to try Mr. Al-Nashiri capitally.  Along with these gems, there are reports of the Chief Military Prosecutor, and speeches by high-level lawyer types from a recent national security conference at Harvard such as the speech of the current CIA General Counsel. 

 Reading these events has been riveting because it seems so many strands of what has been happening over the past years of the War on Terror are coming together in a most dramatic manner.  I am finding it difficult to clearly express the sense I have of something having been intimated by these events this week.  Yet, my muse is certain that plates are moving and shifting if we are attune to looking for them.  The care and attention being focused on this process by the powers that be also suggest that something very important is afoot. 

As Zevon would say, the sh*t has hit the fan as Mr. Nashiri fights for his life and the US tries to convict him and execute him in this military commission system.  In this death struggle, the different strands of the US approach to these detainees are coming together so that they can be seen in a holistic manner – the detention regime, the intelligence gathering regime, and the prosecution regime.  All occurring across the political backdrop of a heated up Presidential race.

It is very elaborate what is revealed – yet in its elaborateness I sense that all of the actors know that each has his or her role to play and in playing their roles they will assure that the end that is foreshadowed will be the end foretold.

But (as in the quoted song above), let me ASSERT the role of the bystander (however innocent), somehow stuck, between the rock and the hard place, and no doubt down on my luck.  Yes, I am down on my luck.  I am down on my luck because the rock of regularly constituted tribunal, the rock of the torture peremptory norm, the  rock of the minimum international standard of justice is pushing up against the hard place of U.S. national security imperatives, the hard place of the federal separate powers’ will to crush a foreigner it despises, and the hard place that has called us back to dark nights of the American soul – this time in a rainbow coalition.

But, in being that bystander, I am fortunate that I had the chance to read Judge James Robertson’s opinion denying a stay of the Hamdan military commission back in 2008.  Judge James Robertson in dicta raised significant warnings about the Military Commission process. He noted that the “eyes of the world are on Guantánamo Bay” in denying the preliminary injunction.  And while all are asked by powers that be to be reassured that the Military Commissions in place now (2009 version) are “new and improved” compared to those Judge James Robertson discussed (2006 version), it is striking that Judge Robertson’s warnings track almost exactly with what are the subjects of these motions.

Yes I am down on my luck.   Yes I am down on my luck.  Yes I am down on my luck.  Would that I had not read Judge Robertson and could watch these developments without his forewarning.  But I can not.

Would that I could sit quietly by and watch the wheels spin Mr. Al-Nashiri toward oblivion because he is a foreigner and must obviously be guilty.  But I can not.

Would that I could think like former President Bush and those who support these modern commissions that the process that Mr. Al-Nashiri is given is much better than the process that led to all those soldiers being killed and wounded on the Cole so it is good enough.  But I can not.  No I can not.

 Hey stop children, what’s that sound?  Everybody look what’s going down.

Crosspost from Jurist  http://www.jurist.org/forum/2012/04/craig-jackson-judicial-review.php

Did I miss something? Joe Scarborough begins my Tuesday morning with a rant and rave about President Obama’s statement yesterday regarding judicial restraint and the Supreme Court litigation over the Patient Protection and Affordable Care Act. It was apparently egged on by an editorial in Tuesday’s edition in the Wall Street Journal. What the president said was: “[f]or years what we’ve heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I’m pretty confident that this court will recognize that and not take that step.”

The Wall Street Journal critique (if the mild form of the term is appropriate) is that Obama, a former president of the Harvard Law Review and constitutional law professor at the University of Chicago, had forgotten the most basic case in constitutional law, Marbury v. Madison, one of Chief Justice John Marshall’s first decisions in 1803. It established the rule since adopted in other countries, that the judiciary has the authority, indeed the duty, to police legislation by Congress to make sure it is consistent with the Constitution. The principle of judicial review was quickly expanded to cover presidential acts, state judicial acts and state legislation such that by the end of the first two decades of the nineteenth century, the Court’s role in American politics had been established.

Yet judicial review was then and remains today, a controversial notion. It depends upon the judgment of members of the federal judiciary, an unelected community sitting and deciding cases in groups usually far smaller than any legislative body whose acts are being reviewed. Marshall’s distant cousin, Thomas Jefferson, believed the Marbury decision would be the ruination of the new country. Presidential candidate Abraham Lincoln declined to accept the second use of the power, the infamous Dred Scott v. Sandford (which held that the Constitution did not protect the rights of blacks in overruling the Missouri Compromise) as a basis for any policy he would pursue if elected president. And Franklin Roosevelt, even before his Court packing strategy after his New Deal reforms were rendered moribund by Court decisions finding much of the Depression-era legislation unconstitutional, toyed with the idea of passing legislation without regard to Supreme Court rulings.

Nonetheless, it is a basic principle of American jurisprudence and to forget or disregard such a rule would be tantamount to Tiger Woods picking up a ball at the edge of a bunker and replacing it in the green without a penalty. It does not happen. Neither Lincoln nor Roosevelt ever got to the point where they openly defied a ruling by the Supreme Court. That the Court can overturn congressional legislation is basic. So what was the president saying on Monday? It certainly was not that he had forgotten the basic rule. It had more to do with arguments that have been lobbed back and forth over judicial review, advising judicial restraint, for over two centuries by some of the more prominent jurists and scholars of their generation, not the least of which would be the late Chief Justice William Rehnquist. In a 1976 article in the Texas Law Review, Justice Rehnquist (before becoming Chief Justice) wrote:

Once we have abandoned the idea that the authority of the courts to declare laws unconstitutional is somehow tied to the language of the Constitution that the people adopted, a judiciary exercising the power of judicial review appears in a quite different light. Judges then are no longer the keepers of the covenant; instead they are a small group of fortunately situated people with a roving commission to second-guess Congress, state legislatures, and state and federal administrative officers concerning what is best for the country. Surely there is no justification for a third legislative branch in the federal government. … Even if one were to disagree with me on this point, the members of a third branch of the federal legislature at least ought to be elected by and responsible to constituencies, just as in the case of the other two branches of Congress.
This is not an unreasonable position to take and though I would differ when it comes to the subject of civil rights and civil liberties, courts ought to temper their use of judicial review with some discretion. Though many observers, including the Wall Street Journal, believe the issue in the health care litigation has to do with the wisdom of an individual mandate and its effect on individual liberty, from a constitutional standpoint those issues are not before the Court. The actual issue is simple — does Congress have the authority under the Commerce Clause to regulate health care by requiring minimum insurance coverage for all Americans. Love the law or hate it, I believe the answer is yes. Reasonable people disagree. Yet, as pointed out by the late Herbert Wechsler, the Columbia University constitutional scholar, in a 1959 article:
A principled decision … is one that rests on … reasons that in their generality and their neutrality transcend any immediate result that is involved. When no sufficient reasons of this kind can be assigned for overturning value choices of the other branches of the Government or of a state, those choices must, of course, survive.
Congress at the time of passage believed that it had the authority, and the argument for that position is strong according to past decisions of the Court. The president of course agrees and is certainly not stepping out of mainstream constitutional law discourse to suggest that the Court exercise a little discretion when dealing with decisions by a political majority. This alone refutes the claim by the Wall Street Journal and the critics of the day regarding President Obama’s regard for Marbury v. Madison.

But from the standpoint of the law under review, some members of the Court seemed preoccupied in oral arguments last week, with a limiting principle to keep Congress out of — I suppose — everything. Yet the Court, in past cases, has not come up with a viable approach that describes how that limiting principle can be implemented neutrally by a federal court. Absent such a principle, the Affordable Care Act is a rational assertion of the power that can be undone with a political majority in the two houses of Congress — the prescription often suggested by conservatives throughout the years to those clamoring for social change.

It’s time for conservatives on and off the Court to take the same medicine.

April 5, 2012, Craig Jackson is a Professor of Law at Texas Southern University Thurgood Marshall School of Law. He teaches and researches on constitutional law after 9/11, First Amendment law and international law.

According to the UMC website and author Heather Hahn: “Private prison companies are big business. But, is it moral for United Methodists to make a profit from the incarceration of people? The United Methodist Church’s pension agency has pondered that question since May [2011]. The Board of Pension and Health Benefits announced Jan. 3 [, 2012] its decision to prohibit investments in companies that derive more than 10 percent of their revenue from the management and operation of prison facilities.

‘It came down to that profiting from the incarceration of others was just not consistent with our view of what the (denomination’s) Social Principles ask for,’ said David Zellner, the board’s chief investment officer. . . . The week after Christmas, the board sold about $1 million in stock in two companies that fell under the new screen — Corrections Corporation of America, more commonly called CCA, and the GEO Group.”

The United Methodist pension fund is the largest church directed pension fund in the world with nearly $17 billion in assets. More than 74,000 clergy and personnel participate in the UMC pension fund and benefits programs.

Is Investor Activism one potential avenue to address the perverse incentives perpetuated by private prisons and those corporations that profit on the basis of increasing prisoner population around the nation and world?

By Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law

Over at the Volokh Conspiracy, I was struck by a comment on a posting of Professor Richard Sander of UCLA Law School about “The Problem of “Science Mismatch”" discussing his ongoing Mismatch Effect work encouraging cascading blacks down to lower ranked schools.  The comment was on what benefit comes from this research and replied,

That some in the world or the world assumes the worst about any black would not appear to me to be the key point.  That people do research and that we are to get information from that research is also not the key point.  The key point would appear to be to enhance the preparation of students from whatever backgrounds so that all students are better prepared students at each level and all students are given access to the best quality of education so that they can maximize their pursuit of happiness and participation in society.

My parents took the conscious decision to place me in white private schools from nursery school on starting back in 1960-61.  I went to schools like Carteret School in West Orange New Jersey for first grade, Brookside School (now Montclair Academy) in Montclair, New Jersey for second and third grade, after a year at the defunct Woodward School for Boys in DC, Sidwell Friends in Washington D.C. for 5th and 6th grade, College du Leman in Geneva, Switzerland for 7th through 9th grade, Phillips Exeter Academy for 10th through 12th grade.  It is patently obvious to me that the resources that I received in education at Carteret, Brookside, Sidwell Friends, College du Leman, and Phillips Exeter were far beyond what a public school student in a midwestern town like Toledo where I live gets even today.  My parents were fortunate enough to be able to afford those places and persistent enough to overcome the profound resistance at the elementary school level in the early to mid-60′s (and lesser resistance overseas and at Exeter (at Exeter their was significant resistance to it just going coed) to allow black kids to sit in the same private classrooms in the North as similarly situated or better situated privileged white kids – let alone a kid of color coming from lesser means.

At each of those places, I was either the one integrating the class/school or one of the first few to come there in the first set of numbers.  My prospects for achievement were put on a higher path.  My father’s comment to me was that the best option he could do in his generation was to go to Morehouse College.  When it came time for me, the best options for me were broader – why?  Because of the effort to change the shape of that river so that someone who has never been allowed in might seek his chance.

When I had an interest and went to a meeting of the computer club at Exeter and found the guys there to be assholes that I did not like, was my turning away lack of persistence or was I compensating for some fundamental inadequacy because I was black or was I only seeking my bliss in a place where I could seek my bliss at many levels?  Maybe I did not persist because I did not have in my background that idea that the only way to have success in America was to be in the sciences that some of my Asian-American friends said was inculcated in them by their parents.  Being in science did not mean enough to me.  Maybe when I took Freshman Geology 101 (Rocks for Jocks) at Harvard I should have followed that interest. But, I had never seen a geologist in my family or had one in my experience.  Maybe geology did not have enough meaning for me.  So I went to economics. I am not Larry Summers but so what? Is my satisfaction with my experience to be ignored or found irrelevant as the work of Sander appears to do?

At Harvard College, Yo Yo Ma was in my Freshman class as was Bill Gates.  Does the presence of Yo Yo Ma mean I would be plagued by a sense of inadequacy by my lack of cello playing skills?  Does the presence of Bill Gates mean that I would be plagued by a sense of inadequacy by my lack of having started Microsoft in college?  What about the Religion class where I wrote a paper on Marx and Freud and could get out so many books in the library that had millions of them and just explore them?  What about the pleasure with that experience and the growth that gave me?

Resistance to efforts to change the shape of that river is nothing new in this country.  I tell every high school senior to apply to Harvard College.  Why? Because Harvard College can accept anyone they want.  And the experience at Harvard is a tremendous experience.  Very few do apply notwithstanding my encouragement.  Were they discouraged (as was I) by their high school college counselor?  That schools with higher rankings like in  the Ivy League are more willing to take a risk on an interesting candidate than schools of lesser reputation is a good thing, no?  I can not think of the number of alumni who are white who have told me they felt they did not deserve to get into Harvard and appreciate the school allowing them in.  Others have thought I did not deserve to get in (“You took my son’s place!”).  Who knows what I deserve – but should I be allowed to seek the opportunity and could Harvard be thinking about the need to have a class that had many kinds of people beyond Science, Humanities, or Social Science.  They could fill 100 per cent of their class with anyone of those three groups – and still have applicants to reject.

Been teaching at law schools for nearly 12 years now in the North and the South and never seen any significant numbers of minorities.  Before that went to elite schools (Harvard College, Harvard Law School, and Harvard Business School) and never saw any significant numbers of minorities.

After Business and Law School, I applied for a job at Bain and a job at Boston Consulting Group and did not get an offer.  I know another black guy applied to Boston Consulting Group around that time and asked “Have you ever hired a black person as a consultant?”  Apparently not at that time.  Were all the black candidates not good enough?  Suddenly this guy gets an offer there.  Lived in Boston during the whole busing thing and knew plenty of black bankers who talked of what they confronted in the big banks.  Was that stuff all their imagination or was it their lack of preparation?  Remember one guy set aside time every Sunday to keep on keeping on by studying banking.  He was Treasurer for the City at one point finding his way to power through politics as well as his private sector work.  He found his path – more power to him.

The research is seeming to say that because there is not equality of result there should not be an effort to use affirmative action to encourage further equality of opportunity.  But given the disparities of preparation levels across communities that we tolerate and encourage in this country, I am hardly surprised that there is not equality of result.  Equality of result has never been the point at least for me – it has been about integrating America and eliminating these racial caste system.

Wanted to come back to something Thomas Sowell said about Derrick Bell.  Stanford’s effort to integrate its faculty through hiring Bell as the “best available” should be applauded not derided.  Bell’s humility about himself is now turned against him.  That there would be a reaction by the students is not surprising (see the reaction of the fans to Jackie Robinson coming on the field).  That Stanford undermined Bell by doing a review class behind his back says more about Stanford’s faculty’s mixed motives in integrating (faculty are creatures of their time).  No doubt it was a difficult “learning by doing” moment for Stanford and Bell in a space where no black had been permitted to tread before – but all you need do is look at “Mad Men” and see the culture shock this must have been for white students to be taught by a black man.  Even today, I suspect that numbers of law students (whatever their color) may never have had a professor of color (other than a sports coach) in their educational careers.

I can not remember a period in my life when there has not been hammering on blacks by some significant segment of this country.  Dismissal of Bell’s writing as compared to the “good” writing amazes me.  Bell is a product of being on the line of that culture shock his entire life – the color line between where there are large numbers of blacks and no blacks.  To paraphrase A. Phillip Randolph, when Bell “walked in a room his people walked in a room” with all the attendant baggage falling on him. I read Sowell and I read Bell and they both seem to come from two strains of black intellectuals flowing back to places like Booker T Washington and W.E.B. Dubois. Sad to see Sowell not being able to contain himself and speaking ill of the dead.  I find Sowell more insecure about who he is then Bell ever seemed to be.

As we all sit here and go through the Trayvon Martin thing, I was reminded by the mother of Ahmadou Diallo that we have been here before, as we have been with Sean Bell.  That mother noted that part of the mechanism used against Ahmadou Diallo was to trash him (called a street-peddler) just as we have seen being done about Trayvon Martin now.  She remembered the enormous protest then and how it died down and then over and over this killing of young black men.  She pointed out that, just like Trayvon Martin’s parents, she had to  go around the country and reclaim her son’s story – that he was working his way through college and being a street peddler.

While at Harvard College, I was a door-to-door salesman in the summer selling dictionaries in Texas and Arizona.  Most of the neighborhoods were predominantly Hispanic with a few blacks but once in a while I worked in an all white area (OK maybe one black family).  Same sales talk in each neighborhood.  Black guy walking with a sample case from 8h00 am to 9h30 pm with a peddler’s license working his way through Harvard College.  In white neighborhoods, I can not tell the number of times that the police were called on me.  I would show my papers and after a while the police would say “So you’ll be working through here for the next couple of days?” and we had a cordial relationship.  The craziest day was when I was not selling and was following another black guy to improve my sales technique.  He was working in an all-white neighborhood and now it was TWO black guys coming to the door with sample cases.  Following our training.  First house, white lady came to the door.  Eyes as wide as possible and said, just a second and went in.  We knew the police were going to be called and sure enough two minutes later four cop cars pull up.  First cop gets out of his car, “So you’ll be working around here today?”  “Yup.”  All day long, cops being called in that white neighborhood and we showing our ID.  Doing the quintessential American up from nothing thing — door to door on straight commission.  Around 8h00 that night, first cop drove by and said that as it was getting dark might be good for us to call it a day (was this a neo-sundown towning thing?  Maybe.  As I look back I think the cop was worried about us getting hurt by someone but maybe there was an informal rule about blacks preferably not being in this white neighborhood after dark that we just did not understand).  So we did home – shortening our hours – as we were to work  normally until 9h30 pm according to the 80 hour a week schedule.  We lived in a blue and white trailer with two white guys doing the same thing that summer in Tempe, Arizona. Called ourselves the Tempe Two Toned Trailer Truckers.  Trailer trash for some going to Harvard College.

Here is a link to something I saw on Hannity Thursday night

Daryl Parks: Zimmerman is a vigilante

Watch This Video:
http://video.foxnews.com/v/1537405401001/

in which a lawyer for Trayvon Martin’s family named Darryl Parks speaks.  At around 7 minutes 58 second to 8 minutes 18 seconds Parks responds to Sean saying “African-Americans understand…” talking about the case.  It made me twinge as in those words he just said he acknowledged the superstructure in this country was there and was not taking issue with it but was insisting on justice in this case.  I found the acknowledgement such a profound statement by Parks about the nature of this country and of what he was seeking to do in seeking justice for this young black man.

I see Sanders work as acknowledging the superstructure – but, unlike Bell and others – not fighting it.  Screw him.

by Anthony Paul Farley

what is a hoodie?

hooded sweatshirts are very warm.  i am almost always freezing.  in fact, i’ve been cold ever since my childhood trek from jamaica to tanzania to puerto rico to libya to upstate, ny, america’s cold northeast shoulder, roundabout age seven.  i have a lot of sweatshirts.  the current one says, “obama 2012,” the early ones, from the 70′s, 80′s and 90′s, say, “brockport high school,” “university of virginia” or “harvard.”  all of this leads to my question:

is a hooded sweatshirt the same as a “hoodie?”

i thought hooded sweatshirts had *been to or going to-go-to college* as their cultural meaning.  when i was in college, hooded sweatshirts said: “person in hood is a student, not a hood.”  very bourgeois, or so i thought.  i am even listed somewhere in the “thank you” section of one of bourgeoisie author lawrence otis graham’s early how-to-not-be-too-black-for-business-and-pleasure books because the “harvard law school” hooded sweatshirt in which he was photographed for the publisher’s promotional materials actually belonged to me — i handed it to him somewhere outside of the harkness as he headed off to take his photo.  hooded sweatshirts, it seemed to me, and to experts like larry, have always been as white a shade of pale as you can wear without becoming a total freakshow (bowties / blue blazers / sweatervests, like MJ’s glitterglove, take wanting-to-be-white to an unrecognizable place).  hooded sweatshirts, unless i’ve been wrong for the entirety of my american experience, have always been white.  but now, suddenly, with the velocity of a bullet, the hooded sweatshirt has a new meaning, and, i guess, a new name, “hoodie.”

what is a “hoodie?”  the question is important.  we cannot ignore it.

feel the middle passage chill in the air?  what to wear?  white hoods?  obviously, something strange has taken place.  wearing a “hoodie” can actually get you killed, just like everything else; it is, it seems, as robin coste lewis suggests, a problem of:

“walking while black, talking while black, pissing while black, eating while black, breathing while black, crying while black, snoring while black, thinking while black, brushing my teeth while black, holding a wallet while black, eating skittles while black, playing double-dutch while black, being black while black, wearing a hoodie while black, holding a woman’s hand while black, reaching into the glove compartment while black, not putting on my indicator while black, going through customs while black, watching someone look at my four year old son curiously while black, using lapd bullet shells to play hopscotch while black, touching the bullet holes in our walls while black, being told you’re not black enough while black, being told you’re too black while black, loving being black while black, wanting to get the hell up out of here while black, realizing there’s no place to be black while black, loving being black even more because of that while black, sitting on the rim of the pacific getting blacker while black, finally giving up on being accepted while black, which is blacker than all blacks while black, thinking about all the little boys who disappeared when we were children while black, and the little girls who disappeared too while black, and watching our mothers tremble, wondering which of us children would not come home that day while black. at seven, coming home to them even blacker because of that while black. and staying.”

robin lewis’ suggestion is the perfect manifesto for a new movement:

“free trayvon martin.”  no justice, no peace.  let’s all join hands and demand trayvon martin’s unconditional release from the undiscovered country.  until he’s free, not one of us is free.