As a policy matter, we're inclined to agree with the result reached by Judge Scalia in District of Columbia v. Heller (as for the correctness of his constitutional conclusion, we don't know - no matter what anyone tells you, it's not an easy question). The reasoning in his opinion, however, is less than perfectly clear - in fact, in two places, we find important contradictions that are difficult to resolve. We may not be able to get to this opinion for awhile, so for now we'll leave you with two questions:
(1) Why doesn't United States v. Miller (an opinion that Scalia criticizes but does not overrule) contoll the outcome of this case?
(2) What effect will this decision have on federal laws that categorically outlaw firearm ownership for certain classes of people? (for example, convicted felons).
BACK TO KENNEDY:
The starting point for our discussion has to be Coker v. Georgia, the 30-year-old decision that everyone agrees is most on point for the child rape law at issue in Kennedy. Coker held that the 8th amendment barred the death penalty for the crime of rape - at least for rape concerning adult women.
(We should note that we have a history with Coker. Six years ago, we authorized a note (available here) published in a certain law review analyzing Coker in some depth. We'd like to say that we took the legal world by storm - but our legacy consists of few cites in a few scattered law reviews (one of which confused us with a professor!) Indeed, the federal courts - culminating with Kennedy - have been quite busy dismantling the assumptions we made in our Note since its publication.)
Coker involved an horrific crime. The defendant, Mr. Coker, was serving time for several violent offenses in prison. He broke out prison, broke into the home a young family, threatened the young wife with a weapon, then raped her with a knife in front of her husband, then stole her car and kidnapped her. He did not, however, kill anyone. Nevertheless, he was sentenced the death penalty after being convicted of this crime.
The court overturned the death sentence by a vote of 7-2. Of the seven judges - two judges (William Brennan and Thurgood Marshall) overturned the death penalty because they believed the penalty was cruel and unusual in all circumstances. One judge, Lewis Powell, thought that the death penalty was disproportionate for this particular rape, but thought it might be OK if there were other "aggravating circumstances" (more on him later). Four other judges joined an opinion by Judge White. Everyone agrees that White's opinion held that the death penalty for rape (at least for adult women) was unconstitutional.
MATH TEST: How many judges agreed with White's opinion - that the death penalty for rape (at least for adult women) was always unconstitutional? The answer is 6 - Brennan (1), Marshall (2), and the four judges who joined White's opinion (3-6 - that's White, Stevens, Stewart, and Blackmun). Brennan and Marshall did not join White's opinion, of course, but that's because they wanted to go farther - to strike down the death penalty for rape and every other crime.
If 5 judges agree on a decision, it constitutes precedent that all courts (including, usually, the Supreme Court) are bound to follow. Here, 6 judges agreed that White's opinion about rape was correct (two didn't join it - but only because they didn't think it went far enough). 4 + 2 = 6. 6 is greater than 5.
All of this, of course, is blindingly obvious - unless you're on the Supreme Court! At oral argument for Kennedy v. Louisiana (available here) not one but two judges suggested that White's opinion was not binding precedent! Note, particularly, Judge Scalia's suggestion that Brennan and Marshall somehow don't count!
To put it a different way - if Brennan and Marshall had joined the majority opinion, there would be an opinion by 6 judges, and everyone (presumbly even Scalia) would have to agree that it was a binding precedent. But because Brennan and Marshall subscribed to a view that was in all ways more restrictive of the death penalty, Scalia suggests they don't count at all - and White's opinion can be ignored.
To be clear, Scalia's (apparent) view appears nowhere in the Kennedy opinion. Indeed, thoughts expressed at oral argument does not always reflect a judges's true views. That said, Mr. Kennedy's lawyer had to spend a fair portion of his argument dealing with these inane issues raised by Scalia (and the other justice, whose name we'll withhold).
NEXT: Coker was not off to a good start with the Kennedy court. We examine what White's controlling opinion in Coker actually said - and what the Kennedy court did with it.
Thursday, June 26, 2008
Wednesday, June 25, 2008
Indiana v. Edwards: What Was Left Unsaid
Kennedy v. Louisiana is one of the big ones, sure to inspire a lot of predictable commentary on the role of the Supreme Court in our society. We'll definitely be covering it, perhaps as soon as tomorrow.
Our impression, after reading the opinion? Justice Kennedy reaches the correct result, but his opinion is a classic example of his tendency to Make Things Harder Than They Need To Be. In our view, there was a much more obvious way to reach this conclusion - one that Kennedy rejects. Here a hint: Alito makes the argument for Kennedy - in his dissent!
Giles v. California may also merit a post or two. The dispute in this case between the justices seemed to be very narrow - but the case contains five different opinions! Can anyone explain why Thomas and Alito need to write separate concurrences making exactly the same point?
BACK TO EDWARDS: Our sarcasm may have got the best of us in our last post - we did not mean to imply, as a general matter, that Judge Breyer's judicial philosophy was inferior to Judge Scalia's. Indeed, we generally find ourselves on Breyer's side on the major disputes.
In this particular case, however, we believe Scalia's instincts for bright-line rules fits the case. Criminal defendants generally have the right to represent themselves. As everyone understands, this is not because representing yourself is a good idea, or because it leads to fair trials. Indeed, it's almost never a good idea. Instead, criminal defendants have the right to make choices - even bad ones.
As a new lawyer in the office of the New Hampshire Public Defender, we often became upset when our clients made bad decisions - going to trial instead of taking a plea offer, or taking plea offer instead of going to trial. (Making bad decisions was a common theme in many of our clients' lives). Our managing attorney would frequently needed to remind us that our clients ultimately had to be control of their own cases.
Breyer's opinion takes this right away from (some) mentally ill defendants. He justification - that such defendants are unequipped to represent themselves, and that they would make a "spectacle" of themselves, is beside the point (and is true of many people who are not mentally ill). As our managing attorney would tell us, "Our clients have the right to make bad decisions."
That said, we were struck by the following passage in his opinion:
It's a good question, and a question that Scalia's (otherwise compelling) dissent isn't quite able to answer. We would address it by raising two points, which are not covered in either opinion in Edwards.
First, exactly how much good did appointing a lawyer do for Edwards? In our five years as a public defender, we've represented many people with mental illness of varying degrees (there is a causal connection). Representing and communicating with seriously mentally ill persons - particularly those with paranoid or irrational beliefs - is often very difficult. Such clients will often refuse to share information with their attorneys - indeed, they sometimes would refuse to meet with us altogether. We would imagine that representing would be even harder when the client is forced, against his will, to be represented by an attorney.
For this reason, we suspect that the relationship between Mr. Edwards and his attorney was something less than ideal. (Indeed, Scalia discusses a disagreement between the attorney and the client about what defense to present). Creating a dysfunctional attorney-client relationship hardly solves the problem Breyer raises. If we were more cynical, we'd say that the holding only sweeps the problem under the rug. Instead of making the court deal with the defendant's mental illness, the opinion foists him off on a court-appointed lawyer.
But enough about lawyers. What about Mr. Edwards? Remember, everyone in this case agrees that Edwards was seriously mentally ill. He has a history of paranoid schitzophrenia. He had twice been found incompetent to stand trial. He had written motions to the court that were pure goobltygook (Breyer includes one such motion in his opinion). According to Breyer, Edwards was so mentally ill that he was "unable to carry out the basic tasks" of self-reprentation, and was at risk to make a spectacle of himself in the courtroom.
Assuming that Edwards is dangerous, one might think that he belongs in a mental institution, where he will receive treatment (while being separated from society). Yet as a result of his trial, Edwards will likely spend the rest of life in a prison, where he will likely receive no such treatment.
To paraphrase the doctor quoted above: How in the world can our legal system treat an insane person this way?
We don't have a perfect answer for either question. But we don't think that Breyer's opinion (or Scalia's, for that matter) does either.
NEXT: We discuss Kennedy (the opinion and the author). Suggested reading - Coker v. Georgia.
Our impression, after reading the opinion? Justice Kennedy reaches the correct result, but his opinion is a classic example of his tendency to Make Things Harder Than They Need To Be. In our view, there was a much more obvious way to reach this conclusion - one that Kennedy rejects. Here a hint: Alito makes the argument for Kennedy - in his dissent!
Giles v. California may also merit a post or two. The dispute in this case between the justices seemed to be very narrow - but the case contains five different opinions! Can anyone explain why Thomas and Alito need to write separate concurrences making exactly the same point?
BACK TO EDWARDS: Our sarcasm may have got the best of us in our last post - we did not mean to imply, as a general matter, that Judge Breyer's judicial philosophy was inferior to Judge Scalia's. Indeed, we generally find ourselves on Breyer's side on the major disputes.
In this particular case, however, we believe Scalia's instincts for bright-line rules fits the case. Criminal defendants generally have the right to represent themselves. As everyone understands, this is not because representing yourself is a good idea, or because it leads to fair trials. Indeed, it's almost never a good idea. Instead, criminal defendants have the right to make choices - even bad ones.
As a new lawyer in the office of the New Hampshire Public Defender, we often became upset when our clients made bad decisions - going to trial instead of taking a plea offer, or taking plea offer instead of going to trial. (Making bad decisions was a common theme in many of our clients' lives). Our managing attorney would frequently needed to remind us that our clients ultimately had to be control of their own cases.
Breyer's opinion takes this right away from (some) mentally ill defendants. He justification - that such defendants are unequipped to represent themselves, and that they would make a "spectacle" of themselves, is beside the point (and is true of many people who are not mentally ill). As our managing attorney would tell us, "Our clients have the right to make bad decisions."
That said, we were struck by the following passage in his opinion:
An amicus brief reports one psychiatrist's reaction to having observed a patient
(a patient who [was competent to stand trial]) try to conduct his own defense: "[How in the world can our legal system allow an insane man to defend
himself?"
It's a good question, and a question that Scalia's (otherwise compelling) dissent isn't quite able to answer. We would address it by raising two points, which are not covered in either opinion in Edwards.
First, exactly how much good did appointing a lawyer do for Edwards? In our five years as a public defender, we've represented many people with mental illness of varying degrees (there is a causal connection). Representing and communicating with seriously mentally ill persons - particularly those with paranoid or irrational beliefs - is often very difficult. Such clients will often refuse to share information with their attorneys - indeed, they sometimes would refuse to meet with us altogether. We would imagine that representing would be even harder when the client is forced, against his will, to be represented by an attorney.
For this reason, we suspect that the relationship between Mr. Edwards and his attorney was something less than ideal. (Indeed, Scalia discusses a disagreement between the attorney and the client about what defense to present). Creating a dysfunctional attorney-client relationship hardly solves the problem Breyer raises. If we were more cynical, we'd say that the holding only sweeps the problem under the rug. Instead of making the court deal with the defendant's mental illness, the opinion foists him off on a court-appointed lawyer.
But enough about lawyers. What about Mr. Edwards? Remember, everyone in this case agrees that Edwards was seriously mentally ill. He has a history of paranoid schitzophrenia. He had twice been found incompetent to stand trial. He had written motions to the court that were pure goobltygook (Breyer includes one such motion in his opinion). According to Breyer, Edwards was so mentally ill that he was "unable to carry out the basic tasks" of self-reprentation, and was at risk to make a spectacle of himself in the courtroom.
Assuming that Edwards is dangerous, one might think that he belongs in a mental institution, where he will receive treatment (while being separated from society). Yet as a result of his trial, Edwards will likely spend the rest of life in a prison, where he will likely receive no such treatment.
To paraphrase the doctor quoted above: How in the world can our legal system treat an insane person this way?
We don't have a perfect answer for either question. But we don't think that Breyer's opinion (or Scalia's, for that matter) does either.
NEXT: We discuss Kennedy (the opinion and the author). Suggested reading - Coker v. Georgia.
Tuesday, June 24, 2008
Indiana v. Edwards
We have no dispute with the old adage: "The man who represents himself has a fool for a lawyer." Nevertheless, the Supreme Court has held that criminal defendants have the right to represent themselves at their criminal trial, if they so choose. In Indiana v. Edwards, the Supreme Court found an exception to this rule.
The background: Mr. Edwards was charged with attempted murder. He was also mentally ill. On two different occasions, the courthad found him incompetent to stand trial. "Incompetent" means that the court found he either lacked a rational understanding of what was happening, or that he was unable to assist his lawyer. The court committed Edwards to a state hospital, where he was treated. The court finally determined that he OK to stand trial. "OK", of course, did not mean that he was cured of his schitzophrenia.
Mr. Edwards then told the judge that he didn't want a lawyer - he wanted to represent himself. The judge, citing his history of mental illness, would not allow him to do so, and ruled that a lawyer had to handle this case. Despite this, Edwards was eventually convicted of all charges.
Edwards appealed, arguing that he had a Constitutional right to defend himself at trial. It seemed like he a had a good argument, since the Supreme Court had decided, in a case called Faretta, that criminal defendants have a Constitutional right to defend himself at trial. But that was before Justice Breyer got ahold of the case.
As detailed here, the government had asked the court to overrule Faretta. Breyer refused to do this, but he did carve out an exception for mentally ill defendants. He provided three reasons.
First, he said that prior cases "point slightly in the direction of our . . . . answer." We would think that Faretta points more than slightly in the other direction, but we'll leave this point for our readers to decide.
Second, after citing a number of scientific studies, Breyer states
For our part, we have no reason to disagree with this statement But why does it matter? Is Breyer saying that some people are incapable of running their own defense? Guess what? Almost everyone (lawyers included) are incapable of effectively running their own defense in a criminal trial. Without further explanation, this comment is beside the point.
Breyer last argument is his attempt to further explain this point. In our view, its the real reason for his decision.
Shorter Breyer: It's for their own good!
Language like this, of course, is Scalia-bait. Many commentators continue to express surprise when Scalia sides with a criminal defendant in an appeal. Yet he's been doing this (on certain issues), for roughly forever. Here, Breyer's mushy references to fair trials, individual dignity, underlying objectives, and rainbows merits this response:
In fairness to Professor Berman, it is off-putting to read about the "dignity of individual choice" in a Scalia dissent (joined by Thomas, no less). But nothing here is inconsistent with Scalia's usual red meat approach to constitutional law. In his view, the Constitution grants an unqualified right to the assistance of counsel. This right necessarily includes the right not to have the assitance of counsel, if one so chooses. In Scalia's view, that's all there is to it. The majority's exception is just nambly-pambly good intentions and paternalism. As Scalia points out, an attorney (necessarily) has all sorts of authority to make decisions for his client during a trial - what questions to ask, which witnesses to call, what defense to present. While having an attorney is almost always in the defendant's interest, he still retains the choice to not give up these rights to an attorney, and to represent himself.
Scalia is rather restrained in this dissent, compared to say Boumediene, in which he blamed the future deaths of U.S. soldiers on the majority. Indeed, while we agree with his dissent, we could list a few more complaints with Breyer's opinion, some based on our own experiences in representing difficult or mentally ill clients.
We'll discuss this further in tomorrow's post, but for now, one comment. Go back to the last quote from Breyer, above. While he expresses concern about how self-representation will affect the client, isn't he at least as concerned about the problems it would create for the trial court? (Note, particularly, his use of the word "spectacle") In an earlier decision (quoted in Edwards) Breyer had expressed concern about continuing to allow the right of self-representation. Some people, it seems, had been complaining about the results of the rule in Faretta. Guess what - those people weren't criminal defendants - they were trial judges!
NEXT: We discuss our own disagreements with Edwards.
The background: Mr. Edwards was charged with attempted murder. He was also mentally ill. On two different occasions, the courthad found him incompetent to stand trial. "Incompetent" means that the court found he either lacked a rational understanding of what was happening, or that he was unable to assist his lawyer. The court committed Edwards to a state hospital, where he was treated. The court finally determined that he OK to stand trial. "OK", of course, did not mean that he was cured of his schitzophrenia.
Mr. Edwards then told the judge that he didn't want a lawyer - he wanted to represent himself. The judge, citing his history of mental illness, would not allow him to do so, and ruled that a lawyer had to handle this case. Despite this, Edwards was eventually convicted of all charges.
Edwards appealed, arguing that he had a Constitutional right to defend himself at trial. It seemed like he a had a good argument, since the Supreme Court had decided, in a case called Faretta, that criminal defendants have a Constitutional right to defend himself at trial. But that was before Justice Breyer got ahold of the case.
As detailed here, the government had asked the court to overrule Faretta. Breyer refused to do this, but he did carve out an exception for mentally ill defendants. He provided three reasons.
First, he said that prior cases "point slightly in the direction of our . . . . answer." We would think that Faretta points more than slightly in the other direction, but we'll leave this point for our readers to decide.
Second, after citing a number of scientific studies, Breyer states
"In certain instances an individual may well be able to satisfy
Dusky's mental competence standard, for he will be able to work with
counsel at trial, yet at the same time he may be unable to carry out the
basic tasks needed to present his own defense without the help of
counsel.
For our part, we have no reason to disagree with this statement But why does it matter? Is Breyer saying that some people are incapable of running their own defense? Guess what? Almost everyone (lawyers included) are incapable of effectively running their own defense in a criminal trial. Without further explanation, this comment is beside the point.
Breyer last argument is his attempt to further explain this point. In our view, its the real reason for his decision.
Third, in our view, a right of self-representation at trial will not "affirm the
dignity" of a defendant who lacks the mental capacity to conduct his defense
without the assistance of counsel. To the contrary, given that defendant's
uncertain mental state, the spectacle that could well result from his
self-representation at trial is at least as likely to prove humiliating as
ennobling. Moreover, insofar as a defendant's lack of capacity
threatens an improper conviction or sentence, self-representation in that
exceptional context undercuts the most basic of the Constitution's
criminal law objectives, providing a fair trial.
Shorter Breyer: It's for their own good!
Language like this, of course, is Scalia-bait. Many commentators continue to express surprise when Scalia sides with a criminal defendant in an appeal. Yet he's been doing this (on certain issues), for roughly forever. Here, Breyer's mushy references to fair trials, individual dignity, underlying objectives, and rainbows merits this response:
[T]he loss of "dignity" the right is designed to prevent is not
the defendant's making a fool of himself by presenting an amateurish or even
incoherent defense. Rather, the dignity at issue is the supreme human
dignity of being master of one's fate rather than a ward of the State--the
dignity of individual choice.
In fairness to Professor Berman, it is off-putting to read about the "dignity of individual choice" in a Scalia dissent (joined by Thomas, no less). But nothing here is inconsistent with Scalia's usual red meat approach to constitutional law. In his view, the Constitution grants an unqualified right to the assistance of counsel. This right necessarily includes the right not to have the assitance of counsel, if one so chooses. In Scalia's view, that's all there is to it. The majority's exception is just nambly-pambly good intentions and paternalism. As Scalia points out, an attorney (necessarily) has all sorts of authority to make decisions for his client during a trial - what questions to ask, which witnesses to call, what defense to present. While having an attorney is almost always in the defendant's interest, he still retains the choice to not give up these rights to an attorney, and to represent himself.
Scalia is rather restrained in this dissent, compared to say Boumediene, in which he blamed the future deaths of U.S. soldiers on the majority. Indeed, while we agree with his dissent, we could list a few more complaints with Breyer's opinion, some based on our own experiences in representing difficult or mentally ill clients.
We'll discuss this further in tomorrow's post, but for now, one comment. Go back to the last quote from Breyer, above. While he expresses concern about how self-representation will affect the client, isn't he at least as concerned about the problems it would create for the trial court? (Note, particularly, his use of the word "spectacle") In an earlier decision (quoted in Edwards) Breyer had expressed concern about continuing to allow the right of self-representation. Some people, it seems, had been complaining about the results of the rule in Faretta. Guess what - those people weren't criminal defendants - they were trial judges!
NEXT: We discuss our own disagreements with Edwards.
Monday, June 23, 2008
Boumediene: Wrap-up
Rothgery v. Gillespie County. Texas is the first Supreme Court case discussing the attachment of the right to counsel in some time, but we don't think it's worth an entire post. Indeed, we don't think it was worth a written opinion. Notice that none of the nine judges seems to think that the argument advanced by Gillespie County, which aimed to distinguish Brewer and Jackson, had any merit to it. On today's Supreme Court, however, not one but four separate opinions are needed to resolve this issue.
Judge Thomas, the author of the only dissent, is the worst offender. He seems to agree that Brewer and Jackson contain language that would decide the issue, but wants to overrule these (uncontroversial) precedents because they conflict with (what he infers to be) the intent of the framers of the constitution. Roberts needlessly kills trees by writing a concurrence saying that Thomas's dissent is "compelling," but that there's no reason to overrule Brewer and Jackson (Question: Why, then, is Thomas's dissent "compelling"?) Alito writes a long concurrence addressing an issue that he admits was not raised in the petition.
Someone should bring up Rothgery the next time the Supremes complain about how busy they are.
BACK TO BOUMEDIENE: See our archives for the previous six posts in this series!
As we stated yesterday, Roberts' first point in his dissent is well-taken. If we're assuming that the Detainee Treatment Act allows detainees most of the important rights allowed in a habeas petition, why strike it down? To be fair, Kennedy's point may be that we cannot make this assumption. If this is true, he could have been a lot more clear.
Roberts makes two other arguments, which you can read and we'll paraphrase. First, he thinks that the case was heard too early. He writes that the detainees should have first challenged their detentions through the procedures in the DTA - only if they lost would it be necessary to seek the writ of habeas corpus. Second, he believes that the court's decision conflicts with Hamdi - an earlier case that seemed to say that the (somewhat cursory) procedures like the Combat Status Review Tribunals used by the government were OK.
They are different responses to these arguments, but the best response is implied in Kennedy's opinion, implied more strongly in Souter's concurrence, and stated explicitly as thus: The majority is tired of the government screwing around. As Souter states, many detainees have been held for over six years. None of them has had an opportunity to argue to a neutral judge that they are being unlawfully detained. The majority seems to have concluded that this would never happen absent action from the court.
Roberts, in our view (and likely in the view of the majority) has been inhaling chalk if he really thinks "the system the Court has launched (and directs lower courts to elaborate) promises to take longer" than appeals under the DTA. Inevitably, claims (perhaps meritorious ones) would be denied under the DTA, which to ouor eyes only allows a very cursory review of the CRSTs. Inevitably, then, the court would have to confront the issue it decided in Boumediene. Roberts' approach would just run another few years off the clock.
As for Roberts' last point: Techincally and formally, Hamdi and Boumediene are apples and oranges - Hamdi only talks about the procedures required under due process, while Boumediene discusses the procedure for habeas review of those procedures. (Scalia and Thomas, both dissenting, are normally the world's leading proponents of technical and formal distinctions).
That said, we wouldn't be surprised if Kennedy had grown a bit uncomfortable with Hamdi. We couldn't do a critique of Hamdi justice in such a small space - let's just say that Scalia had a point in his Hamdi dissent when he critized the majority for appropriating a due process standard used for denying disability benefits!
CONCLUDING THOUGHTS: It looks like the detainees will finally get their day in court to contest the merits of their detentions. Whether and how many people will actually be released is anyone's guess (our guess: not very many. But check out this order , courtesy of Scotusblog). Boumediene only grants detainees the ability to challenge their detention through the writ of habeas corpus, and in doing so reaffirms one of our most important constitutional rights.
NEXT: We hope to discuss Indiana v. Edwards before the "big" opinions come out. We may even share some of our own experiences as a public defender!
POSTSCRIPT: The late George Carlin, like the Jehovah's witnesses and the Hare Krishnas, played a special role in the development of the First Amendment. You know what to do: click here.
Judge Thomas, the author of the only dissent, is the worst offender. He seems to agree that Brewer and Jackson contain language that would decide the issue, but wants to overrule these (uncontroversial) precedents because they conflict with (what he infers to be) the intent of the framers of the constitution. Roberts needlessly kills trees by writing a concurrence saying that Thomas's dissent is "compelling," but that there's no reason to overrule Brewer and Jackson (Question: Why, then, is Thomas's dissent "compelling"?) Alito writes a long concurrence addressing an issue that he admits was not raised in the petition.
Someone should bring up Rothgery the next time the Supremes complain about how busy they are.
BACK TO BOUMEDIENE: See our archives for the previous six posts in this series!
As we stated yesterday, Roberts' first point in his dissent is well-taken. If we're assuming that the Detainee Treatment Act allows detainees most of the important rights allowed in a habeas petition, why strike it down? To be fair, Kennedy's point may be that we cannot make this assumption. If this is true, he could have been a lot more clear.
Roberts makes two other arguments, which you can read and we'll paraphrase. First, he thinks that the case was heard too early. He writes that the detainees should have first challenged their detentions through the procedures in the DTA - only if they lost would it be necessary to seek the writ of habeas corpus. Second, he believes that the court's decision conflicts with Hamdi - an earlier case that seemed to say that the (somewhat cursory) procedures like the Combat Status Review Tribunals used by the government were OK.
They are different responses to these arguments, but the best response is implied in Kennedy's opinion, implied more strongly in Souter's concurrence, and stated explicitly as thus: The majority is tired of the government screwing around. As Souter states, many detainees have been held for over six years. None of them has had an opportunity to argue to a neutral judge that they are being unlawfully detained. The majority seems to have concluded that this would never happen absent action from the court.
Roberts, in our view (and likely in the view of the majority) has been inhaling chalk if he really thinks "the system the Court has launched (and directs lower courts to elaborate) promises to take longer" than appeals under the DTA. Inevitably, claims (perhaps meritorious ones) would be denied under the DTA, which to ouor eyes only allows a very cursory review of the CRSTs. Inevitably, then, the court would have to confront the issue it decided in Boumediene. Roberts' approach would just run another few years off the clock.
As for Roberts' last point: Techincally and formally, Hamdi and Boumediene are apples and oranges - Hamdi only talks about the procedures required under due process, while Boumediene discusses the procedure for habeas review of those procedures. (Scalia and Thomas, both dissenting, are normally the world's leading proponents of technical and formal distinctions).
That said, we wouldn't be surprised if Kennedy had grown a bit uncomfortable with Hamdi. We couldn't do a critique of Hamdi justice in such a small space - let's just say that Scalia had a point in his Hamdi dissent when he critized the majority for appropriating a due process standard used for denying disability benefits!
CONCLUDING THOUGHTS: It looks like the detainees will finally get their day in court to contest the merits of their detentions. Whether and how many people will actually be released is anyone's guess (our guess: not very many. But check out this order , courtesy of Scotusblog). Boumediene only grants detainees the ability to challenge their detention through the writ of habeas corpus, and in doing so reaffirms one of our most important constitutional rights.
NEXT: We hope to discuss Indiana v. Edwards before the "big" opinions come out. We may even share some of our own experiences as a public defender!
POSTSCRIPT: The late George Carlin, like the Jehovah's witnesses and the Hare Krishnas, played a special role in the development of the First Amendment. You know what to do: click here.
Friday, June 20, 2008
Boumediene: Roberts' Dissent
We're reading The Brethren, Bob Woodward and Scott Armstrong's inside account of the Burger Court in the late 60's and early 70's. It's a bit gossipy for our tastes, but on the whole, we've found it very enlightening. Particularly interesting: The book reveals how difficult it can be to get nine (or even five) judges to sign a single opinion. Many compromises must be made. This bears keeping in mind as we discuss Kennedy's somewhat garbled opinion in Boumediene.
WHERE WE LEFT OFF: Kennedy rules that the Detainee Treatment Act is unconstitutional because it doesn't give the detainees enough rights to challenge their detention. But he assumes that the DTA guarantees many important rights - guarantees that don't seem to be in the statute! Then he says that DTA is deficient because it doesn't include the right to consider newly discovered evidence - a right that most habeas corpus petitioners don't generally have! Finally, he seems to sayt hat (despite his earlier assumption) that the DTA cannot be read to guarantee anything close to habeas corpus because that's not what Congress wanted.
Chief Justice Roberts has trouble making sense of this. After noting the rights guaranteed by the DTA, he writes:
He also summarizes Kennedy's final argument.
Thus, the statement the beginning of the dissent:
For reasons we'll discuss shortly, we don't agree with Roberts - but certainly these points are fair responses to the argument advanced by Kennedy. Before we go farther, however, let's go back to Scalia's dissent. Let's discuss the portion of his dissent that was mostly widely quoted.
"Almost certainly?" Scalia's argument must be that the decision will allow detainees significantly more rights, which will allow significantly more of them to be released, which will result in more Americans being killed.
But look at Roberts. He sings the praises of the DTA- "the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants." His whole point is that the system is so thorough that replacing it with habeas corpus will not accomplish anything. "[T]he habeas process the court mandates will most likely end up looking at lot like the DTA system it replaces."
If this is true, how could anyone be "almost certain" that more Americans would be killed? Remember that Scalia and Roberts signed each other's dissent.
Roberts and Scalia, as we're constantly told, are Great Legal Geniuses. This could not possibly be an oversight on their part, in such an important opinion. Instead, it seems "almost certain" that Scalia (and Roberts) don't really believe everything they put their names to.
OUR OWN VIEW: As we said, the quoted portions of Robert's dissent are fair responses to Kennedy's opinion. As with the issue we previously discussed, we feel that Kennedy is Making Things Harder Than They Need to Be. To our eyes, the text of the Detainee Treatment Act does not seem to guarantee any significant right to challenge unlawful detentions. Why not just say this? In defense of Kennedy, that might be what he's getting at near the end of the opinion, in the section that Roberts describes as the "Catch-22" Perhaps there were diverging opinions in the majority, and Kennedy just did his best to reconcile them.
NEXT: We aim to wrap up our discussion of Boumediene by discussing two other points from Robert's dissent. (preview: they don't hold as much water as the one discussed today). We still plan to cover Indiana v. Edwards. For now, read this analysis on Scotusblog.
WHERE WE LEFT OFF: Kennedy rules that the Detainee Treatment Act is unconstitutional because it doesn't give the detainees enough rights to challenge their detention. But he assumes that the DTA guarantees many important rights - guarantees that don't seem to be in the statute! Then he says that DTA is deficient because it doesn't include the right to consider newly discovered evidence - a right that most habeas corpus petitioners don't generally have! Finally, he seems to sayt hat (despite his earlier assumption) that the DTA cannot be read to guarantee anything close to habeas corpus because that's not what Congress wanted.
Chief Justice Roberts has trouble making sense of this. After noting the rights guaranteed by the DTA, he writes:
Despite these guarantees, the Court finds the DTA system an inadequate habeas substitute, for one central reason: Detainees are unable to introduce at the appeal stage exculpatory evidence discovered after the conclusion of their CSRT proceedings.
. . .
If this is the most the Court can muster, the ice beneath its feet is thin indeed.
He also summarizes Kennedy's final argument.
In other words, any interpretation of the statute that would make it an adequate substitute for habeas must be rejected, because Congress could not possibly have intended to enact an adequate substitute for habeas. The Court could have saved itself a lot of trouble if it had simply announced this Catch-22 approach at the beginning rather than the end of its opinion.
Thus, the statement the beginning of the dissent:
How the detainees' claims will be decided now that the DTA is gone is anybody's
guess. But the habeas process the Court mandates will most likely end up looking a lot like the DTA system it replaces, as the district court judges shaping it will have to reconcile review of the prisoners' detention with the undoubted
need to protect the American people from the terrorist threat--precisely the
challenge Congress undertook in drafting the DTA. All that today's opinion has
done is shift responsibility for those sensitive foreign policy and national security decisions from the elected branches to the Federal Judiciary.
For reasons we'll discuss shortly, we don't agree with Roberts - but certainly these points are fair responses to the argument advanced by Kennedy. Before we go farther, however, let's go back to Scalia's dissent. Let's discuss the portion of his dissent that was mostly widely quoted.
The game of bait-and-switch that today's opinion plays upon the Nation's
Commander in Chief will make the war harder on us. It will almost
certainly cause more Americans to be killed.
"Almost certainly?" Scalia's argument must be that the decision will allow detainees significantly more rights, which will allow significantly more of them to be released, which will result in more Americans being killed.
But look at Roberts. He sings the praises of the DTA- "the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants." His whole point is that the system is so thorough that replacing it with habeas corpus will not accomplish anything. "[T]he habeas process the court mandates will most likely end up looking at lot like the DTA system it replaces."
If this is true, how could anyone be "almost certain" that more Americans would be killed? Remember that Scalia and Roberts signed each other's dissent.
Roberts and Scalia, as we're constantly told, are Great Legal Geniuses. This could not possibly be an oversight on their part, in such an important opinion. Instead, it seems "almost certain" that Scalia (and Roberts) don't really believe everything they put their names to.
OUR OWN VIEW: As we said, the quoted portions of Robert's dissent are fair responses to Kennedy's opinion. As with the issue we previously discussed, we feel that Kennedy is Making Things Harder Than They Need to Be. To our eyes, the text of the Detainee Treatment Act does not seem to guarantee any significant right to challenge unlawful detentions. Why not just say this? In defense of Kennedy, that might be what he's getting at near the end of the opinion, in the section that Roberts describes as the "Catch-22" Perhaps there were diverging opinions in the majority, and Kennedy just did his best to reconcile them.
NEXT: We aim to wrap up our discussion of Boumediene by discussing two other points from Robert's dissent. (preview: they don't hold as much water as the one discussed today). We still plan to cover Indiana v. Edwards. For now, read this analysis on Scotusblog.
Thursday, June 19, 2008
Boumediene: Why the Detainee Treatment Act Wasn't Enough
The Supreme Court's decision in Indiana v. Edwards is worth discussing; we hope to cover it next week, before the really big opinions come out. Sneak preview: Scalia writes a reasonable and persuasive dissent!
BOUMEDIENE PART V: Scroll downwards for our earlier posts in this series. A quick recap:
(1) The Court rules that detainees have a constitutional right to the Write Habeas Corpus
(2) The writ extends to Guantanamo Bay;
(3) Scalia is full of it.
There's still one more question to address - Did Congress provide an adequate substitute for habeas corpus?
Quick background: In 2005, after heavy lobbying by the Bush administration, Congress passed the Detainee Treatment Act. The Act was a response to the Rasul decision, which held that the detainees had a statutory right to habeas corpus. Many lawsuits ensued.
The DTA took away the courts' ability to hear habeas corpus petitions. Instead, the detainees were left with Combat Status Review Tribunals (CRSTs). The CRST's are military panels charged with reviewing whether a detainee was an "enemy combatant."
The DTA did give the detainees a limited right to appeal to one federal court in Washington DC. The courts were empowered to hear only the following claims:
Is this close enough to habeas corpus? In the last part of his opinion, Kennedy concludes that it is not. As such, the majority strikes down this portion of the DTA. He rules that the detainees have the right, under the constitution, to seek the writ of habeas corpus (at least after their CRST), and have the federal courts review the legality of their detention.
(It bears mentioning that this opinion does not by itself release any of the detainees. It just allows them to file lawsuits in lower federal courts, which will then have to decide whether the detainees are entitled to be released).
Reading the section of the DTA above, one would think that Kennedy could reach this last conclusion without too much difficulty. Although he declines to define exactly what the right to habeas corpus includes, Kennedy lists several elements that seem to make sense. First, a court must be able to determine whether there was enough evidence at the CRST to find that the detainee was an enemy combatant. Second, the court must be able to determine whether the president has the legal authority, under the law and the constitution, to hold the detainee as enemy combatant for the duration of the "war on terror." Third, a court must be able to release the detainee if he is being illegally held for any of the first two reasons.
What's striking about the DTA, to our eyes, is that it does not appear to guarantee any of these rights. In other words, that all the government needs to do to win an appeal is to show that (1) it followed the rulebook for the CRST's, and that (2) those procedures in that rulebook did not violate the Constitution. Indeed, the right to appeal was even narrower than that, because the Supreme Court had (apparently) already addressed issue #2 in a 2004 case called Hamdi v. Rumsfield.
In short, the DTA doesn't seem to allow detainees much of an appeal right at all. And - that was exactly what Congress wanted. As Kennedy states:
This should be an easy law to strike down. Unfortunately, Kennedy's opinion displays his well known tendency to Make Things Harder Than They Need To Be. In his opinion, Kennedy assumes that the DTA does guarantee all of these important rights listed above. To our eyes, these rights seem very difficult to tease out of this statute. (Incidentally, this idea of a broadly interpreted statute came from the government's lawyers, who probably decided that a broad DTA was better than no DTA).
In Kennedy's opinion, however, this is still not enough. Why? Because the DTA does not allow the courts to consider "newly discovered evidence" - that is, evidence discovered after the CSRT.
This is a bit unusual. After all, as Kennedy acknowledges, convicted criminal defendants (the people who account for most of the habeas petitions in this country) generally do not have the right to bring up newly discovered evidence in their habeas petitions.
So Kennedy offers another justification;
We're a bit perplexed. Is Kennedy assuming that the necessary procedures are in the statute, or not?
NEXT: Roberts has a field day
BOUMEDIENE PART V: Scroll downwards for our earlier posts in this series. A quick recap:
(1) The Court rules that detainees have a constitutional right to the Write Habeas Corpus
(2) The writ extends to Guantanamo Bay;
(3) Scalia is full of it.
There's still one more question to address - Did Congress provide an adequate substitute for habeas corpus?
Quick background: In 2005, after heavy lobbying by the Bush administration, Congress passed the Detainee Treatment Act. The Act was a response to the Rasul decision, which held that the detainees had a statutory right to habeas corpus. Many lawsuits ensued.
The DTA took away the courts' ability to hear habeas corpus petitions. Instead, the detainees were left with Combat Status Review Tribunals (CRSTs). The CRST's are military panels charged with reviewing whether a detainee was an "enemy combatant."
The DTA did give the detainees a limited right to appeal to one federal court in Washington DC. The courts were empowered to hear only the following claims:
whether the status determination of the [CSRT] ... was consistent with the
standards and procedures specified by the Secretary of Defense ... and (ii) to
the extent the Constitution and laws of the United States are applicable,
whether the use of such standards and procedures to make the determination is
consistent with the Constitution and laws of the United States."
Is this close enough to habeas corpus? In the last part of his opinion, Kennedy concludes that it is not. As such, the majority strikes down this portion of the DTA. He rules that the detainees have the right, under the constitution, to seek the writ of habeas corpus (at least after their CRST), and have the federal courts review the legality of their detention.
(It bears mentioning that this opinion does not by itself release any of the detainees. It just allows them to file lawsuits in lower federal courts, which will then have to decide whether the detainees are entitled to be released).
Reading the section of the DTA above, one would think that Kennedy could reach this last conclusion without too much difficulty. Although he declines to define exactly what the right to habeas corpus includes, Kennedy lists several elements that seem to make sense. First, a court must be able to determine whether there was enough evidence at the CRST to find that the detainee was an enemy combatant. Second, the court must be able to determine whether the president has the legal authority, under the law and the constitution, to hold the detainee as enemy combatant for the duration of the "war on terror." Third, a court must be able to release the detainee if he is being illegally held for any of the first two reasons.
What's striking about the DTA, to our eyes, is that it does not appear to guarantee any of these rights. In other words, that all the government needs to do to win an appeal is to show that (1) it followed the rulebook for the CRST's, and that (2) those procedures in that rulebook did not violate the Constitution. Indeed, the right to appeal was even narrower than that, because the Supreme Court had (apparently) already addressed issue #2 in a 2004 case called Hamdi v. Rumsfield.
In short, the DTA doesn't seem to allow detainees much of an appeal right at all. And - that was exactly what Congress wanted. As Kennedy states:
To the extent any doubt remains about Congress' intent, the legislative history
confirms what the plain text strongly suggests: In passing the DTA Congress did
not intend to create a process that differs from traditional habeas corpus
process in name only. It intended to create a more limited procedure. See, e.g.,
151 Cong. Rec. S14263 (Dec. 21, 2005) (statement of Sen. Graham) (noting that
the DTA "extinguish[es] these habeas and other actions in order to effect a
transfer of jurisdiction over these cases to the DC Circuit Court" and agreeing
that the bill "create[s] in their place a very limited judicial review of
certain military administrative decisions"); id., at S14268 (statement of Sen.
Kyl) ("It is important to note that the limited judicial review authorized by
paragraphs 2 and 3 of subsection (e) [of DTA §1005] are not habeas-corpus
review. It is a limited judicial review of its own nature").
This should be an easy law to strike down. Unfortunately, Kennedy's opinion displays his well known tendency to Make Things Harder Than They Need To Be. In his opinion, Kennedy assumes that the DTA does guarantee all of these important rights listed above. To our eyes, these rights seem very difficult to tease out of this statute. (Incidentally, this idea of a broadly interpreted statute came from the government's lawyers, who probably decided that a broad DTA was better than no DTA).
In Kennedy's opinion, however, this is still not enough. Why? Because the DTA does not allow the courts to consider "newly discovered evidence" - that is, evidence discovered after the CSRT.
This is a bit unusual. After all, as Kennedy acknowledges, convicted criminal defendants (the people who account for most of the habeas petitions in this country) generally do not have the right to bring up newly discovered evidence in their habeas petitions.
So Kennedy offers another justification;
We do not imply DTA review would be a constitutionally sufficient replacement
for habeas corpus but for these limitations on the detainee's ability to present
exculpatory evidence. For even if it were possible, as a textual matter, to read into the statute each of the necessary procedures we have identified, we could not overlook the cumulative effect of our doing so. To hold that the detainees at Guantanamo may, under the DTA, challenge the President's legal authority to detain them, contest the CSRT's findings of fact, supplement the record on review with exculpatory evidence, and request an order of release would come close to reinstating the §2241 habeas corpus process Congress sought to deny them. The language of the statute, read in light of Congress' reasons for enacting it, cannot bear this interpretation.
We're a bit perplexed. Is Kennedy assuming that the necessary procedures are in the statute, or not?
NEXT: Roberts has a field day
Wednesday, June 18, 2008
Boumediene Part IV
Can it be argued, in good faith, that Eisentrager (and other precedent) mean that habeas corpus does not extened to detainees at Guantanamo Bay? Our view is that it should - in fact, we don't feel that this is a particularly close question. But certain language in Eisentrager, as well as certain practical considerations, may lead others to disagree. Kennedy's careful opinion , for exampletreats the issue as a fairly close question.
To be fair, Scalia does discuss in some detail his interpretation of Eisentrager (he thinks the controlling the majority is looking at the wrong controlling language). But in Scalia's opinion, there can be no room for reasonable disagreement about the interpretation of this case. "Eisentrager thus held--held beyond any doubt--that the Constitution does not ensure habeas for aliens held by the United States in areas over which our Government is not sovereign.
How silly is this statement? Even the government - even John "Rubber-Stamp" Yoo, thought this issue came down to the "weight of authority, " not some alleged "smoking gun" language in any particular case. In fact, even Chief Justice Roberts, who joined Scalia's dissent, felt the need to say this about the habeas corpus issue in his own dissent:
So why is Scalia pretending otherwise? Obviously, because it sets up the second part of his argument. By pretending that the non-availability of habeas corpus at Gitmo is the most obvious fact in the history of Supreme Court precedent, he can say this:
Scalia just loves to talk about how dumb judges are, compared the great thinkers in the executive and legislative branch (here, for example, he opines that the court has no "competence" to "second-guess" the political branches - "the Court blunders in nonetheless") In the cited passage, however, Scalia demonstrates his own vast knowledge of foreign policy decisionmaking, concluding that the USA "surely would not" have transported prisoners to Gitmo if there was any doubt about the availability of habeas. Of course, no citation is provided.
Let's be frank - Scalia has no idea what the USA "surely" would have done with the detainees under a differing legal landscape (neither do we). The mere fact that the USA sought a legal opinion about the availability of habeas at Gitmo does not mean that they based their decision on their analysis. (Indeed, we've always suspected that the purpose of memos from people like John Yoo was to provide justification for decisions the President had already made.)
We're no less qualified to offer an opinion about what the USA might have done with the detainees had Eisentrager not been decided than Scalia is, so here goes: In our view, it is unlikely that the USA would have kept them in Afganistan, sent them to another base, or handed them over to our allies. The whole point of the Gitmo detention was to give the executive branch unbridled control over the detainees. The other options listed above would present serious security and political obstacles to that control. In our view, the Bush adminstration - as with so many other decisions made during the war on terror - was willing to act first and deal with the legal consequences later.
Indeed, we feel that the executive branch - and not the court - is the party acting in bad faith in this case. Gitmo is obviously within the total control of the United States. Yet throughout the detainee lawsuits, the government has nonetheless argued that this is irrelevant because Cuba is the sovereign nation in control of that area. We feel that Kennedy and the majority give this somewhat specious argument more respect than it deserves.
The Bush administration wanted to have its cake and eat it too - it wanted the prisoners to be completely at the mercy of the executive branch, without interference from the courts, from other countries, and (at least until the court forced them to concede otherwise in Hamdi) Congress.
Even George Will sees a problem with that.
PLAYING TO THE CHEAP SEATS:
Some more of Scalia's vast expertise in foreign policy on display:
"Almost certainly?" As we'll discuss later this week, when we get to Robert's dissent, this claim is quite unlikely. But why pass up an opportunity to accuse Kennedy of killing Americans?
NEXT: Roberts' dissent.
To be fair, Scalia does discuss in some detail his interpretation of Eisentrager (he thinks the controlling the majority is looking at the wrong controlling language). But in Scalia's opinion, there can be no room for reasonable disagreement about the interpretation of this case. "Eisentrager thus held--held beyond any doubt--that the Constitution does not ensure habeas for aliens held by the United States in areas over which our Government is not sovereign.
How silly is this statement? Even the government - even John "Rubber-Stamp" Yoo, thought this issue came down to the "weight of authority, " not some alleged "smoking gun" language in any particular case. In fact, even Chief Justice Roberts, who joined Scalia's dissent, felt the need to say this about the habeas corpus issue in his own dissent:
I regard the issue as a difficult one, primarily because of the unique and unusual jurisdictional status of Guantanamo Bay
So why is Scalia pretending otherwise? Obviously, because it sets up the second part of his argument. By pretending that the non-availability of habeas corpus at Gitmo is the most obvious fact in the history of Supreme Court precedent, he can say this:
The President relied on our settled precedent in Johnson v. Eisentrager, 339
U. S. 763 (1950), when he established the prison at Guantanamo Bay for
enemy aliens. . . . Had the law been otherwise, the military surely would
not have transported prisoners there, but would have kept them in Afghanistan,
transferred them to another of our foreign military bases, or turned them over
to allies for detention.
Scalia just loves to talk about how dumb judges are, compared the great thinkers in the executive and legislative branch (here, for example, he opines that the court has no "competence" to "second-guess" the political branches - "the Court blunders in nonetheless") In the cited passage, however, Scalia demonstrates his own vast knowledge of foreign policy decisionmaking, concluding that the USA "surely would not" have transported prisoners to Gitmo if there was any doubt about the availability of habeas. Of course, no citation is provided.
Let's be frank - Scalia has no idea what the USA "surely" would have done with the detainees under a differing legal landscape (neither do we). The mere fact that the USA sought a legal opinion about the availability of habeas at Gitmo does not mean that they based their decision on their analysis. (Indeed, we've always suspected that the purpose of memos from people like John Yoo was to provide justification for decisions the President had already made.)
We're no less qualified to offer an opinion about what the USA might have done with the detainees had Eisentrager not been decided than Scalia is, so here goes: In our view, it is unlikely that the USA would have kept them in Afganistan, sent them to another base, or handed them over to our allies. The whole point of the Gitmo detention was to give the executive branch unbridled control over the detainees. The other options listed above would present serious security and political obstacles to that control. In our view, the Bush adminstration - as with so many other decisions made during the war on terror - was willing to act first and deal with the legal consequences later.
Indeed, we feel that the executive branch - and not the court - is the party acting in bad faith in this case. Gitmo is obviously within the total control of the United States. Yet throughout the detainee lawsuits, the government has nonetheless argued that this is irrelevant because Cuba is the sovereign nation in control of that area. We feel that Kennedy and the majority give this somewhat specious argument more respect than it deserves.
The Bush administration wanted to have its cake and eat it too - it wanted the prisoners to be completely at the mercy of the executive branch, without interference from the courts, from other countries, and (at least until the court forced them to concede otherwise in Hamdi) Congress.
Even George Will sees a problem with that.
PLAYING TO THE CHEAP SEATS:
Some more of Scalia's vast expertise in foreign policy on display:
The game of bait-and-switch that today's opinion plays upon the Nation's
Commander in Chief will make the war harder on us. It will almost
certainly cause more Americans to be killed.
"Almost certainly?" As we'll discuss later this week, when we get to Robert's dissent, this claim is quite unlikely. But why pass up an opportunity to accuse Kennedy of killing Americans?
NEXT: Roberts' dissent.
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