ACSBlog: The Blog of the American Constitution Society

An online library, the Internet Archive, successfully fought off an FBI request to obtain information about one of its patrons, Wired reported. The FBI had issued a National Security Letter — a subpoena demanding information related to a terrorism investigation, which is never approved by a judge and prohibits the recipient from disclosing the order – to the library.

The Archive challenged the letter in court, and on April 21 the FBI agreed to withdraw the letter and unseal the court case. The settlement precludes the Internet Archive from disclosing the target of the investigation, although many of the court documents are available online.

by Sahr MuhammedAlly, Senior Associate with the Law and Security Program, Human Rights First

Guantánamo Bay, May 8, 2008: Today’s military commission hearing in the case of 21-year-old Omar Khadr was all about discovery—what documents the government will turn over so that Khadr can effectively mount a defense. One thing was clear: the government is in possession of documents it does not want to disclose to the defense.

Justice at Stake released a new report on “The New Politics of Judicial Elections in the Great Lake States, 2000-2008.” From the introduction:

Attorneys, business interests, ideological groups and political partisans have locked themselves into an escalating arms race. Judges and justices routinely raise millions of dollars from contributors whose cases they decide. Campaign ads are designed to destroy confidence in the integrity of the candidates. Above all, special interests are working to convert judicial elections into a tool of political intimidation rather than public accountability.

This report details how these recent trends are turning the “Great Lakes” states into leading battlefields in the growing national struggle for the courts.

(H/T GavelGrab)

On Thursday, the Senate Judiciary Committee passed the State Secrets Privilege Act, which provides for judicial review when the executive asserts the privilege and quashes lawsuits. ACS hosted a panel discussion on the privilege, which discussed whether the privilege is being properly invoked and the appropriate balance of national security concerns with meaningful access to justice. Follows the links to watch video from the discussion or read a transcript.

by Sahr MuhammedAlly, Senior Associate with the Law and Security Program, Human Rights First

Guantánamo Bay, May 7, 2008: Today’s hearings were in stark contrast to each other—one involved Ali Hamza Ahmed Sulayman al Bahlul, who rejected the military commission system and renewed his support for Osama bin Laden, and the other involved Mohammed Jawad, a distraught 23-year-old defendant who has agreed to participate in the proceedings for now, but who has mentally suffered from years of isolation in Guantánamo. Both proceedings had one thing in common, which has been the case for nearly every military commission hearing: how to deal with issues not addressed in the Military Commissions Act of 2006 (MCA) or the military commission rules.

Today the questions were about how to share evidence, including classified evidence, with a defendant who has chosen to represent himself; whether a judge has the authority to rule on allegations of mistreatment; and whether a judge can order a change in conditions of confinement.

by David Madland, Director of the American Worker Project at the Center for American Progress and co-author of “The Progressive Generation: How Young Adults Think About the Economy”

According to the results of a first-of-a-kind analysis about Millennials’ views on the economy, a majority of 18- to 29-year-olds (our definition of this generation) believe that labor unions and the government can be a force for good in the economy, and that increased investments in healthcare, education, and other areas are necessary to ensure strong and sustainable economic growth. Millennials’ views are more progressive on economic issues than those of other age groups today, and are more progressive than previous generations when they were younger.

This week’s Economist discovers India as the final frontier for global corporate law firms. An Indian court is considering whether the 1961 Indian Advocates Act, which prevents foreign firms from practicing in India, should be liberally interpreted in the context of a dispute between local lawyers and three international law firms that had opened offices in India in the 1990s.

Indian firms are unique, according to the article. They cannot have more than 20 partners, may not advertise on the web, and attorneys are not permitted to provide a business card unless it has been requested.  In addition, the firms play a unique role within the society, being viewed as the “guardians of democracy” and associated with independence from Britain. The question of whether and how to integrate foreign practitioners, particularly in light of an increasing number of international deals, may be on its way to being answered.

Michigan’s Supreme Court held 5-2 that Michigan’s constitutional ban on same sex marriages precludes local government and state universities from providing health insurance to the partners of gay employees, affirming a local court decision, the Associated Press reported.

Late last year, University of Chicago law professor Geoffrey R. Stone examined how the Supreme Court decides hard cases, what it means to be a conservative or liberal judge and what he views as the proper mode of constitutional analysis in his six part blog series on “constitutionalism.”

In a recent article, Professor Stone explained the Framers’ understanding of the role of the courts. He started with a discussion of the greatest danger to liberty:

A fundamental challenge facing the Framers of our Constitution was how to restrain intolerant, self-interested, and prejudiced majorities in order to ensure that they would not run roughshod over the rights and liberties of minorities. As James Madison observed, "the greatest danger" to liberty was to be found "in the body of the people, operating by the majority against the minority."

"About 12 Indiana nuns were turned away Tuesday from a polling place by a fellow bride of Christ because they didn't have state or federal identification bearing a photograph," the Associated Press reported. It added:

They weren't given provisional ballots because it would be impossible to get them to a motor vehicle branch and back in the 10-day time frame allotted by the law, Sister McGuire said. "You have to remember that some of these ladies don't walk well. They're in wheelchairs or on walkers or electric carts."

On April 28, 2008, the American Constitution Society and its Washington, D.C. Lawyers Chapter hosted a discussion of The Summer of 1787: The Men Who Invented the Constitution. The event included a conversation between the author, David O. Stewart, and Paul M. Smith, ACS Board of Directors Chair and partner at Jenner & Block LLP. Stewart and Smith delved into the personalities behind the creation of the nation's founding document. Stewart touched upon his interests in writing a book about the Philadelphia Convention of 1787 and how his research helped form his views of some of the U.S. Constituion's framers. Full video of the event is available here.

David O. Stewart discusses the framers that he believed have been wrongfully ignored by history.

The following post is by Robert Weiner, a Washington, D.C. attorney

Recently the CNN commentator Lou Dobbs decried “the way airline passengers are being treated in this country,” having to “line up like cattle” to get through security and enduring conditions that are “disgusting.” CNN, which is in the business of anointing, has anointed Dobbs the scourge of illegal immigration. Without him, nothing would keep U.S. elected officials from ranking  the interests of their constituents, who can vote, below those of foreigners, who cannot.  

According to Citizens for Responsibility and Ethics in Washington (CREW), the White House admitted it failed to preserve any backup tapes for emails from March 1, 2003 to May 22, 2003. The administration previously admitted it did not keep backup tapes for September 30, 2003 to October 6, 2003. CREW notes that the earlier period coincided with the US invasion of Iraq, which took place from March 20 to May 1, and the latter period coincided with a Justice Department investigation into the disclosure of Valerie Plame Wilson’s covert identity

The White House’s declaration is available here.

Here is this week's congressional hearings schedule, with links to the daily calendars for the House and Senate, the weekly House whip information (majority/minority), and the Senate floor schedule.

Of note: on Tuesday, the House Committee on Judiciary (Subcommittee on Commercial and Administrative Law) will hold a hearing on The Rulemaking Process and the Unitary Executive Theory. On Wednesday, the Senate Committee on Judiciary will examine two nominations to the Sixth Circuit, and on Thursday it will consider whether to provide for the appointment of additional federal circuit and district judges.

Mildred Loving (formerly Jeter), whose arrest in Virginia for marrying Richard Loving ultimately resulted in the 1967 Supreme Court decision in Loving v. Virginia, has died, according to the Free-Lance Star. After they were married in 1958, the couple was arrested for violating Virginia's "Racial Integrity Act," which made interracial marriages illegal. Their one-year sentence was suspended, provided they leave the state.

Several years later, after passage of the Civil Rights Act of 1964, the couple brought suit, with the assistance of the ACLU. In 1967, the Supreme Court held that the law violated the equal protection clause of the 14th Amendment. They had three children.

A George Washington University Law School professor noted that two-thirds of patent appeals judges may have been unconstitutionally appointed, calling into question hundreds of decisions rendered over the past eight years. Professor John F. Duffy wrote that the Director of Patent and Trademark Office appointed the judges, which likely violates the appointments clause of the Constitution.

The Texas Supreme Court provided a victory to the maker of BIC lighters when it ruled that a tort claim against the company could not be brought because of the U.S. Consumer Product Safety Act, Texas Lawyer reported.

The state high court concluded that the federal law pre-empted a tort case against the company brought in state court by a mother whose 6-year-old daughter was burned when another child accidentally set fire to her dress while playing. The court ruled that the federal law allows some tort claims, but not those that conflict with the federal regulations.

ACS recently hosted a panel discussion on regulatory preemption.

The U.S. Department of Treasury’s investigation of an Oregon branch of a Saudi charity for alleged connections to Al Qaeda has revealed some of the administration’s aggressive tactics in bringing criminal or civil cases against the organizations. In an extensive article in The New Yorker, Patrick Radden Keefe details the administration’s use of the state-secrets privilege and an evidentiary procedure used against charities alleged to have supported terrorist groups.

The article notes that shortly after the Sept. 11, 2001 terrorist attacks, President George W. Bush signed an executive order authorizing the Treasury Department to “designate” persons or entities believed to be supporting terrorist activities in an effort to shut them down. Under the order, the Treasury Department may use classified evidence never disclosed to the designated party and other evidence that would not be admissible in a criminal trial. ACS recently hosted a panel discussion of the state secrets privilege. 

Stories

• Testimony on secret law by ACS Board Member Dawn Johnsen before the Senate Judiciary Committee’s Subcommittee on the Constitution.
• Reports on Colonel Morris Davis’ testimony and Salim Ahmed Hamdan’s boycott of the military commission system, by Deborah Colson, Senior Associate in the Law and Security Program at Human Rights First, who reported from Guantánamo Bay.
• An op-ed by attorney Al Meyerhoff suggesting that the Senate should not confirm any judicial nominees until the next president takes office.
• A study found new connections between the race of the defendant and the likelihood of receiving a death sentence.
• Coverage of Justice Scalia’s many recent media appearances.
• An examination of the Supreme Court’s decision upholding an Indiana law requiring voters to present government issued identification, by Justin Levitt, counsel, Brennan Center for Justice at NYU School of Law.

Resources

• An ACS Issue Brief on religious expression in public schools, summarized by its author, Edward Correia, a Washington, D.C. attorney and adjunct professor at the Washington College of Law at American University.
• A post about the launch of Fair Housing for All, a national organization for fair housing attorneys, by its founder, ACS member Professor Craig Durian.
• Materials and analysis related to the recent Supreme Court decision regarding requiring government issued voter IDs.
• This week’s congressional activities.

Crain's Cleveland Business published a profile of Cleveland ACS Chapter founder Gayle Horwitz, as one of its “Twenty in Their 20s,” who says, “Cleveland has a vibrant legal community. I saw a need for an ACS chapter.”

Shareholders suing DVI Inc., a health care finance company that went bankrupt, will not be able to recover against London law firm Clifford Chance for allegedly conspiring with DVI’s executives to conceal the company’s financial health through use of sham transactions, a Philadelphia federal judge ruled, according to the New York Law Journal.

The ruling cited Stoneridge v. Scientific-Atlanta, a January 2008 Supreme Court decision that held that investors may not recover against third parties whose business partners fraudulently misled them, unless the investors relied upon public statements made by the third party.

After being convicted of murder and confined in a Texas prison for more than 27 years, James Lee Woodard joined an expanding list of prisoners whose convictions have been overturned because of DNA evidence, the Associated Press reported.

Woodard was released from prison April 29 after DNA testing confirmed his innocence of the murder charge.Texas District Judge Mark Stoltz told Woodward at a hearing before his release that, “No words can express what a tragic story yours is.” Woodward was convicted of the 1980 murder of his girlfriend largely on the testimony of two eyewitnesses.

Lawyers representing persons or groups suspected of supporting terrorist activities are increasingly complaining that the federal government is monitoring their discussions with the persons or groups, according to the New York Times. The lawyers say they believe the government is using powers it granted itself after the Sept. 11 terrorist attacks to eavesdrop on their contacts with suspected supporters of terrorism.

According to the report, the Justice Department does not deny that the government has monitored phone calls and e-mail exchanges between lawyers and their clients as part of its terrorism investigations.

The chief of the Justice Department’s criminal division, Alice Fisher, announced she will leave the government on May 23, after three years of service in that position. After her departure, only three division chiefs will have been confirmed by the Senate. She was initially installed by President Bush as a recess appointment in August 2005, and ultimately was confirmed by the Senate in September 2006, but faced criticism during the nomination process for never having tried a case and lacking experience as a federal prosecutor.

The Blog of the Legal Times notes Fisher had served as Deputy Assistant Attorney General under then-Assistant AG Michael Chertoff. They had worked together during Kenneth Starr's Whitewater investigation.

Resources on the role of the Department of Justice are available here.

In an opinion piece in the Legal Times ($), attorney Al Meyerhoff suggests that the Senate should not confirm any judicial nominees until the next president takes office. He argues the Bush administration has had a large effect on the judiciary.

During the first year of the Bush presidency, the Democrats confirmed 59 appointments, twice the number confirmed in Clinton’s first year. Overall . . . 86 percent of Bush judicial nominations have been confirmed. . . . [At the same time,] the Bush administration and its allies have made a politicized judiciary into an art form.

He cites “real-world” consequences of this ideological shift.

It is [the circuit] courts that typically make final decisions about what is in the water we drink, the food we eat, the air we breathe; about the rights of the accused, the right to privacy, and the rest of our most basic liberties. And it is those courts that have shifted to the right, that are more likely to defer to executive power, favor big business, and protect the individual less.