ACSBlog: The Blog of the American Constitution Society

by Deborah Colson, Senior Associate in the Law and Security Program at Human Rights First

America tells the whole world that it has freedom and justice. I do not see that. . . .There are almost 100 detainees here. We do not see any rights. You do not give us the least bit of humanity . . . Give me a just court. . . Try me with a just law.

—Salim Hamdan to Judge Keith Allred, Guantánamo Bay, April 29, 2008.

Guantanamo Bay, April 30, 2008: Salim Hamdan rejected the military commission process for the second time yesterday afternoon, asking that he be tried instead under a system of “just law.”  Mr. Hamdan interrupted a pretrial hearing during which the parties were mired in technical legal arguments to plead with the judge to take a step back and evaluate the integrity of the process. His words were powerful and eloquent. He questioned why the government is trying him in a made-up system pursuant to made-up rules. And he observed that, even when he wins, he loses because the government repeatedly changes the rules midstream:

If you ask me the color of this table, I will tell you it’s white. You say, “it’s black.” I say, “no, it’s white.” You say, “no, it’s black.” I say fine, “it’s black.” You say “no, it’s white.” This is the American government.

by Deborah Colson, Senior Associate in the Law and Security Program at Human Rights First

Guantánamo Bay, April 28, 2008: Prosecutors and criminal defendants rarely see eye to eye. But defendant Salim Ahmed Hamdan and former chief prosecutor Morris Davis agree on one thing: The military commission system is fundamentally flawed, and justice in Guantánamo is near impossible.

The Bush administration has increasingly employed so-called deferred prosecutions of American corporations accused of criminal liability, The New York Times reported.

As an example, The Times points to a case involving the agricultural giant, Monsanto, where one of its consultants has been accused of trying to bribe an Indonesian official into weakening environmental regulations to help with the growth of the company’s cotton crops. The company was subsequently accused of trying to cover up the consultant’s actions. “A few years earlier, in the age of Enron, these kinds of charges would probably have resulted in a criminal indictment,” Eric Lichtblau reports for The Times. “Instead, Monsanto was allowed to pay $1 million and avoid criminal prosecution by entering into a monitoring agreement with the Justice Department.”

The newspaper reports that “many companies” have avoided defending themselves in court because of these types of agreements with the Justice Department and that deferred prosecutions “have become a favorite tool of the Bush administration.” Supporters of the deferred prosecutions told The Times that the setups have gotten a bad rap, claiming that “they play a crucial role in allowing the government to secure the cooperation of a company while avoiding the time, expense and uncertainty of trail.” Other critics, however, say that financial institutions, and in particular those under scrutiny for their involvement in the subprime mortgage crisis, are increasingly pushing the limits of corporate anti-fraud laws.

Attorneys for drug makers say they are "on the verge of success" in creating what The New York Times deems a legal shield against patients injured by pharmaceutical company products even when the companies "play down" the risks of their medicines and fail to publicly disclose clinical trials, The New York Times reported. Under an expanded view of the legal doctrine of "pre-emption," medical device manufacturers successfully argued this past year before the U.S. Supreme Court that when the Food and Drug Administration gives its approval to their products, anyone harmed by their use cannot sue in state courts under traditional tort theories. The Supreme Court agreed to hear a case next year that would expand this doctrine to drugs approved by the FDA, putting an end to liability in state courts for harm caused by drug manufacturers.

ACS hosted a panel discussion in November on the medical device pre-emption case, Riegel v. Medtronic, as well as released an ACS Issue Brief entitled "The Emerging Threat of Regulatory Pre-emption," by Georgetown University Law Professor David Vladeck. In late March, ACS co-hosted a day long symposium on "Justice and the Role of Class Actions" (video forthcoming), which explored the use of lawsuits to protect consumer safety, among other issues. Lawsuits provide compensation and an incentive to product manufacturers beyond regulation to ensure that goods are safe, reliable, and accurately marketed.

American University law professor Herman Schwartz explores what he deems conservative efforts to shut the "court house door to those wrongly injured by public officials and others," in an article in The Washington Independent. He evaluates Supreme Court decisions in five areas of the law: standing doctrine, preemption, private suits to enforce federal statutes, attorneys' fees, and national security.

Experts discussed the CIA's destruction of interrogation videotapes and oversight of the war on terror at a discussion hosted by ACS.  The panelists were Marty Lederman, Dan Marcus, Elisa Massimino, David Rivkin, and Frederick "Fritz" Schwarz. Streaming video from the event, and more information about the panelists, is available here.

by Deborah Colson, Senior Associate in the Law and Security Program at Human Rights First

[Editor's note: Earlier posts from Guantanamo can be found here, here and here.]

Guantánamo Naval Base, February 8, 2008 - The government faced several legal hurdles during Salim Hamdan’s hearing yesterday, each highlighting critical flaws in the new system created to try terror suspects by military commission.

Hamdan is accused of acting as Osama bin Laden’s personal bodyguard and driver. He is charged with conspiracy and providing material support to terrorists in Afghanistan. The defense moved to dismiss both charges yesterday on ex post facto grounds. The ex post facto prohibition is a fundamental rule of criminal law, prohibiting prosecution for conduct occurring before passage of the law making the conduct a crime.

Defense counsel Joseph McMillan focused his arguments on the Military Commissions Act (“MCA”), the law governing the proceedings at Guantánamo Bay. The MCA allows prosecutions for twenty-eight enumerated crimes. Many of these crimes are restatements of traditional law of war offenses triable before military tribunals. But conspiracy and providing material support for terrorism are not traditional law of war offenses, as McMillan pointed out. They are both set forth as crimes in the MCA, but the MCA was not enacted until 2006, four years after Hamdan was captured. McMillan argued it would violate the ex post facto prohibition to prosecute Hamdan for 2001 conduct not made prosecutable before military commissions until 2006.

In response to McMillan’s arguments, the prosecution appeared to struggle for examples of conspiracy and material support cases that have been tried by military commission, ultimately relying on opinions dating back to the Civil War and World War II – opinions that were considered and rejected by the Supreme Court when Hamdan challenged the pre-MCA commissions process in 2002. So the prosecution was cornered into disagreeing with a Supreme Court ruling in Hamdan’s very case. Later in the hearing, the government did its best to sidestep an unanticipated question by the judge, Navy Captain Keith Allred, asking when the hostilities with al Qaeda began. The government has charged Hamdan with participating in a conspiracy that dates back to 1996, but the military commission only has jurisdiction over crimes arising during “armed conflict.”

Former U.S. Court of Appeals Judge (and ACS Board Member) Patricia Wald testified on the ability of federal judges to administer the state secrecy privilege "in a manner that will not endanger national security" while permitting litigants "to the maximum degree feasible to pursue valid civil claims for injuries" before the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties.

The time is now ripe for [Congress to legislate regarding the secrecy privilege] in the civil arena; litigants and their counsel are confused and unsure as to how to proceed in cases where the government raises the privilege; the courts themselves are confronted with precedent going in many different directions as to the scope of their authority and the requirements for exercising it.

Judge Wald discussed seven principles to consider regarding enacting of state secrecy privilege legislation.

Yesterday, the U.S. Supreme Court resolved a circuit split and held 5-4 that an exception to the Federal Torts Claim Act that grants immunity to "any officer of customs or excise or any other law enforcement officer" applies to "all law enforcement officers." Thus, under the majority opinion in Ali v. Federal Bureau of Prisons, written by Justice Thomas, law enforcement officers who steal prisoners' personal property while engaged in their official duties are immune from lawsuits brought by prison inmates.

The New York Times reported on the decision, and noted the unusual line-up of Justices as well the Court's internal disagreement regarding how to engage in statutory interpretation. The article highlighted Justice Kennedy's dissenting opinion, in which he wrote "the Court’s analysis cannot be squared with the longstanding recognition that a single word must not be read in isolation but instead defined by reference to its statutory context."

"The Emerging Threat of Regulatory Preemption" is a new ACS Issue Brief written by Georgetown University Law Center Professor David C. Vladeck. Professor Vladeck examines how, in his view, regulatory agencies have attempted to insulate regulated industries from state tort law claims by slipping preemption language into regulatory preambles. He concludes:

While the public watches the Supreme Court wrestle with the preemption questions presented in Reigel v. Medtronic, and perhaps in Wyeth v. Levine, the more troubling action is taking place out of public view. The quiet but insidious erosion of state tort law remedies --- and the health and safety benefits that are associated with them --- continues unabated. Our health and safety agencies have been subject to a hostile-takeover by an Administration that cares more about constituent-serving outcomes than their statutory mission to protect the public. The winners will be the Administration’s corporate patrons who will be given the immunity from tort liability they never could have gotten from Congress. The loser will be the tens of thousands of Americans injured through no fault of their own but who will no longer have any means of redress.

Watch Professor Vladeck discuss the issue of regulatory preemption at a panel discussion on Reigel v. Medtronic (full video).  A video excerpt of Professor Vladeck discussing Congress and preemption:

In his dissent in Stroneridge (see earlier article), Justice Stevens wrote that a basic jurisprudential principle is that "every wrong shall have a remedy," and that the majority opinion's "hostility" towards implied causes of action is not grounded in "the first two centuries of this Nation's history." He contended that "Courts near in time to the enactment of the securities laws recognized that the principle in Rigsby  [ -- the right to recover the damages from the party in default is implied -- ] applied to the securities laws," and the decision "simply cuts back further on Congress’ intended remedy." The following is an excerpt from his dissent (footnotes are omitted).

A theme that underlies the Court’s analysis is its mistaken hostility towards the §10(b) private cause of action. Ante, at 13. The Court’s current view of implied causes of action is that they are merely a “relic” of our prior “heady days.” Correctional Services Corp. v. Malesko, 534 U. S. 61, 75 (2001) (SCALIA, J., concurring). Those “heady days” persisted for two hundred years.

Today, the Supreme Court held 5-3 that investors may not recover against third parties whose business partners fraudulently misled them. Boston College law professor Kent Greenfield previewed Stoneridge Investment Partners v. Scientific-Atlanta for ACSBlog, calling it "the most important business case to come before the Court in a decade."

In this case, Scientific-Atlanta agreed to help Charter mislead its auditor and the markets by inflating prices (among other things), thus making it appear as if Charter had met its revenue targets. The question before the Court was whether Rule 10b-5 of federal securities law reached Scientific-Atlanta under "scheme" liability. Justice Kennedy held it did not, because the investors "did not rely upon [Scientific-Atlanta's] statements or misrepresentations."

The prosecution's failure to turn over (and the government's subsequent destruction of) CIA interrogation videotapes is insufficient grounds to overturn Jose Padilla's conviction, ruled U.S. District Court Judge Marcia Cooke of the Southern District of Florida on Monday, according to an article in the South Florida Sun-Sentinel. Defense lawyers argued that the tapes' destruction raised questions as to whether the prosecution turned over all potentially exculpatory evidence. Judge Cook's ruling was based on classified statements not provided to the defense.

Padilla recently filed a lawsuit against John Yoo, a former Justice Department attorney who provided the administration with legal justification for what he alleged was "unconstitutional confinement and 'gross physical and psychological abuse,'" under the theory that "a lawyer who gives the green light to clearly illegal conduct is an accomplice to that conduct," reported the New York Times.

The Guantanamo Military Commission has ruled that Salim Hamdan, bin Laden's former driver, may be tried by a military commission.

The Government has carried its burden of showing, by a preponderance of the evidence, that the accused [Salim Hamdan] is an alien unlawful enemy combatant, subject to the jurisdiction of a military commission. The Commission has separately conducted a status determination under Article 5 of the Third Geneva Convention, and determined by a preponderance of the evidence that he is not a lawful combatant or entitled to Prisoner of War Status. There being no Constitutional impediment to the Commission's exercise of jurisdiction over him, the Defense Motion to Dismiss for Lack of Jurisdiction is DENIED. The accused may be tried by military commission.

The AP has more coverage. Sahr MuhammedAlly, Senior Counsel with the Law & Security Program at Human Rights First, wrote about the two day hearings here: (preview) (day 1) (day 2).

The Senate voted to expand the rights of whistle-blowers late Monday evening, joining the House in passing similar legislation, which will have to be reconciled before going to the President for his signature, the Washington Post reports. Similar legislation proposed over the last six years has been opposed by the Department of Justice, although this legislation may have enough support to override a presidential veto.

According to the Government Accountability Project, the legislation “plugs a government accountability loophole created last year when the Supreme Court’s Garcetti v. Ceballos decision canceled constitutional free speech rights for government workers carrying out their job duties.” ACSblog summarized the Garcetti decision here and discussed the role of whistle-blowers here.

The bill protects federal employments who disclose information, permits employees to share classified information with members of Congress, and protects whistle-blowers whose have their security clearances revoked in retaliation for the disclosure, according to the article.

The legislation would also allow federal employees to challenge administrative rulings in their local federal appeals court instead of the U.S. Court of Appeals for the Federal Circuit.

On Tuesday, the House approved an overhaul to the Freedom of Information Act, joining the Senate in passing legislation that would encourage faster compliance with FOIA requests, publicly track how long it takes the government to respond to requests, and require additional information to be made public, the Washington Post reported.

Although the White House has objected to some provisions, proponents of the measure expect the White House will not prevent the measure from becoming law.

By law, agencies must respond within 20 days, but in practice the process can take months or years. Delays lengthened in the aftermath of the Sept. 11, 2001, terrorist attacks as agencies began to favor nondisclosure in the name of national security.

Under the measure, requests would be assigned public tracking numbers. Agencies that exceed the 20-day deadline for responses would be denied the right to charge requesters for research or copying costs.

The bill would strengthen the ability of people who sue over their FOIA requests to collect attorneys' fees and would establish an office at the National Archives to accept citizen complaints about unfulfilled FOIA requests, issue opinions and foster best practices.

Massachusetts' highest court allowed a lawsuit against a physician to go forward who failed to warn his patient about the side-effects of various medications he prescribed, the Boston Globe reported. The patient's car struck and killed a ten-year-old boy who was standing on the sidewalk after the driver passed out.

The U.S. Court of Appeals for the District of Columbia ordered the Bush administration to preserve any evidence that may show that Majid Khan, a legal U.S. resident currently held in Guantanamo Bay, was tortured during the course of his three years in secret CIA detention, the AP reported.

Khan’s attorneys alleged in a 25-page motion that ample proof exists that their client has been tortured, although intelligence officials have blacked out major portions of the filing.

The former Baltimore resident’s attorneys requested the order after the CIA admitted to destroying videotapes of two other Guantanamo detainees who had spent years in secret CIA detention.

The three judge panel gave the government until December 20 to respond to the accusations of torture.

Victims' rights are violated by limits in medical malpractice cases on non-economic damages such as pain and suffering, Cook County Circuit Court Judge Diane Joan Larsen found on Tuesday, according to the Chicago Sun-Times. The judge determined "the legislature can't interfere with the right of juries and judges to determine fair damages," according to the Chicago Tribune.

The ruling stemmed out of the case of Abigaile LeBron, who, while being born, suffered severe brain damage and other developmental problems because the hospital and physician allegedly did not act with sufficient alacrity when her mother began showing problems, "botching" the delivery.

State law had limited non-economic damage awards to $500,000 against doctors and $1 million against hospitals.

The state Supreme Court has twice struck down caps on jury awards that "take away the lawful power of juries to decide damages." The Illinois Hospital Association is expect to appeal to the Illinois Supreme Court. The high court will weigh whether the 13-month-old's right to have a judge and jury determine fair damages should be limited by legislatively imposed caps on non-economic damages in medical malpractice cases, or whether the attempt to do so violates the separation of powers between courts and legislatures.