ACSBlog: The Blog of the American Constitution Society

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.

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.

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.  

by Justin Levitt, Counsel, Brennan Center for Justice at NYU School of Law

Crawford v. Marion County Election Board 07-21
Indiana Democratic Party v. Rokita 07-25

On April 28, the Supreme Court handed down a decision in the Crawford cases, rejecting a challenge to Indiana’s law requiring voters at the polls to provide certain types of government-issued photo identification. I had predicted that the opinion would likely have impact far beyond Indiana, refining the standard for justifying a burden on voters, and potentially changing the ground rules for 2008 and beyond. But by and large, it looks like I was wrong: though the rhetoric around the case grows ever louder, in terms of the legal holding, this was far more a whimper than a bang. 

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.

by Doug Kendall, founder and Executive Director of Community Rights Counsel (CRC), a public interest law firm in Washington DC. He is in the process of launching a new organization, Constitutional Accountability Center, a think tank, law firm, and action center dedicated to fulfilling the progressive promise of the Constitution’s text and history.

Could Alabama bring back the whipping post or brand the skin of a thief with a scarlet T, and not run afoul of the Eighth Amendment’s prohibition against cruel and unusual punishment? Such a proposition may seem outlandish, but it is what opinions signed last week by Justices Antonin Scalia and Clarence Thomas in Baze v. Rees would seem to sanction.

These opinions haven’t gotten much attention, but they illustrate everything that is wrong about originalism as it is practiced by Justices Scalia and Thomas. Too often, these justices manipulate text, speculate wildly about the intentions of the Framers, and end up far from the letter and spirit of the Constitution. Recognizing the weakness of the conservative arguments about what the Constitution says and compels would help progressives immeasurably in responding to the rise of the conservative legal movement.

by Simon Lazarus and Harper Jean Tobin, attorneys with the National Senior Citizens Law Center

On April 23, the Supreme Court will hear arguments in the fifth and final age discrimination case before it this term, Meacham v. Knolls Atomic Power Laboratory. This case – brought by twenty-six workers laid off by a Naval contractor – will likely provide clues to at least two important questions:

First, at a time when shrinking pension benefits and rising health costs are forcing more and more employees to work past retirement, whether the Age Discrimination in Employment Act (ADEA) will provide effective protection against practices that disproportionately harm older workers.

Second, and more broadly, how far the Roberts Court is prepared to go to cast aside text, precedent, the position of the EEOC, and even the Bush Administration’s Solicitor General in its apparent quest to curb job discrimination suits generally as an irritant to business defendants.

The Meacham lawsuit was brought by a group of workers who lost their jobs in an “involuntary reduction in force” at the Knolls laboratory. Layoff decisions were made by managers on a subjective basis, with fuzzy standards and little oversight. As it happened, thirty of the thirty-one employees laid off from various departments were over forty. The Second Circuit held that the employees had established the minimum proof necessary to prevail.

by Ciara Torres-Spelliscy, Counsel, Brennan Center for Justice at NYU School of Law

On Tuesday, April 22, the Supreme Court will hear oral arguments in a case testing the constitutionality of the so-called “Millionaires’ Amendment” of the Bipartisan Campaign Reform Act (“BCRA,” also known as “McCain-Feingold”). The Millionaires’ Amendment passed in 2002 as part of a reform package to update and improve the nation’s campaign finance laws.

The Millionaires’ Amendment somewhat levels the playing field for opponents of self-financed candidates who plan to spend $350,000 or more of their own money on their campaign for federal office. Once a candidate for federal office spends more than $350,000 of personal funds on a campaign, their opponent will be allowed to raise private funds in amounts that are triple the normal limits – up to $6,900/person/election – and can coordinate additional expenditures with his or her political party, up to a cap. The Amendment also requires certain financial disclosures from both candidates so that the FEC can monitor when the cap has been reached. In all cases, the self-financed candidate can spend as much money as he or she desires.

by Richard B. Katskee, assistant legal director of Americans United for Separation of Church and State and attorney who argued before the 3rd U.S. Circuit Court of Appeals in Borden v. School District of the Township of East Brunswick

           The Third Circuit’s decision in Borden v. School District of the Township of East Brunswick is a victory not just for the East Brunswick School District, but for its students — and for religious freedom.

            Marcus Borden has been head football coach at East Brunswick High School in New Jersey for the past two-and-a-half decades. During that entire time, he held team prayers. In the locker-room, he’d get down on his knee with the players, have them all bow their heads, and lead a prayer before every game. And at mandatory pre-game dinners, he’d have the students all stand and bow their heads, and then he’d say grace, or else he would appoint a player to do so.

            But then students and their parents started to complain. One parent even called the superintendent of schools — Dr. Jo Ann Magistro — in tears to say that her son, a player on the football team, was upset about Borden’s fostering team prayers; but her son felt that he had to participate because otherwise, he wouldn’t get any playing time. Some cheerleaders’ parents also complained to Magistro, saying that their daughters had felt uncomfortable at a pre-game team dinner when Borden sponsored a prayer.

           Magistro believed that it was her duty to ensure that all students are welcome to play on school teams and participate in school events, and that none feel pressured to pray if they don’t want to. She believed that no student should have to choose between his or her religious beliefs and full-fledged membership in the school community. Magistro also realized that Borden was violating the Establishment Clause, and that as superintendent, she had a legal duty to stop him.

            So Magistro did what any responsible superintendent would do: She issued a policy confirming that students have the right to pray voluntarily, where and when they please, but stating that teachers, coaches, and other school employees may not “encourage, lead, initiate, mandate, or otherwise coerce, directly or indirectly, student prayer at any time in any school-sponsored setting,” nor may they participate in it.

            When Borden received the policy, he initially resigned his position, refusing to coach if he couldn’t continue having team prayer. But then he rescinded his resignation so that he could sue the school district.

by Megan McCracken, Eighth Amendment Resource Counsel and consultant to the Death Penalty Clinic at the U.C. Berkeley School of Law

Yesterday, in a splintered opinion in the Baze v. Rees case, a three-justice plurality of the Supreme Court established an Eighth Amendment standard for lower courts to apply in cases challenging lethal injection procedures. The Court’s decision did nothing, however, to resolve the fundamental problems with lethal injection as it is practiced in 36 states.

Under the standard announced by Chief Justice Roberts, who was joined by Justices Kennedy and Alito, plaintiffs challenging the administration of lethal injection must show that the protocol that will be followed in their executions poses a demonstrated risk of causing severe pain. The risk must be substantial in comparison to known and available alternative methods of carrying out the executions.

by Frank Kendell, a volunteer with Human Rights First

Guantánamo Bay, April 11, 2008: Today’s defendant, Mr. Omar Khadr, a 21 year old Canadian citizen, was 15 years old when he was wounded and captured in Afghanistan. He has been imprisoned at Guantánamo since he was 16 years old. Mr. Khadr’s case has gained a good deal of notoriety; it is the subject of at least one book and has been covered on 60 Minutes and elsewhere. The government has charged him with murdering an American soldier by throwing a grenade in the course of a firefight that occurred in Afghanistan on June 27, 2002. He is also charged with attempted murder, conspiracy, providing material support for terrorism, and spying. The United States is seeking life in prison for Mr. Khadr.

There is great international concern over the issue of Mr. Khadr’s age at the time of his alleged offenses and the appropriateness of bringing charges against him. The American government asserts that Mr. Khadr can be tried and punished as an adult, and the Canadian government has not intervened. Prosecuting someone for alleged war crimes committed as a juvenile is virtually without precedent, particularly by western nations in modern times.

by Frank Kendell, a volunteer with Human Rights First

Guantánamo Bay, April 10, 2008: I lost a business colleague on one of the airplanes that was flown into the World Trade Center. During my government career, I worked extensively with the Defense Intelligence Agency, which bore the brunt of losses experienced in the attack on the Pentagon. I have no problem with the concept of bringing al Qaeda to justice. 

But I believe that justice must be obtained in a manner consistent with America’s long-standing position of leadership on human rights and with the core values embedded in our Constitution, our legal system, and our international obligations. We also should not forget that the prisoners at Guantánamo have not been found guilty of anything yet. As one well known American politician put it, “this isn’t about who they are; it’s about who we are.”

Today’s proceedings did nothing to alleviate my concerns about the trials conducted under the Military Commissions Act (MCA). The substantive legal issues that today’s events highlighted include: the impossibility of providing adequate legal representation, the court’s inability to enforce a defendant’s rights, and the lack of adequate record to support an appeal.  I also feel compelled to note the appearance of illegitimacy, which I believe would plague any results that come out of this system as it is being implemented.

Guantánamo Bay, April 9, 2008: The quote above is from Ahmed al Darbi’s defense counsel, Lieutenant Colonel Bryan Broyles. He was referring to the people who established the military commissions and who, in his view, expected military lawyers to fall in line, mount a token defense, and allow their clients to be convicted. Lt. Col. Broyles’ comment was the high point of an otherwise disconcerting day.

Today was my second day at Guantánamo and my first military commission hearing. (For some information on my background, please see my blog posting from April 8, 2008). I really did not know what to expect, and the experience has given me a lot to think and write about. Let me start with a little background on Mr. al Darbi and his case.

Guantánamo Bay, April 8, 2008: My name is Frank Kendall, and I am an uncompensated consultant to Human Rights First. I have been working with HRF either as a volunteer or consultant on detainee treatment issues for about four years now. When HRF asked me if I could go to Guantánamo as an observer, I jumped at the chance. Since my eyes, thoughts, and feelings will be the lens through which you will read about events of the next few days, a little information about my background may be in order.

by Fatima Goss Graves, Senior Counsel at the National Women’s Law Center

April is now here — the Cherry Blossoms are blooming in D.C., warmer weather has returned, and many are at least thinking about spring cleaning. April is also a time for commemorating Equal Pay Day. Equal Pay Day is observed in April to mark the point in each year at which an average woman’s wages finally catch up to the wages earned the year before by the average man. And this year women, who make 77 cents for every dollar a man makes (63 cents for African American women and 52 cents for Latinas), reach that point on April 22nd.

I’ve already decided what I want for Equal Pay Day. True, typically gifts are not exchanged — indeed, if there were a gift it would be finally closing the wage gap so that Equal Pay Day would no longer be a necessary commemoration. But this year workers are still reeling from the Supreme Court decision in Ledbetter v. Goodyear Tire & Rubber Co. from last term and so a shorter term gift is in order.

Papers written for "The Religion Clauses in the 21st Century" Symposium are now available. In this blogpost, Eduardo M. Peñalver, Associate Professor of Law at Cornell Law School, introduces his paper, "Is public reason counterproductive?"

As I discuss in my article, the proper role of religion in public life is the subject of a decades-long debate that shows little signs of slowing down.  Proponents of excluding religious arguments from discussion of public policy matters have proceeded under the assumption that religious and deep moral disagreement constitutes a threat to social stability that must be tamed.  In contrast to this “scary story,” political theory also contains a competing “happy story,” whereby pluralism – the inclusion of religious arguments – affirmatively contributes to political stability by creating incentives for groups to moderate their demands. 

by Carl T. Bogus, Professor of Law, Roger Williams University School of Law

[Editor's Note: Watch Professor Bogus speak on the Second Amendment at this ACS Press Briefing)

For those of us who believe that the collective rights model is the correct one for the Second Amendment – that is, that the Amendment, properly read, only grants a right to keep and bear arms within the government militia – oral argument in District of Columbia v Heller was ominous.  Based on comments at oral argument or previously, I count six likely votes for the individual rights interpretation: Scalia, Thomas, Kennedy, Breyer, Roberts, and Alito.

The Second Amendment provides a quintessential example of the adage “a little knowledge is dangerous.”  Those who know a little history tend to come out on the individual rights side.  Typically, it is only after one is really steeped in the history of the Founding era that one is converted to the collective rights view.  Several historians have written about this phenomenon.  They are particularly disdainful of lawyers doing “law office history” – failing to adequately understand the period under examination – and making a variety of errors as a result.  One error is not appreciating that people in the eighteenth century held many different views and distinguishing between statements that represented the zeitgeist of the time and those that represented minority views.  See, e.g., Don Higginbotham, The Second Amendment in Historical Context; Jack N. Rakove, The Second Amendment: The Highest Stage of Originalism.

by Yannick Morgan

Coming from a big school in the Deep South, I once believed that when over 100 people camp out on a freezing cold night waiting for tickets in a single file line wrapped around an oversized building, it could mean only one of two things: the biggest collegiate sporting event of the year or a raucous Kenny Chesney concert. When I participated in a Washington version of this ritual for the first time Monday night, I found a no-less impassioned group of people. They had come from all over the United States to witness oral arguments in District of Columbia v. Heller before the highest court in the land.

By Scott A. Kronland, Altshuler Berzon LLP. Scott Kronland represents the AFL-CIO and California Labor Federation in Chamber of Commerce v. Brown, scheduled for oral argument before the U.S. Supreme Court on March 19, 2008.

Supreme Court precedents draw a distinction between the government prohibiting or penalizing private activity and the government merely refusing to subsidize that activity. For example, political lobbying enjoys core First Amendment protection, but the government can decline to subsidize lobbying through the tax code. Likewise, the existence of a constitutional right to obtain an abortion does not mean the government must pay for indigent women to obtain abortions, even if the government otherwise pays for their medical care. And the government can deny food stamps to the families of striking workers, even though the right to strike is protected by the First Amendment.

Chamber of Commerce v. Brown, which will be heard by the Supreme Court on Wednesday, involves arguments about whether the same prohibit/subsidize distinction should apply when a state law is claimed to be preempted by the National Labor Relations Act (NLRA).

At issue is a California law that prohibits employers from using state grant and program funds "to assist, promote, or deter union organizing." The California Legislature enacted this statute in 2000 after receiving complaints that it is unfair for the State to subsidize employer campaigns about unionization when the State does not subsidize unions' efforts to organize workers.

by Kevin Lanigan, Director of Law and Security Program, Human Rights First

[Editor's Note: this blog entry was written at Guantanamo Bay on Friday, March 14]

Khadr, a Canadian citizen who was wounded and captured in a 2002 firefight with U.S. forces in Afghanistan when he was 15 years old, is charged with murder, attempted murder, providing material support for terrorism and spying. He is accused of throwing a grenade that killed a U.S. soldier during the firefight.

Al-Darbi, a Saudi citizen who was arrested by Azerbaijan authorities and transferred several months later to U.S. custody in Bagram, Afghanistan, is charged with conspiracy and providing material support for terrorism.

This past week, ACSBlog presented a ten-part conversation between Professors Mark Tushnet and Adam Winkler on the Second Amendment and Professor Tushnet's new book "Out of Range: Why the Constitution Can't End the Battle Over Guns." The U.S. Supreme Court will hear oral argument next week in D.C. v. Heller, the first case involving the Second Amendment heard by the High Court since its 1939 decision in U.S. v. Miller. The following are brief snippets of the conversation, with links to each blog post.

Part 1. Professor Tushnet Opens the Conversation: The Solicitor General and the Appropriate "Standard of Review"
Next week the Supreme Court’s going to hear argument in District of Columbia v. Heller, dealing with the constitutionality of the District’s essentially complete ban on the possession of handguns. It’s the first time in nearly seventy years that the Court will take up basic questions about the Second Amendment’s meaning. (more)

Part 2. Professor Winkler Examines the Appropriate "Standard of Review" and Looks to the States for Guidance
No doubt one of the more interesting aspects of District of Columbia v. Heller is the debate over the appropriate standard of review, assuming the Court finds an individual right to keep and bear arms unrelated to militia service. The vast majority of the scholarly and legal literature to date has focused on identifying the underlying right protected by the Second Amendment. But the Supreme Court’s decision to hear Heller has sparked considerable focus on the standards question. If there is a private individual right to bear arms, how are courts to adjudicate the constitutionality of gun control legislation? (more)

This week, ACSBlog presents a conversation between Professors Mark Tushnet and Adam Winkler on the Second Amendment and Professor Tushnet's new book "Out of Range: Why the Constitution Can't End the Battle Over Guns." The U.S. Supreme Court will hear oral argument next week in D.C. v. Heller, the first case involving the Second Amendment heard by the High Court since its 1939 decision in U.S. v. Miller. See parts 1, 2, 3, 4, 5, 6, 7, 8, 9.

Part 10. Professor Winkler: Forecasting Heller

I am inclined to agree with you, Mark, that the most likely outcome is that the Court will recognize a private individual right to keep and bear arms unrelated to militia service. While we know little about most of the Justices’s views on the Second Amendment, five Justices are almost certain to favor of the private right view: Justices Thomas, Scalia, Alito, Roberts, and Kennedy.  

This week, ACSBlog presents a conversation between Professors Mark Tushnet and Adam Winkler on the Second Amendment and Professor Tushnet's new book "Out of Range: Why the Constitution Can't End the Battle Over Guns." The U.S. Supreme Court will hear oral argument next week in D.C. v. Heller, the first case involving the Second Amendment heard by the High Court since its 1939 decision in U.S. v. Miller. See parts 1, 2, 3, 4, 5, 6, 7, 8.

Part 9. Professor Tushnet: Court Predictions

Ah, reading the tea leaves! Here are the possibilities, I think:

1. The Second Amendment protects a right only in connection with membership in the militia, and there being no such connection here, the District’s law is upheld and the Court of Appeals is reversed.
2. The Amendment protects an individual right, regulations of which are constitutional if they are reasonable in the sense developed in the state-court cases you’ve referred to, and the District’s law is reasonable in that sense, and the Court of Appeals is reversed.
3. The same as (2), except that, because the Court of Appeals didn’t address reasonableness, the case is remanded to it and then to the district court for consideration of the reasonableness of the District’s regulation.
4. The same as (2), except that the record is sufficient to determine that the District’s regulation is not reasonable, so the Court of Appeals is affirmed on different grounds.
5. The Amendment protects an individual right, regulations of which are constitutional if they satisfy a heightened standard of review (something like “intermediate scrutiny”), and the case is remanded to the Court of Appeals to apply that standard.
6. The same as (5), except that the Supreme Court applies the standard and finds the regulation unconstitutional.
7. The Amendment protects an individual right, regulations of which are constitutional only if they satisfy strict scrutiny, and the District’s law can’t possibly survive strict scrutiny, so the Court of Appeals is affirmed.

by Kevin Lanigan, Director of Law and Security Program, Human Rights First

[Editor's Note: this blog entry was written at Guantanamo Bay]

Two weeks ago, Attorney General Michael Mukasey visited Guantánamo for about six hours. Among other things, he met with prosecution officials down here, but he did not see any proceedings because none were in session. He should have been here yesterday.

On Wednesday, March 12, Mohammed Jawad, a young Afghan man, was arraigned on military commission charges enacted into law in 2006, accusing him of throwing a hand grenade into a vehicle carrying two U.S. Army non-commissioned officers and their Afghan interpreter, wounding all three of them. Jawad was 16 years old at the time of the alleged offense in December 2002. He has been in U.S. military custody ever since then—now for more than 5 years—first at the detention facility at Bagram Air Base in Afghanistan, and then at Guantánamo.

This week, ACSBlog presents a conversation between Professors Mark Tushnet and Adam Winkler on the Second Amendment and Professor Tushnet's new book "Out of Range: Why the Constitution Can't End the Battle Over Guns." The U.S. Supreme Court will hear oral argument next week in D.C. v. Heller, the first case involving the Second Amendment heard by the High Court since its 1939 decision in U.S. v. Miller. See parts 1, 2, 3, 4, 5, 6, 7.

Part 8. Professor Winkler: Second Amendment Symbolism

No doubt the Second Amendment is a prominent battlefield in the culture wars, as Mark’s posts detail. Indeed, the Second Amendment debate must be cultural in nature because it is almost entirely about symbolism – the weapon of choice in these wars. Whatever right the Supreme Court interprets the Second Amendment to provide, the practical effect of that determination is likely to be marginal. With the people of 42 states already enjoying the private individual right to keep and bear arms under their own state constitutions, most Americans will still enjoy the right to bear arms no matter what.

This week, ACSBlog presents a conversation between Professors Mark Tushnet and Adam Winkler on the Second Amendment and Professor Tushnet's new book "Out of Range: Why the Constitution Can't End the Battle Over Guns." The U.S. Supreme Court will hear oral argument next week in D.C. v. Heller, the first case involving the Second Amendment heard by the High Court since its 1939 decision in U.S. v. Miller. See parts 1, 2, 3, 4, 5, 6.

Part 7. Professor Tushnet: Applying the Reasonable Regulation and Solicitor General’s Standards

Casual observation indicates that the Second Amendment is part of our culture wars, but the way it is, I think, is particularly interesting. It turns out that the Second Amendment isn’t really a “red/blue” issue – that is, one that divides Republicans and Democrats – or an urban/suburban/rural issue, although of course there are correlations. Taken as a whole, Americans have a reasonably moderate position on gun policy and the Second Amendment. People believe that the Second Amendment does protect an individual right, and that fairly extensive regulations of that right are desirable. We appear to want existing gun laws enforced, and somewhat more stringent ones enacted. (In terms of our earlier discussion, it seems as if we think that the state courts’ approach to “reasonableness” is about right.)

This week, ACSBlog presents a conversation between Professors Mark Tushnet and Adam Winkler on the Second Amendment and Professor Tushnet's new book "Out of Range: Why the Constitution Can't End the Battle Over Guns." The U.S. Supreme Court will hear oral argument next week in D.C. v. Heller, the first case involving the Second Amendment heard by the High Court since its 1939 decision in U.S. v. Miller. See parts 1, 2, 3, 4, 5.

Part 6. Professor Winkler: Applying the Reasonable Regulation and Solicitor General’s Standards

Mark, you ask a good question about how the District of Columbia’s gun laws will fare under the reasonable regulation standard used universally in state constitutional law and the heightened scrutiny proposed by the Solicitor General. The answers are not obvious and it would be no surprise if the Supreme Court in District of Columbia v. Heller upheld or invalidated the District’s challenged gun laws under either standard.

This week, ACSBlog presents a conversation between Professors Mark Tushnet and Adam Winkler on the Second Amendment and Professor Tushnet's new book "Out of Range: Why the Constitution Can't End the Battle Over Guns." The U.S. Supreme Court will hear oral argument next week in D.C. v. Heller, the first case involving the Second Amendment heard by the High Court since its 1939 decision in U.S. v. Miller. See parts 1, 2, 3, 4.

Part 5. Professor Tushnet: Originalist Claims About the Second Amendment on Both Sides of the Issue Are Equally Well-Founded

You’re right, Adam: The role originalism plays in debates over the Second Amendment’s meaning poses a mild puzzle. It’s not quite right to say that the originalist claims are “not well founded,” though. Rather, the problem is that the originalist claims on both sides are about equally well-founded. There’s a good chunk of material from the relevant period that supports the gun-rights interpretation, and a good chunk of material from the same period that supports the gun-control interpretation.

This week, ACSBlog presents a conversation between Professors Mark Tushnet and Adam Winkler on the Second Amendment and Professor Tushnet's new book "Out of Range: Why the Constitution Can't End the Battle Over Guns." The U.S. Supreme Court will hear oral argument next week in D.C. v. Heller, the first case involving the Second Amendment heard by the High Court since its 1939 decision in U.S. v. Miller. See parts 1, 2, 3.

Part 4. Professor Winkler: The Reasonableness of Reasonableness Review

Mark, you are surely correct that many gun rights advocates will be dissatisfied if Heller follows the unanimous choice of state courts and adopts the reasonable regulation standard to adjudicate gun safety laws. But this in itself is curious. Where is the outcry in the gun rights community about the state constitutional law on the right to bear arms, which for over a century has used the reasonable regulation standard? Gun rights organizations, which know the state law well, have been satisfied with this doctrine at the state level. In fact, those groups often cite the pervasive recognition of the individual right to bear arms at the state level as evidence of the fundamental nature of the right in American history.

This week, ACSBlog presents a conversation between Professors Mark Tushnet and Adam Winkler on the Second Amendment and Professor Tushnet's new book "Out of Range: Why the Constitution Can't End the Battle Over Guns." The U.S. Supreme Court will hear oral argument next week in D.C. v. Heller, the first case involving the Second Amendment heard by the High Court since its 1939 decision in U.S. v. Miller. See parts 1, 2.

Part 3. Professor Tushnet: How Reasonable is a "Reasonableness" Standard?

Adam, compromise is sometimes a good thing, but compromises have to give something to each side. And it’s not clear that settling on a “reasonableness” standard of review is acceptable to the gun-rights side of the dispute here. Certainly the advocates reject such a standard, but that’s to be expected. What matters is whether people who support gun-rights will see a “reasonableness” standard as acceptable – or, perhaps more accurately, whether they will do so after the advocacy organizations they listen to describe what the Court (we’re assuming) has done.

This week, ACSBlog presents a conversation between Professors Mark Tushnet and Adam Winkler on the Second Amendment and Professor Tushnet's new book "Out of Range: Why the Constitution Can't End the Battle Over Guns." The U.S. Supreme Court will hear oral argument next week in D.C. v. Heller, the first case involving the Second Amendment heard by the High Court since its 1939 decision in U.S. v. Miller. See part 1.

Part 2. Professor Winkler Examines the Appropriate "Standard of Review" and Looks to the States for Guidance

No doubt one of the more interesting aspects of District of Columbia v. Heller is the debate over the appropriate standard of review, assuming the Court finds an individual right to keep and bear arms unrelated to militia service. The vast majority of the scholarly and legal literature to date has focused on identifying the underlying right protected by the Second Amendment. But the Supreme Court’s decision to hear Heller has sparked considerable focus on the standards question. If there is a private individual right to bear arms, how are courts to adjudicate the constitutionality of gun control legislation?

Fortunately for the Court, this question has been asked and answered numerous times in American constitutional law. Forty-two states have constitutional provisions providing for an individual right to bear arms unrelated to militia service and, under these provisions, state courts have ruled on the permissibility of almost every form of gun control. There are hundreds of published state court decisions addressing the constitutionality of restrictions on guns. Interestingly, every single state, without exception and despite wide differences in political ideology and demographics, applies the same standard of review.

This week, ACSBlog presents a conversation between Professors Mark Tushnet and Adam Winkler on the Second Amendment and Professor Tushnet's new book "Out of Range: Why the Constitution Can't End the Battle Over Guns." The U.S. Supreme Court will hear oral argument next week in D.C. v. Heller, the first case involving the Second Amendment heard by the High Court since its 1939 decision in U.S. v. Miller.

Part 1. Professor Tushnet Opens the Conversation: The Solicitor General and the Appropriate "Standard of Review"

Next week the Supreme Court’s going to hear argument in District of Columbia v. Heller, dealing with the constitutionality of the District’s essentially complete ban on the possession of handguns. It’s the first time in nearly seventy years that the Court will take up basic questions about the Second Amendment’s meaning.

Gun control and gun rights are one of the focal points of our culture wars, which are also an important component of our politics (and I hope to say something about the political implications of whatever the Court does in a later post). Over the past several decades gun-rights proponents have achieved a remarkable success in restructuring the legal debate. An indication: Shortly after Chief Justice Warren Burger resigned in 1986 he gave an interview to Parade Magazine in which he remarked, almost off-handedly, that of course the Second Amendment didn’t protect an individual right to own handguns. Burger was of course a conservative jurist, and he was simply stating the common wisdom of the time. Within a decade the conventional wisdom has shifted. Gun-rights proponents were able, not entirely inaccurately, to call themselves advocates of what they called the “Standard View:” that the Second Amendment did indeed protect an individual right to own handguns and rifles.

by Glenn Sugameli, Senior Legislative Counsel at Earthjustice

President George W. Bush is demanding that the Senate essentially abandon its constitutionally-mandated “advise-and-consent role” in selecting lifetime judges. Bush’s string of nominees is a blatant attempt to force the Senate into a Hobson’s choice: rubber-stamp his unilateral, extreme choices or create artificial vacancies that rally the President's narrow, right-wing base. Senators must Just Say No and insist they will only confirm nominees who are competent, fair and independent, and who demonstrate that they will uphold and enforce our Constitution and laws.

A Tale of Two Nominees

Major new developments regarding President George W. Bush’s torture policies focus on Jay Bybee and William J. Haynes, two of his nominees for lifetime seats on federal appeals courts.

On February 22, the Department of Justice’s Office of Professional Responsibility revealed that for more than three years it has been investigating whether an Aug. 1, 2002 DOJ legal memorandum improperly declared that interrogation methods were not torture unless they produced pain equivalent to that produced by organ failure or death. This memorandum, which was signed by Jay Bybee, as head of DOJ’s Office of Legal Counsel, was withdrawn in 2004.

The Justice Department is “examining whether the legal advice in [this and other] memoranda was consistent with the professional standards that apply to Department of Justice attorneys.” This is too late, however, to inform Senators’ advice-and-consent duty; on March 13, 2003 the Senate voted 74-19 to confirm Bybee’s nomination to the Ninth Circuit Court of Appeals.

In contrast, evidence of the role of Defense Department General Counsel William J. Haynes II emerged in time to raise concerns that led Republican and Democratic Senators to derail his Fourth Circuit nomination in Committee.

by Center for Progressive Reform scholars Alexandra Klass, University of Minnesota Law School, and Sandra Zellmer, University of Nebraska College of Law

This morning, the Supreme Court will hear oral argument in the case of Exxon Shipping Company v. Baker. The case, brought by commercial fisherman against Exxon Mobil, arises out of the grounding of the Exxon Valdez oil tanker in Prince William Sound, Alaska in 1989, causing the release of 11 million gallons of oil. More birds and marine mammals were killed than in any other U.S. oil spill to date.  The harm to affected species continues to this day, due to the loss of critical food sources, smothered spawning grounds, and decreased reproduction. In 2007, the U.S. Fish and Wildlife Service concluded that “history will judge the Exxon Valdez oil spill as the worst kind of spill in one of the worst places for a spill--an incredibly rich ecosystem.”

ACSBlog is pleased to present a multi-part dialogue between two distinguished legal scholars, Professor Michael Klarman of the University of Virginia School of Law and Professor Mark Graber of the University of Maryland School of Law.  The subject is the legacy of Brown v. Board of Education. We hope readers enjoy the conversation, and encourage your comments.

Part 10. The Constitution as a Polarizing Document: Professor Mark Graber (see previous posts 1, 2, 3, 4, 5, 6, 7, 8, 9)

The fitting way to bring this dialogue to a conclusion is by repeating the significance of Michael Klarman’s work on the constitutional history of race in the United States and acknowledging the significance of Professor Klarman’s recent post. He is right to note that American racial politics have historically been subject to periods of polarization, and that this polarization has had surprising consequences. Every major burst of civil rights activism in the United States has been preceded by an intense period of polarization, marked by increased militant commitments to the racial status quo in the south. To an extent rarely commented on, the Constitution of the United States may be responsible this polarization and may also bias ordinary politics toward more conservative racial views.

ACSBlog is pleased to present a multi-part dialogue between two distinguished legal scholars, Professor Michael Klarman of the University of Virginia School of Law and Professor Mark Graber of the University of Maryland School of Law.  The subject is the legacy of Brown v. Board of Education. We hope readers enjoy the conversation, and encourage your comments.

Part 9. The Political Dynamic that Led to the Civil War and the Civil Rights Revolution (see previous posts 1, 2, 3, 4, 5, 6, 7, 8)

As my last entry in this conversation with Mark Graber, I want to focus on one of the central themes in Unfinished Business: the political dynamic that led both to the Civil War and to the civil rights revolution. (Much of the credit for identifying and exploring this dynamic in the earlier period goes to William Freehling, who has authored pathbreaking work on the road to secession.)

ACSBlog is pleased to present a multi-part dialogue between two distinguished legal scholars, Professor Michael Klarman of the University of Virginia School of Law and Professor Mark Graber of the University of Maryland School of Law.  The subject is the legacy of Brown v. Board of Education. We hope readers enjoy the conversation, and encourage your comments.

Part 8. Brown Has Lost Its Power to Advance the Cause of Racial Equality: Professor Mark Graber (see previous posts 1, 2, 3, 4, 5, 6, 7)

Professor Klarman and I for the past week have engaged in a tag team match against Brown v. Board of Education. While quibbling over details, we have agreed that the Warren Court’s decision was not nearly as heroic as commonly thought, not nearly as effective in securing racial equality as commonly thought, and far more motivated by self-interest than commonly thought. We are free to suggest these heretical sentiments, I wish to suggest, because Brown is no longer our case. Brown has become a constitutional celebrity, and as such, has lost all power to continue advancing the cause of racial equality.

ACSBlog is pleased to present a multi-part dialogue between two distinguished legal scholars, Professor Michael Klarman of the University of Virginia School of Law and Professor Mark Graber of the University of Maryland School of Law.  The subject is the legacy of Brown v. Board of Education. We hope readers enjoy the conversation, and encourage your comments.

Part 7. Progress in Race Relations is Often an Unintended Consequence or the Result of Ulterior Motives: Professor Michael Klarman (see previous posts 1, 2, 3, 4, 5, 6)

Mark Graber is surely right that we should not deny that some historical actors have taken racially progressive positions for the best of reasons.  White abolitionists -- ­a tiny, much despised portion of the northern population in the 1830s -- ­opposed slavery and favored racial equality for religious and moral reasons, not for any ulterior motives.  Still, it is striking how frequently in American history racially progressive positions have been adopted for­ -- at least in significant part­ -- ulterior motives and how often racial progress has been an unintended consequence of actions taken for reasons having nothing to do with race.  These are two slightly different points, so let me elaborate upon them in turn.

ACSBlog is pleased to present a multi-part dialogue between two distinguished legal scholars, Professor Michael Klarman of the University of Virginia School of Law and Professor Mark Graber of the University of Maryland School of Law.  The subject is the legacy of Brown v. Board of Education. We hope readers enjoy the conversation, and encourage your comments.

Part 6. Concerns Regarding The New Conventional Wisdom: Professor Mark Graber (see previous posts here, here, here, here, and here)

A new conventional wisdom on race and American political development is developing, at least in the small part of the academic world I inhabit. In this admittedly small but cozy universe, racial progress has hardly been steady or inevitable. Persons of color in the United State shave experienced far longer periods of racial retrenchment or retreat than periods of racial progress, and racial progress tends to occur only when proponents of a diverse society are able to link their egalitarian visions with such non-racial goals as defeating the Confederacy or winning the Cold War. Some of the crucial texts articulating this vision include, Klinkner and Smith, THE UNSTEADY MARCH, Dudziak, COLD WAR CIVIL RIGHTS, Keyssar, THE RIGHT TO VOTE, and, of course, the life works of Michael Klarman. While I am in my plug terrific works by terrific people mood, I should probably ask readers to keep their eyes out for forthcoming works by Julie Novkov and Pamela Brandwein that will elaborate different themes on the new understandings of race and American constitutional development.

ACSBlog is pleased to present a multi-part dialogue between two distinguished legal scholars, Professor Michael Klarman of the University of Virginia School of Law and Professor Mark Graber of the University of Maryland School of Law.  The subject is the legacy of Brown v. Board of Education. We hope readers enjoy the conversation, and encourage your comments.

Part 5. The Conventional View of Racial Progress is Misleading: Professor Michael Klarman (see previous posts here, here, here, and here)

As Mark and I have so little to disagree about with regard to the Supreme Court, let me turn to a couple of other themes of Unfinished Business that are not centered on the Court.
 
First, I want to challenge what I believe to the conventional view that racial progress in American history as been ineluctable.  The conventional narrative, I think, emphasizes steady progress: First, the North eliminated slavery as an offshoot of the Revolutionary War.  Then slavery was extinguished in the South by the Civil War.  Slavery was replaced in the South with a system of white supremacy known by the name of Jim Crow.  That system was gradually weakened through the first half of the 20^th century, before being ultimately abolished through some combination of the Supreme Court’s decision in Brown v. Board of Education (1954) and the 1960s civil rights movement.
 
I think that conventional narrative is misleading: There have been many periods in American history of racial regress.  I’ll mention just two of these periods here, though there are others.  First, the legal plight of blacks in the antebellum North worsened over time.  Blacks lost the right to vote in northern states such as New Jersey and Connecticut early in the 19^th century.  Several states in the Northwest added constitutional provisions in the 1840s and 1850s barring free blacks from migrating to those states.  One reason that northern blacks showed renewed interest in African colonization in the 1850s was because they perceived their legal position to be dire and getting worse. 

ACSBlog is pleased to present a multi-part dialogue between two distinguished legal scholars, Professor Michael Klarman of the University of Virginia School of Law and Professor Mark Graber of the University of Maryland School of Law.  The subject is the legacy of Brown v. Board of Education. We hope readers enjoy the conversation, and encourage your comments.

Part 4. The Court, Race and Public Opinion: Professor Mark Graber (see previous posts here, here and here)

The most frequently used phrase this week is likely to be “not in fundamental disagreement with each other.” Our basic agreements are rooted in a shared rejection of Alexander Bickel’s countermajoritarian difficulty as the starting place for understanding the role of the Supreme Court in American life.  Bickel famously asserted that “when the Supreme Court declares unconstitutional a legislative act or the action of an elected executive, it thwarts the will of the representatives of the actual people of the here and now.”  We believe the Yale political scientist Robert Dahl more accurately described the relationship between the Supreme Court and the rest of the political system when he declared, “it would appear . . . somewhat unrealistic to suppose that a Court whose members are recruited in the fashion of Supreme Court justices would long hold to norms of Right or Justice substantially at odds with the rest of the political elite."

ACSBlog is pleased to present a multi-part dialogue between two distinguished legal scholars, Professor Michael Klarman of the University of Virginia School of Law and Professor Mark Graber of the University of Maryland School of Law.  The subject is the legacy of Brown v. Board of Education. We hope readers enjoy the conversation, and encourage your comments.

Part 3. The Court, Race and Public Opinion: Michael Klarman Responds (see previous posts here and here)

Because our differences on this point are relatively small, let me move the discussion in a slightly different direction.  My claim yesterday was that the Supreme Court has been on the regressive side of questions of racial equality as often as it has been on the progressive side. My claim today is that all of Court’s race decisions—both regressive and progressive—have been consonant with dominant public opinion.

ACSBlog is pleased to present a multi-part dialogue between two distinguished legal scholars, Professor Michael Klarman of the University of Virginia School of Law and Professor Mark Graber of the University of Maryland School of Law.  The subject is the legacy of Brown v. Board of Education, which Professor Klarman discussed in his recently published book, Unfinished Business – Racial Equality in American History. We hope readers enjoy the conversation over the next several days, and encourage your comments.

Part 2. A Perspective from Professor Mark Graber (see Part 1 here)

Professor Michael Klarman is the rare scholar whose works dramatically push the scholarly envelope while remaining accessible to the general reader. His Bancroft Prize winning From Jim Crow to Civil Rights is the first book that should be read by anyone interested in the history, law, and politics of American race relationships from the end of the Civil War to the present. Unfinished Business: Racial Equality in American History provides a terrific, short, reader-friendly account of the constitutional politics of race throughout American history. 

Commenting on these works is intimidating and difficult. Professor Klarman has forgotten a good deal more about the constitutional politics of race than I know. Worse, at least from the perspective of getting a good conversation going, I largely agree with Professor Klarman’s conclusions. The temptation is great to spend a week learning all the superlatives on my word processing program and then adding a quibble or two. Still, there does seem a point in his above post worth highlighting that may be more than a quibble.

Professor Klarman maintains that the Roberts Court’s decision in the recent school districting case was “an extraordinary perversion of the originalist understanding of [the Fourteenth Amendment] by justices who purport to employ an original methodology to questions of constitutional interpretation.” I am not sure. I want to suggest that just as the Supreme “Court has not reliably been on the progressive side of racial issues,” so the Constitution has been far more ambiguous than civil rights advocates are willing to acknowledge. The Court favors opponents as often as proponents of genuine race equality. The constitutional text, constitutional practice, and the American constitutional experience has historically provided both with plausible arguments for their positions.

The constitution of 1787 contained few explicit provisions on slavery and race. Citizenship was never defined. Federal power to promote human bondage or emancipate slaves, the international slave trade aside, was not specified. Antebellum compromises and silences about slavery and race provided all parties to the debates over the rendition process for fugitive slaves and status of slavery in the territories with the legal resources necessary to make professionally competent arguments for their preferred policies. The Constitution contained materials that Lincoln fashioned into a powerful argument against the expansion of slavery and materials that Chief Justice Roger Taney fashioned in an equally legally compelling case for guaranteeing slaveholders equal rights in the territories.

With the following posting, ACSBlog is pleased to begin a multi-part dialogue between two distinguished legal scholars, Professor Michael Klarman of the University of Virginia School of Law and Professor Mark Graber of the University of Maryland School of Law.  The subject is the legacy of Brown v. Board of Education, which Professor Klarman discussed in his recently published book, Unfinished Business – Racial Equality in American History. We hope readers enjoy the conversation over the next several days, and encourage your comments.

I want to start this discussion with a couple of points about the Supreme Court and American race relations. First, the Court has not reliably been on the progressive side of racial issues. Second, whether the Court has been on the right or the wrong side, its rulings have reflected public opinion more than they have influenced it. 

Brown v. Board of Education, together with its antecedents and progeny, have led many to the view that the Supreme Court is a reliable defender of the interests of racial minorities. Yet, over the course of American history, the Court has opposed those interests at least as often as it has supported them.  

Before the Civil War, the Court was a reliable defender of the interests of slaveholders. In Prigg v. Pennsylvania in 1842, the Court not only rejected significant challenges to the constitutionality of the federal fugitive slave law, but also invalidated a northern state law that endeavored to protect free blacks from kidnapping. In the infamous Dred Scott decision of 1857, the Court not only invalidated congressional legislation barring slavery from federal territories, but also ruled that even free blacks had no rights that whites were bound to respect.

In the aftermath of the Civil War, the Court in several cases reversed the criminal convictions of whites who had lynched blacks or perpetrated racial massacres. In 1883, the justices invalidated the last piece of civil rights legislation that Congress would pass until the 1950s. In the late nineteenth and early twentieth centuries, the Court on numerous occasions upheld laws segregating the races and disenfranchising blacks.

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.”

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 and here.]

Hamdan to Request Transfer from Solitary Confinement

Guantánamo Naval Base, February 6—When I visited the headquarters of the U.S. Southern Command (SOUTHCOM) in November 2007 – the Pentagon’s combatant command under which U.S. forces at Guantánamo fall – a U.S. military officer there asserted that conditions at Guantánamo had improved significantly over the past year and now compare with the “best-run prisons” in the United States. Perhaps conditions have improved. But the vast majority of Guantánamo’s detainees are still housed in solitary confinement in Camps 5 and 6, under heavily restrictive conditions that may be harming their mental and physical health.

At a military commission pretrial hearing tomorrow, detainee Salim Ahmed Hamdan is expected to request a transfer out of Camp 5, where he has been held most recently for approximately six weeks. Hamdan is alleged to have served as bodyguard and driver for Osama bin Laden. He has been kept in solitary confinement at various points throughout his more than four years of detention at Guantánamo. Before Camp 5, he was held in solitary confinement in Camp 6 for nearly a year. Camps 5 and 6 are both maximum-security facilities where detainees are kept in small, single-occupancy cells with meals served through a slot. The cells in Camp 6 are completely cut off from natural light and air, and detainees are confined to their cells for up to 22 hours per day.

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

Guantanamo Naval Base, February 5, 2008--After more than six years, the basic questions of who can be tried by military commission, for what charges and under what procedures remain unresolved. Yesterday’s pretrial hearing in Omar Khadr’s case only underscored this point. Yet the U.S. government continues to insist on trying to use these military commissions as an end-run around standards and procedures for criminal justice that have served the United States well for over 200 years.

Four Lessons Learned

Lesson 1: Many long-standing principles of fundamental justice – American or international – seem not to count in Guantanamo (Part A: juvenile justice).

Omar Khadr is accused of killing U.S. Army Sergeant First Class Christopher Speer in Afghanistan in 2002. The government alleges that Khadr threw a hand grenade at the soldier from a house during a firefight with U.S. forces. Khadr was fifteen years old at the time.

If Khadr ultimately is tried by military commission, he may not be the first person ever put on trial for alleged war crimes committed while a minor, but it could well be a first for the United States. The defense argued yesterday that Congress never intended to have these military commissions try juvenile offenders.