veiled4allah

some victories for the rule of law

Says the Second Circuit Court of Appeals:

We also conclude that Padilla’s detention was not authorized by Congress, and absent such authorization, the President does not have the power under Article II of the Constitution to detain as an enemy combatant an American citizen seized on American soil outside a zone of combat. As this Court sits only a short distance from where the World Trade Center once stood, we are as keenly aware as anyone of the threat al Qaeda poses to our country and of the responsibilities the President and law enforcement officials bear for protecting the nation. But presidential authority does not exist in a vacuum, and this case involves not whether those responsibilities should be aggressively pursued, but whether the President is obligated, in the circumstances presented here, to share them with Congress. Where, as here, the President’s power as Commander-in-Chief of the armed forces and the domestic rule of law intersect, we conclude that clear congressional authorization is required for detentions of American citizens on American soil because 18 U.S.C. ? 4001(a) (2000) (the “Non-Detention Act”) prohibits such detentions absent specific congressional authorization. Congress’s Authorization for Use of Military Force Joint Resolution, Pub. L. No. 107-40, 115 Stat. 224 (2001) (“Joint Resolution”), passed shortly after the attacks of September 11, 2001, is not such an authorization, and no exception to section 4001(a) otherwise exists. In light of this express prohibition, the government must undertake to show that Padilla’s detention can nonetheless be grounded in the President’s inherent constitutional powers. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637-38 (Jackson, J., concurring). We conclude that it has not made this showing. In reaching this conclusion, we do not address the detention of an American citizen seized within a zone of combat in Afghanistan, such as the court confronted in Hamdi v. Rumsfeld, 316 F.3d 450 (4th Cir. 2003) (“Hamdi III”). Nor do we express any opinion as to the hypothetical situation of a congressionally authorized detention of an American citizen. Accordingly, we remand to the District Court with instructions to issue a writ of habeas corpus directing Secretary Rumsfeld to release Padilla from military custody within 30 days, at which point the government can act within its legislatively conferred authority to take further action. For example, Padilla can be transferred to the appropriate civilian authorities who can bring criminal charges against him. If appropriate, he can also be held as a material witness in connection with grand jury proceedings. See United States v. Awadallah, 349 F.3d 42 (2d Cir. 2003). Under any scenario, Padilla will be entitled to the constitutional protections extended to other citizens. (emphasis added)

Elsewhere, the Ninth Circuit has also been busy:

A federal appeals court ruled Thursday for the first time that prisoners held at Guantanamo Bay Naval Base in Cuba should have access to lawyers and the American court system. The 9th U.S. Circuit Court of Appeals' 2-1 decision was a rebuke to the Bush Administration. The administration maintains that because the 660 men held there were picked up overseas on suspicion of terrorism and are being held on foreign land, they may be detained indefinitely without charges or trial. The Supreme Court last month agreed to decide whether the detainees, picked up in Afghanistan and Pakistan, should have access to the courts. The justices agreed to hear that case after the U.S. Court of Appeals for the District of Columbia ruled that the prisoners had no rights to the American legal system. The San Francisco appeals court, ruling Thursday on a petition from a relative of a Libyan the U.S. military captured in Afghanistan, said the Bush administration's indefinite detention of the men runs contrary to American ideals. "Even in times of national emergency - indeed, particularly in such times - it is the obligation of the Judicial Branch to ensure the preservation of our constitutional values and to prevent the Executive Branch from running roughshod over the rights of citizens and aliens alike," Judge Stephen Reinhardt wrote for the majority. "We cannot simply accept the government's position," Reinhardt continued, "that the Executive Branch possesses the unchecked authority to imprison indefinitely any persons, foreign citizens included, on territory under the sole jurisdiction and control of the United States, without permitting such prisoners recourse of any kind to any judicial forum, or even access to counsel, regardless of the length or manner of their confinement."

And in other news, the Office of the Inspector General has something to say:

Foreigners held at a federal prison in Brooklyn after the Sept. 11, 2001 attacks suffered verbal and physical abuse, with officers slamming them against the wall and twisting their arms and hands, the U.S. Justice Department's inspector general said on Thursday. Inspector General Glenn Fine said in a 47-page report that officers also stepped on the leg-restraint chains of the detainees and punished them by keeping them restrained for long periods of time. Videotapes showed that prison staff members slammed and pressed detainees against the wall by their heads or necks. The officers denied that it ever occurred, the report said... ...It said the videotapes also showed that some staff members at the federal prison misused strip searches and restraints to punish detainees, and that officers improperly recorded meetings between the detainees and their lawyers.

useful legal info for bloggers

Bloggers Gain Libel Protection:

The Ninth Circuit Court of Appeals ruled last Tuesday that Web loggers, website operators and e-mail list editors can't be held responsible for libel for information they republish, extending crucial First Amendment protections to do-it-yourself online publishers. Online free speech advocates praised the decision as a victory. The ruling effectively differentiates conventional news media, which can be sued relatively easily for libel, from certain forms of online communication such as moderated e-mail lists. One implication is that DIY publishers like bloggers cannot be sued as easily.

when prosecutors overreach

As part of my Legal Investigation class, we have to interview somebody involved in a recent case. I've arranged an interview with Timothy K. Ford to talk about the case Kalina v. Fletcher, 522 U.S. 118 (1997), in which he represented Fletcher. Kalina was a deputy prosecutor who had falsely charged Fletcher with a crime, for which he spent a night in jail. You can read background on this case from the Seattle Times after the initial Ninth Circuit Court ruling, after the Supreme Court ruling, and after the King County Prosecutor's Office settled with Fletcher. It's really quite an interesting case. The King County Prosecutor's Office got a little too involved in the process of filing for arrest warrants and took on a role usually left to police officers or othe witnesses. Kalina made a mistake and testified to something that wasn't true, and the prosecutor's office got burned. The Supreme Court ruled against them 9-0 and they had to pay $162,500 to Fletcher. I'll be interviewing Ford by telephone tomorrow. I then have to write up a report on the case and the interview for my class. Inshallah khayr (God willing, it will go well).

legal issues related to driver's licenses, showing ID, etc

This is a follow up to my blog entry Face veils and the law. It's the results of my preliminary research into what the courts have said about non-photo driver's licenses and about whether people can be required to present ID. If you're not interested in law, you can skip this entry. In 1984, the U.S. Eighth Circuit Court of Appeals in Quaring v. Peterson, 728 F.2d 1121 (1984), heard a case in which a Christian woman requested a non-photo driver's license because she considered the photograph to be a "graven image" forbidden by her religious beliefs¹. The court held:

(1) Nebraska driver's licensing requirement that applicants submit to having color photograph taken for affixing on the license unconstitutionally burdened subject applicant's free exercise of her sincerely held religious beliefs, supported by historical and biblical tradition and implemented in her daily life, that the taking of her photograph would violate the Second Commandment's express forbidding of the making of any graven image or likeness of anything in creation, and (2) requiring that applicant receive her license without complying with photograph requirement was reasonable accommodation of her religion and did not violate establishment clause.

The U.S. Supreme Court affirmed this ruling in Jensen v. Quaring, 472 U.S. 478 (1985). Thus, the objections to photo driver's licenses are neither limited to face-veiling Muslims (or to Muslims in general) nor are they specious: the right to take a religious exemption from having a photo driver's license has been recognized by the Supreme Court. As an aside, while I was looking for information about this case, I came across a lawsuit filed in Alabama alleging that a law requiring people to present a social security number to obtain a driver's license violates their freedom of religion because:

...they have a sincerely held religious belief that the federal social security number is the "Mark of the Beast" described in the Bible's Book of Revelation...

It seems that Sultana Freeman is not the only person in this country who holds some rather interesting religious beliefs. So that's the photo driver's license question. A lot of people, in objecting to the idea of non-photo driver's licenses, argued that having a photo driver's license is required for identifying oneself to the police upon request. While looking for further information, I discovered to my own surprise that the U.S. Ninth Circuit Court of Appeals held only a year ago that people are not required to identify themselves to police officers, and that Nevada laws that made failure to provide identification a criminal offense were unconstitutional. Carey v. Nevada Gaming Control Board, 279 F.2d. 873 (2002) (PDF file). As law professor Eugene Volokh reported last December, the Nevada Supreme Court has since upheld those same laws, creating a conflict in the law. Professor Volokh thinks that this issue is headed for the Supreme Court. Local coverage of the Carey decision was provided by the Las Vegas Sun and the Las Vegas Review-Journal ¹Some Muslims might attempt to make this same argument against the use of images. However, even conservative Saudi scholars have held that Photographs which are essential are permitted - such as those required for identity documents... And in any case, a partial image, such as a head and shoulders shot, is generally OK. More about the Islamic rules of picture-making is available here. Added in comments: 1) It doesn't matter if Sultana Freeman's religious views do not represent those of most Muslims 2) Summary of the current state of the law 3) Supreme Court says it doesn't matter if driving is a privilege rather than a right

issues in penal law

Some people feel that the existing form of the prison system in America is unjust and inhumane. Some people go even further and say that incarceration as a punishment is itself inhumane. After all, human beings are locked up in what amount to cages (i.e., the prison cells) where they have next to no privacy and have to offer complete obedience at all times to corrections officers and to ask permission for almost anything they do. An argument can be made that imprisonment is really a form of slavery, and a particularly cruel form at that since the prisoners are kept locked up. We're not used to thinking like this. It's taken as a given in America that prison is far more humane than corporal punishment. But is it? The body heals; the mind and the soul may not. When we consider whether the prison system is humane we should look at the psychological damage caused by captivity. It's not as easy to measure as physical damage, but it may be far worse and more lasting. I found a some articles on the web about this including Prisoners' Justice Issues and Abolish Prisons. One of the alternatives to incarceration that is promoted is restorative justice. Some Muslim scholars promote restorative justice from within the Islamic tradition. Here is a summary of part of a book (which does not appear to be available online) by Nawal Ammar. The mention of Islam of course brings to mind the corporal punishments that are notorious in the West. First, we have to go back to a point that I made above. Is incarceration actually even more inhumane than corporal punishment? As part of an extremely heated debate in my comments section awhile ago about implementing the Shari'a, Jonathan Edelstein said:

My personal opinion on flogging? I'm uncomfortable with corporal punishment, but sometimes it may be less cruel than prison. If I had the choice between going to jail for five years or taking 50 lashes and getting it over with, I think I'd go for the whipping. Corporal punishment also doesn't deprive a family of a wage-earner for an extended period of time. Prison is cruel too, in the form of violence and rape as well as confinement - the difference is that the cruelty takes place behind closed doors.

This same point is made in some Muslim critiques of incarceration; see The Jail Punishment and Regarding Punishments by Confinement in Jail. But there is a second issue and this one is far more important. What are the circumstances under which the punishments can actually be meted out? If you look at places like Afghanistan and Nigeria, you would think that all somebody needs to do is bring forth an accusation and the hand is cut off or the flogging commences. This is not correct. It is a distortion and indeed a perversion of Islamic law. There are standards of proof that must be met. Specifically, a certain number of witnesses need to have actually seen the crime in progress and the offender must have deliberately intended to break the law. For most crimes, there must be two witnesses. For fornication (both heterosexual and homosexual) and adultery, for instance, the standard of proof is that four witnesses saw the act of penetration. When was the last time you saw or heard of two people completing the sexual act in public, in front of at least four people? Have you ever heard of it? That should give you an idea of how rare this punishment should actually be. Similarly, a theft must be witnessed by at two people and the thief was not stealing out of hunger or some other desperate need. If the standards of proof are not met, the fixed punishments (called hudud in Arabic) cannot be meted out. Instead, the judge can apply a discretionary (ta'zir in Arabic) punishment. As the name implies, these punishments are not fixed by the Shari'a, but are at the discretion of the judge or the ruler or legislature. The relationship between hudud and ta'zir punishments is explained in Hudud, Ta'zir, and Qisas. (Qisas refers to the principle of retaliation for assault and murder. The Quran permits, but does not require, retaliation in kind. What do I mean, it doesn't require? The decision rests with the victim or the victim's family. The victim or family can seek retaliation, or they can accept a restitutive payment, or they can forgive the offender. Restitutive payment (diya in Arabic) is also the punishment set for manslaughter. The Quran strongly recommends that the victim seek restitution or offer forgiveness because this erases sins and is better in God's sight. Also, remember that the attack must have been witnessed and deliberate.) All crimes other than those specified as hudud are considered to be ta'zir, meaning that even their maximum sentence is completely discretionary. What's the point of all of this? If an Islamic society truly upheld the standards of proof, the harsh corporal punishments like flogging and cutting off the hand would only be meted out on a small number of brazen criminals who deliberately commit their crimes in front of others (and, presumably, in defiance of those others' attempts to stop them or talk them out of it). And the rest of the penal code could be of whatever form that the society felt was best. This could be other types or corporal punishments (as in the past), or incarceration (as in the modern Muslim world), or even (yes) restorative justice. Properly understood, Islamic penal law is not nearly as harsh as groups like the Taliban would lead one to believe. Properly understood, Islamic penal law is quite flexible and allows for the implementation of a system of restorative justice, limiting corporal punishments to those hardened criminals who have not responded to anything else. Is that more humane than America's prison-industrial complex? I think so.

a different perspective

I've posted a bit about Islamic non-violence theory. For something completely different, check out Libertarian Just War Theory, by Wendy McElroy. Similar to the Islamic non-violence theory that I've discussed, libertarian theory holds that a just war is theoretically possible but cannot be carried out in practice today. Roderick T. Long looks at some similar ideas in a different context in Punishment vs. Restitution. If you're interested in more from these people check out McElroy's blog, WendyMcElroy.com, and Long's web journal In A Blog's Stead. Yes, everybody is blogging these days, it seems ;) Added: Law and Violence provides an overview of the range of libertarian views on the use of violence. Abortion and Rights uses the libertarian non-violence philosophy to argue for a pro-life position.

reading about constitutional law for fun

I've just started reading The Bill of Rights: Creation and Reconstruction by Akhil Reed Amar, a law professor at Yale. It looks like it's going to be a great read. Amar clearly does not shy away from controversy. For instance, in his discussion of the First Amendment (the chapter I'm currently reading), Amar argues that the clause Congress shall make no law respecting an establishment of religion was originally understood to mean that Congress could make no laws of any kind regarding religion, neither to establish it, nor to force the states to disestablish it. The regulation of religion was simply outside of Congress's power. The book also promises to examine how and why this understanding changed, as well as examining the original meaning of other parts of the Bill of Rights. I'm looking forward to seeing what Amar has to say about this.

blogs, copyright law, and licenses

Starting with version 2.6, Movable Type offers a new feature that allows the blog author to easily set up something called a Creative Commons license for their blog. Under copyright law, you as an author hold the copyright for anything that you've written, as soon as you write it. This prevents others from distributing copies of your work without your permission except for certain exemptions like fair use. The Creative Commons License is a license that you grant to others allowing them to copy your work under terms that you set. There are a number of licenses available (eleven to be exact), each of which grants different rights. I found an excellent analysis of the legal issues involved in putting a Creative Commons license sticker on your blog. I strongly urge everybody to read this if they're interested in making their writings available under one of the Creative Commons licenses. There are some ambiguous provisions in these licenses that may have unintended consequences if you grant a license and then decide to revoke it. Added 3/13: An updated version of the legal analysis is now available.

would it hold up in a court of law? these paralegals don't think so

In my Legal Writing class yesterday, the instructor talked about logical fallacies that we should avoid in our persuasive writing. Among the common fallacies is the argument ad ignorantiam:

ad ignorantiam (appeal to ignorance): arguing that a claim is true just because it has not been shown to be false. A classic example is this statement by Senator Joseph McCarthy, when asked for evidence to back up his accusation that a certain person was a communist: "I do not have much information on this except the general statement of the agency that there is nothing in his files to disprove his Communist connections"

The instructor used another example, the U.S. claiming that Saddam Hussein has WMDs because he hasn't been proven not to have them. Most of the class laughed in appreciation and we went on to have a lively discussion of other common logical fallacies and whether the U.S. case against Iraq contains them as well. It was pretty clear that nearly all of us were very skeptical about the whole thing. We also discussed whether Colin Powell was using hearsay evidence that would be thrown out of any court of law.

It may be that paralegal students are not a representative sample of the population, but certainly my impression from this and other discussions at school is that there are a lot of intelligent, well-educated people that Bush is failing to convince.

legal tidbits

As I mentioned in a previous post, one of the books that I got while on my vacation is "Indians in American History". This is really an excellent book and provides a good overview of the subject. Two chapters that are of particular interest to me as a paralegal-in-training are "Indian Tribes and the American Constitution" and "The Struggle for Indian Civil Rights". The chapter on Indian tribes and the Constitution is by Charles F. Wilkinson, who is a professor of Law at the University of Colorado. After reviewing the mentions of Indian tribes in the Constitution itself, he discusses the so-called Marshall Trilogy, three rulings by early Supreme Court Chief Justice John Marshall in regard to the status of Indian tribes (Johnson v. McIntosh, 8 Wheat. 543 (1823); Cherokee Nation v. Georgia, 30 U.S. 1 (1831); and Worcester v. Georgia, 31 U.S. 515 (1832) for those who are interested). This leads into a discussion of the interplay of federal, state, and tribal sovereignty and laws. Following this, he examines the questions of due process and equal protection. This is where it really gets interesting. Here are two passages that I thought were of particular note:

In 1968 Congress passed the Indian Civil Rights Act (ICRA) which applied many of the provisions of the Bill of Rights and the Fourteenth Amendment to Indian tribes. But rights under the Indian Civil Rights Act differ in several respects from constitutional rights of citizens outside of Indian country. The 1968 act, for example, does not prohibit the establishment of religion. Indian tribes, therefore, are the only governments in the United States that can legally operate as theocracies. Several Pueblos in the Southwest are just that, while other tribes across the country combine republican and theocratic forms of government by having some tribal council members chosen by election and some seats on their councils filled by hereditary chiefs (p. 115)

The second passage is even more interesting:

Yet these Indian governments, whose leaders are elected by a racially-defined electorate, are outside of the system of constitutional restraints. This race-based governmental system has been upheld by the Supreme Court, which has gone to considerable lengths to find that tribal governments are not in fact race-based. The Court has concluded that political ties were established, by treaty or treaty substitutes, between the United States and tribal governments. This government-to-government relationship means that Indian tribes are recognized under federal law as political and governmental, not racial, entities and that there is no equal protection violation. There is another context in which Indian law and policy energizes analysis of civil liberties issues. In 1954, Brown v. Board of Education rejected the "separate but equal" doctrine and struck down racial segregation in public schools. But Indian reservations are plainly racial enclaves where separatism prevails. On many reservations even the schools are effectively segregated. This gives us a deeper insight into the antidiscrimination principle of the Constitution. Separatism for blacks was outlawed because it was forced upon them and because it demonstrably operated to their disadvantage. Indian separatism is allowable because Indians are separatists by choice, because most Indian leaders have voluntarily selected a measured separatism as the single best hope for the future of the Indian people. Without the Indian experience, we are led to believe that our Constitution outlaws separatism; with it, we learn that the essential prohibition is against a forced policy that wounds minorities. Numerous aspects of federal policy have wounded Indians, but separatism is not one of them; thus it does not offend the Constitution