Tea Party types who want to strike a blow against governmental abuse and constitutional violations need not travel to Washington, D.C., to find a target for their protests. They can go instead to the nearest state or federal courthouse, where prosecutors are quite likely to be committing negligent mistakes or willful misconduct far more often than commonly acknowledged.
The incidence of prosecutorial misconduct is unknown and unknowable. Even more than police, prosecutors commit their wrongdoing — most commonly, withholding evidence from defense lawyers — behind closed doors. This much is known: The few offending prosecutors who are caught are rarely punished in any meaningful way.
These conclusions reflect long-held beliefs among defense lawyers, civil libertarians and many criminal justice experts. They gain confirmation now from two critical studies: a six-month investigative project covering federal prosecutors by USA Today and a decade-long review of state cases in California by the Northern California Innocence Project at Santa Clara University Law School. Both find statistical evidence of prosecutorial wrongdoing, often linked to wrongful convictions, with hardly any of the errant D.A.’s suffering any form of punishment.
The two studies were published in September just as the U.S. Supreme Court was preparing to hear arguments in a notorious case of prosecutorial misconduct, Connick v. Thompson. John Thompson spent 14 years on death row in a Louisiana prison — and came within hours of execution — for a murder that he did not commit. He was convicted in part because a prosecutor knowingly withheld crucial evidence from the defense lawyer, evidence that the prosecutor was ethically and legally obliged to turn over.
Now freed from prison, Thompson wants some compensation for the years of freedom that the criminal justice system wrongfully took from him. But the Supreme Court has made it virtually impossible to sue an individual prosecutor. Prosecutors are immune for any official actions directly related to a criminal trial. In any event, the trial prosecutor, who surreptitiously removed forensic evidence from the storage room, died a few years back. He had confessed his misconduct to a colleague, but had taken no other action to right his wrong.
With personal liability foreclosed, Thompson instead is trying to hold the New Orleans district attorney’s office itself responsible for failing to train assistant D.A.’s properly about the so-called Brady rule. The rule, established by the Supreme Court in Brady v. Maryland (1963), requires prosecutors to turn over any potentially exculpatory evidence to the defense.
Thompson’s federal civil rights lawsuit runs into an obstacle. The Supreme Court's decision in another case, Monell v. Dep’t of Social Services of New York (1978), allows a municipality to be held liable for a constitutional violation by one of its officials only if the plaintiff proves “deliberate indifference” on the municipality’s part. In Supreme Court arguments on Oct. 6, the justices got tied up in knots over the question of whether a single egregious instance could show “deliberate indifference.” They also pressed the former inmate’s lawyer to specify exactly what training the district attorney’s office should have been required to provide to new prosecutors.
Legally, it may be a close case. In real-world terms, it is not. New Orleans’ longtime district attorney, Harry Connick Sr., appears to have fostered a lopsided attitude toward Brady in the office: Disclose nothing unless you absolutely have to; don’t worry about being called on the carpet for withholding. The training manual for the office actually misstated the Brady rule.
Impunity for Brady violations and other prosecutorial misconduct appears to be the rule in other jurisdictions. In the USA Today package, reporters Brad Heath and Kevin McCoy documented 201 federal criminal cases since 1997 in which judges “blasted prosecutors for ‘flagrant’ or ‘outrageous’ misconduct” such as “hiding evidence,” “lying to judges or juries,” or breaking plea bargains. (Disclosure: Heath is a former student of mine at Georgetown University Law Center.)
The Justice Department’s internal watchdog investigates such cases: 42 in 2001, 61 last year. But the department refuses, on privacy grounds, to say whether any of the prosecutors was punished. Using state bar records, however, Heath and McCoy found that since 2001 only one federal prosecutor has been suspended even temporarily from law practice because of misconduct. In the flagrant example they used to start the story, the federal prosecutor who concealed unfavorable information about the government’s major witnesses got a slap on the wrist: a one-day training session on ethics.
In the California study, the Santa Clara law school project combed state appellate court decisions from 1997 through 2009 and identified 707 cases in which courts “explicitly found that prosecutors committed misconduct.” The vast majority of convictions (548) were nevertheless upheld: no harm, no foul, apparently.
More troublingly, an examination of state bar records found public disciplinary actions against only 10 state prosecutors during the period, only six of them for trial-related violations. As Professor Kathleen Ridolfi and visiting journalist Maurice Possley conclude, judges, prosecutors, and the California State Bar are “casting a blind eye to prosecutors who place their thumbs on the scales of justice.”
The Supreme Court could play a role in changing the lax attitude toward errant prosecutors, but the justices’ questions in Thompson’s case point in the opposite direction. One more sign of the justices’ solicitude toward government attorneys came today (Oct. 18) when they agreed to hear former Attorney General John Ashcroft’s appeal in a case, Ashcroft v. Al-Kidd, testing whether he can be held individually liable for alleged misuse of the federal material witness statute during the post-9/11 roundup of hundreds of wrongfully accused individuals.
Monday, October 18, 2010
Wednesday, October 13, 2010
No First Amendment Exception for Military Funerals
A cardinal tenet of First Amendment law teaches that any regulation of speech or the press is likely to deter some forms of expression on the legal side of the restriction. This “chilling effect” requires that executive officials, legislative bodies, and, above all, courts take care to regulate First Amendment-protected expression only with lines that are either so clear or so stringent that speakers will not risk punishment by accidentally straying across them.
Supreme Court justices seemed to have forgotten this teaching during parts of the arguments last week (Oct. 6) in the case that pits the family of a deceased U.S. serviceman against the pastor and other members of the fundamentalist Westboro Baptist Church of Topeka, Kan. Driven by the emotions of the case, the justices appeared to be looking for a way to rule against the Rev. Fred Phelps and his family member congregants for demonstrating at Matthew Snyder’s funeral to voice their belief that U.S. war deaths are divine punishment for America’s tolerance of homosexuality.
Snyder’s father, Albert, won an $11 million award from a federal court jury in a suit against Phelps and his church for, among other claims, intentional infliction of emotional distress. The judge cut the award down to $5 million, including $2.9 million in punitive damages, but the federal appeals court in Richmond, Va., threw the case out on First Amendment grounds.
Hearing Snyder’s appeal, the justices left no doubt about their disgust with Phelps’ tactics. They recoiled at Phelps’ targeting of a Marine killed at age 20 in Iraq only to be vilified at his funeral as an evil doer. “God hates you,” one of the Phelps’ signs read. Another: “You’re going to hell.”
The Supreme Court’s rule in the case, however, will be the rule not only for the Westboro Baptist Church but also for other unpopular speakers in the future. As Phelps’ lawyer-daughter Margey Phelps put it, Snyder was asking to punish the Phelps’ “little church” because “they came forth with some preaching that [he] didn’t like.”
The court faced an analogous situation some 50 years ago when Alabama courts were using libel suits by public officials to punish civil rights groups and national news media for agitating or writing about conditions in the racially segregated South. The New York Times faced so many trumped-up libel suits in Alabama that the newspaper pulled its reporters from the state for a while to avoid being served with papers in the cases.
The Supreme Court stopped the litigation-driven intimidation in its tracks with one of its most important First Amendment rulings ever: New York Times v. Sullivan. Under the ruling as later expanded, a public official or public figure can recover damages for libel only if the defendant published or uttered a false, defamatory statement knowing that it was false or with reckless disregard as to its truth or falsity. That strict rule, the justices said, was necessary to afford the breathing space that the First Amendment requires.
The temptation in Snyder’s case, of course, is to think that military funerals could be carved out as one small exception to what the court in Times v. Sullivan called the “profound national commitment” to “uninhibited” debate on public issues. The actual facts in Snyder’s case belie that solution, however. Albert Snyder did not actually read any of the signs at the funeral, in part because Phelps’ group was standing 1,000 feet away from the entrance to the church — as approved by the local police. Phelps actually read the signs only afterward; it was also afterward that he saw the Phelps’ Internet production that depicted Matthew Snyder as having been raised in a godless home.
Even if the facts supported the jury’s verdict, however, the military-funeral exception is one the First Amendment cannot comfortably countenance. Anti-war activists might choose to protest at military funerals that service members are dying in vain in an unjust war. Free speech would suffer if the courts were free to punish such a protest because the message is upsetting to the survivors. Justices complained to Margey Phelps that other venues were available for the church’s protest and that the funeral was picked solely to maximize publicity. As Phelps aptly responded, all speakers want maximum exposure for their message — and are entitled to seek just that.
In her questioning, Justice Elena Kagan, the court’s newest member, emphasized the inevitable subjectiveness of the tort of intentional infliction of emotional distress. As one of the elements, the plaintiff must prove “outrageousness” on the defendant’s part. That ill-defined term would invite jurors to impose liability on speakers simply because they dislike the speaker’s point of view.
The law is not powerless to protect the sensitivities of the families of the fallen. Maryland’s legislature is one of many that have enacted laws requiring protesters to keep a minimum distance away from a military funeral. As long as the speech-free zone is not too extensive, those are probably constitutional. Targeted, individual stalking also may be punishable either civilly or even criminally. But the ruling that punishes the Phelpses today may punish more worthy speakers tomorrow. As Justice Oliver Wendell Holmes Jr. put it 80 years ago, the First Amendment requires “freedom for the thought that we hate.”
Supreme Court justices seemed to have forgotten this teaching during parts of the arguments last week (Oct. 6) in the case that pits the family of a deceased U.S. serviceman against the pastor and other members of the fundamentalist Westboro Baptist Church of Topeka, Kan. Driven by the emotions of the case, the justices appeared to be looking for a way to rule against the Rev. Fred Phelps and his family member congregants for demonstrating at Matthew Snyder’s funeral to voice their belief that U.S. war deaths are divine punishment for America’s tolerance of homosexuality.
Snyder’s father, Albert, won an $11 million award from a federal court jury in a suit against Phelps and his church for, among other claims, intentional infliction of emotional distress. The judge cut the award down to $5 million, including $2.9 million in punitive damages, but the federal appeals court in Richmond, Va., threw the case out on First Amendment grounds.
Hearing Snyder’s appeal, the justices left no doubt about their disgust with Phelps’ tactics. They recoiled at Phelps’ targeting of a Marine killed at age 20 in Iraq only to be vilified at his funeral as an evil doer. “God hates you,” one of the Phelps’ signs read. Another: “You’re going to hell.”
The Supreme Court’s rule in the case, however, will be the rule not only for the Westboro Baptist Church but also for other unpopular speakers in the future. As Phelps’ lawyer-daughter Margey Phelps put it, Snyder was asking to punish the Phelps’ “little church” because “they came forth with some preaching that [he] didn’t like.”
The court faced an analogous situation some 50 years ago when Alabama courts were using libel suits by public officials to punish civil rights groups and national news media for agitating or writing about conditions in the racially segregated South. The New York Times faced so many trumped-up libel suits in Alabama that the newspaper pulled its reporters from the state for a while to avoid being served with papers in the cases.
The Supreme Court stopped the litigation-driven intimidation in its tracks with one of its most important First Amendment rulings ever: New York Times v. Sullivan. Under the ruling as later expanded, a public official or public figure can recover damages for libel only if the defendant published or uttered a false, defamatory statement knowing that it was false or with reckless disregard as to its truth or falsity. That strict rule, the justices said, was necessary to afford the breathing space that the First Amendment requires.
The temptation in Snyder’s case, of course, is to think that military funerals could be carved out as one small exception to what the court in Times v. Sullivan called the “profound national commitment” to “uninhibited” debate on public issues. The actual facts in Snyder’s case belie that solution, however. Albert Snyder did not actually read any of the signs at the funeral, in part because Phelps’ group was standing 1,000 feet away from the entrance to the church — as approved by the local police. Phelps actually read the signs only afterward; it was also afterward that he saw the Phelps’ Internet production that depicted Matthew Snyder as having been raised in a godless home.
Even if the facts supported the jury’s verdict, however, the military-funeral exception is one the First Amendment cannot comfortably countenance. Anti-war activists might choose to protest at military funerals that service members are dying in vain in an unjust war. Free speech would suffer if the courts were free to punish such a protest because the message is upsetting to the survivors. Justices complained to Margey Phelps that other venues were available for the church’s protest and that the funeral was picked solely to maximize publicity. As Phelps aptly responded, all speakers want maximum exposure for their message — and are entitled to seek just that.
In her questioning, Justice Elena Kagan, the court’s newest member, emphasized the inevitable subjectiveness of the tort of intentional infliction of emotional distress. As one of the elements, the plaintiff must prove “outrageousness” on the defendant’s part. That ill-defined term would invite jurors to impose liability on speakers simply because they dislike the speaker’s point of view.
The law is not powerless to protect the sensitivities of the families of the fallen. Maryland’s legislature is one of many that have enacted laws requiring protesters to keep a minimum distance away from a military funeral. As long as the speech-free zone is not too extensive, those are probably constitutional. Targeted, individual stalking also may be punishable either civilly or even criminally. But the ruling that punishes the Phelpses today may punish more worthy speakers tomorrow. As Justice Oliver Wendell Holmes Jr. put it 80 years ago, the First Amendment requires “freedom for the thought that we hate.”
Sunday, October 3, 2010
The Liberal Lions Who Overstayed Their Welcome
Brennan and Marshall. Their names were linked while on the Supreme Court and remain lastingly connected years after their deaths. William J. Brennan Jr., the affable Irishman and architect of the Warren Court’s most important decisions. Thurgood Marshall, the gruff African American crusader against racial segregation and first of his race on the Supreme Court.
Democratic presidential contenders — Al Gore in 2000, Barack Obama in 2008 — cited Brennan and Marshall as the models for their possible Supreme Court nominees. Liberal advocates regularly lament the lack of a comparable liberal on the court today.
Marshall’s work in directing the litigation strategy leading up to Brown v. Board of Education has already been lionized in several creditable biographies. Brennan’s life and work are now being told in a new, exhaustive biography: Justice Brennan: Liberal Champion by Seth Stern and Stephen Wermeil. (Disclosure: Stern, a Congressional Quarterly reporter, and Wermeil, a professor at American University’s Washington College of Law, are colleagues and friends.)
The Brennan biography, written by Stern and based on Wermeil’s extensive interviews with the justice and access to his voluminous files, is touching off a new round of debate over the Warren Court’s burst of liberal activism from the late 1950s until Warren’s retirement in 1969. Today’s conservatives answer criticism of the Roberts Court’s reversals of precedent by likening them to the Warren Court’s.
The comparisons are inapt, as this biography makes clear. With Brennan the mastermind behind the scenes, the Warren Court overturned old and poorly reasoned precedents that had allowed systematic injustices to go uncorrected. No one today would seriously argue against the decision in Baker v. Carr (1963) to use federal judicial power to establish the “one person, one vote” principle in legislative redistricting or the ruling in Gideon v. Wainwright (1962) to require appointment of counsel for indigent defendants in state criminal cases.
History has already judged those rulings and many other activist decisions of the Warren era as both necessary and beneficial. Eight months after the Roberts Court’s ruling in Citizens United, it is reasonable to predict that history’s judgment on freeing corporations to spend unlimited sums in political campaigns will be, at best, ambiguous.
The Brennan biography, however, supports a different line of criticism of both him and his fellow liberal Marshall. Both justices arguably stayed on the court too long.
By the mid-1970s, Brennan the private conciliator was becoming the public scold. His dissents were becoming, as he acknowledged later, “much too sharp and acid.” For years, Brennan had made a point of taking new justices under his wing — helping orient them and laying the groundwork for gentle persuasion in future cases. But not long after Sandra Day O’Connor joined the court in 1981, Brennan made the unseemly and unwise decision to mock one of her early opinions in his dissent.
As for Marshall, Brennan privately considered his performance a disappointment. “What the hell happened when he came on the Court, I’m not sure,” Brennan is quoted as saying, “but he doesn’t seem to have had the same interest.” As with Brennan’s dissents, Marshall was an occasional scold in the justices’ internal deliberations — sometimes addressing his colleagues as “massa” in a deep slave dialect, according to the book.
Both men had health problems in the late 1970s, but both chose to stay on the bench. Brennan was persuaded in part by his family, who wondered what he would do with himself in retirement. Although unmentioned in the book, Marshall is famously reported to have bluntly rebuffed an inquiry from the Carter White House about his possible departure.
With a Democrat in the White House and a Democratic majority in the Senate, either or both of the justices might have retired with an expectation of a compatible successor. Both stayed on for a combination of personal and institutional reasons; their contributions over the next decade are in some sense negligible. Brennan lived long enough to see his successor, David H. Souter, emerge as an often likeminded justice; Marshall regretted his successor, Clarence Thomas.
The episodes buttress the arguments made for the proposal to modify justices’ tenure by limiting their active service on the court to 18 years. As previously suggested here (“Supreme Court Tenure: Too Much of a Good Thing?,” March 2, 2009), the proposal would promote healthy turnover at the court and defuse confirmation battles somewhat by reducing the stakes (the risks) of each new appointment. Despite support from a range of legal experts, however, the proposal is a dead letter politically. Neither party wants to give up the chance for a president to appoint a justice — a Roberts or a Kagan — who can serve for decades.
In his farewell letter this year, John Paul Stevens offered a mild apology to his fellow justices for his 34-year tenure. “If I have overstayed my welcome,” he wrote, “it is because this is such a wonderful and unique job.” Stevens was both sharp and collegial to the end, but his example is the proverbial exception that proves the rule. Age and wisdom may sometimes go hand in hand, but sometimes the better part of wisdom may be recognizing when they do not.
Democratic presidential contenders — Al Gore in 2000, Barack Obama in 2008 — cited Brennan and Marshall as the models for their possible Supreme Court nominees. Liberal advocates regularly lament the lack of a comparable liberal on the court today.
Marshall’s work in directing the litigation strategy leading up to Brown v. Board of Education has already been lionized in several creditable biographies. Brennan’s life and work are now being told in a new, exhaustive biography: Justice Brennan: Liberal Champion by Seth Stern and Stephen Wermeil. (Disclosure: Stern, a Congressional Quarterly reporter, and Wermeil, a professor at American University’s Washington College of Law, are colleagues and friends.)
The Brennan biography, written by Stern and based on Wermeil’s extensive interviews with the justice and access to his voluminous files, is touching off a new round of debate over the Warren Court’s burst of liberal activism from the late 1950s until Warren’s retirement in 1969. Today’s conservatives answer criticism of the Roberts Court’s reversals of precedent by likening them to the Warren Court’s.
The comparisons are inapt, as this biography makes clear. With Brennan the mastermind behind the scenes, the Warren Court overturned old and poorly reasoned precedents that had allowed systematic injustices to go uncorrected. No one today would seriously argue against the decision in Baker v. Carr (1963) to use federal judicial power to establish the “one person, one vote” principle in legislative redistricting or the ruling in Gideon v. Wainwright (1962) to require appointment of counsel for indigent defendants in state criminal cases.
History has already judged those rulings and many other activist decisions of the Warren era as both necessary and beneficial. Eight months after the Roberts Court’s ruling in Citizens United, it is reasonable to predict that history’s judgment on freeing corporations to spend unlimited sums in political campaigns will be, at best, ambiguous.
The Brennan biography, however, supports a different line of criticism of both him and his fellow liberal Marshall. Both justices arguably stayed on the court too long.
By the mid-1970s, Brennan the private conciliator was becoming the public scold. His dissents were becoming, as he acknowledged later, “much too sharp and acid.” For years, Brennan had made a point of taking new justices under his wing — helping orient them and laying the groundwork for gentle persuasion in future cases. But not long after Sandra Day O’Connor joined the court in 1981, Brennan made the unseemly and unwise decision to mock one of her early opinions in his dissent.
As for Marshall, Brennan privately considered his performance a disappointment. “What the hell happened when he came on the Court, I’m not sure,” Brennan is quoted as saying, “but he doesn’t seem to have had the same interest.” As with Brennan’s dissents, Marshall was an occasional scold in the justices’ internal deliberations — sometimes addressing his colleagues as “massa” in a deep slave dialect, according to the book.
Both men had health problems in the late 1970s, but both chose to stay on the bench. Brennan was persuaded in part by his family, who wondered what he would do with himself in retirement. Although unmentioned in the book, Marshall is famously reported to have bluntly rebuffed an inquiry from the Carter White House about his possible departure.
With a Democrat in the White House and a Democratic majority in the Senate, either or both of the justices might have retired with an expectation of a compatible successor. Both stayed on for a combination of personal and institutional reasons; their contributions over the next decade are in some sense negligible. Brennan lived long enough to see his successor, David H. Souter, emerge as an often likeminded justice; Marshall regretted his successor, Clarence Thomas.
The episodes buttress the arguments made for the proposal to modify justices’ tenure by limiting their active service on the court to 18 years. As previously suggested here (“Supreme Court Tenure: Too Much of a Good Thing?,” March 2, 2009), the proposal would promote healthy turnover at the court and defuse confirmation battles somewhat by reducing the stakes (the risks) of each new appointment. Despite support from a range of legal experts, however, the proposal is a dead letter politically. Neither party wants to give up the chance for a president to appoint a justice — a Roberts or a Kagan — who can serve for decades.
In his farewell letter this year, John Paul Stevens offered a mild apology to his fellow justices for his 34-year tenure. “If I have overstayed my welcome,” he wrote, “it is because this is such a wonderful and unique job.” Stevens was both sharp and collegial to the end, but his example is the proverbial exception that proves the rule. Age and wisdom may sometimes go hand in hand, but sometimes the better part of wisdom may be recognizing when they do not.
Monday, September 27, 2010
Judging Roberts: A Wide Strike Zone for Business
Chief Justice John G. Roberts Jr., former Reagan and Bush I administration lawyer and former corporate attorney, won Senate confirmation in 2005 after promising that he had no “agenda” for the Supreme Court. But five years later, no one should be surprised that Roberts and the court he leads have regularly favored business interests in the legal issues that business counts as high priorities.
Numbers help tell the story. Among 53 cases over the past five years where the U.S. Chamber of Commerce has participated, Roberts voted for the Chamber’s position 70 percent of the time, according to an analysis by the consumer-oriented Constitutional Accountability Center. In the 17 closely divided cases, Roberts batted 90 percent for business. By way of comparison, the four liberal justices (Stevens, Souter, Ginsburg, and Breyer) voted for the Chamber in the mid-30 to mid-40 percent range; Sotomayor was slightly lower, but with a small sample in her single term.
Roberts’ votes have helped give business victories in such areas as preemption, arbitration, securities fraud, and civil litigation. Business interests use preemption to rein in states that have more consumer-friendly state law or regulations than the federal government. They want courts to enforce take-it-or-leave-it arbitration contracts to force workers or consumers into a stacked dispute-resolution system and shut them out of courts. And business has worked tirelessly for decades to try to limit the ability of investors to recover for losses due to securities fraud or for consumers to be fully compensated for injuries from unsafe products.
In contrast to the overturned precedents discussed here last week [“Judging Roberts: Riding Roughshod Over Precedent”], Roberts and fellow Bush appointee Samuel A. Alito Jr. have not changed, but only fortified, the court’s orientation on these issues. “The Rehnquist Court was quite a good forum for business,” Maureen Mahoney, a corporate lawyer and former clerk to Chief Justice William H. Rehnquist, remarked at the end of Roberts’ second year as chief justice. “The Roberts Court is even better.”
Preemption cases remain somewhat hard to predict. Truckers and medical device manufacturers won preemption cases, but the court in 2008 rejected efforts by drug makers and tobacco companies to escape state court suits for inadequate warnings about their products. Roberts, however, has been consistent. With one exception in his first term, Roberts has always backed federal preemption, whether in the majority or in dissent.
On arbitration, the Roberts Court has continued the general pattern of rejecting efforts by workers or consumers to escape arbitration clauses in employment or purchase contracts. Some rulings have been by lopsided margins, but two significant decisions in 2010 came on 5-4 votes that pitted the Roberts-led conservatives against the liberal bloc.
The Rehnquist Court dealt investors a blow in 1994 by rejecting any “aiding and abetting” liability for securities fraud; the 5-4 ruling blocked a suit against a bank that had, unknowingly, helped further the fraudulent conduct. The Roberts Court took that ruling one step further in 2008 by freeing a company from securities fraud liability even if it had knowingly participated in the misconduct. The 5-3 vote was mostly along ideological lines; Alito was recused.
The Roberts Court has been somewhat more generous in interpreting federal job discrimination laws. In particular, it has actually widened protection for employees claiming retaliation for complaining about alleged discrimination. But one major ruling in 2009 made age-discrimination suits much more difficult to win. And the famous Ledbetter ruling in 2007 would have narrowed employers’ liability for pay discrimination but for the law Congress passed to overturn it.
Roberts pledged in the confirmation hearing that he would just call balls and strikes and let the political branches decide the rules of the game. But he dissented in 2007 when the liberals plus Kennedy read the Clean Air Act to require the Environmental Protection Agency to regulate “greenhouse gases.” And when Congress required the EPA to use the “best technology” available to “minimize” fish kills at electric power plants, Roberts joined the majority decision in 2009 to allow the agency to retreat from that standard by adopting a cost-benefit analysis. The decision could have saved electric utilities billions but for the Obama administration’s reversal of the Bush administration rule.
One big company that did save billions thanks to a Roberts Court decision is Exxon, which won a 5-3 decision in 2008 cutting a $2.5 billion punitive damage award for the Exxon Valdez oil spill by more than 80 percent to $500 million. Here, the Roberts Court itself defined the strike zone by using its power over federal maritime law to impose a 1-to-1 ratio of punitive to compensatory damages. True, the liberal Souter wrote the decision, but Roberts and three fellow conservatives provided the other votes.
The Chamber of Commerce prevailed in 64 percent of the cases counted by the Constitutional Accountability Center: not a bad batting average. That number includes the business community’s biggest win: the Citizens United decision in January freeing corporations to spend unlimited sums in political campaigns. After five Roberts Court years, Mahoney remains a fan. The Supreme Court, she told the Chamber of Commerce-sponsored preview of the coming term, is “the best court” in the country for getting what she called “a fair hearing” on business-related issues.
Numbers help tell the story. Among 53 cases over the past five years where the U.S. Chamber of Commerce has participated, Roberts voted for the Chamber’s position 70 percent of the time, according to an analysis by the consumer-oriented Constitutional Accountability Center. In the 17 closely divided cases, Roberts batted 90 percent for business. By way of comparison, the four liberal justices (Stevens, Souter, Ginsburg, and Breyer) voted for the Chamber in the mid-30 to mid-40 percent range; Sotomayor was slightly lower, but with a small sample in her single term.
Roberts’ votes have helped give business victories in such areas as preemption, arbitration, securities fraud, and civil litigation. Business interests use preemption to rein in states that have more consumer-friendly state law or regulations than the federal government. They want courts to enforce take-it-or-leave-it arbitration contracts to force workers or consumers into a stacked dispute-resolution system and shut them out of courts. And business has worked tirelessly for decades to try to limit the ability of investors to recover for losses due to securities fraud or for consumers to be fully compensated for injuries from unsafe products.
In contrast to the overturned precedents discussed here last week [“Judging Roberts: Riding Roughshod Over Precedent”], Roberts and fellow Bush appointee Samuel A. Alito Jr. have not changed, but only fortified, the court’s orientation on these issues. “The Rehnquist Court was quite a good forum for business,” Maureen Mahoney, a corporate lawyer and former clerk to Chief Justice William H. Rehnquist, remarked at the end of Roberts’ second year as chief justice. “The Roberts Court is even better.”
Preemption cases remain somewhat hard to predict. Truckers and medical device manufacturers won preemption cases, but the court in 2008 rejected efforts by drug makers and tobacco companies to escape state court suits for inadequate warnings about their products. Roberts, however, has been consistent. With one exception in his first term, Roberts has always backed federal preemption, whether in the majority or in dissent.
On arbitration, the Roberts Court has continued the general pattern of rejecting efforts by workers or consumers to escape arbitration clauses in employment or purchase contracts. Some rulings have been by lopsided margins, but two significant decisions in 2010 came on 5-4 votes that pitted the Roberts-led conservatives against the liberal bloc.
The Rehnquist Court dealt investors a blow in 1994 by rejecting any “aiding and abetting” liability for securities fraud; the 5-4 ruling blocked a suit against a bank that had, unknowingly, helped further the fraudulent conduct. The Roberts Court took that ruling one step further in 2008 by freeing a company from securities fraud liability even if it had knowingly participated in the misconduct. The 5-3 vote was mostly along ideological lines; Alito was recused.
The Roberts Court has been somewhat more generous in interpreting federal job discrimination laws. In particular, it has actually widened protection for employees claiming retaliation for complaining about alleged discrimination. But one major ruling in 2009 made age-discrimination suits much more difficult to win. And the famous Ledbetter ruling in 2007 would have narrowed employers’ liability for pay discrimination but for the law Congress passed to overturn it.
Roberts pledged in the confirmation hearing that he would just call balls and strikes and let the political branches decide the rules of the game. But he dissented in 2007 when the liberals plus Kennedy read the Clean Air Act to require the Environmental Protection Agency to regulate “greenhouse gases.” And when Congress required the EPA to use the “best technology” available to “minimize” fish kills at electric power plants, Roberts joined the majority decision in 2009 to allow the agency to retreat from that standard by adopting a cost-benefit analysis. The decision could have saved electric utilities billions but for the Obama administration’s reversal of the Bush administration rule.
One big company that did save billions thanks to a Roberts Court decision is Exxon, which won a 5-3 decision in 2008 cutting a $2.5 billion punitive damage award for the Exxon Valdez oil spill by more than 80 percent to $500 million. Here, the Roberts Court itself defined the strike zone by using its power over federal maritime law to impose a 1-to-1 ratio of punitive to compensatory damages. True, the liberal Souter wrote the decision, but Roberts and three fellow conservatives provided the other votes.
The Chamber of Commerce prevailed in 64 percent of the cases counted by the Constitutional Accountability Center: not a bad batting average. That number includes the business community’s biggest win: the Citizens United decision in January freeing corporations to spend unlimited sums in political campaigns. After five Roberts Court years, Mahoney remains a fan. The Supreme Court, she told the Chamber of Commerce-sponsored preview of the coming term, is “the best court” in the country for getting what she called “a fair hearing” on business-related issues.
Tuesday, September 21, 2010
Judging Roberts: Running Roughshod Over Precedent
It has been five years this month since Judge John G. Roberts Jr. went before the Senate Judiciary Committee seeking confirmation to be chief justice of the United States. Roberts won senators over with his legal knowledge, smooth demeanor, and personal charm. He also promised, if confirmed, to respect precedent, forswear any “agenda,” strive for fewer divided rulings, and decide cases like an idealized umpire — calling balls and strikes according to a strike zone defined by others, not by him.
The chief justice, of course, is not subject to reconfirmation. But if he were called on to answer for his record, how would Roberts be judged based on the promises he made in September 2005? Not that well.
Most troublingly, the Roberts Court has run roughshod over important legal precedents, not just in its ruling in January to free corporations in political campaigns but in many other ideologically divided decisions beginning as soon as Roberts’ second term. And most of those rulings fit with a consistent agenda of favoring corporations over workers and consumers and of narrowing individual rights.
As a nominee, Roberts stressed the importance of following precedent —the legal principle known as stare decisis — in promoting both stability and evenhandedness. “I do think that it is a jolt to the legal system when you overrule a precedent,” Roberts said. A judge should consider overruling a prior decision, he said, not because of personal disagreement, but only because of special factors such as the unworkability of the rule or the need to adapt to new circumstances.
Roberts has paid no more than lip services to those caveats as chief justice. By my count in The Supreme Court Yearbook, the Roberts Court has expressly overruled precedents eight times in Roberts’ five terms: somewhat above the historical average of about one such decision per year. In at least half a dozen other decisions by my count, the court has bent precedent so badly as to approach an overruling.
Admittedly, two of these rulings were unanimous: an 8-0 ruling in 2006 favoring patentholders that tie an unpatented item to their patented product and a 9-0 decision in 2009 changing the procedure in constitutional rights suits against government officials. And in another 2009 decision, the court strengthened individual rights by limiting the authority of police to search a vehicle after arresting the driver. Significantly, Roberts was among four dissenters in that case.
The other overruling cases all came on 5-4 votes that pitted the conservative majority (Roberts, Scalia, Kennedy, Thomas, and Alito) against the liberal bloc (Stevens, Ginsburg, Breyer and either Souter or in the most recent term Sotomayor). In 2007, the court buried a nearly century-old antitrust precedent that made it illegal for a manufacturer to dictate to retailers a minimum price for its product. In an otherwise insignificant case, the court decided that a missed deadline for filing a notice of appeal — in this case, because of wrong information from the court — requires dismissal of the appeal, no exceptions permitted.
Among the more controversial rulings, the court in 2009 trashed a Burger Court precedent by allowing police to initiate an interrogation of a suspect without notifying his or her lawyer. As Justice Stevens noted in dissent, the new rule gives a criminal suspect less protection than a defendant in a civil suit, who cannot be questioned by the opposing lawyer without notice to counsel.
The Citizens United campaign finance decision in January drove a huge loophole through a century-long rule barring corporate spending in federal campaigns. In a concurring opinion, Roberts sought to justify the majority’s decision to overrule two precedents, the most recent from 2003. Roberts posited a new and troubling justification for overruling prior decisions: “when a precedent’s validity is so hotly contested that it cannot reliably function as a basis for decision in future cases.” In effect, this criterion invites what Roberts said five years ago is impermissible: overruling a past decision because of personal disagreement.
The court finished its term in June with its decision to use the post-Civil War Fourteenth Amendment to extend the newly created Second Amendment individual gun right to state and local governments. That ruling explicitly overturned decisions from the late 19th century, written with the Fourteenth Amendment still in recent memory. And it built on the 2008 decision in the Washington, D.C., Heller case that itself rejected a 70-year-old precedent rejecting an individual right under the Second Amendment.
Among the bent precedents is the 2007 decision upholding a federal ban on so-called “partial birth abortions.” The ruling rode past the Roe v. Wade requirement that abortion regulations include an exception if necessary to protect a woman’s health. In the same, tumultuous term, Roberts led the court in rejecting many voluntary school integration plans and reducing to insignificance a central provision of the McCain-Feingold campaign finance law on election-time TV advertising. Other decisions significantly narrowed high school students’ free speech rights and taxpayers’ ability to challenge government actions on Establishment Clause grounds. All came on 5-4 votes in a term with the highest percentage of one-vote decisions ever in the court’s history.
Dissenting in the school integration case, Justice Breyer added a tart comment from the bench that applies all the more three terms later. “It is not often in the law that so few have so quickly changed so much,” Breyer said. With Roberts so young and the conservative majority so often so entrenched, the prospect is for more jolting changes ahead.
The chief justice, of course, is not subject to reconfirmation. But if he were called on to answer for his record, how would Roberts be judged based on the promises he made in September 2005? Not that well.
Most troublingly, the Roberts Court has run roughshod over important legal precedents, not just in its ruling in January to free corporations in political campaigns but in many other ideologically divided decisions beginning as soon as Roberts’ second term. And most of those rulings fit with a consistent agenda of favoring corporations over workers and consumers and of narrowing individual rights.
As a nominee, Roberts stressed the importance of following precedent —the legal principle known as stare decisis — in promoting both stability and evenhandedness. “I do think that it is a jolt to the legal system when you overrule a precedent,” Roberts said. A judge should consider overruling a prior decision, he said, not because of personal disagreement, but only because of special factors such as the unworkability of the rule or the need to adapt to new circumstances.
Roberts has paid no more than lip services to those caveats as chief justice. By my count in The Supreme Court Yearbook, the Roberts Court has expressly overruled precedents eight times in Roberts’ five terms: somewhat above the historical average of about one such decision per year. In at least half a dozen other decisions by my count, the court has bent precedent so badly as to approach an overruling.
Admittedly, two of these rulings were unanimous: an 8-0 ruling in 2006 favoring patentholders that tie an unpatented item to their patented product and a 9-0 decision in 2009 changing the procedure in constitutional rights suits against government officials. And in another 2009 decision, the court strengthened individual rights by limiting the authority of police to search a vehicle after arresting the driver. Significantly, Roberts was among four dissenters in that case.
The other overruling cases all came on 5-4 votes that pitted the conservative majority (Roberts, Scalia, Kennedy, Thomas, and Alito) against the liberal bloc (Stevens, Ginsburg, Breyer and either Souter or in the most recent term Sotomayor). In 2007, the court buried a nearly century-old antitrust precedent that made it illegal for a manufacturer to dictate to retailers a minimum price for its product. In an otherwise insignificant case, the court decided that a missed deadline for filing a notice of appeal — in this case, because of wrong information from the court — requires dismissal of the appeal, no exceptions permitted.
Among the more controversial rulings, the court in 2009 trashed a Burger Court precedent by allowing police to initiate an interrogation of a suspect without notifying his or her lawyer. As Justice Stevens noted in dissent, the new rule gives a criminal suspect less protection than a defendant in a civil suit, who cannot be questioned by the opposing lawyer without notice to counsel.
The Citizens United campaign finance decision in January drove a huge loophole through a century-long rule barring corporate spending in federal campaigns. In a concurring opinion, Roberts sought to justify the majority’s decision to overrule two precedents, the most recent from 2003. Roberts posited a new and troubling justification for overruling prior decisions: “when a precedent’s validity is so hotly contested that it cannot reliably function as a basis for decision in future cases.” In effect, this criterion invites what Roberts said five years ago is impermissible: overruling a past decision because of personal disagreement.
The court finished its term in June with its decision to use the post-Civil War Fourteenth Amendment to extend the newly created Second Amendment individual gun right to state and local governments. That ruling explicitly overturned decisions from the late 19th century, written with the Fourteenth Amendment still in recent memory. And it built on the 2008 decision in the Washington, D.C., Heller case that itself rejected a 70-year-old precedent rejecting an individual right under the Second Amendment.
Among the bent precedents is the 2007 decision upholding a federal ban on so-called “partial birth abortions.” The ruling rode past the Roe v. Wade requirement that abortion regulations include an exception if necessary to protect a woman’s health. In the same, tumultuous term, Roberts led the court in rejecting many voluntary school integration plans and reducing to insignificance a central provision of the McCain-Feingold campaign finance law on election-time TV advertising. Other decisions significantly narrowed high school students’ free speech rights and taxpayers’ ability to challenge government actions on Establishment Clause grounds. All came on 5-4 votes in a term with the highest percentage of one-vote decisions ever in the court’s history.
Dissenting in the school integration case, Justice Breyer added a tart comment from the bench that applies all the more three terms later. “It is not often in the law that so few have so quickly changed so much,” Breyer said. With Roberts so young and the conservative majority so often so entrenched, the prospect is for more jolting changes ahead.
Sunday, September 19, 2010
Judging Roberts: Running Roughshod Over Precedent
It has been five years this month since Judge John G. Roberts Jr. went before the Senate Judiciary Committee seeking confirmation to be chief justice of the United States. Roberts won senators over with his legal knowledge, smooth demeanor, and personal charm. He also promised, if confirmed, to respect precedent, forswear any “agenda,” strive for fewer divided rulings, and decide cases like an idealized umpire — calling balls and strikes according to a strike zone defined by others, not by him.
The chief justice, of course, is not subject to reconfirmation. But if he were called on to answer for his record, how would Roberts be judged based on the promises he made in September 2005? Not that well.
Most troublingly, the Roberts Court has run roughshod over important legal precedents, not just in its ruling in January to free corporations in political campaigns but in many other ideologically divided decisions beginning as soon as Roberts’ second term. And most of those rulings fit with a consistent agenda of favoring corporations over workers and consumers and of narrowing individual rights.
As a nominee, Roberts stressed the importance of following precedent —the legal principle known as stare decisis — in promoting both stability and evenhandedness. “I do think that it is a jolt to the legal system when you overrule a precedent,” Roberts said. A judge should consider overruling a prior decision, he said, not because of personal disagreement, but only because of special factors such as the unworkability of the rule or the need to adapt to new circumstances.
Roberts has paid no more than lip services to those caveats as chief justice. By my count in The Supreme Court Yearbook, the Roberts Court has expressly overruled precedents eight times in Roberts’ five terms: somewhat above the historical average of about one such decision per year. In at least half a dozen other decisions by my count, the court has bent precedent so badly as to approach an overruling.
Admittedly, two of these rulings were unanimous: an 8-0 ruling in 2006 favoring patentholders that tie an unpatented item to their patented product and a 9-0 decision in 2009 changing the procedure in constitutional rights suits against government officials. And in another 2009 decision, the court strengthened individual rights by limiting the authority of police to search a vehicle after arresting the driver. Significantly, Roberts was among four dissenters in that case.
The other overruling cases all came on 5-4 votes that pitted the conservative majority (Roberts, Scalia, Kennedy, Thomas, and Alito) against the liberal bloc (Stevens, Ginsburg, Breyer and either Souter or in the most recent term Sotomayor). In 2007, the court buried a nearly century-old antitrust precedent that made it illegal for a manufacturer to dictate to retailers a minimum price for its product. In an otherwise insignificant case, the court decided that a missed deadline for filing a notice of appeal — in this case, because of wrong information from the court — requires dismissal of the appeal, no exceptions permitted.
Among the more controversial rulings, the court in 2009 trashed a Burger Court precedent by allowing police to initiate an interrogation of a suspect without notifying his or her lawyer. As Justice Stevens noted in dissent, the new rule gives a criminal suspect less protection than a defendant in a civil suit, who cannot be questioned by the opposing lawyer without notice to counsel.
The Citizens United campaign finance decision in January drove a huge loophole through a century-long rule barring corporate spending in federal campaigns. In a concurring opinion, Roberts sought to justify the majority’s decision to overrule two precedents, the most recent from 2003. Roberts posited a new and troubling justification for overruling prior decisions: “when a precedent’s validity is so hotly contested that it cannot reliably function as a basis for decision in future cases.” In effect, this criterion invites what Roberts said five years ago is impermissible: overruling a past decision because of personal disagreement.
The court finished its term in June with its decision to use the post-Civil War Fourteenth Amendment to extend the newly created Second Amendment individual gun right to state and local governments. That ruling explicitly overturned decisions from the late 19th century, written with the Fourteenth Amendment still in recent memory. And it built on the 2008 decision in the Washington, D.C., Heller case that itself rejected a 70-year-old precedent rejecting an individual right under the Second Amendment.
Among the bent precedents is the 2007 decision upholding a federal ban on so-called “partial birth abortions.” The ruling rode past the Roe v. Wade requirement that abortion regulations include an exception if necessary to protect a woman’s health. In the same, tumultuous term, Roberts led the court in rejecting many voluntary school integration plans and reducing to insignificance a central provision of the McCain-Feingold campaign finance law on election-time TV advertising. Other decisions significantly narrowed high school students’ free speech rights and taxpayers’ ability to challenge government actions on Establishment Clause grounds. All came on 5-4 votes in a term with the highest percentage of one-vote decisions ever in the court’s history.
Dissenting in the school integration case, Justice Breyer added a tart comment from the bench that applies all the more three terms later. “It is not often in the law that so few have so quickly changed so much,” Breyer said. With Roberts so young and the conservative majority so often so entrenched, the prospect is for more jolting changes ahead.
The chief justice, of course, is not subject to reconfirmation. But if he were called on to answer for his record, how would Roberts be judged based on the promises he made in September 2005? Not that well.
Most troublingly, the Roberts Court has run roughshod over important legal precedents, not just in its ruling in January to free corporations in political campaigns but in many other ideologically divided decisions beginning as soon as Roberts’ second term. And most of those rulings fit with a consistent agenda of favoring corporations over workers and consumers and of narrowing individual rights.
As a nominee, Roberts stressed the importance of following precedent —the legal principle known as stare decisis — in promoting both stability and evenhandedness. “I do think that it is a jolt to the legal system when you overrule a precedent,” Roberts said. A judge should consider overruling a prior decision, he said, not because of personal disagreement, but only because of special factors such as the unworkability of the rule or the need to adapt to new circumstances.
Roberts has paid no more than lip services to those caveats as chief justice. By my count in The Supreme Court Yearbook, the Roberts Court has expressly overruled precedents eight times in Roberts’ five terms: somewhat above the historical average of about one such decision per year. In at least half a dozen other decisions by my count, the court has bent precedent so badly as to approach an overruling.
Admittedly, two of these rulings were unanimous: an 8-0 ruling in 2006 favoring patentholders that tie an unpatented item to their patented product and a 9-0 decision in 2009 changing the procedure in constitutional rights suits against government officials. And in another 2009 decision, the court strengthened individual rights by limiting the authority of police to search a vehicle after arresting the driver. Significantly, Roberts was among four dissenters in that case.
The other overruling cases all came on 5-4 votes that pitted the conservative majority (Roberts, Scalia, Kennedy, Thomas, and Alito) against the liberal bloc (Stevens, Ginsburg, Breyer and either Souter or in the most recent term Sotomayor). In 2007, the court buried a nearly century-old antitrust precedent that made it illegal for a manufacturer to dictate to retailers a minimum price for its product. In an otherwise insignificant case, the court decided that a missed deadline for filing a notice of appeal — in this case, because of wrong information from the court — requires dismissal of the appeal, no exceptions permitted.
Among the more controversial rulings, the court in 2009 trashed a Burger Court precedent by allowing police to initiate an interrogation of a suspect without notifying his or her lawyer. As Justice Stevens noted in dissent, the new rule gives a criminal suspect less protection than a defendant in a civil suit, who cannot be questioned by the opposing lawyer without notice to counsel.
The Citizens United campaign finance decision in January drove a huge loophole through a century-long rule barring corporate spending in federal campaigns. In a concurring opinion, Roberts sought to justify the majority’s decision to overrule two precedents, the most recent from 2003. Roberts posited a new and troubling justification for overruling prior decisions: “when a precedent’s validity is so hotly contested that it cannot reliably function as a basis for decision in future cases.” In effect, this criterion invites what Roberts said five years ago is impermissible: overruling a past decision because of personal disagreement.
The court finished its term in June with its decision to use the post-Civil War Fourteenth Amendment to extend the newly created Second Amendment individual gun right to state and local governments. That ruling explicitly overturned decisions from the late 19th century, written with the Fourteenth Amendment still in recent memory. And it built on the 2008 decision in the Washington, D.C., Heller case that itself rejected a 70-year-old precedent rejecting an individual right under the Second Amendment.
Among the bent precedents is the 2007 decision upholding a federal ban on so-called “partial birth abortions.” The ruling rode past the Roe v. Wade requirement that abortion regulations include an exception if necessary to protect a woman’s health. In the same, tumultuous term, Roberts led the court in rejecting many voluntary school integration plans and reducing to insignificance a central provision of the McCain-Feingold campaign finance law on election-time TV advertising. Other decisions significantly narrowed high school students’ free speech rights and taxpayers’ ability to challenge government actions on Establishment Clause grounds. All came on 5-4 votes in a term with the highest percentage of one-vote decisions ever in the court’s history.
Dissenting in the school integration case, Justice Breyer added a tart comment from the bench that applies all the more three terms later. “It is not often in the law that so few have so quickly changed so much,” Breyer said. With Roberts so young and the conservative majority so often so entrenched, the prospect is for more jolting changes ahead.
Monday, September 13, 2010
No Day in Court for Victims of Official Torture
For wherever the common law gives a right or prohibits an injury, it also gives a remedy by action.
For every wrong, a remedy: the principle is as old as Blackstone. But five victims of post-9/11 torture conducted or colluded in by the United States government had the door to the courthouse slammed in their faces last week. And the ruling by a federal appeals court came at the behest of the Obama administration, which had seemingly promised to turn the page on the detention and interrogation policies pursued for eight years under President George W. Bush.
With acknowledged reluctance, the federal appeals court in San Francisco last week [Sept. 8] upheld an effort by the United States government to dismiss a suit by five foreigners seeking a remedy for what was from all that appears their wrongful apprehension by the United States and subsequent torture by U.S. forces or at the hands of foreign governments with U.S. connivance. The reason: the story of their abusive mistreatment might lead to the disclosure of “state secrets” that national security supposedly requires to be kept, well, secret.
The five men sued not the United States, but a private airline, Jeppesen Dataplan, a Boeing subsidiary, which was identified in a sworn deposition as the Central Intelligence Agency’s charter company for the so-called “extraordinary rendition” of suspected enemy combatants. Without waiting for Jeppesen to respond, the Justice Department filed a motion to dismiss the suit on the grounds of the state secrets privilege. This controversial judicial doctrine has been invoked as often as not to avoid embarrassment to the government, not to protect real government secrets.
Under wraps, the government told at least some of the secrets of the plaintiffs’ detention and interrogation to the judges of the Ninth U.S. Circuit Court of Appeals. Among a panel of 11 judges, six were sufficiently persuaded to dismiss the torture victims’ suit. The five dissenting judges argued the case should proceed with the plaintiffs allowed to make their case on the basis of information already publicly known. Under the dissenters’ view, the government could seek to limit the evidence in a trial, but not prevent the trial altogether.
News coverage of the ruling, Mohamed v. Jeppesen Dataplan, Inc., has glossed over the plaintiffs’ stories. They bear repeating, at least in summary form. Their allegations are as yet untested in court, but many of the details have been acknowledged — by other governments, if not by the United States.
Lead plaintiff Binyam Mohamed, an Ethiopian and legal resident of Britain, was arrested in Pakistan and transferred to Morocco, where he was held for 18 months and subjected to “severe physical and psychological torture” that included scalpel cuts all over his body, including his penis. Later, he was transferred to a CIA “black site” prison for more abusive treatment and eventually to Guantanamo for five years before being released to Britain.
Among other plaintiffs, Ahmed Agiza, an Egyptian, was arrested while seeking asylum in Sweden and returned to Egypt, where he was beaten and subjected to electric shock; he was eventually tried in an Egyptian military court and, after a six-hour trial, sentenced to 15 years in prison. Abou Elkassim Britel, an Italian of Moroccan origin, was arrested in Pakistan and transported to Morocco, where he was beaten and threatened with sexual torture; he was convicted of terrorism-related charges on the basis of what he contends was a false confession and sentenced to 15 years’ imprisonment.
Plaintiffs Bisher al-Rawi, an Iraqi, and Farag Ahmad Bashmilah, a Yemeni, both say they suffered mistreatment at the hands of U.S. authorities in Afghanistan and — in Bashmilah’s case — in a CIA prison. Both are now free: al Rawi was returned to the United Kingdom, where he is a legal resident; Bashmilah was convicted of a “trivial” crime in Yemen and released on the basis of time served.
Those stories are worth telling here because, if the government gets its way, they will not be told in court. Indeed, as the plaintiffs’ lawyer, American Civil Liberties Union staff attorney Ben Wizner, noted, “To date, not a single victim of the Bush administration's torture program has had his day in court.”
Candidate Barack Obama appeared to promise a changed attitude on the issues. As president, however, he has done no more than to end the discredited practices. He has given the victims no redress nor taken steps to ensure that the full story of post-9/11 torture be told. Indeed, despite a promise to invoke the state secrets privilege sparingly, Attorney General Eric Holder personally approved use of the privilege in this case to bar the trial altogether.
In its ruling, the Ninth Circuit suggested non-court remedies for the plaintiffs, including reparations by the government and a full congressional investigation. For its part, the ACLU promises an appeal to the Supreme Court. The prospects of an appeal, however, are not good; the justices rejected a similar appeal last year. As for the appeals court’s suggestions, they would come, if at all, only after more time has passed — recalling another legal maxim: “Justice delayed is justice denied.”
Blackstone, Commentaries on the Law of England (1765-1769)
* * *
For every wrong, a remedy: the principle is as old as Blackstone. But five victims of post-9/11 torture conducted or colluded in by the United States government had the door to the courthouse slammed in their faces last week. And the ruling by a federal appeals court came at the behest of the Obama administration, which had seemingly promised to turn the page on the detention and interrogation policies pursued for eight years under President George W. Bush.
With acknowledged reluctance, the federal appeals court in San Francisco last week [Sept. 8] upheld an effort by the United States government to dismiss a suit by five foreigners seeking a remedy for what was from all that appears their wrongful apprehension by the United States and subsequent torture by U.S. forces or at the hands of foreign governments with U.S. connivance. The reason: the story of their abusive mistreatment might lead to the disclosure of “state secrets” that national security supposedly requires to be kept, well, secret.
The five men sued not the United States, but a private airline, Jeppesen Dataplan, a Boeing subsidiary, which was identified in a sworn deposition as the Central Intelligence Agency’s charter company for the so-called “extraordinary rendition” of suspected enemy combatants. Without waiting for Jeppesen to respond, the Justice Department filed a motion to dismiss the suit on the grounds of the state secrets privilege. This controversial judicial doctrine has been invoked as often as not to avoid embarrassment to the government, not to protect real government secrets.
Under wraps, the government told at least some of the secrets of the plaintiffs’ detention and interrogation to the judges of the Ninth U.S. Circuit Court of Appeals. Among a panel of 11 judges, six were sufficiently persuaded to dismiss the torture victims’ suit. The five dissenting judges argued the case should proceed with the plaintiffs allowed to make their case on the basis of information already publicly known. Under the dissenters’ view, the government could seek to limit the evidence in a trial, but not prevent the trial altogether.
News coverage of the ruling, Mohamed v. Jeppesen Dataplan, Inc., has glossed over the plaintiffs’ stories. They bear repeating, at least in summary form. Their allegations are as yet untested in court, but many of the details have been acknowledged — by other governments, if not by the United States.
Lead plaintiff Binyam Mohamed, an Ethiopian and legal resident of Britain, was arrested in Pakistan and transferred to Morocco, where he was held for 18 months and subjected to “severe physical and psychological torture” that included scalpel cuts all over his body, including his penis. Later, he was transferred to a CIA “black site” prison for more abusive treatment and eventually to Guantanamo for five years before being released to Britain.
Among other plaintiffs, Ahmed Agiza, an Egyptian, was arrested while seeking asylum in Sweden and returned to Egypt, where he was beaten and subjected to electric shock; he was eventually tried in an Egyptian military court and, after a six-hour trial, sentenced to 15 years in prison. Abou Elkassim Britel, an Italian of Moroccan origin, was arrested in Pakistan and transported to Morocco, where he was beaten and threatened with sexual torture; he was convicted of terrorism-related charges on the basis of what he contends was a false confession and sentenced to 15 years’ imprisonment.
Plaintiffs Bisher al-Rawi, an Iraqi, and Farag Ahmad Bashmilah, a Yemeni, both say they suffered mistreatment at the hands of U.S. authorities in Afghanistan and — in Bashmilah’s case — in a CIA prison. Both are now free: al Rawi was returned to the United Kingdom, where he is a legal resident; Bashmilah was convicted of a “trivial” crime in Yemen and released on the basis of time served.
Those stories are worth telling here because, if the government gets its way, they will not be told in court. Indeed, as the plaintiffs’ lawyer, American Civil Liberties Union staff attorney Ben Wizner, noted, “To date, not a single victim of the Bush administration's torture program has had his day in court.”
Candidate Barack Obama appeared to promise a changed attitude on the issues. As president, however, he has done no more than to end the discredited practices. He has given the victims no redress nor taken steps to ensure that the full story of post-9/11 torture be told. Indeed, despite a promise to invoke the state secrets privilege sparingly, Attorney General Eric Holder personally approved use of the privilege in this case to bar the trial altogether.
In its ruling, the Ninth Circuit suggested non-court remedies for the plaintiffs, including reparations by the government and a full congressional investigation. For its part, the ACLU promises an appeal to the Supreme Court. The prospects of an appeal, however, are not good; the justices rejected a similar appeal last year. As for the appeals court’s suggestions, they would come, if at all, only after more time has passed — recalling another legal maxim: “Justice delayed is justice denied.”
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