The Washington Independent - U.S. news and politics - washingtonindependent.com: Stories by Herman Schwartz

Court of the People?

Herman Schwartz — Fri, 29 Feb 2008 13:42:55 GMT

Democratic presidential candidates rarely mention the courts, while Republicans talk about them all the time. The reason is obvious: Both sides believe talking about the courts raises socially incendiary issues like abortion and gay marriage that can hurt Democrats and help Republicans.

Democrats needn’t be so frightened. Most Americans now worry more about health care, Social Security, retirement benefits, product safety and global warming than about whether gays get a marriage certificate. The courts play a crucial role in these matters, and the reactionary views of Chief Justice John Roberts and his allies on both the Supreme Court and the lower courts threaten to shred whatever benefits and protections these laws provide.

But thinking about the courts is important to do now. The next president will probably have two, maybe three, appointees: Justice John Paul Stevens is nearly 88; Justice David Souter, 68, is eager to return to New Hampshire, and Justice Ruth Bader Ginsburg, 75, has had cancer. Numerous vacancies on the lower courts are also inevitable. The appointments that the next president makes could shape the federal judiciary for decades.

Though most public attention has focused on the social issues, these cases come before federal judges only occasionally, and have not been the primary target of conservative and right-wing judges. A more frequently pursued goal -- and one that rarely receives attention -- is shutting the court house door to those wrongly injured by public officials and others.

This effort began in earnest in 1972, when the late Chief Justice William H. Rehnquist and Justice Lewis Powell advanced to the court. In the 80s, the Reagan-Bush appointees, Antonin Scalia, Clarence Thomas, Anthony M. Kennedy and Sandra Day O’Connor, joined in. These justices overturned prior decisions, concocted or expanded restrictive constitutional theories and interpreted federal statutes in ways Congress never intended.

Here are a few examples:

Standing

Persons who can show they have actually been injured by unlawful conduct have “standing” -- the right to sue -- in federal court. Shortly after Rehnquist and Powell joined the high court, four narrowly decided cases denied taxpayers and citizens the right to judicially enforce the constitutional requirements that all government expenditures be made public and that no member of the armed forces –- like Sens. Barry M. Goldwater and Lindsay Graham, reserve military officers –- may serve in Congress.

Two other decisions prevented welfare recipients from challenging the IRS’s failure to require non-profit hospitals to serve the poor if they wanted a tax exemption, and threw out suits by low- and moderate-income residents of Rochester, N.Y., who challenged a suburban zoning law effectively keeping them out of the suburb. Then, in 1984, a 5-4 majority ruled that children in formerly segregated schools in seven states could not challenge the Reagan administration IRS’s grant of tax exemptions to local private schools that excluded black children, allowing whites to avoid desegregation. Later cases have narrowed standing even further. Last June, a 5-4 decision blocked a suit against some of President George W. Bush’s faith-based initiatives.

Preemption

When Congress passes a statute, it may want to exclude any state involvement. Until recently, a concern for states rights, long a favorite of the right, usually resulted in not barring state involvement in enforcing a statute -- unless Congress made clear it wanted to keep the states out. But when state law is more protective of consumers, workers, investors and others than the federal law, that has now changed.

Just last week, the Supreme Court ruled that Medtronic, the maker of a catheter approved by the Food and Drug Administration that exploded and killed a patient, was immune to a state damages suit (there is no federal right to damages). Sen. Edward M. Kennedy, the Senate sponsor of the bill, and Rep. Henry A. Waxman, who was on the House Committee that wrote the federal law on medical devices, protested angrily. Kennedy said, “Congress never intended that FDA approval would give blanket immunity to manufacturers from liability for injuries caused by defective devices.” The decision will result in blocking many personal injury suits for heart stents, breast implants, artificial hips and other devices that prove defective.

Medtronic is not the only such decision. The court barred state law suits in cases involving efforts to limit tobacco advertising to minors, as well as suits by defrauded investors, retirees, automobile accident victims and others.

Private suits to enforce federal statutes

In some cases, Congress doesn’t make clear that beneficiaries of legislation, like Medicare, Medicaid and anti-discrimination laws, may sue for violations of their rights under those laws. It is often obvious, however, that they should have that right: government agencies move sluggishly, and no one has more of an interest in pursuing a matter than the intended beneficiary.

Decisions during the 1970s and 80s, a period that Scalia recently called “the bad old days,” reflected this attitude. The courts authorized suits by those injured by public or private misconduct unless the law indicated otherwise. Recently, however, the Supreme Court’s conservative wing has made it clear that, in Roberts’'s words last week, there is a “new approach to statutory interpretation” and potential plaintiffs will not be allowed to sue unless Congress explicitly says they can. This will require changing numerous statutes passed on the assumption that private suits would be allowed. In today’s gridlocked Congresses, that will be difficult.

Attorneys fees

Many victims of civil rights and other violations are too poor to pay for a lawyer, and few lawyers are eager to take such cases, especially if there is little money. Congress, therefore, decided to reverse the usual rule that each party covers its own costs and require the award of legal fees in civil rights cases to the “prevailing party.”

Here, too, the court has ignored what Congress intended. In 2001, a 5-4 majority relying on a dictionary definition of “prevailing party” ruled that if the defendant abandons its wrongful conduct in response to a suit, but there is no favorable judgment or court-ordered settlement, no fees will be awarded to the plaintiffs’ lawyers-- though the suit brought the plaintiffs all they wanted. All but one federal appeals court had ruled the other way. In response to the decision, former representative Father Robert Drinan, floor manager for the attorneys fee legislation, complained that the decision “sets aside the explicit directives of Congress” [letter WP 7/31/2001]. The decision encourages defendants to stall, run up the costs and, if they then expect to lose, change their policy before trial.

National Security

The most recent attempt to shut the courthouse door is the White House effort, supported by many Reagan-Bush judges, to block any judicial scrutiny of the administration’s actions toward detainees at Guantanamo, trials of alleged war criminals by military commissions and the government’s warrantless electronic surveillance. But for the drift to the other side by Justice Kennedy, this effort would have succeeded. For many of the Bush-Reagan appointees on both the Supreme Court and the lower courts have given the administration all, or almost all, of the shield it wanted -- often extending state secrets and judicial deference principles far beyond prior decisions. Because some of these cases are still pending, the outcome of this effort is still uncertain.

These doctrines and stratagems are all judge-made and reopening the courthouse doors to citizens seeking some justice will require a radical change in the makeup of the federal judiciary.

If Sen. John McCain wins, however, he is most likely to continue the Reagan-Bush model -- if only because he is sure to anger the right-wing in his party and he will need to appease them. Indeed, Dr. James Dobson has already announced he will not support McCain because the senator helped broker a deal on judicial appointments in 2005. McCain has how been advised to stress his intention to nominate judges like Roberts and Alito, which he has already begun to do.

Voters should keep this important role of the courts in mind -- no matter what the candidates do or don’t say.

Herman Schwartz, a professor of constitutional law at American University, is the author of "Right Wing Justice: The Conservative Campaign to Take over the Courts" and "The Rehnquist Court: Judicial Activism on the Right."

SCOTUS Reins in President

Herman Schwartz — Mon, 23 Jun 2008 23:41:44 GMT

The Supreme Court's Boumediene v. Bush decision earlier this month on the treatment of alleged enemy combatants at the Guantanamo Bay, Cuba, signals the end of the Bush administration's effort to set the presidency above the rule of law. The long-term significance of this defeat, however, now turns on whether Sen. John McCain (R-Ariz.) or Sen. Barack Obama (D-Ill.) takes the Oval Office next January.

Ever since 9/11, the Bush administration has insisted on a free hand on all national-security and related foreign-affairs issues. Its initial demand was breathtaking -- neither the courts nor Congress could impose any on limit on how President George W. Bush exercised his powers as commander-in-chief.

Supreme Court justices don't like to be told they are powerless; and in Hamdi v. Rumsfeld (2004) all but Justice Clarence Thomas rebuffed the executive branch.

Two more cases followed, in which the administration's demands were rejected. In Rasul v. Bush, decided the same day as Hamdi, the first of three bitterly divided decisions, a 5-4 majority refused to let the administration make Guantanamo Bay a legal no-mans land. Two years later, in Hamdan v. Rumsfeld, the same justices blocked an effort to prosecute suspected terrorists without complying with the Uniform Code of Military Justice and the Geneva Conventions.

Both decisions relied largely on the applicable statutes -- in effect allowing Congress to grant the president more authority. Which Congress promptly did. It passed the Military Commissions Act of 2006, eliminating all meaningful judicial review of the Justice Dept.'s treatment of alleged enemy combatants by habeas corpus or otherwise, thereby setting the stage for a head-on constitutional clash in Boumediene. In a strongly worded opinion by Justice Anthony M. Kennedy, the current swing vote in these cases, a 5-4 majority rebuffed both the president and Congress.

The court first reaffirmed that because Washington exercises total control over Guantanamo, it is indeed a part of the United States and habeas corpus is available to those held there. The court then ruled that the U.S. Constitution separate powers clauses establishes an irreplaceable role for the judiciary. This was why the habeas corpus writ was first devised. The court ruled that Congress' effort to replace the writ with a military hearing and limited judicial review was unconstitutional.

Chief Justice John Roberts, writing for the four dissenters -- himself and Justices Antonin Scalia, Samuel Alito and Thomas -- protested that the court had struck down "as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants." Hardly. Even allowing for a dissenter's right to hyperbole, Roberts' claim is demonstrably wrong. The military hearing and judicial review established by Congress are separately and together "inadequate."

The military hearing phase was created in response to the Hamdi case. In July 2004 the Defense Dept. created Combatant Status Review Tribunals, or CSRTs, to determine which of the approximately 775 aliens picked up in Afghanistan, Bosnia, Gambia and elsewhere were "enemy combatants," subject to detention until the "war on terror" ended.

Within four to six months, approximately 560 CSRTs were rushed through. Detainees were not allowed counsel, but were given a member of the military, a "Personal Representative," to help them with their defense. Though, in Hamdi, the Supreme Court had insisted that detainees be told the facts behind their detention, and ensured a "fair opportunity to rebut the government's factual assertion before a neutral decision-maker," that opportunity was rarely, if ever, provided.

First, the Detainee Treatment Act of 2005, (DTA) authorizes the CSRTs to use evidence obtained by "coercion" if it is "probative." No civilized country allows such evidence and no habeas court would admit it. Nonetheless, coercion was used routinely at Guantanamo and the information was used in the CSRTs. For example, Mamdouh Habib testified that he had been sent by the United States to Egypt, where he was subjected to severe beatings, locked in handcuffs in a room that filled with water to just below his chin as he stood for hours and suspended from a wall with his feet on an electrified cylindrical drum. While undergoing this, he admitted to many things he later claimed never to have done, which the CSRT used to find him an enemy combatant. It never bothered to decide whether he had, in fact, been tortured.

Second, the detainees were not told the facts behind their detention -- as the Hamdi decision required -- because the CSRTs almost always relied on classified information. For example, Mustafa Ait Idr, who was picked up in Bosnia, was charged with "associating with a known al Qaeda operative" while living there. When Idr asked for the operative's name, the following took place:

Tribunal President: I do not know.

Detainee: How can I respond to this?

Tribunal President: Did you know of anybody that was a member of Al Qaeda?

Detainee: No, no... I asked the interrogators to tell me who this person was. Then I could tell you if I might have known this person, but not if this person is a terrorist. Maybe I knew this person as a friend. Maybe it was a person that worked with me. Maybe it was a person that was on my team. But I do not know if this person is Bosnian, Indian or whatever. If you tell me the name, then I can respond and defend myself against this accusation.

Third, the Personal Representative rarely if ever tried to find exculpatory evidence. Lt. Col. Stephen Abraham, a decorated reserve officer with 25 years of intelligence work, reviewed the process. In affidavits submitted last year he revealed that: detainees' claims were not checked; readily available unclassified sources that might corroborate detainee statements were not investigated, detainees were unable to obtain evidence from witnesses they identified and, in general, requests by a detainee were often ignored.

One example is the case of Murat Kurnaz, a Turkish national who is a German permanent resident. Two years after being picked up in Pakistan, Kurnaz was told at his CSRT that he was being held because he had associated with a Selcuk Belgin, an alleged terrorist who had blown himself up in a suicide bombing while Kurnaz was in detention.

All that Kurnaz could do at his CSRT was to reply "I never had any reason to suspect he was a terrorist." In a later court proceedings, Kurnaz got a lawyer. Within 24 hours, the lawyer had exculpatory affidavits not only from the German prosecutor but from Belgin-- who was alive and well in Germany, a Dresden resident not involved in terrorism.

An additional problem for a detainee, as noted by Kennedy, is that "there are in effect no limits on hearsay . . . [which under DOD rules need only be] 'relevant and helpful' . . .[so that] the detainee's opportunity to question witnesses is likely to be more theoretical than real."

Finally, the CSRT tribunal is not neutral, but part of the military chain of command. It is not designed so that two sides challenge each other and an impartial tribunal decides, but simply to accuse the detainee. The Defense Dept. has admitted that in the rare cases where a detainee was found not to be an enemy combatant, the CSRT was redone.

The judicial review of the CSRTs is also flawed. Though habeas corpus is crucial to the rule of law, it can be replaced by a procedure equally protective. This means that the substitute must not only ensure that the procedures comport with due process of law but also that the findings are factually sound. The court must therefore be able to hear any exculpatory evidence unavailable to the initial tribunal.

Though the administration argued that the DTA provided an adequate substitute, the DTA does not allow the reviewing court to hear such new or exculpatory evidence -- only to decide whether the tribunal followed the CSRT procedures and whether they are lawful. DTA review also disallows challenges to general conditions of confinement or to the treatment of individual detainees, frequent subjects of habeas review.

Momentous as it is, the court's Boumediene decision leaves many questions unanswered. The court did not specify the procedures required for a CSRT to be constitutionally acceptable or the legal criteria for determining who is an enemy combatant. It also declined to decide whether habeas corpus is available to challenge conditions of confinement or treatment.

All these issues will have to be decided by the lower courts or Congress, and, ultimately, by the Supreme Court. This means that, after almost six-and-a-half years of confinement, the 270 or so Guantanamo detainees face more years of uncertainty.

Even apart from this, the story is far from over. The next president will have at least one, probably two and possibly three Supreme Court vacancies. All but the Hamdi ruling were bitterly divided decisions, in which the dissenters predicted the most dire consequences -- Scalia's warned in his Boumediene dissent that the decision "will almost certainly cause more Americans to be killed."

Though McCain's first reaction to Boumediene was measured, the day after the decision he called it "one of the worst decisions in the history of this country." He is trying to make it a campaign issue, since Obama praised the ruling. Since McCain has said he would appoint justices like Roberts and Alito, if he wins in November,then Boumediene, and probably Rasul, will almost certainly be either overturned or drained of any significance. Other national-security cases now on their way to the high court are likely to come out the same way.

One way or another, to cite Mr. Dooley, the Supreme Court will follow the election returns -- as always.