A new report from the U.S. House Armed Services Committee blasted President George W. Bush’s use of presidential signing statements as infringing on congressional oversight of national defense policy. Steven Aftergood reported on the Armed Services document for Secrecy News. The committee’s report concluded that the president’s signing statements have too often failed to provide specific objections to legislation. “The functionality of a signing statement is greatly reduced if it is too vague to identify the concerns of the President and the interpretation of the law that the President is trying to convey to the executive branch,” the committee report stated. The report noted that presidential signing statements can be used to proper effect, but that “signing statements may be a mechanism to expand executive authority at the expense of the legislature.”

Charlie Savage reported earlier this year for the Boston Globe on Bush’s assertion, made in a signing statement, that the president has the power to bypass provisions of laws passed by Congress.

Neil Kinkopf, a law professor at Georgia State University College of Law, helped create a comprehensive index of the president’s signing statements issued between 2001 – 2007. The document, available here, provides the provisions of legislation the administration tried to flag as objectionable. For more analysis of the administration’s use of signing statements, see Kinkopf’s ACS Issue Brief called “Signing Statements and the President’s Authority to Refuse to Enforce the Law.”

A Bush administration effort to limit the Clean Air Act was rejected by the U.S. Court of Appeals for the District of Columbia. The appeals court’s 2-1 decision found that the Environmental Protection Agency (EPA) could not prohibit states and localities from enforcing stricter pollution monitoring standards on factories, power plants, oil refineries and other industrial companies that emit pollutants. The Wall Street Journal reported that the Aug. 19 decision “marks the latest instance in which a federal court has rejected the approach to regulating harmful emissions taken by the administration of President George W. Bush.”

The appeals court in Sierra Club v. Environmental Protection Agency concluded that the EPA regulation on states and localities violated a provision of the Clean Air Act that requires monitoring of emissions to ensure they do not exceed pollution limits. The Court called the federal act “a complex statute with a clear objective: it enlists EPA and state and local environmental authorities in a common effort to create a permit program for most stationary sources of air pollution. Fundamental to this scheme is the mandate that ‘[e]ach permit … shall set forth … monitoring … requirements to assure compliance with the permit terms and conditions.”

An EPA spokesperson told The Wall Street Journal that it is reviewing the decision and “will determine an appropriate course of action.” Earthjustice, one of the nonprofit advocacy organizations, which challenged the EPA regulation, lauded the appeals court decision, saying it would “give states back the tools they need to hold polluters accountable and help ensure that everyone has clean, healthy air to breathe.”

For additional, in-depth analysis of environmental law and policy watch a panel discussion from the 2007 ACS National Convention here.

A U.S. Olympic coach’s use of his religious beliefs is drawing some media glare. The New York Times offers a below-the-fold front page article today on Kisik Lee, the U.S. archery team’s coach, and his infusion of Christianity into his coaching program. According to the article Lee, has organized religious gatherings with some of his athletes during the Olympics. For example, the newspaper reports, that the coach and some of his archers have met each morning to sing hymns, read Bible verses and attend church together at the Olympic Village.

Lee has also baptized some of his archers in a pool near the Olympic training center. Beyond catching the media’s attention, Lee’s actions have raised concerns of the U.S. Olympic Committee (USOC) and some of the archers’ family members. The USOC, created by Congress, is charged with ensuring that coaches act ethically toward their athletes, which includes not proselytizing them. (Indeed a year ago, the Times reported, that the USOC warned Lee not to pressure his athletes to participate in religious activities.) Lee told the newspaper that he just wants to show his athletes who he is. “I’m the witness of Jesus, not just an instructor. So I have to encourage them how, how we can change in Christ,” Lee said. To be an effective archer, Lee said, athletes must learn to focus. “If you are Christian, then people can have that kind of empty mind.”

ACS released a new issue brief that critiques the National Labor Relations Board (NLRB) decision holding that graduate student teaching and research assistants are not employees and thus are not protected under the National Labor Relations Act (NLRA). Written by Penn State Dickinson School of Law Professor Ellen Dannin, the brief is entitled “Understanding How Employees’ Rights to Organize Under the National Labor Relations Act Have Been Limited: The Case of Brown University.”

Professor Dannin argues that the NLRB’s 2004 decision in Brown University is an example of what she calls the “Bush Board’s disregard for the rule of law.” She explains how the NLRB ignored precedent and the central purposes of the NLRA in reaching its decision, foreshadowing later decisions. While criticizing actions of this Board, Professor Dannin cautions that the NLRA itself should not be abandoned as a vehicle for protecting the rights of freedom of association, self-organization, collective bargaining, and acts of mutual aid or protection.

Please note the views of the author are her own and should not be attributed to ACS.

by Nicole Barrett, a Human Rights First volunteer consultant and former trial attorney at the International Criminal Tribunal for the former Yugoslavia. Her previous posts are available here and here, and earlier reporting is available from Sahr MuhammedAlly, Aaron Zissler and Frank Kendall.

Guantánamo Bay, August 18, 2008. In dramatic testimony last week at Guantánamo, the story of Mohammed Jawad’s abuse by U.S. military personnel continued to unfold. Jawad alleges he was first tortured while in detention at the Bagram Air Base in Afghanistan and then again at Guantánamo in May 2004. Special Agent Angela Birt, a former Army Criminal Investigation Division investigator, testified that Jawad’s description of his mistreatment at Bagram fit with the pattern of abuse that she uncovered while investigating the homicides of two Bagram detainees.

While the prosecution made a feeble attempt to cast doubt on Jawad’s mistreatment at Bagram, it conceded the existence of the Guantánamo “frequent flyer” program, which the defense contended featured as an integral part of Jawad’s abuse.

In fact, at least one U.S. military official not only conceded the existence of the program, but he positively endorsed it. Army Major Jason Orlich, formerly in the joint detention operations group and then the interrogations group at Guantánamo, enthusiastically described the frequent flyer program, in classic Orwellian doublethink, as an “incentive program.” Orlich confirmed that, under the program, detainees were moved from cell to cell up to eight times a day, or every three hours, following a “Discipline Synch Matrix.”

The goal was to keep detainees “off balance” and prevent the “worst of the worst” from organizing. For detainees like Jawad, who were held in certain camps, the program was “standard operating procedure,” approved by senior leadership. Orlich testified that the program was “humane,” “promoted good behavior,” and protected the military police. He denied that the program caused sleep deprivation. (The Guantánamo military leadership appears not to have shared Orlich’s sanguine view of the program. They thought it was worth hiding).

The defense argued that the frequent flyer program as applied to Jawad was torture because it caused extreme sleep deprivation and disorientation. Prison records show that Jawad was moved 112 times over 14 days in May 2004.

What is the government’s official view of such practices? A Department of Defense working group report of April 4, 2003 considers the legal parameters of torture when evaluating possible interrogation techniques. The report says that sleep deprivation holds “problematic aspects that cannot be eliminated by procedural safeguards.” It further notes that the Committee against Torture has interpreted sleep deprivation for prolonged periods to constitute cruel, inhuman, or degrading treatment and torture under the Convention against Torture. The report concludes that sleep deprivation is “not to exceed 4 days in succession.”

Complaints by FBI agents of “improperly used sleep deprivation against detainees” led to an internal investigation, called the Schmidt Report, which concluded that no action was needed as the “JTF-GTMO [Joint Task Force Guantánamo] Commander terminated the frequent flyer cell movement program upon his arrival in March 04.” In Jawad’s June 2008 hearings, General Hood testified that he ordered the frequent flyer program terminated.

But Major Orlich’s testimony before the commission last week suggests otherwise. Orlich said that, as of April 2005, the frequent flyer program was ongoing and that he was not aware of any order to stop the program. He also confirmed that “all” of the relevant military leadership, including General Hood and General Cannon, knew of the program, and no one questioned the program’s legality.

Unfortunately, details on how many detainees were in this program were not revealed. Orlich’s estimate, however, that the relevant camps contained approximately 350-400 people, combined with his testimony that the frequent flyer program was “standard operating procedure,” suggests that the number of detainees subject to the program may be significantly greater than previously thought. High numbers seem even more likely when considering that Jawad’s disciplinary records—which show “cross-block talking” as his worst offense—landed him in the program.

Major Frakt closed his presentation with an impassioned and scathing denunciation of Jawad’s treatment at Bagram and Guantánamo. He requested that Jawad’s attempted murder charge be dismissed on the ground of “outrageous government conduct.” The prosecution’s response? “Sworn enemies of the United States . . . have to be held in conditions that protect Americans.” It is hard to see any relationship between routine abuse of detainees and the protection of American lives.

California physicians do not have a First Amendment right to deny medical treatment to lesbians and gay men, the California Supreme Court recently ruled. The Court in North Coast Women’s Care v. San Diego County ruled that the state’s Unruh Civil Rights Act trumped the religious liberty and free speech rights of physicians who refused to perform artificial insemination for a *** couple. The physicians declined performing the procedure, citing religious objections. Guadalupe T. Benitez then sued the hospital, arguing that her rights under the state’s civil rights law were violated. California’s Unruh Civil Rights Act states that “All persons within the jurisdiction of this state are free and equal, an no matter what their sex, race, color, religion, ancestry, national origin, disability, or medical condition are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” In 2005, California lawmakers amended the act to include a prohibition against sexual orientation discrimination.

The physicians with the North Coast hospital countered that their free speech and religious liberty rights exempted them from complying with the state’s anti-discrimination law. The state’s high court, however, didn’t buy their arguments. Citing federal court precedent, the Court held that “a religious objector has no federal constitutional right to an exemption from a neutral and valid law of general applicability on the ground that compliance with that law is contrary to the objector’s religious beliefs.”

In this case, the California Supreme Court concluded that the state’s Civil Rights Act is a “valid and neutral law” that applies to all people, regardless of their religious beliefs. “As relevant in this case,” the Court stated, “it requires business establishments to provide ‘full and equal accommodations, advantages, facilities, privileges, or services’ to all persons notwithstanding their sexual orientation. Accordingly, the First Amendment’s right to the free exercise of religion does not exempt defendant physicians here from conforming their conduct to the Act’s antidiscrimination requirements even if compliance poses an incidental conflict with defendants’ religious beliefs.”

For an in-depth analysis of the debate over health care professionals' refusals to provide medical services because of religious liberty or other concerns, see the ACS Issue Brief by R. Alta Charo, a law professor at the University of Wisconsin Law School. That brief, "Health Care Provider Refusals to Treat, Prescribe, Refer of Inform: Professionalism and Conscience" is here. 

by Daniella Gayapersad-Chan, who serves on the Board of Directors for the Disaster Accountability Project and is President of Howard Public Interest Law Society

As Americans watch the Olympics, no shortage of media attention has been paid to environmental conditions in China, particularly to the poor air quality in Beijing. However, less attention has been paid to the ways in which US policy has contributed to the air quality problems. As just one example, consider our laws and policy on sending our electrical and electronic waste from common consumer technology abroad for recycling.

E-Waste & Federal Law
Our e-waste, which includes personal computers, mobile phones, televisions and other electronic devises, contains dangerous chemicals. These products contain materials that the Environmental Protection Agency has recognized as hazardous to human health and the environment, including plastics, cadmium, lead, mercury, hexavalent chromium and brominated flame retardants. Many products containing these hazardous materials are regulated by the Resource Conservation and Recovery Act (RCRA), which is a federal law designed to regulate hazardous waste.

The purpose of RCRA is to provide strict rules for hazardous materials to ensure their proper disposal. The law takes a “cradle to grave” approach by regulating hazardous material through its entire lifetime, from its creation to its destruction. Under RCRA, the regulations for hazardous waste include standards for identifying hazardous waste, transporting hazardous waste and disposing of hazardous waste.

In addition to regulating the lifecycle of hazardous materials, RCRA promotes conservation and strongly encourages the reuse, recovery and recycling of materials. An important objective of the law is “to promote the protection of health and the environment and to conserve valuable material and energy resources.” To attain this objective, the regulations treat materials that are destined to be recycled with leniency. This, however, creates a loophole whereby e-waste becomes exempted from RCRA and, as a result, is unregulated by the strict rules governing hazardous waste.

The regulations provide that RCRA does not cover materials classified as scrap metal and shredded or whole circuit boards when they are to be recycled. Consequently, cell phones, televisions, computers and printers become e-waste and are exported to developing nations.

Exporting E-Waste for Recycling: Bad for Workers, Bad for the Environment
Under the guise of recycling, e-waste enters developing nations like China and India where the regulations for recycling are slim to none. Because e-waste often contains precious materials such as gold and silver, many developing countries accept it to recover the precious metals for their own benefit. Most of America’s e-waste gets recycled to developing countries. Experts estimate that “about 70 percent of the 20-50 million tons of electronic waste produced globally each year is dumped in China, with most of the rest going to India and poor African nations.”

The recycling processes in these developing nations are cheap because they’re unregulated. In fact, it is ten times cheaper to export e-waste than to recycle it in the United States. However, these inexpensive recycling processes create dangerous conditions for workers.

At recycling centers in China and India, poor migrant workers and their families dismantle e-waste to retrieve materials they can sell. In these countries, men, women and children work at unregulated recycling centers without protection from the hazardous materials embedded in the e-waste they encounter. Without realizing the dangers, people use their bare hands with “shredders, open fires, acid baths and broilers” on computers and circuit boards that comprise the e-waste. These processes yield gold, silver and copper that poor workers may sell to get money to support their families, but also contaminate the air, water, and land with pollutants.

Research on Guiyu, China and New Delhi, India—two cities with expansive recycling centers—indicate that there are high levels of toxic metals in the river sediment, soil and groundwater as a result of the dangerous recycling processes. Further, melting e-waste and then soaking it in acid baths releases not just precious metals but also pollutants into the air.

In addition to polluting the environment, the recycling processes poison the workers. Pollutants that emerge from these processes have been associated with skin diseases, respiratory diseases, developmental defects, and cancer. As a result of direct, unprotected contact with hazardous substances, the workers may absorb harmful chemicals more easily. A study at a Chinese e-waste recycling site showed that the level of dioxins in women was “at least 25 times higher than the World Health Organization tolerable daily limit for adults.” Oblivious to the dangers to their own health and the environment, these workers continue to make a living with the ever growing e-waste.

A Solution Drawn From International Law?
A full discussion of solutions to this problem is beyond the scope of this brief article. However, one thing that bears mentioning is reform of our domestic laws and regulations to make our international treaty compliance meaningful. After all, in addition to the American laws regulating hazardous materials, there is an international law that regulates hazardous waste.

The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (hereafter referred to as “Basel Convention” or the “Convention”) is an international treaty that promotes environmental justice. The Basel Convention entered into force on May 5, 1992 and has 170 parties. The Convention aims to prevent technologically advanced countries, such as the United States, from exploiting developing nations with hazardous waste. Many signatories to the Convention, such as the European Union, enforce the Convention’s policies through legislation and practice. The United States must do the same and become an accountable party to the Basel Convention.

Although the US has signed the Basel Convention and begun to ratify it, the ratification process is incomplete. To complete the process, Congress must enact laws in accordance with the Convention. Instead of enacting completely new laws, the regulations could simply incorporate e-waste into current laws. Rather than providing exemptions for e-waste with the objective of promoting recycling, RCRA should monitor the recycling processes of e-waste. Such monitoring will ensure that America’s e-waste does not burden the people of developing countries.

The Olympic opening ceremonies might have reminded us that athletic endeavors can bring us together, but the environment could teach us the same lesson of interconnectedness. If the US continues its current e-recycling practices, the negative impact will be felt worldwide. And unhealthy air and water does not just harm one community or geopolitical entity. As one mainstream media article warns us, “[d]irty air traced back to China can be found in California's skies, and could become a major source of pollution here.” It’s in our interest to preserve the world we share.

Hoping to eliminate voting barriers for minorities in the fall, a civil rights advocacy group is disseminating a voting rights act guide. The guide, “Tearing Down Obstacles to Democracy & Protecting Minority Voters,” highlights features of the Voting Rights Act of 1965 and provides information about how the law can be used to overcome voting discrimination. Specifically the guide, created by the NAACP Legal Defense Fund (LDF), focuses heavily on the Civil Rights Act’s “preclearance” provision, which allows voters to check voting changes that local officials try to implement before Election Day.

John Payton, LDF’s president and director-counsel, said in a statement that the guide is aimed at “providing citizens with the tools necessary to use the law as a shield on behalf of minority voters.”

As The New York Times noted in an Aug. 9 editorial, campaign and political parties too often resort to “dirty tricks” to suppress the vote, especially of “minorities, the poor, students and the elderly.”

For example, the editorial noted, that in 2004 the Ohio secretary of state “made so many anti-voter rulings – including an infamous one disqualifying registrations filed on less than 80-pound paper – that it seemed as if his goal was to keep turnout low.”

According to the LDF, its new guide will provide information for voters on how to ensure that any new voting rules implemented in their communities do not violate their civil rights. In its statement announcing the guide, LDF noted that the “period preceding major elections is often met by efforts to impair minority voting strength or depress minority voter participation rates which may result in an increase in the number of voting changes submitted for federal approval. The guide provides information on how individuals, community groups and advocates can use this key federal law to protect minority voters.” See the LDF guide here.

Because of the recent U.S. Supreme Court ruling in Crawford v. Marion County Election Board upholding Indiana’s voter Identification law, more states are also contemplating similar laws that require voters to provide photo identification before casting a ballot. During the 2008 ACS National Convention, a panel of experts discussed the impact of such laws. Video of that panel, “Voter Participation: Examining the Impact of State Election Laws” is here.  

A group of American Christians devoted to serving a “worldwide church by providing necessary tools and training for the local people to fulfill Christ’s ‘Great Commission,’ is refusing to budge from a Chinese airport until its 300 Bibles are returned. The group and its leader, Patrick Klein and their Bibles arrived at an airport in Kunming where they said airport officials confiscated the Bibles. A Kunming airport customs officer told The Associated Press that the Bibles were found in the passengers’ baggage but that airport authorities were only “taking care” of the books. Klein and members of his group were asked to leave the airport, but they’ve remained holed up there, saying they won’t leave without the Bibles. “We don’t want to go without taking those books,” Klein said. “It cost us a lot of money to bring them here.” Although Bibles are permitted in China, the government does bar proselytizing.

by Nicole Barrett, a Human Rights First volunteer consultant and former trial attorney at the International Criminal Tribunal for the former Yugoslavia. Her previous post is available here, and earlier reporting is available from Sahr MuhammedAlly, Aaron Zissler and Frank Kendall.

Guantánamo Bay, August 15, 2008. The proceedings against Ali Hamza Ahmed Sulayman al Bahlul, Osama bin Laden’s alleged media director, were supposed to begin at 9 a.m. At about 9:10 a.m., various military officers and personnel began milling about, walking in and out of the courtroom. One officer whispered to another, “He wants his boycott sign. We can’t find it.”

At 9:40 a.m., al Bahlul entered the courtroom escorted by four young guards. He wore a baggy beige shirt, baggy beige pants and flip-flops. The guards holding his arms were wearing plastic surgical gloves. Air Force Major David Frakt, al Bahlul’s standby counsel, sat at the defense table, a change from the May 7, 2008 proceedings, when al Bahlul sat alone at the defense table and motioned to Frakt to sit when he stood to address the court.

Judge Ronald Gregory entered the room and introduced himself as the new judge replacing Judge Brownback, who recently retired. The proceedings began in a routine manner — even the Arabic translation that was broadcast into the courtroom at al Bahlul’s request seemed to be running smoothly.

Then al Bahlul began to speak, and the proceedings changed. He had several complaints for the judge. Al Bahlul wanted the original Arabic version of his boycott sign that he had created in 2006 and that listed his nine “political and legal reasons” for boycotting the military commission proceedings. Prosecutor Army Major Daniel Cowhig said they could not find the sign, although they had been looking for the past half hour. He suggested it might take a day or two to find it. (Because al Bahlul was pro se when he made the sign, it is unclear why the prosecution would have it, as it could arguably be attorney work-product). Al Bahlul asked, “If such a document is lost, what kind of court is this?”

Al Bahlul asked to return to his cell until the original sign was returned to him. Judge Gregory began to advise al Bahlul of the consequences of waiving his right to be present, when al Bahlul interrupted to state that he wanted to return to the courtroom only to hear the final sentence of his trial. He refused to permit Frakt to represent him and asked, “How can I accept this law?”

Al Bahlul offered that, after the lost document was found, it would “facilitate the settlement to take place with the judge to have a fast trial.” Then al Bahlul reasserted his desire to be absent from all sessions except sentencing, adding,“I don’t really care how you will exercise this legal circus.”

Judge Gregory told al Bahlul that, by absenting himself from the proceedings, he would terminate his right to represent himself. Al Bahlul was unmoved. He responded by asking the judge to withdraw his habeas corpus petition, filed in federal court by his cousin as a “next friend” petition. He addressed Judge Gregory, saying, “I, from this place, ask you to cancel the file that is personal to me.”

Ultimately, the judge sent al Bahlul back to his cell, terminated his pro se status and appointed Frakt as his defense counsel. Frakt said he had spoken to al Bahlul before the hearing and told al Bahlul that he would defend him in the manner he desired. Frakt said that al Bahlul had refused to agree to future meetings with Frakt and told Frakt not to do any work on his behalf.

At this point, the pace quickened. Frakt waived all pre-trial motions and stated he was available to go to trial at any time. The prosecution asked whether Frakt was waiving discovery motions. Frakt confirmed that, while the government must still prove its case and provide required discovery, he would seek no additional documents. The proceedings ended without setting a schedule.

Al Bahlul is not alone in his desire to represent himself and boycott his own trial. Several others charged under the Military Commissions Act (MCA) have followed the same tack, including Binyam Ahmed Muhammad, an Ethiopian, and Ghassan Abdullah al Sharbi, a Saudi, both accused of conspiring with al Qaeda. Defense attorneys on these cases have found themselves in a similar conundrum to the one that Frakt now faces. Generally, U.S. domestic and international laws support a detainee’s right to represent himself or to boycott a trial, but to exercise both rights at the same time appears to be a new phenomenon. While Congress intensively debated issues of boycott and self-representation in MCA negotiations in 2006, many questions went unresolved.

Some of these questions were raised by today’s hearings. Is Frakt under any obligation to put on a defense case for al Bahlul? This is not a death penalty case, where a defense is required, and the MCA does not appear to require a defense case. What if potentially exculpatory documents turn up, including documents showing that al Bahlul was mistreated or tortured while in U.S. custody? Such evidence is thought to exist. If al Bahlul was tortured, might he lack the mental capacity to waive a defense? MCA Rule 706 allows for an inquiry into the mental capacity of the accused, but the consequences of an incapacity finding are not spelled out.

With already intense criticism of existing due process flaws in the military commission process, wouldn’t a no-defense defense only confirm the view that commission proceedings are designed to convict, rather than provide a fair trial? If the judge orders the defense to put on a case in the interest of justice, what would happen if Frakt refused to follow orders? Does a no-defense defense at the client’s request provide grounds for an ineffective assistance of counsel appeal?

After the proceedings, Major Frakt acknowledged the complexity of the situation. He said that, while he was going to seek advice from his supervisor and from the New Jersey state bar, “I think my obligation is to do what he wants — nothing . . . . Ali al Bahlul is my boss.”

Blog Posts

An examination of the government’s application of the law of war in the military commission proceedings of Mohammed Jawad by Nicole Barrett, a Human Rights First volunteer consultant and former trial attorney at the International Criminal Tribunal for the former Yugoslavia.

A two-part analysis of the state of conservative/libertarian legal thought as revealed by new book The Dirty Dozen, by David Barron Professor of Law at Harvard University.

A response to Harvard Professor David Barron’s critique of “The Dirty Dozen” by Robert A. Levy, co-author of “The Dirty Dozen” and Cato Institute’s Senior Fellow in Constitutional Studies.

A recap of an appeals court’s ruling on whether media can be denied access to names of jurors.

An overview of social conservative organizations’ activities to re-focus voters on marriage and reproductive rights.

A look at whether the California Supreme Court’s ruling in favor of same-sex marriagewill result in a backlash.

An overview of a letter from civil rights organizations to the Justice Department requesting the FBI postpone its profiling plans.

by Nicole Barrett, a Human Rights First volunteer consultant and former trial attorney at the International Criminal Tribunal for the former Yugoslavia

Guantánamo Bay, August 14, 2008. Those experienced with the law of war know that, when charges are brought before a military commission or war crimes tribunal, these courts must ask and answer several basic questions to see whether the law of war actually applies to the case.

• Did the alleged acts occur during war?  If not, they are not war crimes.  
• Was the alleged wrongdoer a combatant or a civilian? If a civilian, the law of war does not apply, but domestic criminal law does. 
• If the wrongdoer was a combatant, were the victims also combatants? If so, seemingly wrongful acts, including killing, may be lawful under certain circumstances.

Such basic questions were front and center in the military commission proceedings of Mohammad Jawad at Guantánamo Bay this week.  The government’s perplexing stance, however, is that these questions need not be asked or answered for Jawad’s case to proceed. In fact, the government seems to think it unnecessary to charge facts alleging a war crime in order to prosecute Jawad for one.

In some respects, you cannot blame the prosecutors for being confused, as the statute that they are relying on, the Military Commissions Act of 2006 (MCA), repeatedly misapplies the law of war. The MCA not only ignores the distinction between the law applicable in law enforcement contexts, but it also ignores the distinction between the law applicable in non-international armed conflicts, and says the law of war automatically applies to all global counterterrorist operations.  In short, the MCA selectively borrows humanitarian law privileges without granting the corresponding protections. 

Further, while the MCA says that it is consistent with the law of war, the statute proclaims several acts to be war crimes that have never been so designated. Several Guantánamo detainees have been charged with conspiracy. But the U.S. Supreme Court in Hamdan said that conspiracy is not a war crime. Similarly, hijacking and providing material support for terrorism — also recurrent on military commission charge sheets — are not historical war crimes, although the MCA suggests that they are.

With such uncertainty about what is and what is not a war crime, calling an expert in the law of war would seem a priority. Getting this expert to the hearing, however, was no easy matter. Jawad’s defense counsel, Major David Frakt, reports that the prosecution objected to Professor Madeline Morris’s designation as an expert despite the fact that she currently advises the U.S. Secretary of State, and has previously advised the Department of State, the Department of Defense and the Secretary of the Army on international law and law of war issues. When Professor Morris finally reached the courtroom yesterday, her affidavit already written but her status still in doubt, Judge Henley finally recognized her as an expert.

Professor Morris laid out the basics for why the military commission has neither personal nor subject matter jurisdiction over Jawad. Personal jurisdiction does not exist, she said, because MCA charges can only be brought against “unlawful enemy combatants,” and the commission has no way of knowing whether Jawad falls into this category. Under Additional Protocol I of the Geneva Conventions, a person who takes part in hostilities is presumed to be a lawful combatant until he is found to be an unlawful combatant by a competent tribunal composed of more than one person. Because Jawad never received such a determination — commonly referred to as an Article 5 hearing — the MCA does not apply. Prof. Morris pointed out that the Article 5 hearing held in Salim Hamdan’s case was invalid because it was based on a waiver by the defense, but POW rights under the Geneva Conventions cannot be waived.

Prof. Morris’s simpler argument was on subject matter jurisdiction. She effectively eliminated the only charge against Jawad by demonstrating that the facts underlying his attempted murder charge cannot be a war crime. The prosecution alleges that Jawad threw a grenade, a lawful weapon under the law of war, into a U.S. military vehicle in Kabul, Afghanistan carrying two soldiers and their translator — all lawful targets under the law of war. Because Jawad is accused of using a lawful weapon against lawful targets, he might have committed a domestic crime, but certainly not a war crime. 

The prosecution, grasping at straws on cross-examination, tried a few arguments, but ultimately fell flat. They argued that things were different now because the commission was dealing with “new law,” mentioned that there were differing views on the law of war, and finally suggested that Jawad’s alleged act might be perfidy — one of the MCA offenses typically used for spying and sabotage — which they had not even charged in this case.

The Jawad commission reconvenes on September 25, 2008. The first decision made will be whether the commission should hear the case at all.

Examining the U.S. Supreme Court’s latest term, Adam H. Charnes and James J. Hefferan Jr., concluded for The National Law Journal that the high court took up a business heavy docket, which produced decisions reflecting “an approach generally sympathetic to business concerns.” For example, with regards to punitive damages, Carnes and Hefferan, attorneys with the Atlanta-based law practice Kilpatrick Stockton, noted the high court’s decision reducing a $5 billion punitive damages award against ExxonMobile to about $500 million. “The majority decision, authored by Justice David H. Souter, noted that the case represented a significant departure from the Court’s previous decisions addressing punitive damages awards, which has concerned review of state-court jury verdicts under constitutional due process standards,” the two wrote. The entire article is here. For additional analysis of the high court’s recent term, watch video of the ACS 2008 Supreme Court Term Review here.

by Robert A. Levy, Senior Fellow in Constitutional Studies, Cato Institute

Prior commitments prevented me from participating with Professor David Barron in the Cato / American Constitution Society forum on The Dirty Dozen, which I co-authored with William Mellor. I’m especially gratified, therefore, to have this second opportunity, which I will use to document seven errors by Professor Barron in his blog postings here and here. Of course, the best and most complete rebuttal is the book itself, available for the shamefully low price of $17.13 at Amazon.

Barron #1: “The crime of the Supreme Court since the 1930s, so says this book, has been its refusal to lock in the laissez faire constitutional philosophy that reigned supreme in the decades leading up to the New Deal.”

Facts: Laissez faire is never mentioned in the book – not once. Included among our 12 worst cases are those involving the non-delegation doctrine, campaign finance regulation, gun owners’ rights, civil liberties, civil asset forfeiture, and racial preferences – none of which has anything to do with laissez faire economics. Yes, we also cover cases relating to property, contract, and other economic liberties; but to suggest that we view the Court’s major crime as not upholding laissez faire is to ignore most of our book.

Barron #2: “Number one on The Dirty Dozen’s hit list is Helvering v. Davis ... because it upheld Social Security on a broad theory of federal spending and taxing power.” Moreover, Helvering’s “interpretation of the General Welfare Clause is not inconsistent with original understanding because there was no clear understanding on that point during the Founding. Madison had one view, Hamilton another.”

Facts: First, Helvering’s focus on Social Security was incidental to its inclusion. Helvering is one of The Dirty Dozen because the Court, in favoring Hamilton’s view of the General Welfare Clause, made a mockery of the principle of enumerated powers. The result: redistributionist schemes – including retirement programs, welfare, hurricane relief, medical care, housing subsidies, farm supports, and grants to the arts – that have no constitutional foundation, even if justified on policy grounds.

Second, we have never argued that a clear and consistent original understanding is required to support a particular constitutional interpretation. Instead, we note that textualists consult the structure of the Constitution whenever the original understanding is ambiguous. And we explain (p. 216) that “structure relates, first, to the internal relationship among the various provisions of the Constitution and, second, to the overall design or framework of government that the Constitution establishes.” No reasonable legal scholar can deny that the Constitution was structured to restrain government and limit its operations to specifically enumerated powers. By that all-important criterion, Hamilton’s open-ended conception of the General Welfare Clause cannot be defended.

Barron #3: The authors “candidly (and admirably) concede that originalism is actually of little help in explaining their hostility to a number of cases on their list.”

Facts: We make no such concession. Professor Barron has confused “originalism” (interpreting the Constitution in accordance with the meaning of its words when ratified) with original intent (focusing on the values and objectives of the drafters and ratifiers). As Justice Scalia has written, “It is the law that governs, not the intent of the lawgiver.” We recognize (p. 216) that “applying original intent ... begs several questions: Which drafters or ratifiers are authoritative? How do we know their intent? ... How are differing views among the drafters and ratifiers to be resolved?” But we heartily endorse originalism. Judges whose decisions are anchored in the words of the Constitution have an objective basis for their views. Even when the meaning of the words is unclear, it provides a starting point, which can be supplemented by an examination of constitutional structure, purpose, and history.

Barron #4: Wickard v. Filburn is included because the Court “sinned by adopting an expansive view of the commerce power. ... Wickard was the key precedent for the decision upholding the constitutionality of the 1964 Civil Rights Act.... The Dirty Dozen never faces up to that obvious problem.”  

Facts: Under Wickard v. Filburn, the commerce power is not merely “expansive”; it is incoherent and all-encompassing. Article I, section 8, of the Constitution authorizes Congress to regulate interstate commerce, not to restrict activities that are neither interstate nor commercial. Mr. Filburn’s crops were grown within a single state for consumption by his family and farm animals. He didn’t buy the crops; he didn’t sell the crops; they didn’t cross state lines; and his activities had no perceptible impact on interstate markets. Yet Congress, with the Court’s approval, brazenly distended the Commerce Clause – unleashing it from the operative word “commerce” and granting to the federal government regulatory authority over virtually all manner of human conduct.

To be sure, the 1964 Civil Rights Act is where the rubber hits the road. Our position is straightforward: The Act has no constitutional pedigree. It addresses private, not state actions; so it cannot be traced to the Fourteenth Amendment. It has nothing to do with eliminating state impediments to the free flow of interstate trade; so it cannot be shoehorned into the Commerce Clause. That said, the 1964 Civil Rights Act was an unambiguously good thing; it helped erase an unconscionable assault on human dignity. We are glad that it happened. We applaud its aftermath. And we recognize that the Civil Rights Act is a settled principle of American law, not to be revisited by the courts despite its constitutional infirmities. 

Even if we are wrong about those infirmities, our position is intellectually honest – unlike the position of those who insist that, because the Civil Rights Act is beneficent, it must necessarily be constitutional. Some activities offend the Constitution – e.g., torture – even if they yield universally acclaimed benefits – e.g., preventing a nuclear attack. The remedy in such cases is either to amend the Constitution or acknowledge the disconnect. In this instance, we choose the latter alternative.

Barron #5: “The authors seem to be arguing in simple, consequentialist terms. A case is badly decided if it has some bad effect in the real world.”  

Facts: We asked 74 legal scholars to name the post-1933 cases that had the most destructive effect on law and public policy – either by expanding government powers beyond those that are constitutionally authorized, or imperiling individual liberties that are constitutionally protected. Further, we stipulated (pp. 5-6) that “worst” cases must have led to anti-liberty outcomes and been based on erroneous legal reasoning. Accordingly, consequentialism played a role; but we did not presume, as Professor Barron asserts, “a case is badly decided if it has some bad effect.” Not a single case in our book was selected solely because it had a bad effect. Unless the rationale for the case was legally defective, we did not include the case among The Dirty Dozen. “Bad effect” and “badly decided” were two separate and distinct criteria. Each selected case had to qualify on both grounds. Indeed, the purpose of our book was to dissect each case and demonstrate not only its bad effect, but also how and why it was badly decided.

Barron #6: The authors’ criterion for judicial intervention is based on “libertarianism, which does not even begin to address the problem of private power.”

Facts: This allegation by Professor Barron reflects a profound misunderstanding about the nature and purpose of the Constitution. The Constitution is not a criminal or civil code that private citizens must obey. Rather, the Constitution has two primary objectives: to secure individual rights, and to limit the power of government. It’s not private people or private power that the Constitution constrains. Instead, it’s government officials and government power. The Constitution is first and foremost a code of conduct for the legislative, executive, and judicial branches of government. Our “libertarian” theory of judicial intervention doesn’t speak to private power because the Constitution doesn’t speak to private power.

Barron #7: “You still need a sorting theory. When should judges, while engaging, defer and when should they act?”

Fact: We have a sorting theory, which we document at some length (pp. 215-24). Members of the Court must have an allegiance to the text of the Constitution. If the original meaning of the text is unambiguous, textualists adopt that meaning unless it leads to absurd consequences. If the meaning is blurred, textualists must interpret the words in accordance with an originalist theory of our founding documents – in particular, a respect for federalism, separation of powers, limited government, and individual rights (both enumerated and unenumerated). Those were the principles that the Framers applied in crafting the Constitution. By comparison, members of the Court who subscribe to an anchor-less “living Constitution” will be disposed to use their own preferences and ideology as a basis for their decisions – thereby negating the written documents that have sustained a free society for more than two centuries.

Will voters react negatively to the California Supreme Court’s ruling in favor of same-sex marriage in the state? Some commentators argue that such a backlash is unlikely. According to media reports, a backlash against gay marriage has not transpired In Massachusetts, the first state to allow same-sex marriage. McClatchy News reported that, “Polls have shown consistent support for gay couples. And with overwhelming support for gay marriage in the state legislature – the last effort to put it on the ballot failed 151-45 – the opposition has, for the most part, packed its bags and gone home.”

In a post for the Lawyers, Guns and Money Blog, Scott Lemieux noted a recent poll that showed support for an initiative to overturn the California Supreme Court ruling on gay marriage is waning. Massachusetts Republican state Rep. Paul Loscocco told McClatchy that California voters should keep their minds open with regards to gay marriage. In his state, more than 11, 000 gay couples have wed and Loscocco said, “It’s been fairly much a nonevent.” When the Massachusetts Supreme Court ruled in 2003 that gay marriage was constitutional, Loscocco attacked the ruling. Today he supports the idea, noting that many of his constituents now support it.

The state has also recently approved a repeal of 1913 law that barred it from recognizing same-sex marriages performed in other states. Gov. Deval Patrick signed the repeal on July 31. Lemieux participated in an ACS panel discussion on reaction to controversial court rulings on hot-button social issues like gay rights and reproductive rights. Video of that panel discussion is available here.