Currently viewing the tag: “Court”
A federal court in Detroit has granted a preliminary injunction against the SMART bus system, ordering them to allow an anti-Muslim advertisement to be placed on buses pending the outcome of a full trial on the issue.
The suit was filed by the Ann Arbor-based Thomas More Law Center, founded by Domino’s magnate Tom Monaghan, on behalf of anti-Muslim group Freedom Defensive Initiative, founded by Pamela Geller and Robert Spencer, after SMART rejected their application to place the ad on buses in the metro Detroit area.
The ad says: “Fatwa on your head? Is your family or community threatening you? Leaving Islam? Got questions? Get Answers!” It also contains the website address for the organization.
Ironically, an earlier ad placed on SMART buses by the Detroit Coalition of Reason, a collection of atheist, freethinker and humanist groups, was a key factor in the ruling. That ad said: “Don’t believe in God? You’re not alone.”
The judge’s ruling was almost inevitable. SMART is a government agency that has allowed other groups to place controversial political and religious ads on their buses. It cannot, under numerous precedents, reject an ad based on its political or religious viewpoint or content.
You can read the full ruling here.
The ACA Litigation Blog reports that there are now four ObamaCare cases scheduled to be argued at the Court of Appeals level this summer:
May 10: Virginia v. Sebelius and Liberty University v. Geithner at the Fourth Circuit (Richmond).
June 1: Thomas More Law Center v. Obama at the Sixth Circuit (Cincinnati).
June 8: Florida v. HHS at the Eleventh Circuit (Atlanta).
Yet to be scheduled: Seven-Sky v. Holder (CADC), Baldwin v. Sebelius (CA9), and N.J. Physicians v. President (CA3).
What this means is that all of these cases could theoretically reach the Supreme Court by the fall:
The reason is that, with now four cases to be heard by the courts of appeals on an expedited basis in May and June, the decisions from the circuits are likely to come down by the end of the summer. The losing side then has 90 days to file a petition for a writ of certiorari, and the winner 30 days to respond, at which point the petition will be calendared at the Supreme Court. (The loser can accelerate the schedule by filing the cert petition sooner.)
It now seems quite likely that at least one of these cases, and perhaps several, will generate petitions for certiorari soon enough for the Court to resolve them before mid-January 2012. (That is typically the cut-off between Terms; petitions granted after mid-January are typically argued the following autumn.) Thus, the timeline is such that the Court is likely to grant one of the cert petitions in late fall of this year, hear argument in the spring of 2012, and issue a decision by the end of June 2012.
There are several caveats, of course. The Courts of Appeals could take time issuing their decisions, meaning that the time to appeal to the Supreme Court would be pushed back and the case may not get argued until the October 2012 term. Given that all three courts have placed these cases on an expedited calender, though, that seems unlikely. With regard to Virginia v. Sebelius specifically, the Supreme Court could decide to accept Virginia’s application for direct appeal to the Supreme Court, although that seems unlikely. Finally, of course, the Court could decide not to accept any of these cases for appeal but that also seems unlikely given the fact that they impact such a substantial federal law.
More likely than not, then, the Supreme Court seems on track to issue a decision on whether or not President Obama’s signature legislative achievement is Constitutional right before the start of the 2012 election campaign. That should make things very interesting.
Broward County commissioners will discuss next week the renewed push to build a federal courthouse alongside their planned local courthouse.
County Commissioner John Rodstrom told his colleagues that he is adding the matter to their agenda. A high-powered task force of federal judges, lawyers and politicians caught the county off guard last week by reviving the long-dormant idea of a federal-county campus along the New River.
County staff is dusting off old notes about how the two projects could fit together. But County Administrator Bertha Henry noted Tuesday that the county’s $ 328 million court tower is far along in the planning process.
The federal courthouse at Broward Boulevard and Third Avenue is considered one of the most dilapidated in the nation and was recently moved up on a national priority list for replacement. It also doesn’t meet heightened security requirements set since the 2001 terrorist attacks and the Oklahoma City courthouse bombing.
Downtown boosters are eager to see a new federal courthouse remain in Fort Lauderdale’s urban center. A placement south of the New River would bring a significant investment to an area where business owners long for a development renaissance.
The Downtown Development Authority is hiring an architect to look at the land and suggest ways to combine the federal-county plans. And members of the federal task force plan to meet with the county soon to discuss their ideas.
(Eugene Volokh)
Deutsche Welle has the most detailed account that I’ve seen in any professional media source. Some excerpts:
Wilders is charged with five counts of offending and inciting hatred against Muslims and groups of non-Western origin, particularly Moroccans….He has likened Islam to fascism and made comparisons between the Muslim holy book, the Koran, and Hitler’s “Mein Kampf”….
The specific charges against the parliamentarian stem from comments made in his campaign “Stop the Islamization of the Netherlands”. Wilders could face a 7,600-euro ($ 10,300) fine or up to a year in jail if found guilty.
Washington (CNN) Members of Congress took to the courts Wednesday night in a Georgetown University Law School sponsored charity basketball game against the “Hoya Lawya” law faculty.
The 24th annual “Home Court” game raised over $ 400,000 for the Washington Legal Clinic for the homeless, according to event chair Jill Collins.
Swapping their tailored suits for jerseys and basketball shorts, the “Hill’s Angels” congressional team gave took on the Georgetown law staff and won, 61-46.
Sen. John Thune, one of the evening’s stars, scored 9 points and grabbed 8 rebounds. The Republican senator from South Dakota, who announced last month he would not seek the Republican presidential nomination in 2012, played basketball in high school and college.
In fact, Thune’s interest in politics was sparked at a young age after making five of six free throws during a freshman high school basketball game, where he was greeted by a spectator who told him, “I noticed you missed one.” The spectator happened to be well-known sports enthusiast and U.S. Representative Jim Abdnor. The introduction was the start of a friendship that ignited John’s career in public service, AshLee Strong, Thune’s Press Secretary told CNN.
“It was an honor to serve as a co-chair of the 24th annual Home Court charity basketball game. Last night’s game was a great time, and raised valuable resources to help serve the homeless in our nation’s Capitol,” Thune said.
Another one of the team’s assets was Republican Sen. Scott Brown, who had a game high of 15 points. U.S. Secretary of Education Arne Duncan was another all-star, helping the team score a win with nine points, event chair Collins told CNN.
The only dunk of the game came courtesy of special guest player, Reggie Love, the well-known personal assistant to President Obama.
Other members of the congressional team were Democrats Rep. Joe Baca of California, Texas Rep. Gene Green, Indiana Rep. Andre Carson, North Carolina Rep. Mike McIntyre, Louisiana Rep. Cedric Richmond, California Rep. Laura Richardson, and Pennsylvania Sen. Robert P. Casey Jr.
Washington (CNN) Members of Congress took to the courts Wednesday night in a Georgetown University Law School sponsored charity basketball game against the “Hoya Lawya” law faculty.
The 24th annual “Home Court” game raised over $ 400,000 for the Washington Legal Clinic for the homeless, according to event chair Jill Collins.
Swapping their tailored suits for jerseys and basketball shorts, the “Hill’s Angels” congressional team gave took on the Georgetown law staff and won, 61-46.
Sen. John Thune, one of the evening’s stars, scored 9 points and grabbed 8 rebounds. The Republican senator from South Dakota, who announced last month he would not seek the Republican presidential nomination in 2012, played basketball in high school and college.
In fact, Thune’s interest in politics was sparked at a young age after making five of six free throws during a freshman high school basketball game, where he was greeted by a spectator who told him, “I noticed you missed one.” The spectator happened to be well-known sports enthusiast and U.S. Representative Jim Abdnor. The introduction was the start of a friendship that ignited John’s career in public service, AshLee Strong, Thune’s Press Secretary told CNN.
“It was an honor to serve as a co-chair of the 24th annual Home Court charity basketball game. Last night’s game was a great time, and raised valuable resources to help serve the homeless in our nation’s Capitol,” Thune said.
Another one of the team’s assets was Republican Sen. Scott Brown, who had a game high of 15 points. U.S. Secretary of Education Arne Duncan was another all-star, helping the team score a win with nine points, event chair Collins told CNN.
The only dunk of the game came courtesy of special guest player, Reggie Love, the well-known personal assistant to President Obama.
Other members of the congressional team were Democrats Rep. Joe Baca of California, Texas Rep. Gene Green, Indiana Rep. Andre Carson, North Carolina Rep. Mike McIntyre, Louisiana Rep. Cedric Richmond, California Rep. Laura Richardson, and Pennsylvania Sen. Robert P. Casey Jr.
John Thompson spent 14 years on death row in Louisiana because New Orleans prosecutors hid evidence that exonerated him. It sounds like the plot of this week’s episode of ABC’s Castle, except in the Hollywood story, the D.A. gets his comeuppance.
In real life, the “conservative” block of the U.S. Supreme Court overruled the jury decision against the prosecutor’s office:
Conservative justices prevailed in the 5 to 4 ruling, which shielded the district attorney’s office from liability for not turning over evidence that showed John Thompson’s innocence. […]
There is no dispute that one of Connick’s prosecutors did not turn over a blood test that would have shown Thompson innocent of one of the charges against him. But Thomas said that a single incident is not enough to prove liability for the district attorney’s office and that Thompson did not show a pattern of similar violations.
Yet according to the Innocence Project New Orleans, favorable evidence was concealed in a quarter of the murder convictions from 1973-2002. In 19 of 25 non-capital cases, the D.A. withheld favorable evidence; in the other six cases, the courts ruled that evidentiary hearings were needed.
“Single incident”?
New math.
Earlier this month, the Department of Justice issued a scathing indictment of corruption and “unconstitutional conduct” in the New Orleans Police Department.
Justice should be weeping.
My colleague Paula McMahon has this story today about Former Fort Lauderdale City Commissioner Cindi Hutchinson. You’ll see her in the video above.
Click here to read McMahon’s story.
(Orin Kerr)
Back in 2009, I blogged about United States v. Cotterman, a fascinating Fourth Amendment case from the District of Arizona involving a forensic search of a computer seized at the U.S./Mexico border. Ninth Circuit precedent holds that the government can search a computer at the border with no suspicion under the border search exception, just like it can search any other property. The question in Cotterman was whether the government could seize the computer, bring it to a forensic specialist 170 miles away, and have the forensic specialist search the computer there two days later. Is that still a border search? Or does the delay in time, or the change in location, mean that the border search exception doesn’t apply (or applies differently)? The District Court held that the delay in time and the moving of the computer required applying the ‘extended’ border search doctrine, which requires reasonable suspicion, instead of the traditional border search exception, which does not. As I noted here, the Government appealed but has not argued that the search was justified by reasonable suspicion. As a result, the case presents a pure legal question: Does the Fourth Amendment require reasonable suspicion in these circumstances, or is the seizure and subsequent search permitted without any cause?
In a decision released this morning, United States v. Cotterman, a divided Ninth Circuit reversed and held that the seizure and search were permitted without cause. The majority opinion by Judge Tallman, joined by Judge Rawlinson, reasons that it is clear, under Ninth Circuit precedent, that the search would have been legal if it had occurred at the border without delay. The opinion reasons that Cotterman’s expectation of privacy is what matters, and that because Cotterman’s computer was taken to be searched at the border, Cotterman’s expectation of privacy is not impacted by where the computer was taken:
[T]he Government made it abundantly clear to Cotterman that his computers and cameras were not cleared for entry into the United States and that it had retained custody of that property until it could fully allay its concerns that they contained contraband. As a result, he never regained his normal expectation of privacy in his computer because he ould only reasonably expect that it would be searched to alleviate the self-protection concerns of the sovereign. He never breathed that deep sigh of relief that follows from the realization that he had faced all the rigors of inspection and that nothing more lingered to impede his travels.
As a result, the moving of the computer after it was seized was constitutionally irrelevant:
So long as property has not been officially cleared for entry into the United States and remains in the control of the Government, any further search is simply a continuation of the original border search—the entirety of which is justified by the Government’s border search power.
The next question was how much delay is permitted. That is, for how long can the government hold a computer pursuant to the border search exception in order to search it? Because holding the computer was a seizure, the test was reasonableness: Specifically, whether the detention “was reasonably related in scope to the circumstances that justified the initial detention at the border.” In this case, it was: The Government proceeded quickly to bring the computer to an expert, the expert searched the computer pretty quickly, and worked through the weekend to get the search completed. Further, the fact that the computer was brought to the expert rather than the expert being brought to the computer was not only acceptable, but wise: “our common sense and experience inform us that the decision to transport the property to the laboratory, instead of transporting the laboratory to the property, resulted in a shorter deprivation.”
Judge Betty Fletcher dissented. She agreed that the moving of the computer was irrelevant, but argued that all time-consuming and comprehensive computer searches at the border should require reasonable suspicion. In a footnote, Judge Fletcher tried to distinguish United States v. Arnold, the Ninth Circuit precedent allowing suspicionless computer searches at the border on the ground that the prior Ninth Circuit precedent did not involve a comprehensive search that took considerable time.
My basic take is that I think the Ninth Circuit’s decision was right. As I argued in my initial post, it doesn’t make sense to say that the border search doctrine applies differently depending on where the computer is moved. Further, it seems right that the duration of the seizure should be determined by a reasonableness inquiry. And here, the government’s conduct seems very reasonable. Judge Fletcher asked the question of what reasonableness means in the setting of the border search exception, but that’s an old question, I think: I don’t see any reason to think that the reasonableness standard gives the government limitless authority, which is what Judge Fletcher seems to fear. More broadly, Judge Fletcher’s dissent seems to really want to go back and relitigate Arnold, which rejected a reasonable suspicion requirement for computer searches at the border. Given the issues raised by the Cotterman case itself, and the issues it raised, I think the majority was basically right.
In 1985, John Thompson was sentenced to die in Louisiana for a murder he didn’t commit because a prosecutor in New Orleans deliberately withheld evidence that would have exonerated him. On Tuesday, the Supreme Court ruled that Thompson could not sue the New Orleans District Attorney for actions that kept him, isolated, on Death Row for 14 years:
A bitterly divided Supreme Court on Tuesday tossed out a jury verdict won by a New Orleans man who spent 14 years on death row and came within weeks of execution because prosecutors had hidden a blood test and other evidence that would have proven his innocence.
The 5-4 decision delivered by Justice Clarence Thomas shielded the New Orleans district attorney’s office from being held liable for the mistakes of its prosecutors. The evidence of their misconduct did not prove “deliberate indifference” on the part of then-Dist. Atty. Harry Connick Sr., Thomas said.
Justice Ruth Bader Ginsburg emphasized her disapproval by reading her dissent in the courtroom, saying the court was shielding a city and its prosecutors from “flagrant” misconduct that nearly cost an innocent man his life.
“John Thompson spent 14 years isolated on death row before the truth came to light,” she said. He was innocent of the crimes that sent him to prison and prosecutors had “dishonored” their obligation to present the true facts to the jury, she said.
In the past, the high court has absolved trial prosecutors from any and all liability for the cases they bring to court. The key issue in the case of Connick vs. John Thompson was whether the district attorney could be held liable for a pattern of wrongdoing in his office and for his failure to see to it that his prosecutors followed the law.
In 1999, when all his appeals had failed on his conviction for the murder of a hotel executive, Thompson was scheduled to be put to death. But a private investigator hired by his lawyer found a blood test in the police lab that showed the man wanted for a related carjacking had type B blood, while Thompson’s was type O.
Thompson had been charged with and convicted of an attempted carjacking near the Superdome as a prelude to charging him with the unsolved murder of a hotel executive.
The newly revealed blood test spared Thompson’s life, and a judge ordered a new trial on the murder charge that had sent him to death row. His new defense lawyers found other evidence that had been hidden, including eyewitnesses reports. Bystanders reported seeing a man who was 6 feet tall with close-cropped hair running away holding a gun. Thompson was 5 feet 8 and had a bushy Afro.
With the new eyewitness reports and other evidence that pointed to another man as the killer, Thompson was quickly acquitted of all the charges in a second trial. He won $ 14 million in damages in a civil suit against the district attorney.
This is, in a word, outrageous. The duty of a prosecutor to turn over exculpatory evidence has been part of the law since the Supreme Court decided Brady v. Maryland in 1963. In that, opinion Justice Douglas stated:
Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly. An inscription on the walls of the Department of Justice states the proposition candidly for the federal domain: “The United States wins its point whenever justice is done its citizens in the courts.” 2 A prosecution that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant. That casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice, even though, as in the present case, his action is not “the result of guile,” to use the words of the Court of Appeals.
Thompson was denied a fair trial because the prosecutor consciously refused to turn over evidence that could have, and ultimately die, clear him of the crimes he was accused of. Because of that egregious action, he spent fourteen years of his life on Death Row. The idea that he is unable to receive damages for this action from the very office that wrongfully convicted him is really quite shocking. Prosecutors have an ethical duty that goes beyond those of normal attorneys; they are required to see that justices is administered fairly. Sometimes, that means that they’ll lose a case but, as that saying goes, it is better that a hundred guilty men go free than one innocent man go to prison.
Finally, Justice Thomas’s argument that this was just a single incident ignores the fact that four other prosecutors knew of the blood evidence that was withheld and that, when it was headed by then District Attorney Harry Connick, Sr., the New Orleans District Attorney’s Office, it wrongfully convicted 19 men of capital crimes. If that isn’t a pattern of behavior, I don’t know what is. The Supreme Court, and specifically the five conservatives in the majority, should be ashamed of itself on this.
Here’s the opinion:
The Michigan Court of Appeals has rejected a Michigan Farm Bureau attempt to limit the Dept. of Environmental Quality’s authority to require pollution discharge permits from concentrated animal feeding operations or CAFOs.
The Muskegon Chronicle reports that a three judge panel has upheld a 2009 ruling by Newaygo County Circuit Judge Anthony Monton.
The DEQ in 2003 began requiring all CAFOs to obtain discharge permits. The rule was aimed at keeping manure that operations spread on farm fields from draining into surface waters.
Farm groups argued the state could only require discharge permits after a CAFO actually had a discharge of manure that caused water pollution.
Monton sided with the DEQ, the farm groups appealed, and the appeals court affirmed Monton’s decision.
“We conclude that the DEQ was fully authorized to require CAFOs to either (1) seek and obtain an NPDES permit (irrespective of whether they actually discharge pollutants), or (2) satisfactorily demonstrate that they have no potential to discharge,” the judges wrote in a 23-page opinion.
The Farm Bureau has not yet released a response to the ruling.
Run-off from CAFOs is a leading cause of surface water pollution in Michigan.
Ever since Chief Justice Roberts joined the Supreme Court, the Chamber of Commerce has treated his Court as their personal genie, and Roberts has been more than happy to grant even many of their most outlandish wishes. Indeed, big business’ wins before the Supreme Court have spiked massively under Roberts’ leadership:
If the Roberts Court continues its pattern of favoritism to corporate interests, voters, workers and consumers could easily be left in the cold during three cases being argued this week:
- Buying Elections
In the wake of the Court’s infamous Citizens United decision, the Chamber pledged to spend a massive $ 75 million to elect corporate-aligned conservatives, and the Chamber’s right-wing allies kicked in hundreds of millions of dollars more. This kind of corporate influence over elections not only places a huge thumb on the scale in favor of pro-corporate candidates, it also corrupts existing lawmakers by forcing them to either play ball with corporate fundraisers or find some other source of funds in order to remain in the game.
Public financing provides a partial shield against this effect, but public financing schemes only work if they allow candidates who opt into them to remain competitive. If a state offers only a few thousand dollars in public funds to a candidate whose opponent is backed by tens of millions of corporate dollars, than the non-corporate candidate will have no choice but to raise money on their own. To defend against this problem, Arizona developed a two-tiered public financing system. Candidates receive additional funds if their opponent or corporate interest groups overwhelm them with attack ads, and thus candidates who are determined not to be tainted by the corrupting influence of major donors are not left defenseless.
Yet, in a case called McComish v. Bennett, the Court’s five conservatives appear poised to strike this two-tiered system down. If they do so, it could be the death knell for public financing, since no candidate is safe from massive infusions of corporate money after Citizens United.
- Making Courts Inaccessible
Many of the Court’s most corporate-friendly decisions create complicated and arcane procedural barriers to Americans seeking justice. The Court’s infamously Ledbetter decision didn’t literally take away women’s right to equal work for equal pay, it just created a procedural rule that made it nearly impossible for women to learn that they were victims of discrimination until after the statute of limitations to file a claim had run out. In Wal-Mart v. Dukes, the Supreme Court will decide whether to shut off another opportunity for women in the workplace to seek relief — class actions.
Class action lawsuits are brought by groups of plaintiffs who share a common injury with each other. These suits are essential to allow ordinary Americans, who often lack the resources to hire lawyers capable of taking on a major corporation on their own, to pool their resources in order to hire counsel that are capable of facing off against someone like Wal-Mart. There is substantial evidence that women who work for Wal-Mart stores have endured systematic pay and promotion discrimination and thus should be able to bring a class action. If the Supreme Court denies them this right, many of them will be left powerless before Wal-Mart’s legal team.
- Lawsuit Immunity
Finally, many corporate sectors have been given almost total lawsuit immunity by the Supreme Court. The justices gave sweeping legal immunity to medical device manufacturers and health insurers, and even gave the thumbs up to a biased system of corporate-owned courts that overwhelmingly rule against consumers and employees. In a case called PLIVA, Inc. v. Mensing, the justices will now decide whether to give lawsuit immunity to the makers of generic drugs.
Ever since Chief Justice Roberts joined the Supreme Court, the Chamber of Commerce has treated his Court as their personal genie, and Roberts has been more than happy to grant even many of their most outlandish wishes. Indeed, big business’ wins before the Supreme Court have spiked massively under Roberts’ leadership:
If the Roberts Court continues its pattern of favoritism to corporate interests, voters, workers and consumers could easily be left in the cold during three cases being argued this week:
- Buying Elections
In the wake of the Court’s infamous Citizens United decision, the Chamber pledged to spend a massive $ 75 million to elect corporate-aligned conservatives, and the Chamber’s right-wing allies kicked in hundreds of millions of dollars more. This kind of corporate influence over elections not only places a huge thumb on the scale in favor of pro-corporate candidates, it also corrupts existing lawmakers by forcing them to either play ball with corporate fundraisers or find some other source of funds in order to remain in the game.
Public financing provides a partial shield against this effect, but public financing schemes only work if they allow candidates who opt into them to remain competitive. If a state offers only a few thousand dollars in public funds to a candidate whose opponent is backed by tens of millions of corporate dollars, than the non-corporate candidate will have no choice but to raise money on their own. To defend against this problem, Arizona developed a two-tiered public financing system. Candidates receive additional funds if their opponent or corporate interest groups overwhelm them with attack ads, and thus candidates who are determined not to be tainted by the corrupting influence of major donors are not left defenseless.
Yet, in a case called McComish v. Bennett, the Court’s five conservatives appear poised to strike this two-tiered system down. If they do so, it could be the death knell for public financing, since no candidate is safe from massive infusions of corporate money after Citizens United.
- Making Courts Inaccessible
Many of the Court’s most corporate-friendly decisions create complicated and arcane procedural barriers to Americans seeking justice. The Court’s infamously Ledbetter decision didn’t literally take away women’s right to equal work for equal pay, it just created a procedural rule that made it nearly impossible for women to learn that they were victims of discrimination until after the statute of limitations to file a claim had run out. In Wal-Mart v. Dukes, the Supreme Court will decide whether to shut off another opportunity for women in the workplace to seek relief — class actions.
Class action lawsuits are brought by groups of plaintiffs who share a common injury with each other. These suits are essential to allow ordinary Americans, who often lack the resources to hire lawyers capable of taking on a major corporation on their own, to pool their resources in order to hire counsel that are capable of facing off against someone like Wal-Mart. There is substantial evidence that women who work for Wal-Mart stores have endured systematic pay and promotion discrimination and thus should be able to bring a class action. If the Supreme Court denies them this right, many of them will be left powerless before Wal-Mart’s legal team.
- Lawsuit Immunity
Finally, many corporate sectors have been given almost total lawsuit immunity by the Supreme Court. The justices gave sweeping legal immunity to medical device manufacturers and health insurers, and even gave the thumbs up to a biased system of corporate-owned courts that overwhelmingly rule against consumers and employees. In a case called PLIVA, Inc. v. Mensing, the justices will now decide whether to give lawsuit immunity to the makers of generic drugs.
Ever since Chief Justice Roberts joined the Supreme Court, the Chamber of Commerce has treated his Court as their personal genie, and Roberts has been more than happy to grant even many of their most outlandish wishes. Indeed, big business’ wins before the Supreme Court have spiked massively under Roberts’ leadership:
If the Roberts Court continues its pattern of favoritism to corporate interests, voters, workers and consumers could easily be left in the cold during three cases being argued this week:
- Buying Elections
In the wake of the Court’s infamous Citizens United decision, the Chamber pledged to spend a massive $ 75 million to elect corporate-aligned conservatives, and the Chamber’s right-wing allies kicked in hundreds of millions of dollars more. This kind of corporate influence over elections not only places a huge thumb on the scale in favor of pro-corporate candidates, it also corrupts existing lawmakers by forcing them to either play ball with corporate fundraisers or find some other source of funds in order to remain in the game.
Public financing provides a partial shield against this effect, but public financing schemes only work if they allow candidates who opt into them to remain competitive. If a state offers only a few thousand dollars in public funds to a candidate whose opponent is backed by tens of millions of corporate dollars, than the non-corporate candidate will have no choice but to raise money on their own. To defend against this problem, Arizona developed a two-tiered public financing system. Candidates receive additional funds if their opponent or corporate interest groups overwhelm them with attack ads, and thus candidates who are determined not to be tainted by the corrupting influence of major donors are not left defenseless.
Yet, in a case called McComish v. Bennett, the Court’s five conservatives appear poised to strike this two-tiered system down. If they do so, it could be the death knell for public financing, since no candidate is safe from massive infusions of corporate money after Citizens United.
- Making Courts Inaccessible
Many of the Court’s most corporate-friendly decisions create complicated and arcane procedural barriers to Americans seeking justice. The Court’s infamously Ledbetter decision didn’t literally take away women’s right to equal work for equal pay, it just created a procedural rule that made it nearly impossible for women to learn that they were victims of discrimination until after the statute of limitations to file a claim had run out. In Wal-Mart v. Dukes, the Supreme Court will decide whether to shut off another opportunity for women in the workplace to seek relief — class actions.
Class action lawsuits are brought by groups of plaintiffs who share a common injury with each other. These suits are essential to allow ordinary Americans, who often lack the resources to hire lawyers capable of taking on a major corporation on their own, to pool their resources in order to hire counsel that are capable of facing off against someone like Wal-Mart. There is substantial evidence that women who work for Wal-Mart stores have endured systematic pay and promotion discrimination and thus should be able to bring a class action. If the Supreme Court denies them this right, many of them will be left powerless before Wal-Mart’s legal team.
- Lawsuit Immunity
Finally, many corporate sectors have been given almost total lawsuit immunity by the Supreme Court. The justices gave sweeping legal immunity to medical device manufacturers and health insurers, and even gave the thumbs up to a biased system of corporate-owned courts that overwhelmingly rule against consumers and employees. In a case called PLIVA, Inc. v. Mensing, the justices will now decide whether to give lawsuit immunity to the makers of generic drugs.
The DC Circuit Court overturned a District Court’s decision to grant Guantanamo detainee Uthman Abdul Rahim Mohammed Uthman’s petition for a writ of habeas corpus on Tuesday. In reversing the lower court’s ruling, a three-judge panel found that Uthman’s account of his trip from Yemen to Afghanistan “piles coincidence upon coincidence upon coincidence” and is ultimately unconvincing.
It “remains possible,” the judges found, “that Uthman was innocently going about his business and just happened to show up in a variety of extraordinary places — a kind of Forrest Gump in the war against al Qaeda.” But “the far more likely explanation is that he was part of al Qaeda.” Uthman’s “account at best strains credulity.”
The Circuit Court judges found that several facts, all of which were either “found by the District Court or are otherwise uncontested,” were incriminating.
The judges explain that Uthman’s trip began at the Furqan Institute, “a religious school in Yemen where al Qaeda had successfully recruited fighters.” Declassified documents produced at Guantanamo note that some of the terrorists involved in bombing the USS Cole attended Furqan.
Uthman then “traveled to Afghanistan along a route used by al Qaeda recruits” and later “lied to hide the fact that someone else paid for his travel to Afghanistan.” Uthman had good reasons to lie about the funding for his trip. The money, as well as the spiritual advice he received to join the jihad, came from the deceased Sheikh Muqbil al Wadi, a longtime al Qaeda recruiter in Yemen who gave Uthman $ 1,000 for the trip.
After arriving in Afghanistan, Uthman “was seen at an al Qaeda guesthouse.”
He was then captured in December 2001 “in the vicinity of Tora Bora, an isolated, mountainous area where al Qaeda forces had gathered to fight the United States and its allies.”
Captured along with Uthman were two men who “were al Qaeda members and bodyguards for Osama bin Laden,” as well as a “Taliban fighter.” All three of these known jihadists “also attended the Furqan Institute.”
Finally, the court found that “Uthman’s explanation of why he went to Afghanistan and why he was traveling in a small group that included al Qaeda members and a Taliban fighter near Tora Bora during the battle there involves a host of unlikely coincidences.” In particular, Uthman claimed he went to Afghanistan to teach the Koran and yet “he does not remember the names of any of his students and cannot describe his school in Kabul.”
Whereas District Judge Henry H.Kennedy, Jr. did not find that this evidence justified Uthman’s detention, the DC Circuit Court did. A key difference between the two rulings is the use of the “command structure test,” which requires the government to show that a Guantanamo detainee received or executed orders from enemy forces.
That test has been shot down by the DC Circuit Court in previous rulings, but only after Judge Kennedy, Jr. ruled in Uthman’s favor. Dispensing with the test, the DC Circuit Court found that the evidence showed Uthman was more likely than not a part of al Qaeda — and not a Koran teacher who just happened to wander into al Qaeda’s company in late 2001.
Key allegations not pursued
In a footnote, the Circuit Court panel explains that the government also contends “Uthman attended an al Qaeda training camp, fought against the Northern Alliance, and himself became one of Osama bin Laden’s bodyguards.” While these allegations were made during the District Court proceeding, they were dropped during the government’s appeal.
District Judge Kennedy, Jr. dismissed these allegations, finding that they were sourced primarily to two detainees who were allegedly tortured. The two detainees in question are Abdu Ali al Hajj Sharqawi (ISN # 1457), aka “Riyadh the Facilitator” — a known, high-level al Qaeda operative who is detained at Guantanamo — and Sanad Yislam Ali Al Kazimi (ISN # 1453), who is also detained at Guantanamo.
Judge Kennedy, Jr. excluded Sharqawi’s incriminating descriptions of Uthman, finding that Sharqawi had been “tortured” during his detention in Jordan, at a CIA-run facility in Afghanistan, and at Bagram. The sole piece of evidence Judge Kennedy, Jr. relied upon in determining that Sharqawi had been tortured came from Sharqawi himself. Counsel for Uthman submitted a declaration written by Sharqawi’s attorney, who Sharqawi purportedly told about his time in Jordanian and US custody.
During the District Court hearings, the government countered by presenting as a witness the criminal investigator who had interviewed Sharqawi and al Kazimi at Bagram and Guantanamo. Kazimi had similarly identified Uthman as an al Qaeda operative and then, in a declaration filed by his attorney, claimed he was tortured.
The government argued, however, that the investigator, who worked for the Department of Defense’s Criminal Investigative Task Force (CITF), “did not mistreat” Sharqawi or Kazimi, or “observe any torture,” or even witness “any signs of abuse in the demeanor or physical state of either man.” Moreover, the investigator took Sharqawi’s and Kazimi’s testimony during “cordial,” non-coercive interview sessions.
Despite the prosecution’s arguments, however, Judge Kennedy, Jr. still excluded Sharqawi’s and Kazimi’s statements, reasoning that the government had failed to rebut the declarations made by the detainees’ lawyers. Judge Kennedy, Jr. ruled that the CITF investigator did not have knowledge of Sharqawi’s and Kazimi’s time in custody prior to arriving at Bagram and Guantanamo, and had only limited knowledge of their time in custody after being transferred to those facilities. Thus, Judge Kennedy, Jr. excluded Sharqawi’s and Kazimi’s statements because their lawyers’ declarations were supposedly unrebutted. Sharqawi’s and Kazimi’s friendly interrogations were considered “tainted” by their earlier alleged mistreatment.
The government decided not to pursue the matter further during appeal and so, while the government believes Uthman was a bodyguard for Osama bin Laden (just as two of the men he was captured with also were), that allegation and others were dropped.
The story of Sharqawi’s testimony took a surprising turn in February, however, when a District Judge in another habeas matter ruled that there was “no evidence that Sharqawi’s statements were the result of torture.” In that case, counsel for Mashour Abdullah Muqbel al Sabri sought to include Sharqawi’s statements — precisely the opposite of what Uthman’s counsel sought. Al Sabri’s lawyers thought that Sharqawi’s statements helped their case, and so they did not seek to exclude them as “tainted” evidence. [See LWJ report, Judge finds Gitmo detainee was no ‘Gucci jihadist’.]
The inconsistent handling of Sharqawi’s testimony highlights a fundamental problem in the habeas proceedings. Sources familiar with the government’s thinking in these proceedings tell The Long War Journal that prosecutors are often reluctant to delve into any topics involving the CIA’s formerly secret detention program. The Agency does not want its program dragged into court, where sensitive intelligence may be exposed, and regularly withholds information from the habeas proceedings. As a result, the government frequently does not fully rebut charges of “torture,” even in instances when prosecutors believe the allegations are completely false.
In Uthman’s case, there was enough evidence to justify his detention regardless of any torture allegations.
