"Our system of checks and balances is designed to preserve the fundamental right of liberty": An Update on the Gitmo Habeas Petitioners

I previously noted D. C. district court judge Ricardo Urbina's decision ordering the government to release 17 Guantanamo detainees. As of yesterday, only the order was available. This morning, though, the full text (though redacted some) of the memorandum opinion was posted on the D.C. district court's website.

It's a pretty interesting read. Because the government admits that these 17 men were not terrorists or "enemy combatants," the only issue was whether the government has the authority to indefinitely detain someone because releasing them into the United States might interfere with the government's authority to decide who gets to come into the U.S. and who doesn't.

It looks like the government's argument was based separation of powers---essentially an assertion that admitting somebody into the U.S. is only a policy decision, not a legal decision, and that it therefore is entirely the decision of Congress and the President, and that the courts have nothing to do with it. This is a bold assertion, but there is some support for it. Courts generally do defer to the other branches of government on matters of immigration and foreign policy.

Judge Urbina recognizes this, and he discusses the cases that give such wide deference. Nevertheless, from the opening line, you know where stands:

"There comes a time when delayed action prompted by judicial deference to the executive branch's function yields inaction not consistent with the constitutional imperative."

And by the end of the introduction, you know where he's going with this:

"because separation-of-powers concerns do not trump the very principal upon which this nation was founded---the unalienable right to liberty---the court orders the government to release the petitioners into the United States."

The big deal in this case is not the Judge Urbina found the continued detention unlawful---that follows pretty logically from the Supreme Court's Boumediene decision, and is even more obvious when the government admits that the 17 Uyghurs are not enemy combatants. What is bold about Judge Urbina's order is that it finds that the court has the authority to order immediate release. Although in Boumediene the court found that Gitmo detainees have the right to file a habeas corpus petition, it basically only treated it as a procedural right. The fact that the district court ordered immediate release into the U.S. goes beyond procedure straight to the remedy that should be given to a successful habeas petitioner. As a matter of common sense, it seems like it ought to be a no-brainer that the remedy for illegal detention is release; but the Boumediene didn't explicitly go that far.

Instead, Judge Urbina turned to the history of the writ of habeas corpus, which makes for the interesting read. It isn't every day that you see a district court opinion quoting the Magna Carta. He then turned to the government's authority to deny people entrance into the U.S. and concluded that naturalization power is not unlimited, but that it must comply with due process, including the mandate that nobody can be deprived of liberty without due process. Finally, quoting John Marshall, he turned the separation-of-powers argument on its head, noting that if the courts fail to review such decisions, such failure would allow Congress and the President, not the courts, to "say what the law is." Accordingly, he concludes that

"Because the petitioners' detention has already crossed the constitutional threshhold into infinitum and because our system of checks and balances is designed to preserve the fundamental right of liberty, the court grants the petitioners' motion for release into the United States."

Ballsy.

Judge of the Day: Ricardo M. Urbina

Today Judge Ricardo Urbina, ordered the release of 17 Chinese Muslims who have been held in Guatanamo Bay as enemy combatants since their capture in Afghanistan in 2002. This is the first time that a federal judge has ordered the government to release someone held in Guantanamo Bay. That takes balls.

Born in Manhattan to a Honduran father and Perto Rican mother, Judge Urbina was President Reagan's first judicial appointee. Reagan appointed him to serve on the D.C. Superior Court in 1981. In 1994, when President Clinton nomiated him to serve on the U.S. Federal District Court for the District of Columbia, Judge Urbina was the first Latino appointed to the Federal Bench in D.C. Now, fourteen years later, Judge Urbina gets to add being the first federal judge to order the release of a Gitmo detainee to his list of other firsts.

In June 2008, the Supreme Court decided that the constitutional right of habeas corpus (the right to force the government to explain its reasons for detaining a person) is not limited to people held on United States soil, but rather that it extends also to people that the U.S. government holds in Guantanamo Bay. Nevertheless, all that decision really said was that the government had to explain its reasons for holding prisoners---not that they necessarily had to be particularly persuasive reasons.

The seventeen men are members of an ethnic group known as Uyghurs. Uyghurs are ethnically Turkic, and practice Islam, but live in China. In 2002, seventeen the Uyghurs were captured in Afghanistan. They admitted to seeking training from the Taliban in order to defend fellow Uyghurs from the oppressive communist Chinese government. They denied being terrorists, and denied any intent to harm the United States, saying that it was China that they considered the enemy.

A military court called the Combatant Status Review Tribunal determined in 2004 and 2005 that fifteen of the seventeen Uyghurs were not enemy combatants. Earlier this year, the two others were also cleared of suspicion. Nevertheless, they were not released because of concerns about where to send them. They do not want to be sent back to China (for obvious reasons), and other nations are scared of offending China by granting them asylum.

Judge Urbina, however, didn't think that not wanting to offend China was a good enough reason hold people without trial when the government had already admitted that they were innocent. He ordered the government to bring them to his courtroom by next Friday. The DOJ asked for a stay of the order, which Judge Urbina denied. The DOJ stonewalled, saying that it would immediately appeal, and that immigration might have to detain them. Reminding the DOJ that they have already been held for seven years, Judge Urbina impatiently warned the DOJ not to create unnecesary delay.

Like I said, that takes balls.

Gun, Control.

Last week the NYT published an editorial by Adam Freedman about the Second Amendment case we're waiting for the Court to hear. Freedman blogs at Party of the First Part about the ongoing battle between legalese and plain English. I like Freedman. I identify with his obsessive disdain for legalese and love of plain Anglo-Saxon syntax. Freedman's editorial does a good job of summing up the textual wrangle in way that is precise, thorough, concise, and accessible. Well done.

Gun control?(!)

About two weeks ago, the Supreme Court granted certiorari to decide District of Columbia v. Heller. Heller is a Second Amendment challenge to D.C.'s gun law, which prohibits handguns within the district (with an exception for retired police officers) and requires that long guns be kept either secured with a trigger lock or dissembled.

This challenge to the 32-year old D.C. gun law was initially rejected by the Federal District Court for the District of Columbia in 2004. In March of last year, however, the D.C. Circuit Court of Appeals overturned the District Court's decision. See Parker v. District of Columbia. That it is now before the Supreme Court is significant because the Court has addressed the Second Amendment head-on only once---and that was almost 7 decades ago.

In Miller v. U.S., a prohibition-era case, a bootlegger was prosecuted for taking an unregistered sawed-off double-barreled 12-gauge shotgun across state lines, which was a violation of federal law. The bootlegger, Miller, argued that the federal law was an unconstitutional restriction of his right to keep and bear arms. The Supreme Court rejected Miller's Second Amendment challenge, holding that he had failed to prove that his "possession or use" of a sawed-off double-barreled 12-gauge shotgun had "some reasonable relationship to the preservation or efficiency of a well regulated militia."

The Miller court did not hold that one has to be a member of a state militia to lay claim on the Second Amendment. However, it did say that that the "possession or use" of a firearm has to be reasonably related to the militia in order to be protected by the Second Amendment. Under Miller, the question is whether the possession or use of handguns in the District of Columbia is in some way related to a well-regulated militia.

Curiously, though, the D.C. Circuit refused to approach the issue under the Miller holding. Instead, it asked whether the Amendment protects the individual right to have guns, or the collective right to bear arms. This individual vs. collective question had been a point of controversy among law professors and academics, and the historical and linguistic evidence is pretty evenly stacked on either hand. But the odd thing is that Judge Silberman and my old Stake President could have avoided taking sides in the controversy if they would have just asked the question presented under Miller.

Why did they do this? They could have just said that owning handguns in D.C. is related to the militia and ended it there. Instead, they spent the time and effort to take sides in the whole individual/collective debate. Why? My best guess is that it is ideologically driven (though probably completely sincere). The D.C. Circuit is a conservative court and it is popular among conservatives to support gun rights. See, for example, Mitt Romney's recently having joined the NRA become a life-long hunter. The current ideologically orthodox position for conservatives seems to be the individual rights position. In 2001, for example, John Ashcroft wrote a memorandum changing the official position of the department of Justice from the collective rights to the individual rights view. The memo is appended to the government's brief in Haney v. U.S..

I think it was wrong for the D.C. Circuit to address the question the way it did rather than stick with the Miller precedent. But what I think is irrelevant, now, because the case is before Johnny and the Supremes and they don't have the same obligation to respect precedent that lower courts have. Not much is known about the individual Justices' views on the Second Amendment, but the speculation is that this relatively conservative Court will approve what the D.C. Circuit did. So it will be interesting to see how it all goes.

Arguing Orally

I had Oral Arguments last night for International Moot Court, otherwise known as fake ICJ. It went fine. I wasn't too nervous, until I actually sat down and listened to my opponent start. Then I started getting the knot in the stomach that gets tighter and tighter until you feel sick. Other than a bit of dry mouth, though, I felt much better when I started arguing. Overall it went well. I'll find out Friday if I made the competition team.

I have to say, though, that my proudest moments were not the logical and legal points I proved, but the classical and biblical allusions I made. Having strong legal and factual arguments is essential, but they can be so dry.

I.
It is customary for an advocate to make some theme statement at the beginning of argument. Usually, it's something like "this is a case about the rule of law" or some other such boring and forgettable legal principle. My theme was an allusion to Aesop. I told the judges that "this is a case about political sour grapes." The judges liked that.

II.
At one point during my opponent's argument, one of the judges asked him if he was not trying to have it both ways. When I argued, I recalled that colloquy and told the judges that my opponent was "taking a rather Janus-faced position." One judge didn't like that because it was obscure and distracting. Two judges loved it because it was original.

III.
Then, pointing out another logical inconsistency in my opponent's argument, I said to the judges "after straining at such technical legal gnats, I don't know how the opposing side can then expect the court to swallow such blatant factual camels." This one made my teacher almost laugh.

I guess it shows I was an English major that I'm prouder of my allusions than my legal analysis.

Happy Constitution Day

Today is Constitution Day. Our Constitution turns 220 today. All federally funded schools must commemorate the ratification of the Constitution in some way. According to the "Consolidated Appropriations Act, 2005,’’ Dec. 8,
2004; 118 Stat. 2809, 3344–45 (Section
111), ‘‘each educational institution that receives
Federal funds for a fiscal year shall hold
an educational program on the United
States Constitution on September 17 of
such year for the students served by the
educational institution.’’ If you're wondering if Constitution Day might not be constitutional, look at this to see what one law prof thinks. In honor of this August occasion, here is a nice little list of "constitutional curiosities" put together by a guy that was once my Con Law prof and is now dean at some law school in ol' Kentuck.

CONSTITUTIONAL CURIOSITIES: A TWENTY-ONE QUESTION SCAVENGER HUNT
by Jim Chen

This exercise is intended to make reading the Constitution a little livelier. All answers to the questions below may be had by consulting the text of the United States Constitution.

1. Of which state are you a citizen?

2. Are you eligible for the House of Representatives? The Senate? The Presidency? If not, why not?

3. Bill Dodge, son of two United States citizens, was born in Niger during his parents’ African travels. Ousseini Abdoulaye was born in Niger on the very same day; Ousseini’s parents, however, were citizens of Niger. Ousseini later moves to the United States and becomes a United States citizen. Assume that both Bill and Ousseini are 40 years old and have lived in the United States for at least last 20 years. Is either Bill or Ousseini eligible to serve as President?

4. The original Constitution contemplated the continuation of slavery in those states that permitted slavery as of 1787. Find the first instance of the word “slave” or “slavery” in the Constitution. If you don’t find either of these words in the original Constitution, what are the hints that the original Constitution contemplated and tolerated slavery?

5. Assume that the free population of South Carolina in 1850 was 1 million, that its slave population was 500,000, and that its untaxed Indian population was 100,000. For purposes of determining South Carolina’s representation in the House and direct tax obligations to the federal government, what was the population of South Carolina?

6. The Constitution refers to only three types of unlawful behavior, and a fourth may be inferred from the text of a general prohibition. Name all four.

7. Does the Constitution contemplate capital punishment? Where? Which provision or provisions would you invoke if you wished to attack the constitutionality of the death penalty?

8. What is the only use of the word “right” in the original Constitution?

9. When is Inauguration Day? Is it the same as the first day of a new congressional term?

10. What is the maximum time anyone may serve as Presi-dent?

11. What is the only part of the Constitution that may never be amended?

12. Speaking of amendments, name the commercial activity that the Framers of the Constitution declared off-limits to regulation via constitutional amendment until 1808 (i.e., 21 years after the framing of the original Constitution).

13. Still speaking of amendments, how can they be made? (Name two methods.)

14. José and Maria Nazarena are citizens of El Salvador. They enter the United States illegally. Maria then gives birth to Jesus in Bethlehem, Pennsylvania. Consulting only the Constitution, name one country of which Jesus is a citizen.

15. In a fit of pique, the President decides to skip this year’s State of the Union address. As White House legal counsel, what do you advise?

16. In a fit of pique (probably provoked by the flap over the State of the Union address), the House begins debating a bill to cut the President’s pay and Supreme Court Justices’ pay. As counsel to the Speaker of the House, what do you advise?

17. Before 1913, who chose Senators? After 1913?

18. Rose Perot, a candidate for the House of Representatives, plans to issue a campaign promise to oppose any Supreme Court nominee who will not commit to upholding a woman’s right to abortion. As Rose’s campaign manager, do you run the ad? (Base your answer strictly on your interpretation of the Constitution, not on any political considerations.)

19. Jessie Ventura-Boulevard ultimately defeats Rose Perot in a hotly contested race for Congress. The victorious Jessie now represents Texas in the House of Representatives. Her political “lone star” having risen swiftly, she now seeks a national political platform. She would like to be the running mate of her fellow Texan, Governor George W. Shrub, the Reform Party nominee for President. As Jessie’s political adviser, can you point out the constitutional flaw in the congresswoman’s vice-presidential ambitions?

20. How much Hawaiian money do you have in your purse or wallet?

21. Speaking of purses, your cousin Rhonda left hers at your recent family reunion. Upon rifling through the purse, you discover a certified mail receipt, a Confederate $10 bill, a District of Columbia driver’s license, a copy of the Koran, and a Susan B. Anthony dollar. Whatever their market value, these items make up a constitutional treasure trove. Find any and all constitutional provisions that relate to the contents of Rhonda’s purse. Incidentally, does it make a constitutional difference if you open the purse in your capacity as an FBI agent or if you are simply a nosy busybody?

Find the answers here.

Is it unethical to preach the gospel?

I asked myself this question last night. My job (a law clerk for a legal services organization that serves migrant farmworkers) is constantly inviting me to make comparisons with my missionary service. Like my time as a missionary, I work with Latinos, mostly Mexicans, in the U.S., who live off of field work. Like missionaries, I visit my clients in their homes. Like missionaries, I have to gain my clients' trust. Heck, I even drive a 1999 Sentra like when I was a missionary.

9:00 PM. Last night was a late night. As I met with a client family in a trailer park in a small town in western Minnesota, I couldn't help but be brought back to my mission service. Especially when my client asked me: ¿Cómo aprendiste el español? I explained to him that I was a missionary for my church a few years ago in Arizona. His face glowed with recognition and he said that he had had visits from Mormon elders at his home in Texas. At that point, I would have responded with a follow up question: how did you like it? Or, why did you stop meeting with them? Or, did you ever go to church? Or, would you like me to have the elders here visit you?

I would have. But I stopped myself. I hesitated. It didn't feel right. Somehow, it had the feel of an abuse of authority, or an impermissible blending of church and state, or a violation of the legal services non-solicitation policy, or some other verboten thing. Even though it wasn't strictly any of those things, it felt like something of that nature.

9:15 PM. We finished up our interview and I packed up my client files securely. We shook hands. ¡Que Diós te bendiga! I heard my client exclaim as I got in the car. As I drove to my temporary 3-day-a-week apartment, I wondered why it was that I felt like it was wrong of me to preach the gospel at that moment. The best answer I came up with was that my relationship with my clients, is one of professional advice and counsel, and that the gospel is outside the bounds of that relationship. They come to me to find out what to do. I, after conferring with a licensed attorney, then give them the advice they seek. Even though I explain that I am only a law clerk, not a licensed attorney, they still see me as some kind of professional authority figure. I am entrusted with that authority for the specific purpose of giving them legal advice and counsel. To give, unsolicited, religious counsel would seem like a breach of that trust.

I don't mean that I would never speak about the church with a client. If a client asked me about the church, I would respond. If a client asked me about a non-legal matter, I would be likely to draw on relevant gospel-related experiences. But somehow, it feels wrong to "look for an opening" to share the gospel like I might do in another situation.

But is that just an attempt to artificially separate my gospel self from my professional self? At some level, my understanding of the law is founded on my understanding of justice, which is founded on my understanding of religious truths. The gospel really does infuse everything I do, like it or not. So is my attempt to banish it a Canute-like futility?

Or again, is my sense that it would be wrong to preach the gospel in that situation nothing more than an excuse? Is it really my human reluctance to share personal things (what could be more personal than religion) with people I've just met? Maybe I'm justifying after the fact my failure to share the gospel by rationalizing that I probably shouldn't have anyway.

Or is my hunch right? Is it unethical in some situations to preach the gospel?

I know that sometimes it is illegal to preach the gospel. And I suppose that some might argue that given our belief "in being subject to kings, presidents, rulers, magistrates, and obeying honoring and sustaining the law," the very fact that it is illegal makes it wrong. But I can't accept that as an absolute. That would mean that Daniel and the three Hebrew children were wrong to disobey their king. It would also mean that Helmut Hubner was wrong to oppose Hitler. Scripture and conscience don't allow those conclusions for me.

Maybe a discussion of "ethical" would be helpful. I've always liked Kant's expression that it is unethical to use a human being for the benefit of another because it is a nice critique of hard materialist utilitarianism. I'm not sure how that relates to my question, though. Preaching the gospel is not using anyone. I suppose I am using the situation, but it is not for my benefit, but for the benefit of the other. Then again, perhaps I am not qualified to decide what is in another's best interest because that would rob him of a sacred autonomy. A utilitarian ethicist would simply balance the potential harm from me preaching the gospel against the potential good it would do. But this doesn't work here because the potential good is infinite, great enough to justify the spilling of God's blood. How can you balance anything against infinity?

Ethics is weird for me because I feel like I have a pretty strong sense of right and wrong, but it is highly intuitive sense, not a rational sense. For me, the abuse or misuse of authority of authority is important to ethics. The idea of trust and its betrayal is also an important ingredient. Maybe this idea subsumes the former; a misuse of authority is fundamentally a betrayal of trust. If it is unethical to preach the gospel, maybe it is ethics that is flawed. Ethics for me is a matter of conscience, but is defined to most of the world by philosopher and scholars working in rational proofs.

Should ethics be defined by reason or by intuition? Is religion (and with it the injunction to preach to all the world) superior to ethics because it is revealed truth rather than merely rational or intuitive truth? Then again, given what we Mormons believe about the light of Christ, what is the difference between revealed truth and intuitive truth?

Or is it just that there are exceptions to the command to take the gospel to all the world? I don't like the idea of there being exceptions because it might lead us to assume that some people's immediate spiritual salvation is worth less than others' to God. The Lord certainly doesn't qualify it in scriptural language. But then again he also doesn't qualify "thou shalt not kill" and yet we accept that he appears to command Abraham, Joshua, Nephi, and others to do just that. If there are exceptions to the mission to proclaim the gospel, is there a way to recognize these exceptions without giving room to justify laziness in our mission?

But maybe the exceptions idea isn't the right approach. Maybe it's not a matter of if this particular person or group should hear the gospel, but when. I think of the 11th hour laborers. The fact that they were called later did not devalue their labor. In fact, their work was worth more to the lord per hour in strict economic terms. Given what we believe about our post-mortal life, the universalism of the command can still stand even if current circumstances render it impossible, impractical, or even unethical.

But there's always that nagging voice in the back of your mind, telling you that you're still just trying to justify yourself.

Life imitates life

An old post over at Cabeza's talked about a co-worker who looked like the Lorax. Similarly, a woman at the university here bears an uncanny resemblance to Elton John.

As Cabeza obsoives, the obvious question hanging in front of everyone's mind is whether the people who look like things, or people, or fantastical creatures actually know what or who they look like. It seems that it would be obvious, or at least reasonably clear that Mr. Lorax or Elton Jane would be aware of their resemblance. But if so, that only raises a more perplexing question: why don't they do something to change their appearance?

In criminal law, each crime requires not only the criminal act itself, but criminal intent as well. Intent can be established not just if the defendant actually intended the act, but also if the defendant had knowledge that his actions would lead to that result, or if he knew that there was a risk that his actions would lead to the criminal result and proceeded reckless to that risk. So my question is this: if the resemblers know what they resemble, does that mean that they in some way intend to resemble? Can we infer intent from the fact that they act recklessly toward the risk that they might resemble singers and mythical forest protectors?

Abortion?(!)

In Gonzales v. Carhart, (click here for full-text of the opinion) the Supreme Court yesterday upheld a nationwide ban on certain types of abortions.

This kind of throws a wrench into the semester of jurisprudence my Con Law prof. has been laboring to construct since Christmas.

The law at issue passed both the Senate and the House in 2003 by a fairly large margin. It bans a specific (and fairly gruesome) abortion procedure. Today's decision is not a surprise, especially given the fact that the court's makeup has shifted a bit to the right since the last time an abortion ban was considered. The controversial aspect of the decision, though, is that it contains no exception to preserve the health of a mother. I does contain a life exception, but no health exception.

Is this decision significant? Not really. As a symbol, perhaps, but not in any real practical way. The radical right will trumpet it from the rooftops as a victory over godless secularism. The radical left will call it the downfall of civilization as we know it. In reality, over 90% of all abortions performed don't even come close to using this procedure. In those cases that do use it, other abortion procedures are readily available that are not outlawed. But regardless, get ready for the demagoguery from both ends of the spectrum. It's only going to get louder.