JUSTICE SCALIA: Troposphere, whatever. I told you before I'm not a scientist.
(Laughter.)
JUSTICE SCALIA: That's why I don't want to have to deal with global warming, to tell you the truth.
--Justice Scalia, Oral Argument, Mass. v. EPA, page 22 (Nov. 29 2006)
The irony is that the case may very well be how States (and, arguably, citizens) obtain the standing to compel governmental agencies to act to mitigate the effects of CO2 on global warming.
Wednesday, November 29, 2006
Sunday, November 19, 2006
Quote
"Without freedom, no art; art lives only on the restraints it imposes on itself, and dies of all others."
--Albert Camus
--Albert Camus
Tuesday, November 14, 2006
Effects of Rejecting Habeas Challenges In Iraq By U.S. citizens
This week the Supreme Court denied an application -- by a U.S. citizen being detained by the Multinational Force (MNF-I) in Iraq -- requesting to delay his transfer to the Iraqi court system. The legal question is whether habeas extends to a citizen being detained by an international force, to which the United States plays a substantial role, in Iraq on behalf of the Iraqi government. To be sure, the legal issue is a questionable one.
Separation of powers issues are strongly at play in petitioner's request to seek federal court review of the legality of that detention. Petitioner has focused on the reasons why a court should not deny habeas relief by giving deference toexecutive independence without court interference. However, the concern is a two way street. Without habeas relief, the Executive, with a desire to transfer a detained U.S. citizen to a foreign power, may collect evidence of the detained, deem him fit to be transfered, and then transfer him to the foreign power to be charged with no judicial oversight. To be sure, one can make the argument that this case is strictly limited to where the United States is acting as part of a coalition force, but is that not a distinction without a difference.
With no habeas relief for U.S. citizens abroad, the Executive (through a coalition force they control) may pick up U.S. citizens abroad and transfer them to foreign powers with impunity. Does not the fundamental tenets of our Constitutional order require the judicial branch to provide an independent inquiry into the validity of Executive constraints upon an individual citizen. The court should not deny itself the right to that inquiry on behalf of U.S. citizens.
Although the Supreme Court rejected the application it may not have been because it rejected petititoner's habeas arguments. There is still a possibility that the D.C. Circuit will grant an en banc review of the opinion that denied petitioner his relief. Conceivably, upon final resolution of the case of the application in the D.C. Circuit the Court may accept the case. However, it should be remembered that Munaf is awaiting transfer to Iraqi custody to face his death sentence (by hanging, presumably).
--Petititoner's request for injunctive relief in the Supreme Court can be found here. This includes, as appendix, the lower court opinions of both this case and that of Omar v. Harvey (granting the temporary injunctive relief until the case is heard).
Separation of powers issues are strongly at play in petitioner's request to seek federal court review of the legality of that detention. Petitioner has focused on the reasons why a court should not deny habeas relief by giving deference toexecutive independence without court interference. However, the concern is a two way street. Without habeas relief, the Executive, with a desire to transfer a detained U.S. citizen to a foreign power, may collect evidence of the detained, deem him fit to be transfered, and then transfer him to the foreign power to be charged with no judicial oversight. To be sure, one can make the argument that this case is strictly limited to where the United States is acting as part of a coalition force, but is that not a distinction without a difference.
With no habeas relief for U.S. citizens abroad, the Executive (through a coalition force they control) may pick up U.S. citizens abroad and transfer them to foreign powers with impunity. Does not the fundamental tenets of our Constitutional order require the judicial branch to provide an independent inquiry into the validity of Executive constraints upon an individual citizen. The court should not deny itself the right to that inquiry on behalf of U.S. citizens.
Although the Supreme Court rejected the application it may not have been because it rejected petititoner's habeas arguments. There is still a possibility that the D.C. Circuit will grant an en banc review of the opinion that denied petitioner his relief. Conceivably, upon final resolution of the case of the application in the D.C. Circuit the Court may accept the case. However, it should be remembered that Munaf is awaiting transfer to Iraqi custody to face his death sentence (by hanging, presumably).
--Petititoner's request for injunctive relief in the Supreme Court can be found here. This includes, as appendix, the lower court opinions of both this case and that of Omar v. Harvey (granting the temporary injunctive relief until the case is heard).
Monday, November 13, 2006
Federal Habeas Challenges from U.S. citizens in Iraq
Two cases are in the federal court system involving habeas challenges by U.S. citizens being held by Coalition Forces in Iraq. They both face charges in the Iraqi criminal court system. Munaf has been sentenced to death by an Iraqi court, and Omar, is awaiting charges by an Iraqi court. The two cases involve the reach of U.S. habeas jurisdiction abroad.
Supreme Court jurisdprudence in habeas challnges post 9/11 has been relatively active. The court, in Rasul has extended habeas jurisdiction to nonresident aliens detained by the Executive in Guntanamo Bay, Cuba. The Court harkened back to a Lord Mansfield opinion stating, "even if a territory was ‘no part of the realm,’ there was ‘no doubt’ as to the court’s power to issue writs of habeas corpus if the territory was ‘under the subjection of the Crown.'" This seemingly reaffirmed traditional habeas protections in modern times. After all, habeas jurisdiction is concerned with the custodian (i.e., a court order for the restrainors to produce the body).
Despite the modern progeny of jurisprudence dismissing the Executive's plenary use of detention to wage the 'War on Terror', the two cases test the issue of the breadth of federal habeas review for U.S. citizens abroad. Hirota, a post WWII ruling held that the Court had no jurisdiction to hear a habeas challenge of the legality of detention persuant to an international military tribunal.
Currently in Munaf, the D.C. circuit has stayed a 3 judge panel ruling that denied petitioner his habeas challenge in order to hear the case en banc. In Omar, the D.C. Circuit granted a preliminary injunction to hear the merits of the case. The petititoners will remain in 'U.S. Custody' (for lack of a better term) awaiting further rulings by the court.
A comprehensive rundown of the procedural history in Omar v. Harvey.
SCOTUSBlog has also reported on the cases.
Supreme Court jurisdprudence in habeas challnges post 9/11 has been relatively active. The court, in Rasul has extended habeas jurisdiction to nonresident aliens detained by the Executive in Guntanamo Bay, Cuba. The Court harkened back to a Lord Mansfield opinion stating, "even if a territory was ‘no part of the realm,’ there was ‘no doubt’ as to the court’s power to issue writs of habeas corpus if the territory was ‘under the subjection of the Crown.'" This seemingly reaffirmed traditional habeas protections in modern times. After all, habeas jurisdiction is concerned with the custodian (i.e., a court order for the restrainors to produce the body).
Despite the modern progeny of jurisprudence dismissing the Executive's plenary use of detention to wage the 'War on Terror', the two cases test the issue of the breadth of federal habeas review for U.S. citizens abroad. Hirota, a post WWII ruling held that the Court had no jurisdiction to hear a habeas challenge of the legality of detention persuant to an international military tribunal.
Currently in Munaf, the D.C. circuit has stayed a 3 judge panel ruling that denied petitioner his habeas challenge in order to hear the case en banc. In Omar, the D.C. Circuit granted a preliminary injunction to hear the merits of the case. The petititoners will remain in 'U.S. Custody' (for lack of a better term) awaiting further rulings by the court.
A comprehensive rundown of the procedural history in Omar v. Harvey.
SCOTUSBlog has also reported on the cases.
Quote of the Week
"To a true artist only that face is beautiful which, quite apart from its exterior, shines with the truth within the soul."
--Mahatma Gandhi
--Mahatma Gandhi
Wednesday, November 08, 2006
Quote of the Week
"I tremble for my country when I reflect that God is just; that his justice cannot sleep forever; that considering numbers, nature, and natural means only, a revolution of the wheel of fortune, an exchange of situation, is among possible events; that it may become probably by supernatural interference!" This quote is from his Notes on Virginia.
Thomas Jefferson
Thomas Jefferson
Tuesday, November 07, 2006
Amici Briefs in Detainee Challenges
SCOTUSblog has uploaded two Amici briefs filed on behalf of individuals challenging their detention at Gitmo in light of the new Military Commision Act. The new federal legislation was enacted in response to the Supreme Court's holding in Hamdan v. Rumsfeld, and is being challenged on a number of grounds. The most significant, in my opinion, is the issue of whether the Act is compatible with the Suspension Clause of the Constitution.
Conditions at Gitmo
Human Rights Watch has compiled the accounts of former Gitmo detainees on the conditions surrounding their detention. See http://hrw.org/backgrounder/usa/gitmo1004/gitmo1004.pdf. The accounts are not as gruesome as one could imagine--if being beaten and pepper-sprayed by the Executive does not abhore the senses these days . Post 9/11 and well into the war on terror, has our standards of humanity been mitigated by national security exigencies?
Here is one account:
"He must have been about 240 ponds in weight. … Once he had done that the others came in and were punching and kicking Jumah. While they were doing that the female officer then came in and was kicking his stomach. Jumah had had an operation and had metal rods in his stomach clamped together in the operation. … the MP Sergeant … was punching him. He grabbed his head with one hand and with the other hand punched him repeatedly in the face. His nose was broken. He pushed his face and he smashed it into the concrete floor. All of this should be on video; there was blood everywhere. When they took him out they hosed the cell down and the water ran red with blood. We all saw it."
Amnesty International has also reported on, inter alia, Jumah al-Dossari, the Gitmo detainee victim described above.
Here is one account:
"He must have been about 240 ponds in weight. … Once he had done that the others came in and were punching and kicking Jumah. While they were doing that the female officer then came in and was kicking his stomach. Jumah had had an operation and had metal rods in his stomach clamped together in the operation. … the MP Sergeant … was punching him. He grabbed his head with one hand and with the other hand punched him repeatedly in the face. His nose was broken. He pushed his face and he smashed it into the concrete floor. All of this should be on video; there was blood everywhere. When they took him out they hosed the cell down and the water ran red with blood. We all saw it."
Amnesty International has also reported on, inter alia, Jumah al-Dossari, the Gitmo detainee victim described above.
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