Monday, June 28, 2004

Thoughts On The Big Supreme Court Rulings

The rulings are tumbling out as the term ends, and I want to give my quick thoughts on them.

They All Know His Name Now

The first is the ruling on my man Dudley Hiibel, rhymes with "bible." You may recall that he was the man who was standing by the side of the road talking to his daughter when a cop drove up to investigate a call that Hiibel had been hitting a woman in his pickup truck. Deppity Dawg asked Hiibel if he had any "identification," and Hiibel declined to answer the question. Hiibel was a good-old-boy Nevada rancher and was three sheets to the wind (as we say in legal circles), and he politely (for the circumstances) declined to give his name because the cop declined to explain why he was asking the question. (You can see the video at his website here.) It's pretty clear that Hiibel had no idea why the cop had driven up, and Deppity Dawg saw no reason to explain that there had been a phoned-in complaint. Hiibel was charged under a Nevada statute that requires a citizen under investigation to "identify himself," and he was fined $500. Hiibel paid the fine and took his case all the way to the Supreme Court.

In a close 5-4 call, the Supremes affirmed the fine. The key to the ruling was the Court's dogged unwillingness to decide the case in the way in which it was framed -- can Deppity Dawg demand that a citizen produce his "papers"? That's the more interesting question, and it remains unanswered. Rather, the Supremes framed the question as an issue solely under the Nevada statute, and thus only asked whether Hiibel's constitutional rights were violated when he was required to give his name. Their decision to frame the question in this way is irritating and cowardly and entirely correct under the law. The case was before the Court under the Nevada statute, not under a civil-rights theory.

So the five in the majority held that the statute's requirement that you "identify yourself" can be through any form of identification, such that Hiibel had the right to simply state his name and go no further. The fact that the officer demanded "some form of identification" is irrelevant -- a point which may come as a surprise to anyone faced with the full onslaught of "Reno 911" fake-authority. But that's the key to the whole enchilada. Despite the fact that the cop demanded Hiibel's "identification," Hiibel should have known that he had the right to state his name and then clam up.

It all falls into place after that. The majority then held that the Nevada statute did not violate the Fourth Amendment (search and seizure), because it is reasonable to (1) ask a person his name, and (2) expect an answer, when (3) you have reasonable suspicion of a crime. Prior non-binding statements had strongly indicated (1) and (3), but had suggested that the person being investigated had the right to remain silent. The Fifth Amendment was not violated because Hiibel was not withholding his name out of fear of incrimination, and moreover it would be a very extraordinary case indeed where the plaintiff refused to give his name on the grounds of being "incriminated." (Such a person, Kennedy notes, would have to refuse to stand when his name was being called in court.) It might happen someday, but it didn't happen here.

Stevens, dissenting alone, said that the Fifth Amendment was violated, because Miranda has long said that you have the right to remain silent and that rule should apply during a mere investigation as well. He argued that a person's name was "incriminating" because all "links in the chain of evidence" are "incriminating" -- as Stevens asks, if a name is not incriminating why would the cop ask for it?

Breyer, dissenting with Ginsburg and Souter, would have held that the Fourth Amendment was violated because part of the whole justification for the intermediate-level "Terry" investigation standard is that the person under investigation does not have to respond. ("Terry stops" are cases under Terry v. Ohio in which the officer lacks the probable cause required by the constitution, but does have a "reasonable suspicion" that something is afoot.) The only reason that cops get to proceed without probable cause is the notion that the individual can walk away at any time. When Nevada passed a law that limited Hiibel's right to walk away, it broke the thin reed on which Terry hangs.

Flying (Duck) Blind

Judicial Watch and the Sierra Club filed suit against VP Cheney and the federal task force assigned to come up with a new energy policy. Everyone knows that much. But if you want to understand what the hell the Supremes are talking about -- and why their irritating decision is (again) irritatingly correct -- you have to understand the nature of the lawsuit being asserted. The plaintiffs (hereinafter "the bleeding heart liberal patriot watchdogs") argued that the Administration had violated the Federal Advisory Committee Act. The theory was that the Administration had allowed lobbyists to become such pervasive parts of the process that they were essentially committee members, and thus became obligated to disclose the same information as the goverment-employee members. This is, to put it mildly, a new theory. A "good faith argument for the extension of the law. A stretch akin to my old Stretch Armstrong doll.

It's pretty damn near a death sentence.

Moreover, the plaintiffs were asking for a petition for a writ of mandamus against Cheney (mandamus being an order from a higher authority telling a lower authority to do its job) and a claim under the Administrative Procedure Act against the committee itself. The problem is obvious to lawyers. If you lean up next to a sleeping lawyer's ear and whisper the word "mandamus" to him, he will mutter "extraordinary remedy." And then he'll sue you. So that's strike two against the watchdogs right there. The plaintiffs were seeking a rare and extraordinary remedy from the court, in order to defend a legal theory that was itself extraordinary.

Because success on the merits was so thin, the plaintiffs tried to use the normal process of civil discovery to uncover the very information that they demanded as the ultimate result of their lawsuit. Worse, the plaintiffs got greedy and asked for much more information than they would ultimately be permitted to receive. Now, it's SOP for a civil plaintiff to do a certain amount of "fishing", but not in a case where the "fish" is the object of the case itself. But the district court and Court of Appeals held that discovery should go forward because there was no separation of powers issue raised. After all, the Administration had not asserted "executive privilege" -- the defense discussed in U.S. v. Nixon (the secret tapes case) -- which they believed was the way for the Executive to complain that its rights were being infringed by the courts.

The Supremes reversed, 7-2 (more or less). Nixon had held that executive privilege was the only exception to the obligation to produce documents in a criminal case, but civil cases are different. They're a lot more wobbly, and courts have long had the power to control discovery to keep civil cases in line. The Court of Appeals thought its hands were tied, and they weren't, so they should get take another look at the case. It's the right result given the facts and the procedural posture of the case. Kennedy makes a snarky remark about respecting the executive, but it's not as bad as some liberal blogs make it out to be -- in context, it does not come across as an attempt to ignore the fact that Clinton had been forced to submit to civil discovery. It's a rebuke to the Court of Appeals for pretending that its hands were tied.

Stevens wrote a concurrence in which he emphasized that the discovery being sought was the very information at issue in the case, and thus the Court of Appeals' decision was a veiled decision on the merits of the case. He's got a good point. Scalia and Thomas wrote a concurrence emphasizing that there was little to no chance that the new and untested theory being advanced by the plaintiffs would ever work. They've got a good point. Ginsburg and Souter dissented to make two more good points: (1) the district court had not lost its mind, but was willing to "rein in discovery" if the Administration would only make its objections clear; but (2) the Administration had refused because it demanded that it be exempted from all obligation to comply with discovery. According to the dissenters, because the Court had made clear that the "no discovery" argument was dead, that should have completely resolved the appeal.

It's a fairly straightforward decision, and it makes sense once you know the procedural posture. Cheney isn't out of the woods yet -- there's still some life in the claim against him. But he managed to run out the clock for the 2004 election cycle, so we'll have to wait for a Kerry presidency to find out what all those oil company executives cooked up.

"A state of war is not a blank check for the President when it comes to the rights of the Nation's citizens."

Write it up, put it on a T-shirt, put it in a box and wear it around your head. The Preznit is not the King, and the Court recognized it. Just barely. But the alliances in these cases will make your head spin.

Let's be clear what was at stake. The President claimed the authority to deny all constitutional due process -- all of it -- to persons that he unilaterially declared to be "enemy combatants." This isn't Abu Ghraib coloring my view, or the memos. This was the legal position of the Justice Department in the Supreme Court, all before the memos had come to light. The Bush Administration believed that it had the power to grab a guy off the street and lock him in a brig with no charge, no trial, no lawyer, and no right to keep from being butt-raped by his guards, all because the executive had declared him to be an "enemy combatant."

And before we go any further, let's pay homage to that classic rule of civil rights cases. In every civil rights case, the weak link is the victim. And it's doubly true here. Though there has been a rush to find some valid legal theory with which to charge Padilla -- no kidding, they're scrambling to find a valid reason to keep the man in jail more than two years after he entered his own personal Kafka novel -- he is (by all accounts) a sonofabitch. But, my copy of the constitution doesn't have the "sonofabitch" exception in it. I must have an old copy.

The three cases presented the perfect factual trifecta -- for a court that is overeager to limit the facts and duck the real issue, the presence of three cases meant that at least one of the enemy combatant cases would have to be decided. Padilla was an American citizen seized on American soil. Hamdi was an American citizen seized in Afghanistan, arguably on a "battlefield." And the Guys of Gitmo aren't even American citizens.

Padilla is the easiest case to describe, because the Court ducked the issue. Five justices held that Padilla's lawsuit was improperly framed because he had sued the wrong guy. He was arrested in New York and filed suit in New York against Donald Rumsfeld, the only person that Padilla's lawyers knew for a fact to be involved in the matter. The Administration had been, shall we say, less than forthright about Padilla's location. Or existence. Yet the Petition stated that Padilla was in a brig in South Carolina, so there's some indication that Padilla's lawyers knew what was up -- at least, they had finally pierced the veil of secrecy by the time they filed their petition.

Rehnquist, O'Connor, Kennedy, Scalia and Thomas held that the petition was filed in the wrong place and against the wrong person. Habeas corpus must be filed against the warden of the jail. Padilla's lawyers knew he was in the Consolidated Brig at Charleston. They should have filed there, against the warden there. QED. It's a temporary opinion at best -- Padilla's lawyers get to immediately file in South Carolina and get relief -- but it enabled the court to avoid the case that presented the most embarrassing situation for the Bush administration. In fact, Kennedy and O'Connor wrote a concurrence in which they engrave the invitation for Padilla to re-file. They would create an exception to the rule if the government was hiding the prisoner, but Padilla's lawyers had found him by the time they filed their petition. But more importantly, the rule that blocked Padilla's case is just a technicality, nothing major. Come on back real soon now, y'hear?

The four dissenters, headed by Stevens, argued that the habeas corpus jurisdiction rules have all the solidity of Swiss cheese, and thus it was ridiculous to enforce this sort of technical rule -- especially when the only reason his lawyers knew his whereabouts was because they were particularly adept at piercing the government's game of "keep away." They would have addressed the claims, and would have held that Padilla gets his day in court. (Some sort of court -- apparently a military tribunal would suffice.) Indeed, in a passionate turn of phrase, Stevens undeniably says that Padilla was tortured by being held incommunicado for so long. And this is a bad thing. "For if this Nation is to remain true to the ideals symbolized by its flag, it must not wield the tools of tyrants even to resist an assault by the forces of tyranny."


The other extreme was the Rasul case, which was the Guys of Gitmo. This was simply a a technical issue -- whether the prisoners can assert a habeas corpus claim given that they are not within the territorial jurisdiction of the United States. This time the technicality lost because O'Connor swung and joined the Padilla dissenters. Stevens wrote that the habeas corpus statute was not strictly limited to the territorial scope of the US -- a holding that almost inevitably follows from the government's admission that a US citizen could file a habeas corpus petition from Gitmo. If a citizen can, then the issue isn't the territorial jurisdiction now, is it?

The real issue here is the difference between Rasul and Padilla -- in Padilla, five justices believed that Padilla wasn't being deliberately and successfully hidden from the justice system. In Rasul, the government freely admitted that the prisoners had been taken to Gitmo specifically for the purpose of hiding them from the U.S. courts.

Scalia ranted that the majority had lost its senses and allowed all enemy combatants anywhere in the world to sue in America. He probably has a good point about the reasoning cited by the majority, which claimed that it didn't have to overrule any of its prior decisions to reach the result. The better reasoning is stated in Padilla, where Stevens forthrightly said that habeas corpus is a patchwork of rules that have been bent so many times that one more bending won't hurt anything. And besides that, the Court has the power to interpret an ambiguous statute. In short, Scalia's literalism ran headlong into the power-to-the-courts view of the old Warren Court.

The payoff was the middle case, the Goldilocks case. In Hamdi, the Supremes made it completely clear that the detainees get to challenge their confinement with some semblance of due process -- a day in court before a neutral decisionmaker. Four justices (O'Connor, Rehnquist, Kennedy, Breyer) held that there was no need to decide whether Bush alone had the authority to detain "enemy combatants" because Congress had authorized Bush to detain combatants like Hamdi with its 2001 "authorization for use of military force." (Note that they were cagey about "enemy combatants" who were not seized on the battlefield, such as Padilla.) That status cannot be indefinite -- "enemy combatants" end when the fighting stops. Specifically, the plurality said that Hamdi would cease to be an "enemy combatant" when the military actions ended in Afghanistan. They then concluded that Hamdi was entitled to challenge his status before a neutral decisionmaker -- not with all the niceties of federal procedure, but subject to the protections of due process and with access to the courts. This was nothing less than a flat-handed slap across the Bush administration's face.

It gets better. Souter and Ginsburg held that Congress did not authorize Hamdi's detention, and that if the government doesn't come up with some other reason to hold him, they have to release him from military custody and try him under the regular criminal laws of the United States. They reach this conclusion on a rich point of law -- the Bush administration claims that the Geneva Convention applies in Afghanistan, but they have been denying the protections of the Convention to Hamdi. Thus, it must be that the Bush administration is operating outside the scope of Congress's resolution. Souter stops there, pausing only to snipe at the famous memos and their notion that Article II of the Constitution gives the President exclusive power over the conduct of war. Souter To Next Solicitor General: Don't Bother.

But wait, there's more. Scalia, in an opinion joined by Stevens (think about that for a moment), holds that Hamdi is being unjustly held and must be immediately released. His reasoning is this: under the Constitution, citizens are tried for treason for this sort of thing. The Legislature can suspend the writ of habeas corpus under limited circumstances of war (Art. I, sec. 9, cl. 2), but it has not purported to do so here. Hamdi must be tried under the criminal laws, and this nonsense twilight world of "enemy combatants" is bull. The opinion is high comedy (as Scalia's best stuff is), in that he excoriates the O'Connor plurality for replacing the Legislature's right of suspension with its own "Mr. Fix-It mentality." Again, Scalia simply sees the Court as a rigid institution, whereas O'Connor sees everything as a balancing test. ("What would I like for lunch? In making that decision, I must balance my love of tunafish with my dislike of mayonnaise, as well as the following eighteen elements that may or may not apply to other lunches.")

The caboose of this train is Thomas, who essentially adopts the reasoning of the famous Justice Department memos -- the Executive is in charge of war, and this is a war, and we all need to back off and let the man do his job. It's not his best work -- he's never at his best when forced to disagree with Scalia -- and it seems a little too cocky for its own good. As a conclusion to the most important case of 2004, it's a whimper.

 11:40 AM

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