Cases

al-Marri v. Spagone

Supreme Court of the United StatesDecided March 6, 2009

Full casename

Ali Saleh Kahlah al-Marri, Petitioner v.Daniel Spagone, United States NavyCommander, Consolidated Naval Brig

Docket nos. 08-368(http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/08-368.htm)

Citations 555 U.S. 1220 (more)129 S. Ct. 1545; 173 L. Ed. 2d 671; 2009U.S. LEXIS 1777; 77 U.S.L.W. 3502; 21Fla. L. Weekly Fed. S 701

Priorhistory

Writ of Certiorari to the United States Courtof Appeals for the Fourth Circuit

Subsequenthistory

Dismissed as moot

Questions presentedWhether U.S. residents can be imprisoned indefinitely for

suspected wrongdoing without being charged with acrime and tried before a jury.

Court membershipChief Justice

John G. RobertsAssociate Justices

John P. Stevens · Antonin ScaliaAnthony Kennedy · David Souter

Clarence Thomas · Ruth Bader GinsburgStephen Breyer · Samuel Alito

al-Marri v. SpagoneFrom Wikipedia, the free encyclopedia

al-Marri v. Spagone, 555 U.S. 1220 (2009), was alegal case in which the United States Supreme Courthad to decide whether individuals can be imprisonedindefinitely for suspected wrongdoing without beingcharged with a crime and tried before a jury.[1][2]

The case was dismissed as moot on March 6, 2009,by the application of the Acting Solicitor General totransfer petitioner from military custody to thecustody of the Attorney General.[3]

The Fourth Circuit had ruled that a United Statesresident cannot be held on suspicion of terroristactivities, but must be charged in a domestic court orreleased.

Contents1 Background2 Fourth Circuit decision3 See also4 References5 External links

BackgroundThe federal government arrested Ali Saleh Kahlahal-Marri on December 12, 2001, and indicted him oncharges two years later on apparently unrelatedcharges of credit card fraud and assorted crimes ofdishonesty.

On June 23, 2003, President George W. Bush'sadministration determined al-Marri to be an enemycombatant and ordered him transferred to the custody of the U.S. Department of Defense.[4] The federalgovernment asserts he is a sleeper agent for the terrorist organization Al-Qaeda, sent to the United States toexplore disruptions of the country's financial systems. This was said to justify his detention without trial incivilian courts. Since that time, he has been held at the naval brig in Charleston, South Carolina. He is theonly known enemy combatant to be held in military custody on U.S. soil (others are being held at theGuantanamo Bay detention camp in Cuba).

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Fourth Circuit decisionJudge Diana Gribbon Motz wrote the plurality opinion, which held that, as a legal resident of the UnitedStates who was originally detained in the United States, al-Marri could not be held in military custody as anenemy combatant. The court also held that the Military Commissions Act does not strip federal courts ofjurisdiction to hear habeas corpus petitions from alleged enemy combatants arrested and detained within theborders of the United States. The court ordered the government to either charge al-Marri with a crime,initiate deportation proceedings, or release him.

Dissenting from the opinion, Judge Henry E. Hudson indicated that he believed Bush possessed theauthority to detain alleged sleeper agents such as al-Marri, "the type of stealth warrior used by Al Qaeda".[5]

The decision of Judge Motz was subsequently set aside and the case was reheard en banc on August 22,2007, by the entire Fourth Circuit Court of Appeals. In a plurality opinion issued on July 15, 2008, the courtheld that the president did have authority to hold Al-Marri in military custody, but that Al-Marri wasentitled to a greater, but undefined, degree of due process in his habeas corpus petition than had beenaccorded by the court below. The Supreme Court granted certiorari.

Shortly following his becoming president, President Barack Obama ordered Al-Marri transferred to civilianauthorities, and the Supreme Court dismissed the case as moot on March 6, 2009. Al-Marri wassubsequently prosecuted in civilian court and pleaded guilty. He had been imprisoned for eight yearswithout charges.

See alsoHabeas corpusUnited States v. Munsingwear, Inc., 340 U.S. 36 (https://supreme.justia.com/cases/federal/us/340/36/)(1950)

References1. 08-368 (http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/08-368.htm)2. Kravetz, Andy (2008-12-05). "U.S. Supreme Court to hear al-Marri's case"

(http://www.pjstar.com/homepage/x596332629/U-S-Supreme-Court-to-hear-al-Marris-case). Peoria JournalStar.

3. [1] (http://www.supremecourt.gov/orders/courtorders/030609zr.pdf)4. Enemy Combatant Designation by President Bush

(http://news.findlaw.com/nytimes/docs/almarri/usalmarri62303ecord.html).5. Complete decision on Findlaw.com (http://news.findlaw.com/nytimes/docs/almarri/almarriwright61107opn.pdf),

Hudson's Dissent, at pg. 86.

External linksEn Banc decision of the Fourth Circuit(http://www.ca4.uscourts.gov/Opinions/Published/067427A.P.pdf)Complete decision on Findlaw.com(http://news.findlaw.com/nytimes/docs/almarri/almarriwright61107opn.pdf)

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Coverage (http://www.nytimes.com/2007/06/11/washington/11cndcnd-combatant.html?hp) from theNew York TimesAl-Marri v. Spagone (https://archive.org/details/org.c-span.201952-1) is available for free downloadat the Internet Archive

Retrieved from "http://en.wikipedia.org/w/index.php?title=Al-Marri_v._Spagone&oldid=650309305"

Categories: United States Supreme Court cases War on Terror captives' habeas corpus petitions2007 in United States case law United States Supreme Court cases of the Roberts Court

This page was last modified on 7 March 2015, at 16:03.Text is available under the Creative Commons Attribution-ShareAlike License; additional terms mayapply. By using this site, you agree to the Terms of Use and Privacy Policy. Wikipedia® is aregistered trademark of the Wikimedia Foundation, Inc., a non-profit organization.

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Bas v. Tingy

Supreme Court of the United StatesArgued August 14, 1800Decided August 15, 1800

Full casename

Bas, Plaintiff in Error v. Tingy, Defendant inError

Citations 4 U.S. 37(https://supreme.justia.com/us/4/37/case.html)(more)1 L. Ed. 731; 1800 U.S. LEXIS 307; 4 Dall.37


Oliver EllsworthAssociate Justices

William Cushing · William PatersonSamuel Chase · Bushrod Washington

Alfred MooreCase opinions

Majority Moore; Washington; Chase; Paterson

Bas v. TingyFrom Wikipedia, the free encyclopedia

Bas v. Tingy, 4 U.S. (4 Dall.) 37 was a case arguedbefore the United States Supreme Court in 1800.

Contents1 Background2 Opinion of the Court3 Subsequent developments4 References

BackgroundRelations were deteriorating with France andCongress began enacting laws providing armedAmerican ships greater ability to reclaim Americanships taken by the French. In 1798, Congress passedlegislation allowing for payment of 1/8 full value ofthe vessel, to be paid to the recaptor, for shipsreclaimed from the French. However, in 1799,Congress enacted another law allowing the recaptorsof a private vessel 1/2 salvage value of the ship,where retaken after 96 hours from the enemy. Thiswas to be paid by the vessel's owner and without anydeduction.

On April 21, 1799, Tingy, captain of the Ganges recaptured the Eliza, belonging to Bas, after the Frenchhad taken it three weeks before. Bas attempted to pay Tingy 1/8 value, pursuant to the 1798 law, whileTingy demanded 1/2 payment, in accordance with the 1799 law. After lower courts ruled that Tingy wasentitled to 1/2 value, the case was appealed to the United States Supreme Court.

Opinion of the CourtJustice Bushrod Washington, writing first for the Court, noted that the difference between the two laws wasthat the 1798 dealt with ships recaptured from the French, while the 1799 law dealt with ships recapturedfrom the enemy. This turned on the issue of "was France the enemy?" and the larger question of, "were weat war?" Washington proceeded to recognize the difference between a perfect war, where Congress declareswar upon another country, and an imperfect war, where Congress does not declare but rather authorizeshostilities. Congress had, in this case, raised an army, suspended commerce with France and dissolved atreaty. This also allowed them to defend themselves against French ships and reclaim American ships asprize. This was, by all accounts, an imperfect war, qualifying France as an enemy under the 1799 law.

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Justice Samuel Chase took a separate approach to the same conclusion, noting that in a perfect war"...operations are restricted and regulated by the jus belli, forming a part of the law of nations," but in animperfect war "its extent and operation depend on our municipal laws." With Congress authorizinghostilities, this was an imperfect war against France, making them the enemy and validating the 1799 law.

Justice William Paterson deemphasized the nature of the war, perfect versus imperfect, noting only that wewere at war "so far as we may proceed in hostile operations." For the duration of this war, France was theenemy, and the 1799 law applied.

Subsequent developmentsThe decision of the lower courts was affirmed. The 1799 act of Congress governed the dispute and CaptainTingy was awarded 1/2 the value of the Eliza.

ReferencesBas v. Tingy at the US Supreme Court Center (http://supreme.justia.com/us/4/37/)Bas v. Tingy at The Founders' Constitution (http://press-pubs.uchicago.edu/founders/documents/a1_8_11s10.html)

Retrieved from "http://en.wikipedia.org/w/index.php?title=Bas_v._Tingy&oldid=644643301"

Categories: United States Supreme Court cases 1800 in United States case lawUnited States Supreme Court cases of the Ellsworth Court

This page was last modified on 29 January 2015, at 02:31.Text is available under the Creative Commons Attribution-ShareAlike License; additional terms mayapply. By using this site, you agree to the Terms of Use and Privacy Policy. Wikipedia® is aregistered trademark of the Wikimedia Foundation, Inc., a non-profit organization.

5

Boumediene v. Bush

Supreme Court of the United StatesArgued December 5, 2007

Decided June 12, 2008Full casename

Lakhdar Boumediene, et al., Petitionersv.George W. Bush, President of the UnitedStates, et al.


Citations 553 U.S. 723 (more)128 S. Ct. 2229; 2008 WL 2369628; 2008U.S. LEXIS 4887

Argument Oral argument(http://www.oyez.org/cases/2000-2009/2007/2007_06_1195/argument/06-1195_20071205-argument.mp3)

HoldingForeign terrorism suspects held at the Guantanamo Bay

Naval Base in Cuba have constitutional rights to challengetheir detention in United States courts. 476 F.3d 981,

reversed and remanded.Court membership

Chief JusticeJohn G. Roberts

Associate JusticesJohn P. Stevens · Antonin ScaliaAnthony Kennedy · David Souter


Case opinionsMajority Kennedy, joined by Stevens, Souter,

Ginsburg, BreyerConcurrence Souter, joined by Ginsburg, BreyerDissent Roberts, joined by Scalia, Thomas, AlitoDissent Scalia, joined by Roberts, Thomas, Alito

Laws applied

Boumediene v. BushFrom Wikipedia, the free encyclopedia

Boumediene v. Bush, 553 U.S. 723 (2008), was awrit of habeas corpus submission made in a civiliancourt of the United States on behalf of LakhdarBoumediene, a naturalized citizen of Bosnia andHerzegovina, held in military detention by theUnited States at the Guantanamo Bay detentioncamps in Cuba.[1][2][3][4] Guantanamo Bay is notformally part of the United States, and under theterms of the 1903 lease between the United Statesand Cuba, Cuba retained ultimate sovereignty overthe territory, while the United States exercisescomplete jurisdiction and control.[5] The case wasconsolidated with habeas petition Al Odah v.United States. It challenged the legality ofBoumediene's detention at the United States NavalStation military base in Guantanamo Bay, Cuba aswell as the constitutionality of the MilitaryCommissions Act of 2006. Oral arguments on thecombined cases were heard by the Supreme Courton December 5, 2007.

On June 12, 2008, Justice Kennedy delivered theopinion for the 5-4 majority, holding that theprisoners had a right to the habeas corpus under theUnited States Constitution and that the MilitaryCommissions Act of 2006 was an unconstitutionalsuspension of that right. The Court applied theInsular Cases, by the fact that the United States, byvirtue of its complete jurisdiction and control,maintains "de facto" sovereignty over this territory,while Cuba retained ultimate sovereignty over theterritory, to hold that the aliens detained as enemycombatants on that territory were entitled to thewrit of habeas corpus protected in Article I, Section9 of the U.S. Constitution. The lower court hadexpressly indicated that no constitutional rights(not merely the right to habeas) extend to theGuantanamo detainees, rejecting petitioners'arguments, but the Supreme Court held thatfundamental rights afforded by the Constitutionextend to the Guantanamo detainees as well.[6][7]

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Art. 1, Sec. 9 of the U.S. Const.Along with Rasul v. Bush (2004), Hamdi v.Rumsfeld (2004), and Hamdan v. Rumsfeld (2006),this is a landmark case in the Court's detainee jurisprudence.

Contents1 Background2 Opinion of the Court3 Other opinions

3.1 Justice Souter's concurrence3.2 Justice Scalia's dissent3.3 Chief Justice Roberts' dissent

4 Aftermath5 Release to France6 Detainees whose cases were consolidated with Boumediene v. Bush7 See also8 References9 External links

BackgroundFollowing the September 11 attacks in 2001, the United States launched a "Global War on Terror". InNovember 2001, President Bush asserted authority to try captives from the War before "militarycommissions" instead of through the civilian court system. Many captives from the war were held at CampX-Ray, which was opened at the United States' Guantanamo Bay Naval Base in Cuba in January 2002.While the United States has an indefinite lease on Guantanamo Bay, Cuba still maintained de juresovereignty over the area. Because of the mixed jurisdiction, the Bush administration stated that the captivesare not subject to American law and have no right to protection under the United States Constitution nor theAmerican justice system.

Beginning in 2002, family and friends of approximately 200 captives initiated habeas corpus submissions tochallenge the detentions. These submissions eventually worked their way through the courts, and on June28, 2004, the United States Supreme Court issued its decision in Rasul v. Bush (2004). In a 6-3 decision, theCourt dismissed the administration's argument that the Naval Base is outside civilian courts' jurisdiction andruled that the captives must be given an opportunity to hear and attempt to refute whatever evidence hadcaused them to have been classified as "enemy combatants". As a result, the Department of Defense createdthe Combatant Status Review Tribunals.

At the end of 2005, the United States Congress passed the Detainee Treatment Act, which explicitly statesthat all captives held by the United States are protected against torture. The Act restricted the submission ofadditional habeas corpus submissions to the courts, though it did not affect already filed habeas corpussubmissions.

Seven months later, the Supreme Court ruled in Hamdan v. Rumsfeld (2006) that only Congress and not theExecutive Branch has the Constitutional authority to set up military commissions to try captives taken in the"war on terror". Congress passed the Military Commissions Act of 2006 in October, creating Military7

Commissions similar to those set up by the Executive Branch and retaining most of the features that hadconcerned critics. For example, the Commissions were empowered to hear and consider "hearsay evidence",suspects were restricted from attempting to refute or learn about evidence against them that was classified,and submission of evidence extracted from persons using "enhanced interrogation techniques," prior to thepassage of the Detainee Treatment Act, was allowed. The Act attempted to mandate that all outstandinghabeas corpus submissions on behalf of the captives should be quashed.

In February 2007, a three-judge panel of the Appeals Court for the D.C. Circuit considered LakhdarBoumediene's habeas corpus submission, and in a split decision, upheld the Congress's authority to quashthe outstanding habeas corpus submissions.[8] In April 2007, the Court declined to review the CircuitCourt's decision.

Within a few months, it reversed this decision; on June 29, 2007, it granted a writ of certiorari toBoumediene and his co-defendants.[3][9]

Over the following six months, in addition to the briefs submitted by the United States government and thepetitioner, over 20 amicus briefs were filed on behalf of Boumediene and his co-defendants by theAmerican Civil Liberties Union, the Center for Constitutional Rights,[10][11] the American BarAssociation,[12] and numerous other persons and organizations.[13]

The Supreme Court received over two dozen briefs of amicus curiae on the case, including some writtenstrictly on the history and application of Habeas Corpus in England, Scotland, Hanover, Ireland, Canada,British-controlled territories, India, and the United States. Twenty-two amicus briefs were filed in support ofthe petitioners, Boumediene and Al Odah, and four were filed in support of the respondents, the BushAdministration.

Oral arguments were held on December 5, 2007,[14] and the Supreme Court announced its decision on June12, 2008.[15]

Opinion of the CourtThe majority opinion, written by Justice Anthony Kennedy, found that the constitutionally guaranteed rightof habeas corpus review applies to persons held in Guantanamo and to persons designated as enemycombatants on that territory.[16][17][18][19] If Congress intends to suspend the right, the Court said that anadequate substitute must offer the prisoner a meaningful opportunity to demonstrate he is held pursuant toan erroneous application or interpretation of relevant law, and the reviewing decision-making must havesome ability to correct errors, to assess the sufficiency of the government's evidence, and to considerrelevant exculpating evidence.[16][17][18][19] The court found that the petitioners had met their burden ofestablishing that Detainee Treatment Act of 2005 failed to provide an adequate substitute for habeas corpus.

Kennedy's majority opinion begins with an over-twenty page review of the history of habeas corpus inEngland from its roots in the due process clause of Magna Carta of 1215 to the 19th century. Next, theopinion surveys American historical jurisprudence on the writ from 1789 until shortly after World War II,concentrating on the application of habeas corpus to aliens and territories outside the borders of the UnitedStates that still fall under United States control, comparing these areas to the Channel Islands, where thewrit did apply. While noting that habeas corpus did not apply in Scotland, a country under the control of the

8

English crown (as the same monarch held the crown of Scotland), the Court distinguished that fact bystating that Scotland kept its unique system of laws even after union with England in 1707. The Courtturned to Ireland for a more amenable historical example, pointing out that while it was nominally asovereign country in the 18th century, English habeas corpus review did apply there since Ireland was underde facto English control and shared the English legal system.

The majority opinion rejected the government's argument comparing the habeas corpus restriction under theMCA to those affected by the Antiterrorism and Effective Death Penalty Act of 1996, which were ruledconstitutional after a suspension clause challenge. The Court explained the restrictions of AEDPA onhabeas review were not a complete suspension on habeas corpus, but simply procedural limitations, such aslimiting the number of successive habeas petitions a prisoner can file, or mandating a one-year time limit forthe filing of federal habeas review that begins when the prisoner's judgment and sentence become final.

The main distinction between the MCA and AEDPA, the Court went on to explain, was that AEDPAapplies in practice to those prisoners serving a sentence after having been tried in open court and whosesentences have been upheld on direct appeal, whereas the MCA suspends the application of the writ to thosedetainees whose guilt has not yet been legally determined. In other words, the comparison to AEDPA wasfound by the majority to be misplaced, in that AEDPA's limitations on habeas review stemmed from casesthat had already been to trial, whereas the cases involving MCA had not been to trial and therefore habeasreview would have been appropriate.

The Court also concluded that the detainees are not required to exhaust review procedures in the court ofappeals before pursuing habeas corpus actions in the district court. The majority distinguished between dejure and de facto sovereignty, finding that the United States had in effect de facto sovereignty overGuantanamo. Distinguishing Guantanamo base from historical precedents, this conclusion allowed the courtto conclude that Constitutional protections of habeas corpus run to the U.S. military base at GuantanamoBay, Cuba.

In the majority ruling, Justice Kennedy called section 7 "not adequate".[16][17][18][19] He explained, "to holdthat the political branches may switch the constitution on or off at will would lead to a regime in which they,not this court, 'say what the law is'."[20] The decision struck down section 7 of the MCA, but left intact theremainder of the MCA and the Detainee Treatment Act.

Other opinions

Justice Souter's concurrence

Justice Souter's concurrence was joined by Justices Ginsburg and Breyer. According to Justice Souter,"subsequent legislation eliminated the statutory habeas jurisdiction" over the claims brought by GuantanamoBay detainees, "so that now there must be constitutionally based jurisdiction or none at all."[21] Citing theSupreme Court's decision in Rasul v. Bush (2004), he added that the ""[a]pplication of the habeas statute topersons detained at [Guantanamo] is consistent with the historical reach of the writ of habeas corpus."[22]

Justice Souter pointed to the lengthy imprisonments, some of which have exceeded six years, as "a factorinsufficiently appreciated by the dissents."[22] He denied the dissenters' criticism that the Court's majority"is precipitating the judiciary into reviewing claims that the military (subject to appeal to the Court ofAppeals for the District of Columbia Circuit) could handle within some reasonable period of time."[22]

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Justice Scalia's dissent

Justice Scalia's dissent was joined by Chief Justice Roberts and justices Alito and Thomas. Justice Scaliaargued that "the procedures prescribed by Congress in the Detainee Treatment Act provide the essentialprotections that habeas corpus guarantees; there has thus been no suspension of the writ, and no basis existsfor judicial intervention beyond what the Act allows."[23] The commission of terrorist acts by some formerprisoners at Guantanamo Bay after their release "illustrates the incredible difficulty of assessing who is andwho is not an enemy combatant in a foreign theater of operations where the environment does not lend itselfto rigorous evidence collection."[24] A consequence of the Court's majority decision will be that "how tohandle enemy prisoners in this war will ultimately lie with the branch [the judiciary] that knows least aboutthe national security concerns that the subject entails."[25] A conflict between the Military Commissions Actand the Suspension Clause "arises only if the Suspension Clause preserves the privilege of the writ for aliensheld by the United States military as enemy combatants at the base in Guantanamo Bay, located within thesovereign territory of Cuba."[26]

Justice Scalia added that the Court's majority "admits that it cannot determine whether the writ historicallyextended to aliens held abroad, and it concedes (necessarily) that Guantanamo Bay lies outside thesovereign territory of the United States."[27] Justice Scalia pointed out that Johnson v. Eisentrager (wherethe Supreme Court decided that U.S. courts had no jurisdiction over German war criminals held in a U.S.-administered German prison in China) "thus held—held beyond any doubt—that the Constitution does notensure habeas for aliens held by the United States in areas over which our Government is not sovereign."[28]

According to Justice Scalia, the Court's majority's "analysis produces a crazy result: Whereas thoseconvicted and sentenced to death for war crimes are without judicial remedy, all enemy combatants detainedduring a war, at least insofar as they are confined in an area away from the battlefield over which the UnitedStates exercises 'absolute and indefinite' control, may seek a writ of habeas corpus in federal court." JusticeScalia added that the Constitution allows suspension of the writ of habeas corpus only in cases of rebellionor invasion, both domestic disturbances; he asked "[i]f the extraterritorial scope of habeas turned on flexible,'functional' considerations, as the [Court's majority] holds, why would the Constitution limit its suspensionalmost entirely to instances of domestic crisis?"[29]

Chief Justice Roberts' dissent

Chief Justice Roberts' dissent focused on whether the process afforded the Guantanamo detainees in theDetainee Treatment Act were an adequate substitute for the Habeas protections the Constitution guaranteed.By arguing in the affirmative, he implied that the issue of whether the detainees had any Suspension Clauserights was moot (since, if they did, he found that those rights were not violated anyway). This line ofreasoning was arguably more in line with the plain reading of Johnson v. Eisentrager (1950) (which deniedGerman prisoners of war habeas rights primarily due to both practical logistical concerns and thedetermination that they had been afforded an adequate substitute: traditional military war crimes trials,which complied with the Geneva Conventions) than that of Justice Scalia, and also avoided the morecontroversial and complicated issue of whether the detainees were entitled to file habeas petitions in the firstplace.

Aftermath10

On November 20, 2008, following his review of their case files, Judge Richard J. Leon of the United StatesDistrict Court for the District of Columbia ordered the release of five Guantánamo detainees, includingBoumediene.[30] Judge Leon ordered the continued detention of a sixth, Belkacem Bensayah.

In the decision, he wrote: "To allow enemy combatancy to rest on so thin a reed would be inconsistent withthis court's obligation; the court must and will grant their petitions and order their release. This is a uniquecase. Few if any others will be factually like it. Nobody should be lulled into a false sense that all of the ...cases will look like this one."[30][31][32][33]

On October 28, 2009, President Obama signed into law the Military Commissions Act of 2009, whichamended the Military Commissions Act of 2006 and provided new rules for the handling of commissiontrials and commission defendants' rights.[34]

In Boumediene v. Bush (2008), the Supreme Court had ruled for the first time that Guantánamo detaineeswere entitled to submit habeas corpus petitions directly to federal judges in Washington to determinewhether the U.S. government had enough evidence to justify their continued open-ended detention withoutcharge.

The decision said in part:

“We do consider it uncontroversial … that the privilege of habeas corpus entitles the prisoner toa meaningful opportunity to demonstrate he is being [unlawfully] held.”[35] The decision added:“The habeas court must have sufficient authority to conduct a meaningful review of both thecause for detention and the Executive’s power to detain.”[35]

Following the Boumediene decision, federal judges began closely scrutinizing the quality of evidenceoffered by the government. Government lawyers started losing cases.

In 2010 the D.C. Circuit Court began requiring federal judges to stop submitting the government’s evidenceto such rigorous examination. The appeals court said judges must embrace a pro-government presumptionthat the Guantánamo evidence is reliable. Government lawyers had argued that such a presumption wasjustified because much of the evidence against the detainees was collected under battlefield conditions amidthe “fog of war.” Specifically, the US appeals court required federal judges hearing Guantánamo cases toaccord a special presumption of accuracy to US intelligence reports being used to justify continueddetention.[35]

This ruling by the appeals court provoked strong criticism from attorneys representing detainees atGuantanamo as well as from within the appeals court. Lawyers said such a special presumption does notcomply with the requirements set by the Supreme Court in its Boumediene decision.

“The court of appeals through its actions in this and other cases has created a regime in whichGuantánamo habeas cases are becoming exercises in futility,” wrote the Washington lawyer S.William Livingston, in his brief on behalf of Adnan Farhan Abdul Latif.[35] “The entire point of

11

the habeas hearing is to force the government to justify its detention of people who have beenneither charged nor convicted, not to allow it to skate by with presumption,” Livingstonsaid.[35]

The Appeals Court Judge David Tatel wrote a dissenting opinion in the Latif case. He said the appealscourt’s requirement of a pro-government presumption in favor of US intelligence reports “comes perilouslyclose to suggesting that whatever the government says must be treated as true.”[35]

According to a study by legal scholars at the Center for Policy and Research at Seton Hall University Schoolof Law, between 2008 and July 2010, Guantánamo detainees won 56 percent of their habeas challenges infederal court. After July 2010 and the appeals court ruling, the win rate fell to 8 percent. That means thatprior to July 2010, a federal judge agreed with 19 of 34 detainees who claimed there was insufficientevidence to justify his open-ended detention at Guantánamo and ordered the release of each. After July2010, a federal judge agreed with only 1 of 12 detainees. The change is attributed to rulings by the federalappeals court, which has taken up 19 of the Guantánamo habeas cases and reversed or remanded every casein which a federal judge ordered a detainee’s release.[35]

Release to France

On May 15, 2009, Boumediene was transferred to France, where he has relatives.[36][37] His wife andchildren, who had moved from Bosnia to Algeria following his arrest, have joined him in France since hisrelease.[38]

Detainees whose cases were consolidated with Boumediene v. Bush[39]

Belkacem BensayahSaber LahmarMohammed NechleMustafa Ait IdirLakhdar BoumedieneHadj Boudella

See alsoAlgerian SixList of United States Supreme Court cases, volume 553Ex Parte QuirinEx Parte MilliganJohnson v. Eisentrager

References12

1. Marjorie Cohn (February 27, 2007). "Why Boumediene Was Wrongly Decided"(http://jurist.law.pitt.edu/forumy/2007/02/why-boumediene-was-wrongly-decided.php). The Jurist. Retrieved2007-04-16.

2. "Al Odah v United States" (http://ccrjustice.org/ourcases/current-cases/al-odah-v.-united-states). Center forConstitutional Rights. April 27, 2005.

3. "Lakhdar Boumediene, et al. v. George W. Bush — docket" (http://www.oyez.org/cases/2000-2009/2007/2007_06_1195/docket/). Oyez.org. August 24, 2007. Retrieved 2007-11-06.

4. Dworkin, Ronald (August 14, 2008). "Why It Was a Great Victory" (http://www.nybooks.com/articles/21711).New York Review of Books. Retrieved May 26, 2012.

5. CONSEJO DE SALUD PLAYA DE PONCE v JOHNNY RULLAN, SECRETARY OF HEALTH OF THECOMMONWEALTH OF PUERTO RICO(http://puertoricoadvancement.org/Documents/Consejo%20De%20Salud%20Playa%20De%20Ponce%20V.%20Johnny%20Rullan%20-%20Secretary%20of%20Health%20of%20the%20Commonwealth%20of%20Puerto%20Rico.pdf) (PDF), TheUnited States District Court for the District of Puerto Rico, retrieved 2009-12-20

6. BOUMEDIENE et al. v. BUSH, PRESIDENT OF THE UNITED STATES, et al.(http://www.law.cornell.edu/supct/html/06-1195.ZS.html), Cornell University Law School, retrieved 2009-12-23

7. BOUMEDIENE et al. v. BUSH, PRESIDENT OF THE UNITED STATES, et al.(http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=06-1195), FindLaw For LegalProfessionals, retrieved 2009-12-23

8. "Lakhdat Boumedienne, detainee, Camp Delta, et al., appellants v. George W. Bush, President of the UnitedStates, et al., appellees" (http://pacer.cadc.uscourts.gov/docs/common/opinions/200702/05-5062b.pdf) (PDF).United States Department of Justice. February 20, 2007. Retrieved 2007-11-06.

9. Jeannie Shawl (June 29, 2007). "Supreme Court to hear Guantanamo Bay detainee habeas cases"(http://jurist.law.pitt.edu/paperchase/2007/06/supreme-court-to-hear-guantanamo-bay.php). The Jurist. Retrieved2007-11-06.

10. "Boumediene v. Bush and Al Odah v. United States — Amicus brief"(http://www.aclu.org/scotus/2007term/31441res20070824/31441res20070824.html). American Civil LibertiesUnion. August 24, 2007. Retrieved 2007-11-06.

11. "Boumediene v. Bush and Al Odah v. United States — Amicus brief"(http://www.aclu.org/pdfs/scotus/boumediene_v_bush_acluamicus.pdf) (PDF). American Civil Liberties Union.August 24, 2007. Retrieved 2007-11-06.

12. "Brief Amicus Curiae of the American Bar Association in Support of Petitioners"(http://www.abanet.org/irr/amicus/boumediene.pdf) (PDF). American Bar Association. August 24, 2007.Retrieved 2007-11-07.

13. "Al Odah v. United States" (http://ccrjustice.org/ourcases/current-cases/al-odah-v.-united-states). Center forConstitutional Rights. January 2008. Retrieved 2008-03-13.

14. Joan Biskupic (December 5, 2007). "Justices grill attorneys in Gitmo case hearings"(http://www.usatoday.com/news/washington/2007-12-05-gitmo-court_N.htm). USA Today. Retrieved2007-12-05.

15. Ben Winograd (June 12, 2007). "Today's Opinions"(http://web.archive.org/web/20080614214500/http://www.scotusblog.com/wp/todays-opinions-61208/).SCOTUSblog. Archived from the original (http://www.scotusblog.com/wp/todays-opinions-61208/) on 2008-06-14. Retrieved 2008-06-12.

16. Mark Sherman (June 12, 2008). "High Court: Gitmo detainees have rights in court"(http://www.webcitation.org/query?url=http%3A%2F%2Fap.google.com%2Farticle%2FALeqM5iS3b8PdQ_oVlJA2eFtDvhnnTUvFwD918J1QO0&date=2008-06-12). Associated Press. Archived from the original(http://ap.google.com/article/ALeqM5iS3b8PdQ_oVlJA2eFtDvhnnTUvFwD918J1QO0) on 2008-06-12.Retrieved 2008-06-12.

17. Mark Sherman (June 12, 2008). "Terror suspects can challenge detention: U.S. Supreme Court"(http://www.theglobeandmail.com/servlet/story/RTGAM.20080612.wgitmo0612/BNStory/International/home).Globe and Mail. Retrieved 2008-06-12.

18. Mark Sherman (June 12, 2008). "High Court sides with Guantanamo detainees again"13

18. Mark Sherman (June 12, 2008). "High Court sides with Guantanamo detainees again"(http://web.archive.org/web/20080624232719/http://www.montereyherald.com/ci_9562577?nclick_check=1).Montorey Herald. Archived from the original (http://www.montereyherald.com/ci_9562577?nclick_check=1) on2008-06-24. Retrieved 2008-06-12.

19. James Oliphant (June 12, 2008). "Court backs Gitmo detainees" (http://www.webcitation.org/query?url=http%3A%2F%2Fweblogs.baltimoresun.com%2Fnews%2Fpolitics%2Fblog%2F2008%2F06%2Fcourt_sides_with_gitmo_detaine.html&date=2008-06-12). Baltimore Sun. Archived from the original(http://weblogs.baltimoresun.com/news/politics/blog/2008/06/court_sides_with_gitmo_detaine.html) on 2008-06-12. Retrieved 2008-06-12.

20. "Stuck with Guantánamo" (http://www.economist.com/world/na/displaystory.cfm?story_id=11585328), TheEconomist

21. US Supreme Court, Boumediene et al. v. Bush, President of the United States, et al., p. 79. No. 06–1195.[1](http://www.supremecourt.gov/opinions/07pdf/06-1195.pdf)





26. US Supreme Court, Boumediene et al. v. Bush, President of the United States, et al., p. 115-6. No. 06–1195.[6](http://www.supremecourt.gov/opinions/07pdf/06-1195.pdf)




30. Glaberson, William (2008-11-20). "Judge Declares Five Detainees Held Illegally"(http://www.nytimes.com/2008/11/21/us/21guantanamo.html). New York Times.

31. Judge Leon's order (https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2004cv1166-276)32. "Judge orders release of 5 terror suspects at Gitmo"

(http://news.yahoo.com/s/ap/20081121/ap_on_go_ot/guantanamo_detainees)33. "US judge orders Algerians freed" (http://news.bbc.co.uk/2/hi/americas/7740543.stm)34. Richey, Warren (2009-10-29). "Obama endorses military commissions for Guantánamo detainees"

(http://www.csmonitor.com/USA/Justice/2009/1029/p02s01-usju.html). The Christian Science Monitor.Retrieved 2010-01-08.

35. Richey, Warren (11 June 2012). "Supreme Court deals blow to Guantánamo prisoners challenging theirdetention" (http://www.csmonitor.com/USA/Justice/2012/0611/Supreme-Court-deals-blow-to-Guantanamo-prisoners-challenging-their-detention). The Christian Science Monitor. Retrieved 30 September 2012.

36. "US sets free test case detainee" (http://news.bbc.co.uk/2/hi/americas/8052728.stm). BBC News. 2009-05-15.37. "Guantanamo Detainee Released To Join Relatives In France" (http://www.webcitation.org/query?

url=http%3A%2F%2Fwww.rttnews.com%2FArticleView.aspx%3FId%3D951209%26SMap%3D1&date=2009-05-15). RTT News. 2009-05-15. Archived from the original (http://www.rttnews.com/ArticleView.aspx?Id=951209&SMap=1) on 2009-05-15.

38. Sayare, Scott (May 26, 2012). "After Guantánamo, Starting Anew, in Quiet Anger"(http://www.nytimes.com/2012/05/26/world/europe/lakhdar-boumediene-starts-anew-in-france-after-years-at-guantanamo.html?). New York Times. p. A6.

39. "RESPONDENTS’ RESPONSE TO COURT’S AUGUST 7, 2006 ORDER"(http://web.archive.org/web/20080627111630/http://www.pegc.us/archive/OK_v_Bush/govt_resp_to_GK_20060815.pdf) (PDF). United States Department of Defense. August 15, 2006. Archived from the original(http://www.pegc.us/archive/OK_v_Bush/govt_resp_to_GK_20060815.pdf) (PDF) on 2008-06-27. Retrieved2008-06-23.

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Wikisource has originaltext related to this article:

Boumediene v. Bush(U.S. Court of Appeals)

External linksPetitioner's attorney's website with all the briefs

(http://www.mayerbrown.com/probono/commitment/article.asp?id=3706&nid=3193)Full text of the Supreme Court's decision in the case(http://www.supremecourt.gov/opinions/07pdf/06-1195.pdf)Audio: complete oral arguments before the court (http://www.oyez.org/cases/2000-2009/2007/2007_06_1195/argument) from Oyez.org

Retrieved from "http://en.wikipedia.org/w/index.php?title=Boumediene_v._Bush&oldid=645400958"

Categories: United States Supreme Court cases Suspension Clause case law2008 in United States case law Guantanamo captives' habeas corpus petitionsUnited States Supreme Court cases of the Roberts Court

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15

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Committee of U.S. Citizens Living In Nicaragua v. Reagan

Posted on August 24, 2014 | Constitutional Law | Tags: Constitutional Law Case Briefs

1986 I.C.J. 14

Facts: 1986, the International Court of Justice held that US financial support of paramilitary activities by the Contras against the Sandinista government in Nicaraguaviolated both a treaty between the countries and customary international law. But, the US withdrew from the ICJ’s jurisdiction before the court’s decision. P seeksinjunctive and declaratory relief. The D.Ct. dismissed the complaint on political question grounds. P appeals here.

Issue: Whether alleged violations of the UN Article 94 can be remedied by an American court or whether they can only be redressed on an international level. In short,do violations of international law have domestic legal consequences?

Holding: Yes, international law has legal consequences unless the US constitution or US law contradicts. Treaty obligations may be overridden by subsequentinconsistent statute. Therefore, the court can’t say as a matter of domestic law that congressional enactments violate prior treaties.

The court also held that “in determining whether a treaty is self-executing” in the sense of its creating private enforcement rights, “courts look to the intent of thesignatory parties as manifested by the language of the instrument.”The court wasn’t specifically saying whether the US had upheld its treaty obligations as a matter of law in this case.Argued that it is not political question because it’s international customary law and therefore not a political issue. These argument do not rise to the level of juscogen categories in order to be customary international law.1. Jus Cogens: Defined Principles of international law so fundamental that no nation may ignore them or attempt to contract out of them through treaties.

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Dames & Moore v. Regan

Supreme Court of the United StatesArgued June 24, 1981Decided July 2, 1981

Full case name Dames & Moore v. Donald T. Regan, Secretaryof the Treasury, et al.

Citations 453 U.S. 654(https://supreme.justia.com/us/453/654/case.html)(more)101 S.Ct. 2972; 69 L.Ed.2d 918

HoldingExecutive orders dissolving judgments and suspending pending

civil claims against Iranian government were constitutional.Court membership

Chief JusticeWarren E. BurgerAssociate Justices

William J. Brennan, Jr. · Potter StewartByron White · Thurgood Marshall

Harry Blackmun · Lewis F. Powell, Jr.William Rehnquist · John P. Stevens

Case opinionsMajority RehnquistConcurrence Stevens, in partConcur/dissent Powell

Laws appliedIEEPA (50 U.S.C. §1702)

Dames & Moore v. ReganFrom Wikipedia, the free encyclopedia

Dames & Moore v. Regan, 453 U.S. 654

(https://supreme.justia.com/cases/federal/us/453/654/) (1981) was a United States Supreme Court casedealing with President Jimmy Carter's Executive Order 12170, which froze Iranian assets in the UnitedStates on November 14, 1979, in response to the Iran hostage crisis which began on November 4, 1979.

Contents1 Background2 Holding

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2 Holding3 Reaction4 See also5 Further reading6 References7 External links

BackgroundAfter the inauguration of Ronald Reagan on January 20, 1981, the Reagan administration agreed with Iranto terminate legal proceedings in U.S. courts involving claims by U.S. nationals against Iran, to nullifyattachments against Iranian property entered by U.S. courts to secure any judgments against Iran, and totransfer such claims from U.S. courts to a newly created arbitration tribunal. These agreements wereimplemented by executive orders.

HoldingIn a 8-1 decision, the opinion of the court was delivered by Justice William H. Rehnquist, which upheldthese actions by the Reagan administration and "dismissed a $3 million lawsuit from private firm Dames &Moore against Treasury Secretary Don Regan, filed to recover a debt incurred by the Shah of Iran’sgovernment."[1] The Court found that the administration's actions were authorized by law by theInternational Emergency Economic Powers Act (IEEPA). The Supreme Court also approved the suspensionof claims filed in U.S. courts even though no specific statutory provision authorized that step. In so doing,the Court relied on inferences drawn from related legislation, a history of congressional acquiescence inexecutive claims settlement practices, and past decisions recognizing broad executive authority. The Courtalso "substantially refined the applicable test" of the seminal 1952 case of Youngstown Sheet & Tube Co. v.Sawyer[2] and cemented Justice Robert H. Jackson's concurring opinion in that case as "canonical".[3]

Rehnquist wrote the opinion in this "highly complex and historic case" in eight days.[4]

Reaction

This decision has been criticized for taking "an exceptionally deferential view of executive power",[5] inparticular by relying on inferences from statutes that do not directly deal with certain subjects at hand and,especially, on legislative acquiescence in executive activity.

After Rehnquist's death, Justice John Paul Stevens cited Dames & Moore as one of his two favoriteRehnquist opinions, along with Leo Sheep Co. v. U.S.[4]

See alsoList of United States Supreme Court cases, volume 453

19

Further readingSuing the Tobacco and Lead Pigment Industries: Government Litigation as Public HealthPrescription (http://www.press.umich.edu/titleDetailDesc.do?id=291047) by Donald G. Gifford. AnnArbor, University of Michigan Press, 2010. ISBN 978-0-472-11714-7The Legacy of Dames & Moore v. Regan: The Twilight Zone of Concurrent Authority Between theExecutive and Congress (http://heinonline.org/HOL/Page?handle=hein.journals/tndl79&id=303&collection=journals&index=), 79 Notre Dame L. Rev 291(2003).

References1. Wohlsetter, John (2011-03-02) Hostage Hell is a Civilized Country's Dilemma

(http://www.humanevents.com/article.php?id=42074), Human Events2. McCarthy, Andrew (2010-02-04) ‘Merely Organized to Convict’

(http://www.nationalreview.com/articles/print/229076), National Review3. Griffin, Stephen (2008-10-10) A "Domestic" Case? Mysteries of Youngstown

(http://balkin.blogspot.com/2008/10/domestic-case-mysteries-of-youngstown.html), Balkinization4. Denniston, Lyle (2009-12-10) WHR enters Court’s pantheon (http://www.scotusblog.com/2009/12/whr-enters-

courts-pantheon/), SCOTUSblog5. Liptak, Adam and Purdum, Todd (2005-07-31) As Clerk for Rehnquist, Nominee Stood Out for Conservative

Rigor (http://www.nytimes.com/2005/07/31/politics/politicsspecial1/31roberts.html?ei=5094&hp=&ex=1122868800&partner=homepage&=;en=35aafb2de426faac;amp=&pagewanted=all), NewYork Times

External linksDames & Moore v. Regan (1981) at Find Law (http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=453&page=668)http://laws.findlaw.com/us/453/654.htmlCase Brief for Dames & Moore v. Regan at LawSchoolCaseBriefs.net(http://www.lawschoolcasebriefs.net/2013/12/dames-moore-v-regan-case-brief.html)

Retrieved from "http://en.wikipedia.org/w/index.php?title=Dames_%26_Moore_v._Regan&oldid=649276715"

Categories: United States Supreme Court cases United States separation of powers case law1981 in United States case law Executive orders of Ronald Reagan Sanctions against IranUnited States Supreme Court cases of the Burger Court Iran–United States relations


20

Dellums v. BushFrom Wikipedia, the free encyclopedia

Dellums v. Bush, 752 F. Supp. 1141 (1990), was a D.C. Federal District Court decision by United StatesDistrict Judge Harold H. Greene, denying the plaintiffs, members of Congress, a preliminary injunctionagainst President George H.W. Bush to stop implementation of his orders directing the United Statesmilitary to fight in Iraq without first obtaining a declaration of war from Congress, the only branchConstitutionally mandated to declare war.[1]

Fifty four members of Congress, including U.S. Representative Ron Dellums, sued George H.W. Bush in1990 attempting to halt a preemptive military buildup in the Middle East in response to Iraq's invasion ofKuwait. The plaintiff members of Congress asserted that military action without a declaration of war wouldbe unlawful under U.S. Const. art. I, § 8, cl. 11 of the United States Constitution. The District Court heldthat, although the plaintiff's claims were plausible, because the President had not yet initiated war-likeactions and only 54 members of Congress (53 members of the House and one member of the Senate) wereinvolved in the suit, and not a majority, the dispute was not ripe for adjudication at that time. Accordinglythe motion for preliminary injunction was denied.

Dellums is notable in that it is one of only a few cases in which the Federal Courts have considered whetherthe War Powers Clause of the U.S. Constitution is justiciable in the courts. The Court in Dellums indicatedthat, in that instance, it was, but because Congress had not yet acted as a majority, the lawsuit waspremature.

The reasoning used in Dellums has not escaped criticism by some authors as an intrusion on executivepower.

1. Article I, Section 8, clause 11, US Constitution

Retrieved from "http://en.wikipedia.org/w/index.php?title=Dellums_v._Bush&oldid=555087416"

Categories: United States district court cases Case law stubs

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21

Ex parte Milligan

Supreme Court of the United StatesArgued March 5, 1866Decided April 3, 1866

Full case name Ex parte Lambdin P. MilliganCitations 71 U.S. 2

(https://supreme.justia.com/us/71/2/case.html)(more)4 Wall. 2; 18 L. Ed. 281; 1866 U.S. LEXIS861

Prior history This case came before the Court upon acertificate of division from the judges of theCircuit Court for Indiana, on a petition fordischarge from unlawful imprisonment.

HoldingTrying citizens in military courts is unconstitutional when

civilian courts are still operating. Trial by military tribunal isconstitutional only when there is no power left but the military,

and the military may validly try criminals only as long as isabsolutely necessary.Court membership

Chief JusticeSalmon P. Chase

Associate JusticesJames M. Wayne · Samuel NelsonRobert C. Grier · Nathan Clifford

Noah H. Swayne · Samuel F. MillerDavid Davis · Stephen J. Field

Case opinionsMajority Davis, joined by Clifford, Field, Grier,

NelsonConcur/dissent Chase, joined by Wayne, Swayne, Miller

Laws appliedU.S. Const., Habeas Corpus Suspension Act 1863

Ex parte MilliganFrom Wikipedia, the free encyclopedia

Ex parte Milligan, 71 U.S. (4 Wall.) 2

(https://supreme.justia.com/cases/federal/us/71/2/) (1866), was a United States Supreme Court case thatruled that the application of military tribunals to citizens when civilian courts are still operating is

22

unconstitutional. It was also controversial because it was one of the first cases after the end of the AmericanCivil War.

Contents1 Background of the case2 Arguments3 The Court's decision

3.1 Three types of military jurisdiction4 Concurrence5 See also6 Notes7 References8 Further reading9 External links

Background of the caseLambdin P. Milligan and four others were accused of planning to steal Union weapons and invade Unionprisoner-of-war camps. Once the first prisoner of war camp was liberated, they planned to use the liberatedsoldiers to help fight against the Government of Indiana and free other camps of Confederate soldiers. Theyalso planned to take over the state governments of Indiana, Ohio, and Michigan. When the plan leaked, theywere charged, found guilty, and sentenced to be hanged by a military court in 1864. However, theirexecution was not set until May 1865, so they were able to argue the case after the Civil War ended.

ArgumentsThe argument for the United States was delivered by Benjamin F. Butler, a New York lawyer and statelegislator, and future Governor of Massachusetts.

The argument for the petitioner was delivered by Jeremiah S. Black (former United States Attorney Generaland Secretary of State), James A. Garfield (congressman in his first ever courtroom argument, and futurePresident[1]), and New York lawyer David Dudley Field.

The Court's decisionThe Supreme Court decided that the suspension of habeas corpus was lawful, but military tribunals did notapply to citizens in states that had upheld the authority of the Constitution and where civilian courts werestill operating.

It observed further that during the suspension of the writ of habeas corpus, citizens may be only heldwithout charges, not tried, and certainly not executed by military tribunals; the writ of habeas corpus is notthe right itself but merely the ability to issue orders demanding the right's enforcement.

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Lambdin P. Milligan

It is important to note the political environment of the decision. Post-Civil War, under a RepublicanCongress, the Court was reluctant to hand down any decision that questioned the legitimacy of militarycourts, especially in the occupied South. The President's ability to suspend habeas corpus independently ofCongress, a central issue, was not addressed, probably because it was moot with respect to the case at hand.Though President Lincoln suspended the writ nationwide on September 24, 1862,[2] Congress ratified thisaction almost six months later, on March 3, 1863, with the Habeas Corpus Suspension Act. Milligan wasdetained in 1864, well after Congress formally suspended the writ. That notwithstanding, military

jurisdiction had been limited.

Three types of military jurisdiction

This case was also important in clarifying the scope of military jurisdictionunder the US Constitution. The justices held that:

There are under the Constitution three kinds of military jurisdiction:one to be exercised both in peace and war; another to be exercised intime of foreign war without the boundaries of the United States, or intime of rebellion and civil war within states or districts occupied byrebels treated [71 U.S. 2, 142] as belligerents; and a third to beexercised in time of invasion or insurrection within the limits of theUnited States, or during rebellion within the limits of statesmaintaining adhesion to the National Government, when the publicdanger requires its exercise. The first of these may be calledjurisdiction under MILITARY LAW, and is found in acts of Congressprescribing rules and articles of war, or otherwise providing for thegovernment of the national forces; the second may be distinguished asMILITARY GOVERNMENT, superseding, as far as may be deemedexpedient, the local law, and exercised by the military commanderunder the direction of the President, with the express or impliedsanction of Congress; while the third may be denominated MARTIALLAW PROPER, and is called into action by Congress, or temporarily,when the action of Congress cannot be invited, and in the case ofjustifying or excusing peril, by the President, in times of insurrection orinvasion, or of civil or foreign war, within districts or localities whereordinary law no longer adequately secures public safety and privaterights.

This distinction between martial law and military government was not commonly made before 1866. Afterthe Supreme Court's clarification in this landmark case however, it has continued to be used up to thepresent day. Birkhimer describes the difference on page 1 of his opus Military Government and Martial Law(3rd edition, 1914) by saying that

Military jurisdiction is treated in the following pages in its two branches of Military Government andMartial Law. The former is exercised over enemy territory; the latter over loyal territory of the Stateenforcing it.[3]

24

US Army Field Manual FM 27-10 The Law of Land Warfare, paragraph 362 states that

Military government is the form of administration by which an occupying power exercisesgovernmental authority over occupied territory. The necessity for such government arises from thefailure or inability of the legitimate government to exercise its functions on account of the militaryoccupation, or the undesirability of allowing it to do so.[4][5]

ConcurrenceFive justices signed the majority opinion, with four others, Chief Justice Salmon P. Chase and JusticesWayne, Swayne and Miller, concurring in the judgment but dissenting as to the Court's assertion thatCongress did not have the power to authorize military commissions in Indiana. Chief Justice Chase assertedthat the power of Congress "to authorize trials for crimes against the security and safety of the nationalforces, may be derived from its constitutional power to raise and support armies and to declare war;" andthat while the civil courts "might be open and undisturbed in their functions... yet wholly incompetent toavert threatened danger, or to punish, with adequate promptitude and certainty, the guilty conspirators."[6]

See alsoEx parte MerrymanEx parte QuirinHamdi v. RumsfeldList of United States Supreme Court cases, volume 71Martial lawSupreme Court cases of the American Civil War

Notes1. Peskin 1978, Allan. "Garfield: A Biography" (http://books.google.com/books?

id=SRmY164czTQC&lpg=PA333&ots=_6sr96kXjs&dq=peskin%20garfield%20milligan&pg=PA270#v=onepage&q&f=false).

2. Amnesty to Political or State Prisoners.3. William E. Birkhimer (1914). "Military Government and Martial Law"

(http://www.taiwanbasic.com/military/birkhimer01w.htm). Franklin Hudson Publishing Co., Kansas City,Missouri. Retrieved 2012-04-08. "The distinction is important. Military government is thus placed within thedomain of international law, its rules the laws of war, while martial law is within the cognizance of municipallaw."

4. "FM 27-10 The Law of Land Warfare" (http://ac-support.europe.umuc.edu/~nstanton/Ch6.htm#p362).Department of the Army. 1976-07-15. Retrieved 2012-04-08.

5. "FM 27-10 The Law of Land Warfare" (http://ac-support.europe.umuc.edu/~nstanton/Ch1.htm#p12). Departmentof the Army. 1976-07-15. Retrieved 2012-04-08. "The most prominent distinction between military government,as that term is used herein, and martial law is that the former is generally exercised in the territory of, or territoryformerly occupied by, a hostile belligerent and is subject to restraints imposed by the international law ofbelligerent occupation, while the latter is invoked only in domestic territory, the local government and inhabitantsof which are not treated or recognized as belligerents, and is governed solely by the domestic law of the UnitedStates."

6. One or more of the preceding sentences incorporates text from a publication now in the public domain: Rines,George Edwin, ed. (1920). "Milligan, Ex Parte". Encyclopedia Americana.

25

ReferencesKlaus, Samuel. The Milligan Case (http://books.google.com/books?id=MpVfFH7lRXUC&pgis=1).New York: Da Capo Press, 1970.Military Government and Martial Law (http://www.archive.org/details/militarygovmt00birk), byWilliam E. Birkhimer, third edition, revised (1914), Kansas City, Missouri, Franklin HudsonPublishing Co.FM 27-10 "The Law of Land Warfare," DEPARTMENT OF THE ARMY, WASHINGTON 25, D.C.,18 July 1956. (This manual supersedes FM 27-10, 1 October 1940, including C 1, 15 November 1944.Changes required on 15 July 1976, have been incorporated within this document.) Chapter 6,OCCUPATION [1] (http://www.globalsecurity.org/military/library/policy/army/fm/27-10/Ch6.htm)

Further readingRehnquist, William H. (1998). All the Laws but One: Civil Liberties in Wartime. New York: WilliamMorrow & Co. ISBN 0-688-05142-1.

External links Works related to Ex parte Milligan at Wikisource

Text of Ex parte Milligan, 71 U.S. 2 (1866) is available from: Findlaw(http://laws.findlaw.com/us/71/2.html) Justia (http://supreme.justia.com/us/71/2/case.html)

Oyez, Official Supreme Court media, Ex Parte Milligan. (http://www.oyez.org/cases/1851-1900/1865/1865_0/)Historical analysis of the case – Elisheva Ruth Coleman Princeton University senior thesis(http://web.princeton.edu/sites/jmadison/awards/2005-Coleman_Thesis.pdf)

Retrieved from "http://en.wikipedia.org/w/index.php?title=Ex_parte_Milligan&oldid=650909420"

Categories: 1866 in United States case law United States Supreme Court casesUnited States habeas corpus case law United States Fourth Amendment case lawGrand Jury Clause case law United States Sixth Amendment jury case lawFederal court cases involving Indiana Indiana in the American Civil WarAmerican Civil War prison camps Reconstruction Era Criminal cases in the Chase Court


26

Gulf of Tonkin Resolution

Long title A joint resolution "To promote the maintenance ofinternational peace and security in southeast Asia."

Nicknames Southeast Asia Resolution

Enacted by the 88th United States Congress

Effective August 10, 1964

Citations

PublicLaw

88-408 (http://www.gpo.gov/fdsys/pkg/STATUTE-78/pdf/STATUTE-78-Pg384.pdf)

Statutes atLarge

78 Stat. 384 (http://legislink.org/us/stat-78-384)

Legislative history

Introduced in the House as H.J.Res. 1145Passed the House on August 7, 1964 (416-0(http://www.govtrack.us/congress/votes/88-1964/h197))Passed the Senate on August 7, 1964 (88-2(http://www.govtrack.us/congress/votes/88-1964/s481))Signed into law by President Lyndon B. Johnson onAugust 10, 1964

Gulf of Tonkin ResolutionFrom Wikipedia, the free encyclopedia

The Gulf of Tonkin Resolution or theSoutheast Asia Resolution, Pub.L. 88–408(http://legislink.org/us/pl-88-408),78 Stat. 384 (http://legislink.org/us/stat-78-384), enacted August 10, 1964, was a jointresolution that the United States Congresspassed on August 7, 1964, in response to theGulf of Tonkin incident.

It is of historical significance because itgave U.S. President Lyndon B. Johnsonauthorization, without a formal declarationof war by Congress, for the use of"conventional'' military force in SoutheastAsia. Specifically, the resolution authorizedthe President to do whatever necessary inorder to assist "any member or protocol stateof the Southeast Asia Collective DefenseTreaty". This included involving armedforces.

It was opposed in the Senate only bySenators Wayne Morse (D-OR) and ErnestGruening (D-AK). Senator Grueningobjected to "sending our American boys intocombat in a war in which we have nobusiness, which is not our war, into whichwe have been misguidedly drawn, which issteadily being escalated". (Tonkin Gulfdebate 1964) The Johnson administrationsubsequently relied upon the resolution tobegin its rapid escalation of U.S. militaryinvolvement in South Vietnam and open warfare between North Vietnam and the United States.

Contents1 Background and Congressional action2 Repeal3 Notes4 References5 External links

27

President Johnson as he signs theresolution on August 10, 1964

Background and Congressional actionThe USS Maddox, a U.S. destroyer, was conducting a DESOTOpatrol in the waters of the Gulf of Tonkin on August 2, 1964, when itwas attacked by three North Vietnamese Navy torpedo boats fromthe 135th Torpedo Squadron,[1] which were attempting to close theirrange on the Maddox for effective torpedo fire (1,000 yards wasmaximum effective range for the torpedoes)[2][3] Maddox fired over280 5-inch shells[4] and the boats expended their 6 torpedoes (allmisses) and some 14.5-mm machinegun fire. Breaking contact, thecombatants commenced going their separate ways, when the threetorpedo boats, T-333, T-336, and T-339 were then attacked by fourUSN F-8 Crusader jet fighter bombers from the aircraft carrierUSS Ticonderoga.[5] The Crusaders reported no hits with their Zunirockets, but scored hits on all three torpedo boats with their 20-mmcannons, damaging all three boats. Two days later on August 4, theMaddox and the destroyer Turner Joy both reported to beunder attack again, by North Vietnamese torpedo boats;during this alleged engagement, the Turner Joy firedapproximately 220 3-inch & 5-inch shells at radar controlledsurface targets.[6] Hanoi subsequently insisted that it had notlaunched a second attack. A later investigation by the SenateForeign Relations Committee revealed that the Maddox hadbeen on an electronic intelligence (DESOTO) mission. Italso learned that the U.S. Naval Communication Center inthe Philippine Islands, in reviewing ships' messages, hadquestioned whether any second attack had actuallyoccurred.[7] In 2005, an internal National Security Agencyhistorical study was declassified; it concluded that theMaddox had engaged the North Vietnamese Navy onAugust 2, but that there may not have been any NorthVietnamese Naval vessels present during the engagement ofAugust 4. The report stated:

It is not simply that there is a different story as towhat happened; it is that no attack happened thatnight. [...]

In truth, Hanoi's navy was engaged in nothing that night butthe salvage of two of the boats damaged on August 2.[8] In 1965, President Johnson commented privately:"For all I know, our Navy was shooting at whales out there."[9]

28

Within hours, President Johnson ordered the launching of retaliatory air strikes (Operation Pierce Arrow) onthe bases of the North Vietnamese torpedo boats and announced, in a television address to the Americanpublic that same evening, that U.S. naval forces had been attacked. Johnson requested approval of aresolution "expressing the unity and determination of the United States in supporting freedom and inprotecting peace in southeast Asia", stating that the resolution should express support "for all necessaryaction to protect our Armed Forces", but repeated previous assurances that "the United States ... seeks nowider war". As the nation entered the final three months of political campaigning for the 1964 elections (inwhich Johnson was standing for election), the president contended that the resolution would help "hostilenations ... understand" that the United States was unified in its determination "to continue to protect itsnational interests".[10]

On August 6, U.S. Secretary of Defense Robert S. McNamara testified before a joint session of the SenateForeign Relations and Armed Services committees. He stated that the Maddox had been "carrying out aroutine mission of the type we carry out all over the world at all times" and denied that it had been in anyway involved in South Vietnamese patrol boat raids on the offshore islands of Hon Me and Hon Nieu on thenights of July 30 and July 31.[7] The administration did not, however, disclose that the island raids, althoughseparate from the mission of the Maddox, had been part of a program of clandestine attacks on NorthVietnamese installations called Operation Plan 34A. These operations were carried out by U.S.-trainedSouth Vietnamese commandos under the control of a special operations unit of the U.S. Military AssistanceCommand, Vietnam called the Studies and Operations Group.[11]

After fewer than nine hours of committee consideration and floor debate, Congress voted, on August 10,1964, on a joint resolution authorizing the president "to take all necessary steps, including the use of armedforce, to assist any member or protocol state of the Southeast Asia Collective Defense Treaty requestingassistance in defense of its freedom". (H.J. RES 1145 1964) The unanimous affirmative vote in the House ofRepresentatives was 416–0. (However, Republican Congressman Eugene Siler of Kentucky, who was notpresent but opposed the measure, was "paired" with another member who favored the resolution—i.e., hisopposition was not counted, but the vote in favor was one less than it would have been.) The Senateconferred its approval by a vote of 88–2. Some members expressed misgivings about the measure, but in theend, Democratic Senators Wayne Morse of Oregon and Ernest Gruening of Alaska cast the only nayvotes.[12] At the time, Senator Morse warned that "I believe this resolution to be a historic mistake."[13]

RepealBy 1967, the rationale for what had become a costly U.S. involvement in the Vietnam War was receivingclose scrutiny. With opposition to the war mounting, a movement to repeal the resolution—which warcritics decried as having given the Johnson administration a "blank check"—began to gather steam.

An investigation by the Senate Foreign Relations Committee revealed that the Maddox had been on anelectronic intelligence collection mission off the North Vietnamese coast.[14] It also learned that the U.S.Naval Communication Center in the Philippine Islands, in reviewing ships' messages, had questionedwhether any second attack had actually occurred.[7]

The administration of President Richard Nixon, which took office in January 1969, initially opposed repeal,warning of "consequences for Southeast Asia [that] go beyond the war in Vietnam". In 1970 theadministration began to shift its stance. It asserted that its conduct of operations in Southeast Asia was based

29

not on the resolution but was a constitutional exercise of the President's authority, as Commander in Chiefof U.S. military forces, to take necessary steps to protect American troops as they were graduallywithdrawn[15] (the U.S. had begun withdrawing its forces from Vietnam in 1969 under a policy known as"Vietnamization").

Mounting public opinion against the war eventually led to the repeal of the resolution, which was attachedto the Foreign Military Sales Act that Nixon signed in January 1971.[16] Seeking to restore limits onpresidential authority to engage U.S. forces without a formal declaration of war, Congress passed the WarPowers Resolution in 1973, over Nixon's veto. The War Powers Resolution, which is still in effect, setsforth certain requirements for the President to consult with Congress in regard to decisions that engage U.S.forces in hostilities or imminent hostilities.

Notes1. Moise 1996, pp. 50, 78.2. Moise 1996, p. 71.3. Hanyok 2000.4. Moise 1996, p. 78.5. Moise 1996, p. 82.6. Moise 1996, p. 158.7. NYT 1968.8. Hanyok 2000, p. 3.9. KQED 2006.

10. President's Message to Congress 1964.11. Andradé & Conboy 1999.12. Kenworthy 1964.13. Tonkin Gulf debate 1964.14. Finney 1968.15. NYT 1970.16. NYT 1971.

ReferencesAndradé, David; Conboy, Kenneth (August 1999). "The Secret Side of the Tonkin Gulf Incident"(http://www.usni.org/navalhistory/Articles99/NHandrade.htm). Naval History.Beito, David T.; Beito, Linda Royster (August 21, 2006). "The Christian Conservative Who Opposedthe Vietnam War" (http://hnn.us/articles/28879.html). History News Network.Finney, John (January 31, 1968). "Tonkin Inquiry by Fulbright to Call McNamara". The New YorkTimes.Hanyok, Robert J. "Skunks, Bogies, Silent Hounds, and the Flying Fish: The Gulf of Tonkin Mystery,2–4 August 1964" (http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB132/relea00012.pdf),Cryptologic Quarterly, Winter 2000/Spring 2001 Edition, Vol. 19, No. 4 / Vol. 20, No. 1.Kenworthy, E.W. (August 8, 1964). "Resolution Wins". The New York Times.Moise, Edwin E. (1996). Tonkin Gulf and the Escalation of the Vietnam War. The University of NorthCarolina Press. ISBN 0-8078-2300-7."Excerpts from McNamara's Testimony on Tonkin". The New York Times. February 25, 1968."Gulf of Tonkin Measure Voted In Haste and Confusion in 1964". The New York Times. June 25,1970."Gulf of Tonkin Resolution is Repealed Without Furor" (http://select.nytimes.com/gst/abstract.html?

30


Gulf of TonkinResolution

res=F10712FE3A55127B93C6A8178AD85F458785F9). The New York Times (United PressInternational). January 14, 1971."Freedom of Information Past and Present" (http://www.pbs.org/now/politics/foia06.html). NOW onPBS. KQED. March 17, 2006. Retrieved May 16, 2012."Excerpts from Senate Debate on Tonkin Gulf Resolution" (http://vietnam.vassar.edu/doc9.html).Vassar College.Wikisource: H.J. RES 1145"Excerpts from President's Message to Congress"(http://www.mtholyoke.edu/acad/intrel/tonkinsp.htm). Mount Holyoke College.

External linksOriginal Document: Tonkin Gulf Resolution(http://www.footnote.com/viewer.php?image=4346698)Ourdocuments.gov (http://www.ourdocuments.gov/doc.php?flash=true&doc=98)Peters,Gerhard; Woolley, John T. "Lyndon B. Johnson:"Special Message to the Congress on U.S. Policy in Southeast Asia," August 5, 1964"(http://www.presidency.ucsb.edu/ws/index.php?pid=26422#axzz2hl9fydBl). The AmericanPresidency Project. University of California - Santa Barbara.

Retrieved from "http://en.wikipedia.org/w/index.php?title=Gulf_of_Tonkin_Resolution&oldid=648814105"

Categories: Vietnam War History of the United States (1964–80)United States foreign relations legislation Resolutions (law) 88th United States Congress


31

Hamdan v. Rumsfeld

Supreme Court of the United StatesArgued March 28, 2006Decided June 29, 2006

Full casename

Salim Ahmed Hamdan, Petitioner v. DonaldH. Rumsfeld, United States Secretary ofDefense; John D. Altenburg, Jr., AppointingAuthority for Military Commissions,Department of Defense; Brigadier GeneralThomas L. Hemingway, Legal Advisor to theAppointing Authority for MilitaryCommissions; Brigadier General Jay Hood,Commander Joint Task Force,Guantanamo, Camp Echo, GuantanamoBay, Cuba; George W. Bush, President ofthe United States


Citations 548 U.S. 557 (more)126 S. Ct. 2749; 165 L. Ed. 2d 723; 2006U.S. LEXIS 5185; 19 Fla. L. Weekly Fed. S452

Prior history Petition for habeas corpus granted, 344 F.Supp. 2d 152 (D.D.C. 2004); reversed, 415F.3d 33 (D.C. Cir., 2005); cert. granted, 126S. Ct. 622 (2006)

HoldingMilitary commission to try Plaintiff is illegal and lacking

the protections required under the Geneva Conventions andUnited States Uniform Code of Military Justice.




Clarence Thomas · Ruth Bader Ginsburg

Hamdan v. RumsfeldFrom Wikipedia, the free encyclopedia

Hamdan v. Rumsfeld, 548 U.S. 557 (2006), is acase in which the Supreme Court of the UnitedStates held that military commissions set up by theBush administration to try detainees atGuantanamo Bay lack "the power to proceedbecause its structures and procedures violate boththe Uniform Code of Military Justice and the fourGeneva Conventions signed in 1949."[1]

Specifically, the ruling says that Common Article 3of the Geneva Conventions was violated.

The case considers whether the United StatesCongress may pass legislation preventing theSupreme Court from hearing the case of an accusedcombatant before his military commission takesplace, whether the special military commissionsthat had been set up violated federal law (includingthe Uniform Code of Military Justice and treatyobligations), and whether courts can enforce thearticles of the 1949 Geneva Convention.[2]

An unusual aspect of the case was an amicus brieffiled by Senators Jon Kyl and Lindsey Graham,which presented an “extensive colloquy” added tothe Congressional record as evidence that"Congress was aware" that the Detainee TreatmentAct of 2005 would strip the Supreme Court ofjurisdiction to hear cases brought by theGuantanamo detainees. Because these statementswere not included in the December 21 debate at thetime, Emily Bazelon of Slate magazine has arguedtheir brief was an attempt to mislead the court.[3]

On June 29, 2006, the Court issued a 5-3 decisionholding that it had jurisdiction, that theadministration did not have authority to set upthese particular military commissions withoutcongressional authorization, because they did notcomply with the Uniform Code of Military Justiceand the Geneva Convention (which the court foundto be incorporated into the Uniform Code ofMilitary Justice).[4]

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Stephen Breyer · Samuel AlitoCase opinions

Majority Stevens, joined by Souter, Ginsburg,Breyer; Kennedy (except Parts V, VI-D-iv)

Concurrence Breyer, joined by Kennedy, Souter,Ginsburg

Concurrence Kennedy, joined by Souter, Ginsburg,Breyer (only as to I, II)

Dissent Scalia, joined by Thomas, AlitoDissent Thomas, joined by Scalia; Alito (all but I,

II-C-1, III-B-2)Dissent Alito, joined by Scalia, Thomas (only as to I

– III)Roberts took no part in the consideration or decision of the case.

Laws appliedU.S. Const.; Geneva Conventions, Common Arts. 2 & 3;UCMJ, Arts. 21 & 36; Detainee Treatment Act of 2005

(DTA) §1005; AUMF

Contents1 Background2 District and Appeals Court rulings3 Supreme Court decision

3.1 Stevens' opinion for the Court3.1.1 Plurality sections3.1.2 Addressing the dissents

3.2 Breyer's concurrence3.3 Kennedy's concurrence3.4 Scalia's dissent3.5 Thomas's dissent3.6 Alito's dissent

4 Reaction to the decision4.1 Implications for theories ofexecutive power4.2 Charges dismissed/new charges

5 See also6 References7 Further reading8 External links

8.1 Court documents8.2 Pentagon documents8.3 News reports, commentary

BackgroundThe plaintiff was Salim Ahmed Hamdan, a citizen of Yemen who worked as a bodyguard and chauffeur forOsama bin Laden. Hamdan had formerly worked in Afghanistan on an agricultural project that Bin Ladenhad developed. Hamdan was captured by militia forces during the invasion of Afghanistan in the fall of2001 and turned over to the United States. In 2002, he was sent by the US to its new Guantanamo Baydetention camp at its Naval Base in Cuba.

In July 2004, Hamdan was charged with conspiracy to commit terrorism,[5] and the Bush administrationmade arrangements to try him before a military commission, established by the Department of Defenseunder Military Commission Order No. 1 of March 21, 2002. He was assigned a defense counsel, LCDRCharles D. Swift from the Navy JAG, who with a legal team filed a petition for Hamdan in US DistrictCourt for a writ of habeas corpus, challenging the constitutionality of the military commission, and sayingthat it lacked the protections required under the Geneva Conventions and United States Uniform Code ofMilitary Justice.

Following the United States Supreme Court ruling in Hamdi v. Rumsfeld (2004), which established thatdetainees had the right of habeas corpus to challenge their detention, Hamdan was granted a review beforethe Combatant Status Review Tribunal. It determined that he was eligible for detention by the United Statesas an enemy combatant or person of interest.[2]

33

The defendants in this case included many United States government officials allegedly responsible forHamdan's detention; the short name of the case includes only the first-named defendant, then-Secretary ofDefense Donald Rumsfeld.

District and Appeals Court rulingsAfter reviewing Hamdan's habeas petition, Judge James Robertson of the United States District Court forthe District of Columbia ruled in the detainee's favor. He found that the United States could not hold amilitary commission unless it was first shown that the detainee was not a prisoner of war.[6][7][8]

On July 15, 2005, a United States Court of Appeals for the District of Columbia Circuit three-judge panel:Arthur Raymond Randolph, John G. Roberts, Jr. and Stephen F. Williams, unanimously reversed thedecision of the District Court.[9] Judge Randolph, who wrote the decision, cited the following reasons forthe legality of the military commission:

1. Military commissions are legitimate forums to try enemy combatants because they have beenapproved by Congress.

2. The Geneva Convention is a treaty between nations and as such it does not confer individual rightsand remedies.

3. Even if the Geneva Convention could be enforced in U.S. courts, it would not be of assistance toHamdan at the time because, the war against al-Qaeda was not between two countries, and theConvention guarantees only a certain standard of judicial procedure—a "competent tribunal"—without speaking to the jurisdiction in which the prisoner must be tried.

4. Under the terms of the Geneva Convention, al Qaeda and its members are not covered.5. Congress authorized such activity by statute.6. The judicial branch of the United States government cannot enforce the Convention, thus invalidating

Hamdan's argument that he cannot be tried until after his prisoner-of-war status is determined.[2]

Supreme Court decision

On 7 November 2005, the Supreme Court issued a writ of certiorari to hear the case.[10] The petition wasfiled on behalf of Hamdan by Neal Katyal of Georgetown University Law Center and Lt. CommanderCharles Swift of the U.S. Navy, an alumnus of Seattle University School of Law. The Seattle law firm,Perkins Coie, provided the additional legal counsel for Hamdan.

The case was argued before the court on 28 March 2006. Katyal argued on behalf of Hamdan, and PaulClement, the Solicitor General of the United States, argued on behalf of the government.[11] Chief JusticeRoberts recused himself because he had previously ruled on this case as part of the three judge panel on theUnited States Court of Appeals for the District of Columbia Circuit. Critics called for Justice Antonin Scaliato recuse himself, since he had made allegedly improper comments about the decision of the case prior tohearing oral arguments ("I'm not about to give this man who was captured in a war a full jury trial. I meanit's crazy")[12] but he chose not to do so.

The Supreme Court announced its decision on 29 June 2006. The Court reversed the ruling of the Court ofAppeals, holding that President George W. Bush did not have authority to set up the war crimes tribunalsand finding the special military commissions illegal under both military justice law and the Geneva

34

Justice Stevens, theauthor of the Court'sopinion.

Conventions.[13][14]

Stevens' opinion for the Court

Associate Justice John Paul Stevens wrote the opinion for the Court(http://www.law.cornell.edu/supct/html/05-184.ZO.html), which commanded amajority only in part.

The Stevens opinion began with the issue of jurisdiction, denying the U.S.government's motion to dismiss under Section 1005 of the Detainee TreatmentAct of 2005 (DTA), which gave the D.C. Circuit Court of Appeals "exclusive"jurisdiction to review decisions of cases being tried before militarycommissions. Congress did not include language in the DTA that might haveprecluded Supreme Court jurisdiction, making the government's argument tothe Court unpersuasive. The government's argument that Schlesinger v.Councilman, 420 U.S. 738 (1975), precludes Supreme Court review wassimilarly rejected. Councilman applied to a member of the U.S. military whowas being tried before a military "court-martial." In contrast, Hamdan is not amember of the U.S. military, and would be tried before a military"commission," not a court-martial. To the court, the more persuasive precedentwas Ex parte Quirin, in which the court recognized its duty to enforce relevant Constitutional protections byconvening a special Term and expediting review of a trial by military convention. The opinion explicitlystated that, because DTA did not bar it from considering the petition, it was unnecessary to decide whetherlaws unconditionally barring habeas corpus petitions would unconstitutionally violate the SuspensionClause.

The opinion then addressed the substantive issues of the case. It explicitly did not decide whether thePresident possessed the Constitutional power to convene military commissions like the one created to tryHamdan. Even if he possessed such power, those tribunals would either have to be sanctioned by the "lawsof war," as codified by Congress in Article 21 of the Uniform Code of Military Justice (UCMJ), orauthorized by statute. As to the statutory authorization, there is nothing in the Authorization for Use ofMilitary Force (AUMF) "even hinting" at expanding the President's war powers beyond those enumerated inArt. 21. Instead, the AUMF, the UCMJ, and the DTA "at most acknowledge" the President's authority toconvene military commissions only where justified by the exigencies of war, but still operating within thelaws of war.

As to the laws of war, to the majority these necessarily include the UCMJ and the Geneva Conventions,each of which require more protections than the military commission provides. The UCMJ, Art. 36 (b),which requires that rules applied in courts-martial and military commissions be "uniform insofar aspracticable." Stevens found several substantial deviations, including:

The defendant and the defendant's attorney may be forbidden to view certain evidence used againstthe defendant; the defendant's attorney may be forbidden to discuss certain evidence with thedefendant;Evidence judged to have any probative value may be admitted, including hearsay, unsworn livetestimony, and statements gathered through torture; andAppeals are not heard by courts, but only within the Executive Branch (with an exception not hererelevant).

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These deviations made the commissions violate the UCMJ.

The majority also found that the procedures in question violate the "at least" applicable Common Article 3of the Geneva Conventions. It found that the D.C. Court of Appeals erred in concluding that theConventions did not apply:

1. It erroneously relied on Johnson v. Eisentrager, which does not legally control in Hamdan's casebecause there was then no deviation between the procedures used in the tribunal and those used incourts-martial;

2. It erroneously ruled that the Geneva Conventions do not apply because Art. 3 affords minimalprotection to combatants "in the territory of" a signatory; and

3. Those minimal protections include being tried by a "regularly constituted court," which the militarycommission is not.

Because the military commission does not meet the requirements of the Uniform Code of Military Justice orof the Geneva Convention, it violates the laws of war and therefore cannot be used to try Hamdan.

The Court did not hear the question that had decided the district court opinion, namely that Hamdan wasentitled to a GCIII Art. 5 hearing instead of a Combatant Status Review Tribunal.

Hamdan observes that Article 5 of the Third Geneva Convention requires that if there be “any doubt”whether he is entitled to prisoner-of-war protections, he must be afforded those protections until hisstatus is determined by a “competent tribunal.” . Because we hold that Hamdan may not, in anyevent, be tried by the military commission the President has convened pursuant to the November 13thOrder and Commission Order No. 1, the question whether his potential status as a prisoner of warindependently renders illegal his trial by military commission may be reserved.[14]

Plurality sections

Because Justice Anthony Kennedy did not join Stevens’ opinion as to several parts, largely on the groundsof judicial parsimony (that is, having decided that the military commissions had no foundation, the corequestion of the case was decided and the Court did not need to go further), those sections were without amajority in support.

In one of these sections, Stevens addressed the issue of whether military commissions can try conspiracycharges. He argued that military commissions are not courts of general jurisdiction, which are able to tryany crime; that the court has traditionally held that offenses against the law of war are triable by militarycommission only when they are clearly defined as war crimes by statute or strong common law precedent(cf. Quirin). Finally, he found that there was no support in statute or court precedent for law-of-war militarycommissions trying charges of "conspiracy," either in the Geneva Conventions, in the earlier HagueConventions or at the Nuremberg Trials.

Addressing the dissents

As is common in opinions to which there are dissents, Stevens' opinion addressed the major arguments indissent. For example:

The majority opinion says that Justice Scalia's argument concerning the jurisdiction-stripping statute(section 1005e(1)) ignores the effective date provision of that very statute (section 1005(h))

36

Justice Kennedy

The majority opinion says that the government's contention that the war started September 11, 2001undercuts Justice Thomas' argument that it started in 1996.The majority opinion notes that language in the Congressional Record that the Scalia dissent cites wasinserted into the Record after the legislation had been enacted, by Senators Lindsey Graham (R-SC)and Jon Kyl (R-AZ), and includes falsified quotations attributed to other persons.[15]

Breyer's concurrence

Justice Breyer wrote a one-page concurring opinion (http://www.law.cornell.edu/supct/html/05-184.ZC.html), joined by Justices Kennedy, Souter, and Ginsburg.[16] Breyer contended that thecommissions are not necessarily categorically prohibited, as long as Congress approves them:

...Congress has denied the President the legislative authority to create military commissions of thekind at issue here. Nothing prevents the President from returning to Congress to seek the authority hebelieves necessary. ... Where, as here, no emergency prevents consultation with Congress, judicialinsistence upon that consultation does not weaken our Nation’s ability to deal with danger. To thecontrary, that insistence strengthens the Nation’s ability to determine — through democratic means— how best to do so. The Constitution places its faith in those democratic means. Our Court todaysimply does the same.[17]

Kennedy's concurrence

Justice Kennedy wrote an opinion concurring in part(http://www.law.cornell.edu/supct/html/05-184.ZC1.html), joined as to parts Iand II by Justices Souter, Ginsburg, and Breyer.[18]

In Part One of Kennedy's concurrence, he raises his concern for the separationof powers; specifically, how one branch can control all the elements of a case,including avenues of review and appeal.

Part Two describes the differences between the procedures of the militarycommissions and the procedures prescribed by the UCMJ (fewer jury members,different rules of evidence, et al.).[19] These differences demonstrate that thecommissions do not operate under the rules of military courts-martial, and raiseissues of neutrality with respect to the military judges involved. The negation offairness safeguards renders the commission a judicial entity which is not a"regularly constituted court", as required in the Geneva Convention. In sum,Kennedy writes that the commission exceeds congressional bounds, though theCongress is free to re-write the law as they see fit.

The third and final Part lists some of Kennedy's reservations.[20] He would not say that the defendant mustbe present at all stages of the trial. There should be a reluctance to consider the applicability of Article 75 ofProtocol I, since America never signed it and thus it is not binding. Kennedy writes that he feels it was notnecessary to delve into the validity of the conspiracy charge, and he expresses no view on the merits of theother limitations of the commission noted in Part V of the Decision.

Scalia's dissent37

Justice Scalia wrote a dissenting opinion (http://www.law.cornell.edu/supct/html/05-184.ZD.html) thatfocuses primarily on issues of jurisdiction, and was joined by Justices Thomas and Alito.[21]

Scalia calls the Court's conclusion to hear the case "patently erroneous." His first argument relies on the partof the Detainee Treatment Act (DTA) (effective December 30, 2005) that states "[N]o court, justice, orjudge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or onbehalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba." §1005(e)(1), 119 Stat.2742. Scalia's opinion is that this clause suffices to deny the Supreme Court jurisdiction over the case,calling the majority's reading of the effectiveness provisions of §1005(h), a "mess". He cites Bruner v.United States and other cases granting "immediate effect in pending cases, absent an explicit statutoryreservation." He wrote that in interpreting the language in the DTA, the majority ignored Supreme Courtprecedents which established that a statute excluding jurisdiction applies to pending cases unless it has clearlanguage saying it does not. Scalia claimed that the majority had made this interpretation "for the flimsiestof reasons".[22] He was referring to the majority's use of Senate floor debate records to bolster theirinterpretation, writing that it "makes no difference" that the language in support of his position was insertedinto the Congressional Record after the law was voted upon. He also accuses the majority of ignoring thePresident's Signing Statement.

Furthermore, he anticipates that expanding the jurisdictions able to hear writs of habeas corpus fromGuantanamo Bay would create excessive load on the court system.

In addition, Scalia states that the original military tribunal was not shown to be inadequate. Regarding theapplication of the Suspension Clause of the Constitution, Scalia points to Johnson v. Eisentrager.

In its second major argument, Scalia's opinion argues that petitioners such as Hamdan held outside theterritorial jurisdiction of the United States lack the right to the writ of habeas corpus. He points in a footnoteto Hamdi v. Rumsfeld, under which he claims Hamdan "is already subject to indefinite detention" "after anadverse determination by his CSRT."

Finally, Justice Scalia chastises the Court for taking equity jurisdiction of the case and draws an analogywith Schlesinger v. Councilman, 420 U.S. 738 (1975). In that case, the Supreme Court declined passingjudgment on the decision of a military court-martial before it finished its work; Scalia argues that likewise,the military commissions in Cuba have not yet ended their work regarding Hamdan and therefore should notbe subject to judicial oversight.[14]

Thomas's dissent

Justice Clarence Thomas read his dissent (http://www.law.cornell.edu/supct/html/05-184.ZD1.html) fromthe bench when the decision was announced, the first time he did so since his dissent in Stenberg v. Carhart,530 U.S. 914 (2000).

In his dissent he asserted that the courts had no jurisdiction for this case for the reasons described in Scalia'sdissent above; that Hamdan is an illegal combatant and therefore not protected by the Geneva convention;that the Geneva convention doesn't prohibit the special court council proposed; and that the Presidentalready had authority to set up the special court council proposed.[23]

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Citing his dissent in Hamdi v. Rumsfeld, Thomas briefly reprised the roles granted by the Constitution to thethree different branches in time of war. He argued that under the framework established in Ex parte Quirinand Youngstown Sheet & Tube Co. v. Sawyer, President Bush's decision to try Hamdan before a militarycommission "is entitled to a heavy measure of deference," inasmuch as Congress had authorized thePresident to use all necessary and appropriate force to prevent future acts of terrorism when it passed theAuthorization for Use of Military Force.

Thomas disagreed strongly with the plurality’s determination that the legality of the charges againstHamdan are doubtful because he was charged "not with an overt act for which he was caughtredhanded...but with an 'agreement' the inception of which long predated...the [relevant armed conflict]." Helambasted the plurality for second-guessing the Executive’s judgment, arguing that the Court’sdisagreement was based upon "little more than its unsupported assertions" and constituted "anunprecedented departure from the traditionally limited role of the courts with respect to war and anunwarranted intrusion on executive authority." Thomas further disagreed with the plurality’s assumptionthat the date of the enactment of the AUMF constituted the start of war, suggesting that Osama bin Laden'sdeclaration of jihad in August 1996 could be considered a declaration of war. Under this view, theenactment by Congress of the AUMF did not mark the beginning of the conflict with al Qaeda, but ratherauthorized the Executive to use force to combat it. Additionally, Thomas wrote that under the common lawof war, which is "flexible and evolutionary in nature," war courts are permitted a degree of latitude in theirjurisdiction. In holding otherwise, the plurality failed to properly defer to the judgment of the Executive andmilitary commanders.

Referring to the Court’s recent decision in Rapanos v. United States, Thomas noted with some incredulitythat while the Justices that in the instant decision "disregard[ed] the commander-in-chief’s wartimedecisions," they had no trouble deferring to the judgment of the Corps of Engineers in upholding theagency’s "wildly implausible conclusion that a storm drain is a tributary of the waters of the United States.""It goes without saying," Thomas added, "that there is much more at stake here than storm drains."

Thomas likewise disagreed with the plurality’s holding that even if the government had charged Hamdanwith a crime that was clearly cognizable by military commission, the commission would still lack power toproceed because it does not comply with the terms of the UCMJ and the four Geneva Conventions signed in1949. He again emphasized that the jurisdiction of military commissions is not prescribed by statute but israther "adapted in each instance to the need that called it forth." Thomas argued that the Court’s conclusionthat Article 36 of the UCMJ amounts to an attempt by Congress to curb the Executive’s power is "contraryto the text and structure of the UCMJ" and also inconsistent with prior decisions of the Court. AddressingHamdan’s claims under the Geneva Convention, Thomas argued that these are foreclosed by the Court’sholding in Johnson v. Eisentrager, where the majority noted that the respondents could not assert "thatanything in the Geneva Convention makes them immune from prosecution or punishment for war crimes."Further, even if Hamdan’s claim under Common Article 3 was not foreclosed by Eisentrager, it isnevertheless meritless insofar as the President has accepted the determination of the Department of Justicethat Common Article 3 of Geneva does not extend to al Qaeda detainees. Thomas asserted that the Court’sduty in this instance to "defer to the President’s understanding of the provision at issue" is made even moreacute by the fact that he is acting pursuant to his authority as Commander-in-Chief.

Alito's dissent

39

In a seven page dissent (http://www.law.cornell.edu/supct/html/05-184.ZD2.html), Alito sided with Thomasand Scalia's explanation of why they believe the courts had no jurisdiction for this case.[24] He explainedwhy he believed the military commission in this case was legal. Alito disagreed with the holding of theCourt which found that military commissions did not meet the definition of "a regularly constituted court"as required in Common Article 3 of the Geneva Conventions. Alito argued that Common Article 3 wassatisfied in Hamdan because the military commissions:

1. qualify as courts,2. were appointed and established in accordance with domestic law, and3. any procedural improprieties that might occur in particular cases can be reviewed in those cases.

Alito specifically disagreed with the opinions supporting the judgment which held that the militarycommission before which Hamdan would be tried is not "a regularly constituted court," and that the militarycommission is "illegal," because the commission's procedures allegedly would not comply with 10U.S.C. § 836 (http://www.law.cornell.edu/uscode/10/836.html). Alito wrote that the military commissionwas "regularly" or "properly" constituted, using the example of the various types of local, state, federal andinternational courts and how "although these courts are 'differently constituted' and differ substantially inmany other respects, they are all 'regularly constituted.'"

Alito stated that Geneva Convention Common Article 3 does not specifically rule out military commissions,and further points to the commentary in Article 66, which was the article the Court used in support of itsopinion. Alito argued that even if Common Article 3 recognizes a prohibition on "special tribunals," whichArticle 66 does prohibit, such a prohibition is not applicable to Hamdan's tribunal because the militarycommissions were "regular."[25] Further, because the Bush Administration might conduct the hundreds ofsuch tribunals according to the same procedures, Alito concluded that "it seems that petitioner’s tribunal,like the hundreds of others respondents propose to conduct, is very much regular and not at all special."

Alito wrote that "the commissions were appointed, set up, and established pursuant to an order of thePresident, just like the commission in Ex parte Quirin, 317 U. S. 1 (1942), and the Court acknowledges thatQuirin recognized that the statutory predecessor of 10 U.S.C. § 821(http://www.law.cornell.edu/uscode/10/821.html) 'preserved' the President’s power 'to convene militarycommissions.'" Alito disagreed with Kennedy's assertion that "an acceptable degree of independence fromthe Executive is necessary to render a commission 'regularly constituted' by the standards of our Nation'ssystem of justice," arguing that Kennedy "offers no support for this proposition (which in any event seemsto be more about fairness or integrity than regularity)," and further arguing that the commission in Quirinwas no different from the present case.

Finally, Alito wrote that the commission procedures as a whole do not provide a basis for deeming thecommissions to be illegitimate. He points to two procedural rules, which the Court found fault with: First,the rule "allowing the Secretary of Defense to change the governing rules 'from time to time';" and second,the rule that "permits the admission of any evidence that would have 'probative value to a reasonableperson'". Alito asserts these rules cannot make the commissions illegitimate.

On the first rule Alito argued that not all changes during the course of a trial prejudice the defendant, andthat some may even help the defendant. In addition, "If a change is made and applied during the course ofan ongoing proceeding and if the accused is found guilty, the validity of that procedure can be considered inthe review proceeding for that case."

40

On the second rule, Alito argued that this rule does not violate the international standard incorporated intoCommon Article 3, because "rules of evidence differ from country to country" and "much of the world doesnot follow aspects of our evidence rules, such as the general prohibition against the admission of hearsay."

Reaction to the decisionThe impact of the decision on the petitioner (Hamdan) was that he can still be tried; however, his trial mustbe in a court, such as a military court-martial, or possibly a commission that has court-like protections.

Shortly thereafter, the Military Commissions Act of 2006 may have raised again the issue of which courtwould hear cases such as Hamdan's. The U.S. Department of Justice has filed notice with several federaljudges, and given notice to hundreds of detainees, that the habeas petitions of alien unlawful enemycombatants (or those whose status is to be determined) are not within the jurisdiction of those courts.[26]

The passage and signing of the Act follows through on President Bush's expressed intention to get explicitCongressional authorization to use military tribunals.[27] Press Secretary Tony Snow echoed the plan toappeal to Congress.[28]

However, even among Senate Republicans, there were conflicting views. Senators Arlen Specter andLindsey Graham (the latter a former military prosecutor) indicated Congress would work quickly toauthorize tribunals, while influential Senator John Warner suggested a cautious and deliberativeresponse.[29] The potential for Congressional action also provided an avenue for politicking, as Republicansthreatened Democratic members of Congress with being labeled weak on terrorism if they did not authorizetribunals.[30]

On July 7, 2006 the Secretary of Defense issued a memo "Application of Common Article 3 of the GenevaConventions to the Treatment of Detainees in the Department of Defense".[31] This may be the basis of aJuly 11, 2006, statement by the Bush administration that all detainees at Guantanamo Bay and in U.S.military custody everywhere are entitled to humane treatment under the Geneva Conventions.[32] Thisdeclaration appears not to cover CIA detainees and is ambiguous with respect to the interpretation ofCommon Article 3 and the definition of "humane treatment".[33]

There were some indications that the other detainees being held at facilities throughout the world (e.g.Bagram Air Base and black sites), might use the Supreme Court's ruling to challenge their treatment. Theirreasoning may be that since the Geneva Conventions afforded protection to Hamdan, its other protectionsmight be effective for them as well. Commentators expressed mixed opinions about the strength of thisargument.[34]

Implications for theories of executive power

The decision may have important implications for other disputes relating to the extent of executive powerand the unitary executive theory. In particular, it may undermine the Bush administration's legal argumentsfor domestic wiretapping by the National Security Agency without warrants as required by the ForeignIntelligence Surveillance Act.[35]

41

Charges dismissed/new charges

On June 5, 2007, Hamdan and Canadian youth Omar Khadr, had all charges against themdismissed.[36][37][38] The judges presiding over their military commissions ruled that the MilitaryCommissions Act did not give them the jurisdiction to try Hamdan and Khadr, because it only authorizedthe trial of "unlawful enemy combatants". Hamdan and Khadr's Combatant Status Review Tribunals, likethose of all the other Guantanamo captives, had confirmed them as "enemy combatants".

In December 2007, a tribunal determined that Hamdan was an "unlawful enemy combatant." In August2008 he was convicted by the military commission of the lesser of two charges and received a sentence of66 months, reduced by time served to five and a half months. In November 2008, the US transferred him toYemen, where he served his last month. After release, he joined his family in Sana. In October 2012, the USAppeals Court for the District of Columbia, overturned Hamdan's conviction, acquitting him of the charge.

See alsoList of United States Supreme Court cases, volume 548List of United States Supreme Court casesRasul v. BushBoumediene v. Bush

References1. Hamdan v. Rumsfeld, Supreme Court Syllabus (http://www.supremecourt.gov/opinions/05pdf/05-184.pdf), pg.

4., point 4.2. Hamdan v. Rumsfeld (http://www.law.duke.edu/publiclaw/supremecourtonline/certGrants/2005/hamvrum.html),

Duke Law's Supreme Court Online, 2005.3. Invisible Men: Did Lindsey Graham and Jon Kyl mislead the Supreme Court?

(http://www.slate.com/id/2138750), by Emily Bazelon — Slate Magazine4. "In Loss for Bush, Supreme Court Blocks War-Crimes Trials at Guantanamo

(http://www.nytimes.com/2006/06/29/washington/29cnd-scotus.html)", Associated Press, as reported by TheNew York Times, June 29, 2006

5. Charge Sheets for Salim Ahmed Hamdan (http://www.defenselink.mil/news/Jul2004/d20040714hcc.pdf), UnitedStates Department of Defense

6. Bin Laden's driver outmanoeuvres Guantanamo trials (http://www.smh.com.au/news/Global-Terrorism/Osamas-driver-outmanoeuvres-terror-trials/2004/11/09/1099781361307.html), Sydney Morning Herald, November 9,2004

7. Court bars efforts to try terrorist before military commissions (http://www.wlf.org/upload/110904RS.pdf),Washington Legal Foundation, November 9, 2004

8. High Court Sidesteps Guantanamo Bay Case (http://www.latimes.com/news/nationworld/politics/wire/sns-ap-scotus-terror-suspects,1,722524.story?coll=sns-ap-politics-headlines), Los Angeles Times, January 19, 2005

9. Hamdan v. Rumsfeld (http://pacer.cadc.uscourts.gov/docs/common/opinions/200507/04-5393a.pdf), UnitedStates Court of Appeals for the District of Columbia Circuit, July 18, 2005.

10. "Supreme Court to hear challenge to Gitmo tribunals" (http://jurist.law.pitt.edu/paperchase/2005/11/breaking-news-supreme-court-to-hear.php), Jurist, University of Pittsburgh School of Law, November 7, 2005.

11. Hamdan, Salim v. Rumsfeld, Donald (Secy. of Defense)(http://docket.medill.northwestern.edu/archives/003208.php) Medill, Northwestern University, November 11,2005.

12. USA TODAY (http://www.usatoday.com/news/washington/2006-03-26-scalia-guantanamo_x.htm) (AP) March26, 2006 42

Further reading

13. "US court rejects Guantanamo trial" (http://news.bbc.co.uk/1/hi/world/americas/5129904.stm). BBC News. June29, 2006. Retrieved January 5, 2010.

14. "Hamdan v. Rumsfeld" (http://www.supremecourt.gov/opinions/05pdf/05-184.pdf) (PDF). Supreme Court of theUnited States.

15. "Not Live From Capitol Hill (http://www.slate.com/id/2144780/)", slate.com, by Emily Bazelon, June 29, 200616. 126 S. Ct. at 2799.17. Mahler, Jonathan (2008). The Challenge: Hamdan v. Rumsfeld and the Fight Over Presidential Power. New

York: Farrar, Straus and Giroux, p. 300. ISBN 978-0-374-22320-518. Id. at 2799-2809.19. Id. at 2804.20. Id. at 2808.21. Id. at 2810-2823.22. Mahler, Jonathan (2008). The Challenge: Hamdan v. Rumsfeld and the Fight Over Presidential Power. New

York: Farrar, Straus and Giroux, p. 285. ISBN 978-0-374-22320-523. 126 S. Ct. at 2823-49.24. Id. at 2849-55.25. Citing Webster's Third New International Dictionary, Alito relied on the definition of "special," "relating to a

single thing;" and the definition of "regular," "uniform in course, practice, or occurrence."26. US: Courts No Longer Open to Detainees

(http://www.boston.com/news/nation/washington/articles/2006/10/20/terror_law_renders_detainee_cases_moot?mode=PF), October 20, 2006, Matt Apuzzo, Associated Press Writer , retrieved October 20, 2006.

27. President Bush and Japanese Prime Minister Koizumi Participate in a Joint Press Availability(http://georgewbush-whitehouse.archives.gov/news/releases/2006/06/print/20060629-3.html), June 29, 2006,White House Archives

28. Press Gaggle by Tony Snow (http://georgewbush-whitehouse.archives.gov/news/releases/2006/06/print/20060630-5.html), June 30, 2006, White House Archives

29. Zernike, Kate (July 1, 2006). "Warner Is Uncertain on Legislation for Tribunals"(http://www.nytimes.com/2006/07/01/us/01gitmo.html). New York Times.

30. Abramowitz, Michael; Weisman, Jonathan (July 1, 2006). "GOP Seeks Advantage In Ruling On Trials"(http://www.washingtonpost.com/wp-dyn/content/article/2006/06/30/AR2006063001737.html). WashingtonPost.

31. "Geneva-22 (http://www.slate.com/id/2145592) on slate.com, from Timothy Noah, July 11, 200632. "U.S. will give detainees Geneva rights (http://www.truthout.org/cgi-bin/artman/exec/view.cgi/62/21075)", by

Anne Plummer Flaherty, AP33. Newsflash: Pentagon Agrees to Abide by Supreme Court Ruling -- Or Does It?

(http://balkin.blogspot.com/2006/07/newsflash-pentagon-agrees-to-abide-by.html) Marty Lederman, July 11,2006

34. Lewis, Neil A. (July 1, 2006). "Detainees May Test Reach of Guantánamo Ruling"(http://www.nytimes.com/2006/07/01/us/01geneva.html). New York Times.

35. Supreme Court’s Ruling in Hamdan Means Warrantless Eavesdropping is Clearly Illegal(http://www.crooksandliars.com/2006/07/09/supreme-courts-ruling-in-hamdan-means-warrantless-eavesdropping-is-clearly-illegal/), Glenn Greenwald, July 9, 2006

36. Carol Rosenberg (June 4, 2007). "Military panels hear captives' side of story"(http://www.miamiherald.com/news/americas/cuba/story/36587.html). Miami Herald. Retrieved 2007-06-04.

37. Alberts, Sheldon (2007-06-04). "Khadr remains in detention after all charges dropped"(http://www.canada.com/nationalpost/story.html?id=ead5bb60-723b-4f87-a2fe-2dbe0845d8f2). National Post(Canwest MediaWorks Publications Inc.). Retrieved 2007-06-04.

38. "Stuck in Guantanamo: President Bush tried to create a new legal system for terrorism suspects. He created aquagmire instead." (http://www.washingtonpost.com/wp-dyn/content/article/2007/06/06/AR2007060602302.html). Washington Post. June 7, 2007. Retrieved 2007-06-07.

43

Rehnquist, William H. (1998). All the Laws but One: Civil Liberties in Wartime. New York: WilliamMorrow & Co. ISBN 0-688-05142-1.National Security Law for Policymakers and Law Students(http://majorbenjamintalmadge.blogspot.com/2009/03/national-security-law-for-policymakers.html/)Human Rights First: In Pursuit of Justice; Prosecuting Terrorism Cases in the Federal Courts (2009)(https://web.archive.org/web/20091111085043/http://www.humanrightsfirst.org/pdf/090723-LS-in-pursuit-justice-09-update.pdf) at the Wayback Machine (archived November 11, 2009)Mahler, Jonathan (2008), The Challenge: Hamdan v. Rumsfeld and the Fight Over PresidentialPower, New York: Farrar, Straus and Giroux, p. 285, ISBN 978-0-374-22320-5.Happold, Matthew (2007), "Hamdan v Rumsfeld and the Law of War", Human Rights Law Review 7(2): 418–431, doi:10.1093/hrlr/ngm010 (https://dx.doi.org/10.1093%2Fhrlr%2Fngm010).Testimony (http://www.fas.org/irp/congress/2006_hr/071106silliman.html) of Scott Silliman onHamdan v. Rumsfeld: Establishing a Constitutional Process", U.S. Senate Committee on the Judiciary,July 11, 2006

External links

Court documents

Full text of the decision (http://www.supremecourt.gov/opinions/05pdf/05-184.pdf) PDF (1.31 MiB)Full text (http://www.law.cornell.edu/supct/html/05-184.ZS.html) (HTML with links to precedents,statutes, and U.S. Constitution)Full text (http://www.vlex.us/caselaw/US-Supreme-Court/Recent-Opinions/2100-320635,01.html) -in vLex.us, HTML with links.U.S. Supreme Court Official Reporter's Transcript of Oral Argument(http://www.supremecourt.gov/oral_arguments/argument_transcripts/05-184.pdf) PDF (301 KiB)Full text transcript of the oral argument(http://www.supremecourt.gov/oral_arguments/argument_transcripts/05-184.pdf) PDF (301 KiB)Groups File Amicus Briefs in Case Involving Osama Bin Laden's Driver(http://www.phrusa.org/research/torture/amicusbrief-hamdan.html), Physicians for Human Rightswww.hamdanvrumsfeld.com (http://www.hamdanvrumsfeld.com) — A website devoted to the case;contains briefs and other pertinent documentsPetition for a writ of certiorari: Brief for the respondents in opposition(http://www.usdoj.gov/osg/briefs/2004/0responses/2004-0702.resp.html), US Department of Justice,December 2004Text of the July 15th ruling (http://pacer.cadc.uscourts.gov/docs/common/opinions/200507/04-5393a.pdf) PDF (67.7 KiB), U.S. Court of Appeals for the District of Columbia Circuit, July 15, 2005.BRIEF OF LEGAL SCHOLARS AND HISTORIANS AS AMICI CURIAE IN SUPPORT OFPETITIONER, SALIM AHMED HAMDAN, v DONALD H. RUMSFELD, SECRETARY OFDEFENSE, et al., No. 05-184 (http://www.oyez.org/cases/2000-2009/2005/2005_05_184/briefs/Amicus%20Brief%20of%20Quirin%20Historians_001.pdf).

Pentagon documents

Military Commission Order No. 1 (http://www.defenselink.mil/news/Mar2002/d20020321ord.pdf)

News reports, commentary

High Court Rejects Detainee Tribunals (http://www.washingtonpost.com/wp-44

dyn/content/article/2006/06/29/AR2006062900928_pf.html), Washington Post, June 29, 2006Hamdan v. Rumsfeld: The Supreme Court Affirms International Law(http://jurist.law.pitt.edu/forumy/2006/06/hamdan-v-rumsfeld-supreme-court.php), JURIST, June 30,2006Hamdan, Common Article 3 and the True Spirit of the Law of War(http://jurist.law.pitt.edu/forumy/2006/07/hamdan-common-article-3-and-true.php), JURIST, July 3,2006U.S. Charges Yemeni Described as Bin Laden Bodyguard (http://www.washingtonpost.com/wp-dyn/articles/A50013-2004Jul14.html), Washington Post, July 14, 2004Fourth Guantanamo Detainee Is Charged (http://www.washingtonpost.com/wp-dyn/articles/A49809-2004Jul14.html), Washington Post, July 14, 2004Bin Laden driver charged in first Guantanamo hearing(http://www.usatoday.com/news/washington/2004-08-24-gitmo-driver_x.htm), USA Today, August25, 2004Court permits terrorists to be tried by military commissions(http://www.wlf.org/upload/071505LURS.pdf), Washington Legal Foundation, July 15, 2005Protecting America's Freedom: National Security and Defense(http://www.wlf.org/Litigating/casedetail.asp?detail=303), Washington Legal Foundation, July 15,2005"The Nation's Second-Highest Court" Upholds Military Commissions(http://writ.corporate.findlaw.com/dorf/20050720.html), FindLaw, July 20, 2005Understanding Hamdan v. Rumsfeld(http://www.willamette.edu/~blong/LegalEssaysII/GuantanamoI.html)Why Hamdan is Right about Conspiracy Liability (http://jurist.law.pitt.edu/forumy/2006/03/why-hamdan-is-right-about-conspiracy.php), JURISTWhy the Court Said No (http://www.nybooks.com/articles/19212), David D. Cole, New York Reviewof Books, August 10, 2006"George Clooney To Direct Matt Damon In Aaron Sorkin's War On Terror"(http://www.webcitation.org/query?url=http%3A%2F%2Fmoviesblog.mtv.com%2F2009%2F09%2F22%2Fgeorge-clooney-to-direct-matt-damon-in-aaron-sorkins-war-on-terror%2F%23more-21632&date=2009-09-23). MTV. 2009-09-23. Archived from the original (http://moviesblog.mtv.com/2009/09/22/george-clooney-to-direct-matt-damon-in-aaron-sorkins-war-on-terror/#more-21632) on 2009-09-23.

Retrieved from "http://en.wikipedia.org/w/index.php?title=Hamdan_v._Rumsfeld&oldid=651326843"

Categories: United States Supreme Court cases of the Roberts Court 2006 in United States case lawExtrajudicial prisoners of the United States United States Supreme Court casesGeorge W. Bush administration controversies United States military case law Human rights case law


45

Hamdan v. Rumsfeld


Full casename

Salim Ahmed Hamdan, Petitioner v. DonaldH. Rumsfeld, United States Secretary ofDefense; John D. Altenburg, Jr., AppointingAuthority for Military Commissions,Department of Defense; Brigadier GeneralThomas L. Hemingway, Legal Advisor to theAppointing Authority for MilitaryCommissions; Brigadier General Jay Hood,Commander Joint Task Force,Guantanamo, Camp Echo, GuantanamoBay, Cuba; George W. Bush, President ofthe United States


Citations 548 U.S. 557 (more)126 S. Ct. 2749; 165 L. Ed. 2d 723; 2006U.S. LEXIS 5185; 19 Fla. L. Weekly Fed. S452

Prior history Petition for habeas corpus granted, 344 F.Supp. 2d 152 (D.D.C. 2004); reversed, 415F.3d 33 (D.C. Cir., 2005); cert. granted, 126S. Ct. 622 (2006)

HoldingMilitary commission to try Plaintiff is illegal and lacking

the protections required under the Geneva Conventions andUnited States Uniform Code of Military Justice.




Clarence Thomas · Ruth Bader Ginsburg

Hamdan v. RumsfeldFrom Wikipedia, the free encyclopedia

Hamdan v. Rumsfeld, 548 U.S. 557 (2006), is acase in which the Supreme Court of the UnitedStates held that military commissions set up by theBush administration to try detainees atGuantanamo Bay lack "the power to proceedbecause its structures and procedures violate boththe Uniform Code of Military Justice and the fourGeneva Conventions signed in 1949."[1]

Specifically, the ruling says that Common Article 3of the Geneva Conventions was violated.

The case considers whether the United StatesCongress may pass legislation preventing theSupreme Court from hearing the case of an accusedcombatant before his military commission takesplace, whether the special military commissionsthat had been set up violated federal law (includingthe Uniform Code of Military Justice and treatyobligations), and whether courts can enforce thearticles of the 1949 Geneva Convention.[2]

An unusual aspect of the case was an amicus brieffiled by Senators Jon Kyl and Lindsey Graham,which presented an “extensive colloquy” added tothe Congressional record as evidence that"Congress was aware" that the Detainee TreatmentAct of 2005 would strip the Supreme Court ofjurisdiction to hear cases brought by theGuantanamo detainees. Because these statementswere not included in the December 21 debate at thetime, Emily Bazelon of Slate magazine has arguedtheir brief was an attempt to mislead the court.[3]

On June 29, 2006, the Court issued a 5-3 decisionholding that it had jurisdiction, that theadministration did not have authority to set upthese particular military commissions withoutcongressional authorization, because they did notcomply with the Uniform Code of Military Justiceand the Geneva Convention (which the court foundto be incorporated into the Uniform Code ofMilitary Justice).[4]

46

Stephen Breyer · Samuel AlitoCase opinions

Majority Stevens, joined by Souter, Ginsburg,Breyer; Kennedy (except Parts V, VI-D-iv)

Concurrence Breyer, joined by Kennedy, Souter,Ginsburg

Concurrence Kennedy, joined by Souter, Ginsburg,Breyer (only as to I, II)

Dissent Scalia, joined by Thomas, AlitoDissent Thomas, joined by Scalia; Alito (all but I,

II-C-1, III-B-2)Dissent Alito, joined by Scalia, Thomas (only as to I

– III)Roberts took no part in the consideration or decision of the case.

Laws appliedU.S. Const.; Geneva Conventions, Common Arts. 2 & 3;UCMJ, Arts. 21 & 36; Detainee Treatment Act of 2005

(DTA) §1005; AUMF

Contents1 Background2 District and Appeals Court rulings3 Supreme Court decision

3.1 Stevens' opinion for the Court3.1.1 Plurality sections3.1.2 Addressing the dissents

3.2 Breyer's concurrence3.3 Kennedy's concurrence3.4 Scalia's dissent3.5 Thomas's dissent3.6 Alito's dissent

4 Reaction to the decision4.1 Implications for theories ofexecutive power4.2 Charges dismissed/new charges

5 See also6 References7 Further reading8 External links

8.1 Court documents8.2 Pentagon documents8.3 News reports, commentary

BackgroundThe plaintiff was Salim Ahmed Hamdan, a citizen of Yemen who worked as a bodyguard and chauffeur forOsama bin Laden. Hamdan had formerly worked in Afghanistan on an agricultural project that Bin Ladenhad developed. Hamdan was captured by militia forces during the invasion of Afghanistan in the fall of2001 and turned over to the United States. In 2002, he was sent by the US to its new Guantanamo Baydetention camp at its Naval Base in Cuba.

In July 2004, Hamdan was charged with conspiracy to commit terrorism,[5] and the Bush administrationmade arrangements to try him before a military commission, established by the Department of Defenseunder Military Commission Order No. 1 of March 21, 2002. He was assigned a defense counsel, LCDRCharles D. Swift from the Navy JAG, who with a legal team filed a petition for Hamdan in US DistrictCourt for a writ of habeas corpus, challenging the constitutionality of the military commission, and sayingthat it lacked the protections required under the Geneva Conventions and United States Uniform Code ofMilitary Justice.

Following the United States Supreme Court ruling in Hamdi v. Rumsfeld (2004), which established thatdetainees had the right of habeas corpus to challenge their detention, Hamdan was granted a review beforethe Combatant Status Review Tribunal. It determined that he was eligible for detention by the United Statesas an enemy combatant or person of interest.[2]

47

The defendants in this case included many United States government officials allegedly responsible forHamdan's detention; the short name of the case includes only the first-named defendant, then-Secretary ofDefense Donald Rumsfeld.

District and Appeals Court rulingsAfter reviewing Hamdan's habeas petition, Judge James Robertson of the United States District Court forthe District of Columbia ruled in the detainee's favor. He found that the United States could not hold amilitary commission unless it was first shown that the detainee was not a prisoner of war.[6][7][8]

On July 15, 2005, a United States Court of Appeals for the District of Columbia Circuit three-judge panel:Arthur Raymond Randolph, John G. Roberts, Jr. and Stephen F. Williams, unanimously reversed thedecision of the District Court.[9] Judge Randolph, who wrote the decision, cited the following reasons forthe legality of the military commission:

1. Military commissions are legitimate forums to try enemy combatants because they have beenapproved by Congress.

2. The Geneva Convention is a treaty between nations and as such it does not confer individual rightsand remedies.

3. Even if the Geneva Convention could be enforced in U.S. courts, it would not be of assistance toHamdan at the time because, the war against al-Qaeda was not between two countries, and theConvention guarantees only a certain standard of judicial procedure—a "competent tribunal"—without speaking to the jurisdiction in which the prisoner must be tried.

4. Under the terms of the Geneva Convention, al Qaeda and its members are not covered.5. Congress authorized such activity by statute.6. The judicial branch of the United States government cannot enforce the Convention, thus invalidating

Hamdan's argument that he cannot be tried until after his prisoner-of-war status is determined.[2]

Supreme Court decision

On 7 November 2005, the Supreme Court issued a writ of certiorari to hear the case.[10] The petition wasfiled on behalf of Hamdan by Neal Katyal of Georgetown University Law Center and Lt. CommanderCharles Swift of the U.S. Navy, an alumnus of Seattle University School of Law. The Seattle law firm,Perkins Coie, provided the additional legal counsel for Hamdan.

The case was argued before the court on 28 March 2006. Katyal argued on behalf of Hamdan, and PaulClement, the Solicitor General of the United States, argued on behalf of the government.[11] Chief JusticeRoberts recused himself because he had previously ruled on this case as part of the three judge panel on theUnited States Court of Appeals for the District of Columbia Circuit. Critics called for Justice Antonin Scaliato recuse himself, since he had made allegedly improper comments about the decision of the case prior tohearing oral arguments ("I'm not about to give this man who was captured in a war a full jury trial. I meanit's crazy")[12] but he chose not to do so.

The Supreme Court announced its decision on 29 June 2006. The Court reversed the ruling of the Court ofAppeals, holding that President George W. Bush did not have authority to set up the war crimes tribunalsand finding the special military commissions illegal under both military justice law and the Geneva

48

Justice Stevens, theauthor of the Court'sopinion.

Conventions.[13][14]

Stevens' opinion for the Court

Associate Justice John Paul Stevens wrote the opinion for the Court(http://www.law.cornell.edu/supct/html/05-184.ZO.html), which commanded amajority only in part.

The Stevens opinion began with the issue of jurisdiction, denying the U.S.government's motion to dismiss under Section 1005 of the Detainee TreatmentAct of 2005 (DTA), which gave the D.C. Circuit Court of Appeals "exclusive"jurisdiction to review decisions of cases being tried before militarycommissions. Congress did not include language in the DTA that might haveprecluded Supreme Court jurisdiction, making the government's argument tothe Court unpersuasive. The government's argument that Schlesinger v.Councilman, 420 U.S. 738 (1975), precludes Supreme Court review wassimilarly rejected. Councilman applied to a member of the U.S. military whowas being tried before a military "court-martial." In contrast, Hamdan is not amember of the U.S. military, and would be tried before a military"commission," not a court-martial. To the court, the more persuasive precedentwas Ex parte Quirin, in which the court recognized its duty to enforce relevant Constitutional protections byconvening a special Term and expediting review of a trial by military convention. The opinion explicitlystated that, because DTA did not bar it from considering the petition, it was unnecessary to decide whetherlaws unconditionally barring habeas corpus petitions would unconstitutionally violate the SuspensionClause.

The opinion then addressed the substantive issues of the case. It explicitly did not decide whether thePresident possessed the Constitutional power to convene military commissions like the one created to tryHamdan. Even if he possessed such power, those tribunals would either have to be sanctioned by the "lawsof war," as codified by Congress in Article 21 of the Uniform Code of Military Justice (UCMJ), orauthorized by statute. As to the statutory authorization, there is nothing in the Authorization for Use ofMilitary Force (AUMF) "even hinting" at expanding the President's war powers beyond those enumerated inArt. 21. Instead, the AUMF, the UCMJ, and the DTA "at most acknowledge" the President's authority toconvene military commissions only where justified by the exigencies of war, but still operating within thelaws of war.

As to the laws of war, to the majority these necessarily include the UCMJ and the Geneva Conventions,each of which require more protections than the military commission provides. The UCMJ, Art. 36 (b),which requires that rules applied in courts-martial and military commissions be "uniform insofar aspracticable." Stevens found several substantial deviations, including:

The defendant and the defendant's attorney may be forbidden to view certain evidence used againstthe defendant; the defendant's attorney may be forbidden to discuss certain evidence with thedefendant;Evidence judged to have any probative value may be admitted, including hearsay, unsworn livetestimony, and statements gathered through torture; andAppeals are not heard by courts, but only within the Executive Branch (with an exception not hererelevant).

49

These deviations made the commissions violate the UCMJ.

The majority also found that the procedures in question violate the "at least" applicable Common Article 3of the Geneva Conventions. It found that the D.C. Court of Appeals erred in concluding that theConventions did not apply:

1. It erroneously relied on Johnson v. Eisentrager, which does not legally control in Hamdan's casebecause there was then no deviation between the procedures used in the tribunal and those used incourts-martial;

2. It erroneously ruled that the Geneva Conventions do not apply because Art. 3 affords minimalprotection to combatants "in the territory of" a signatory; and

3. Those minimal protections include being tried by a "regularly constituted court," which the militarycommission is not.

Because the military commission does not meet the requirements of the Uniform Code of Military Justice orof the Geneva Convention, it violates the laws of war and therefore cannot be used to try Hamdan.

The Court did not hear the question that had decided the district court opinion, namely that Hamdan wasentitled to a GCIII Art. 5 hearing instead of a Combatant Status Review Tribunal.

Hamdan observes that Article 5 of the Third Geneva Convention requires that if there be “any doubt”whether he is entitled to prisoner-of-war protections, he must be afforded those protections until hisstatus is determined by a “competent tribunal.” . Because we hold that Hamdan may not, in anyevent, be tried by the military commission the President has convened pursuant to the November 13thOrder and Commission Order No. 1, the question whether his potential status as a prisoner of warindependently renders illegal his trial by military commission may be reserved.[14]

Plurality sections

Because Justice Anthony Kennedy did not join Stevens’ opinion as to several parts, largely on the groundsof judicial parsimony (that is, having decided that the military commissions had no foundation, the corequestion of the case was decided and the Court did not need to go further), those sections were without amajority in support.

In one of these sections, Stevens addressed the issue of whether military commissions can try conspiracycharges. He argued that military commissions are not courts of general jurisdiction, which are able to tryany crime; that the court has traditionally held that offenses against the law of war are triable by militarycommission only when they are clearly defined as war crimes by statute or strong common law precedent(cf. Quirin). Finally, he found that there was no support in statute or court precedent for law-of-war militarycommissions trying charges of "conspiracy," either in the Geneva Conventions, in the earlier HagueConventions or at the Nuremberg Trials.

Addressing the dissents

As is common in opinions to which there are dissents, Stevens' opinion addressed the major arguments indissent. For example:

The majority opinion says that Justice Scalia's argument concerning the jurisdiction-stripping statute(section 1005e(1)) ignores the effective date provision of that very statute (section 1005(h))

50

Justice Kennedy

The majority opinion says that the government's contention that the war started September 11, 2001undercuts Justice Thomas' argument that it started in 1996.The majority opinion notes that language in the Congressional Record that the Scalia dissent cites wasinserted into the Record after the legislation had been enacted, by Senators Lindsey Graham (R-SC)and Jon Kyl (R-AZ), and includes falsified quotations attributed to other persons.[15]

Breyer's concurrence

Justice Breyer wrote a one-page concurring opinion (http://www.law.cornell.edu/supct/html/05-184.ZC.html), joined by Justices Kennedy, Souter, and Ginsburg.[16] Breyer contended that thecommissions are not necessarily categorically prohibited, as long as Congress approves them:

...Congress has denied the President the legislative authority to create military commissions of thekind at issue here. Nothing prevents the President from returning to Congress to seek the authority hebelieves necessary. ... Where, as here, no emergency prevents consultation with Congress, judicialinsistence upon that consultation does not weaken our Nation’s ability to deal with danger. To thecontrary, that insistence strengthens the Nation’s ability to determine — through democratic means— how best to do so. The Constitution places its faith in those democratic means. Our Court todaysimply does the same.[17]

Kennedy's concurrence

Justice Kennedy wrote an opinion concurring in part(http://www.law.cornell.edu/supct/html/05-184.ZC1.html), joined as to parts Iand II by Justices Souter, Ginsburg, and Breyer.[18]

In Part One of Kennedy's concurrence, he raises his concern for the separationof powers; specifically, how one branch can control all the elements of a case,including avenues of review and appeal.

Part Two describes the differences between the procedures of the militarycommissions and the procedures prescribed by the UCMJ (fewer jury members,different rules of evidence, et al.).[19] These differences demonstrate that thecommissions do not operate under the rules of military courts-martial, and raiseissues of neutrality with respect to the military judges involved. The negation offairness safeguards renders the commission a judicial entity which is not a"regularly constituted court", as required in the Geneva Convention. In sum,Kennedy writes that the commission exceeds congressional bounds, though theCongress is free to re-write the law as they see fit.

The third and final Part lists some of Kennedy's reservations.[20] He would not say that the defendant mustbe present at all stages of the trial. There should be a reluctance to consider the applicability of Article 75 ofProtocol I, since America never signed it and thus it is not binding. Kennedy writes that he feels it was notnecessary to delve into the validity of the conspiracy charge, and he expresses no view on the merits of theother limitations of the commission noted in Part V of the Decision.

Scalia's dissent51

Justice Scalia wrote a dissenting opinion (http://www.law.cornell.edu/supct/html/05-184.ZD.html) thatfocuses primarily on issues of jurisdiction, and was joined by Justices Thomas and Alito.[21]

Scalia calls the Court's conclusion to hear the case "patently erroneous." His first argument relies on the partof the Detainee Treatment Act (DTA) (effective December 30, 2005) that states "[N]o court, justice, orjudge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or onbehalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba." §1005(e)(1), 119 Stat.2742. Scalia's opinion is that this clause suffices to deny the Supreme Court jurisdiction over the case,calling the majority's reading of the effectiveness provisions of §1005(h), a "mess". He cites Bruner v.United States and other cases granting "immediate effect in pending cases, absent an explicit statutoryreservation." He wrote that in interpreting the language in the DTA, the majority ignored Supreme Courtprecedents which established that a statute excluding jurisdiction applies to pending cases unless it has clearlanguage saying it does not. Scalia claimed that the majority had made this interpretation "for the flimsiestof reasons".[22] He was referring to the majority's use of Senate floor debate records to bolster theirinterpretation, writing that it "makes no difference" that the language in support of his position was insertedinto the Congressional Record after the law was voted upon. He also accuses the majority of ignoring thePresident's Signing Statement.

Furthermore, he anticipates that expanding the jurisdictions able to hear writs of habeas corpus fromGuantanamo Bay would create excessive load on the court system.

In addition, Scalia states that the original military tribunal was not shown to be inadequate. Regarding theapplication of the Suspension Clause of the Constitution, Scalia points to Johnson v. Eisentrager.

In its second major argument, Scalia's opinion argues that petitioners such as Hamdan held outside theterritorial jurisdiction of the United States lack the right to the writ of habeas corpus. He points in a footnoteto Hamdi v. Rumsfeld, under which he claims Hamdan "is already subject to indefinite detention" "after anadverse determination by his CSRT."

Finally, Justice Scalia chastises the Court for taking equity jurisdiction of the case and draws an analogywith Schlesinger v. Councilman, 420 U.S. 738 (1975). In that case, the Supreme Court declined passingjudgment on the decision of a military court-martial before it finished its work; Scalia argues that likewise,the military commissions in Cuba have not yet ended their work regarding Hamdan and therefore should notbe subject to judicial oversight.[14]

Thomas's dissent

Justice Clarence Thomas read his dissent (http://www.law.cornell.edu/supct/html/05-184.ZD1.html) fromthe bench when the decision was announced, the first time he did so since his dissent in Stenberg v. Carhart,530 U.S. 914 (2000).

In his dissent he asserted that the courts had no jurisdiction for this case for the reasons described in Scalia'sdissent above; that Hamdan is an illegal combatant and therefore not protected by the Geneva convention;that the Geneva convention doesn't prohibit the special court council proposed; and that the Presidentalready had authority to set up the special court council proposed.[23]

52

Citing his dissent in Hamdi v. Rumsfeld, Thomas briefly reprised the roles granted by the Constitution to thethree different branches in time of war. He argued that under the framework established in Ex parte Quirinand Youngstown Sheet & Tube Co. v. Sawyer, President Bush's decision to try Hamdan before a militarycommission "is entitled to a heavy measure of deference," inasmuch as Congress had authorized thePresident to use all necessary and appropriate force to prevent future acts of terrorism when it passed theAuthorization for Use of Military Force.

Thomas disagreed strongly with the plurality’s determination that the legality of the charges againstHamdan are doubtful because he was charged "not with an overt act for which he was caughtredhanded...but with an 'agreement' the inception of which long predated...the [relevant armed conflict]." Helambasted the plurality for second-guessing the Executive’s judgment, arguing that the Court’sdisagreement was based upon "little more than its unsupported assertions" and constituted "anunprecedented departure from the traditionally limited role of the courts with respect to war and anunwarranted intrusion on executive authority." Thomas further disagreed with the plurality’s assumptionthat the date of the enactment of the AUMF constituted the start of war, suggesting that Osama bin Laden'sdeclaration of jihad in August 1996 could be considered a declaration of war. Under this view, theenactment by Congress of the AUMF did not mark the beginning of the conflict with al Qaeda, but ratherauthorized the Executive to use force to combat it. Additionally, Thomas wrote that under the common lawof war, which is "flexible and evolutionary in nature," war courts are permitted a degree of latitude in theirjurisdiction. In holding otherwise, the plurality failed to properly defer to the judgment of the Executive andmilitary commanders.

Referring to the Court’s recent decision in Rapanos v. United States, Thomas noted with some incredulitythat while the Justices that in the instant decision "disregard[ed] the commander-in-chief’s wartimedecisions," they had no trouble deferring to the judgment of the Corps of Engineers in upholding theagency’s "wildly implausible conclusion that a storm drain is a tributary of the waters of the United States.""It goes without saying," Thomas added, "that there is much more at stake here than storm drains."

Thomas likewise disagreed with the plurality’s holding that even if the government had charged Hamdanwith a crime that was clearly cognizable by military commission, the commission would still lack power toproceed because it does not comply with the terms of the UCMJ and the four Geneva Conventions signed in1949. He again emphasized that the jurisdiction of military commissions is not prescribed by statute but israther "adapted in each instance to the need that called it forth." Thomas argued that the Court’s conclusionthat Article 36 of the UCMJ amounts to an attempt by Congress to curb the Executive’s power is "contraryto the text and structure of the UCMJ" and also inconsistent with prior decisions of the Court. AddressingHamdan’s claims under the Geneva Convention, Thomas argued that these are foreclosed by the Court’sholding in Johnson v. Eisentrager, where the majority noted that the respondents could not assert "thatanything in the Geneva Convention makes them immune from prosecution or punishment for war crimes."Further, even if Hamdan’s claim under Common Article 3 was not foreclosed by Eisentrager, it isnevertheless meritless insofar as the President has accepted the determination of the Department of Justicethat Common Article 3 of Geneva does not extend to al Qaeda detainees. Thomas asserted that the Court’sduty in this instance to "defer to the President’s understanding of the provision at issue" is made even moreacute by the fact that he is acting pursuant to his authority as Commander-in-Chief.

Alito's dissent

53

In a seven page dissent (http://www.law.cornell.edu/supct/html/05-184.ZD2.html), Alito sided with Thomasand Scalia's explanation of why they believe the courts had no jurisdiction for this case.[24] He explainedwhy he believed the military commission in this case was legal. Alito disagreed with the holding of theCourt which found that military commissions did not meet the definition of "a regularly constituted court"as required in Common Article 3 of the Geneva Conventions. Alito argued that Common Article 3 wassatisfied in Hamdan because the military commissions:

1. qualify as courts,2. were appointed and established in accordance with domestic law, and3. any procedural improprieties that might occur in particular cases can be reviewed in those cases.

Alito specifically disagreed with the opinions supporting the judgment which held that the militarycommission before which Hamdan would be tried is not "a regularly constituted court," and that the militarycommission is "illegal," because the commission's procedures allegedly would not comply with 10U.S.C. § 836 (http://www.law.cornell.edu/uscode/10/836.html). Alito wrote that the military commissionwas "regularly" or "properly" constituted, using the example of the various types of local, state, federal andinternational courts and how "although these courts are 'differently constituted' and differ substantially inmany other respects, they are all 'regularly constituted.'"

Alito stated that Geneva Convention Common Article 3 does not specifically rule out military commissions,and further points to the commentary in Article 66, which was the article the Court used in support of itsopinion. Alito argued that even if Common Article 3 recognizes a prohibition on "special tribunals," whichArticle 66 does prohibit, such a prohibition is not applicable to Hamdan's tribunal because the militarycommissions were "regular."[25] Further, because the Bush Administration might conduct the hundreds ofsuch tribunals according to the same procedures, Alito concluded that "it seems that petitioner’s tribunal,like the hundreds of others respondents propose to conduct, is very much regular and not at all special."

Alito wrote that "the commissions were appointed, set up, and established pursuant to an order of thePresident, just like the commission in Ex parte Quirin, 317 U. S. 1 (1942), and the Court acknowledges thatQuirin recognized that the statutory predecessor of 10 U.S.C. § 821(http://www.law.cornell.edu/uscode/10/821.html) 'preserved' the President’s power 'to convene militarycommissions.'" Alito disagreed with Kennedy's assertion that "an acceptable degree of independence fromthe Executive is necessary to render a commission 'regularly constituted' by the standards of our Nation'ssystem of justice," arguing that Kennedy "offers no support for this proposition (which in any event seemsto be more about fairness or integrity than regularity)," and further arguing that the commission in Quirinwas no different from the present case.

Finally, Alito wrote that the commission procedures as a whole do not provide a basis for deeming thecommissions to be illegitimate. He points to two procedural rules, which the Court found fault with: First,the rule "allowing the Secretary of Defense to change the governing rules 'from time to time';" and second,the rule that "permits the admission of any evidence that would have 'probative value to a reasonableperson'". Alito asserts these rules cannot make the commissions illegitimate.

On the first rule Alito argued that not all changes during the course of a trial prejudice the defendant, andthat some may even help the defendant. In addition, "If a change is made and applied during the course ofan ongoing proceeding and if the accused is found guilty, the validity of that procedure can be considered inthe review proceeding for that case."

54

On the second rule, Alito argued that this rule does not violate the international standard incorporated intoCommon Article 3, because "rules of evidence differ from country to country" and "much of the world doesnot follow aspects of our evidence rules, such as the general prohibition against the admission of hearsay."

Reaction to the decisionThe impact of the decision on the petitioner (Hamdan) was that he can still be tried; however, his trial mustbe in a court, such as a military court-martial, or possibly a commission that has court-like protections.

Shortly thereafter, the Military Commissions Act of 2006 may have raised again the issue of which courtwould hear cases such as Hamdan's. The U.S. Department of Justice has filed notice with several federaljudges, and given notice to hundreds of detainees, that the habeas petitions of alien unlawful enemycombatants (or those whose status is to be determined) are not within the jurisdiction of those courts.[26]

The passage and signing of the Act follows through on President Bush's expressed intention to get explicitCongressional authorization to use military tribunals.[27] Press Secretary Tony Snow echoed the plan toappeal to Congress.[28]

However, even among Senate Republicans, there were conflicting views. Senators Arlen Specter andLindsey Graham (the latter a former military prosecutor) indicated Congress would work quickly toauthorize tribunals, while influential Senator John Warner suggested a cautious and deliberativeresponse.[29] The potential for Congressional action also provided an avenue for politicking, as Republicansthreatened Democratic members of Congress with being labeled weak on terrorism if they did not authorizetribunals.[30]

On July 7, 2006 the Secretary of Defense issued a memo "Application of Common Article 3 of the GenevaConventions to the Treatment of Detainees in the Department of Defense".[31] This may be the basis of aJuly 11, 2006, statement by the Bush administration that all detainees at Guantanamo Bay and in U.S.military custody everywhere are entitled to humane treatment under the Geneva Conventions.[32] Thisdeclaration appears not to cover CIA detainees and is ambiguous with respect to the interpretation ofCommon Article 3 and the definition of "humane treatment".[33]

There were some indications that the other detainees being held at facilities throughout the world (e.g.Bagram Air Base and black sites), might use the Supreme Court's ruling to challenge their treatment. Theirreasoning may be that since the Geneva Conventions afforded protection to Hamdan, its other protectionsmight be effective for them as well. Commentators expressed mixed opinions about the strength of thisargument.[34]

Implications for theories of executive power

The decision may have important implications for other disputes relating to the extent of executive powerand the unitary executive theory. In particular, it may undermine the Bush administration's legal argumentsfor domestic wiretapping by the National Security Agency without warrants as required by the ForeignIntelligence Surveillance Act.[35]

55

Charges dismissed/new charges

On June 5, 2007, Hamdan and Canadian youth Omar Khadr, had all charges against themdismissed.[36][37][38] The judges presiding over their military commissions ruled that the MilitaryCommissions Act did not give them the jurisdiction to try Hamdan and Khadr, because it only authorizedthe trial of "unlawful enemy combatants". Hamdan and Khadr's Combatant Status Review Tribunals, likethose of all the other Guantanamo captives, had confirmed them as "enemy combatants".

In December 2007, a tribunal determined that Hamdan was an "unlawful enemy combatant." In August2008 he was convicted by the military commission of the lesser of two charges and received a sentence of66 months, reduced by time served to five and a half months. In November 2008, the US transferred him toYemen, where he served his last month. After release, he joined his family in Sana. In October 2012, the USAppeals Court for the District of Columbia, overturned Hamdan's conviction, acquitting him of the charge.

See alsoList of United States Supreme Court cases, volume 548List of United States Supreme Court casesRasul v. BushBoumediene v. Bush

References1. Hamdan v. Rumsfeld, Supreme Court Syllabus (http://www.supremecourt.gov/opinions/05pdf/05-184.pdf), pg.

4., point 4.2. Hamdan v. Rumsfeld (http://www.law.duke.edu/publiclaw/supremecourtonline/certGrants/2005/hamvrum.html),

Duke Law's Supreme Court Online, 2005.3. Invisible Men: Did Lindsey Graham and Jon Kyl mislead the Supreme Court?

(http://www.slate.com/id/2138750), by Emily Bazelon — Slate Magazine4. "In Loss for Bush, Supreme Court Blocks War-Crimes Trials at Guantanamo

(http://www.nytimes.com/2006/06/29/washington/29cnd-scotus.html)", Associated Press, as reported by TheNew York Times, June 29, 2006

5. Charge Sheets for Salim Ahmed Hamdan (http://www.defenselink.mil/news/Jul2004/d20040714hcc.pdf), UnitedStates Department of Defense

6. Bin Laden's driver outmanoeuvres Guantanamo trials (http://www.smh.com.au/news/Global-Terrorism/Osamas-driver-outmanoeuvres-terror-trials/2004/11/09/1099781361307.html), Sydney Morning Herald, November 9,2004

7. Court bars efforts to try terrorist before military commissions (http://www.wlf.org/upload/110904RS.pdf),Washington Legal Foundation, November 9, 2004

8. High Court Sidesteps Guantanamo Bay Case (http://www.latimes.com/news/nationworld/politics/wire/sns-ap-scotus-terror-suspects,1,722524.story?coll=sns-ap-politics-headlines), Los Angeles Times, January 19, 2005

9. Hamdan v. Rumsfeld (http://pacer.cadc.uscourts.gov/docs/common/opinions/200507/04-5393a.pdf), UnitedStates Court of Appeals for the District of Columbia Circuit, July 18, 2005.

10. "Supreme Court to hear challenge to Gitmo tribunals" (http://jurist.law.pitt.edu/paperchase/2005/11/breaking-news-supreme-court-to-hear.php), Jurist, University of Pittsburgh School of Law, November 7, 2005.

11. Hamdan, Salim v. Rumsfeld, Donald (Secy. of Defense)(http://docket.medill.northwestern.edu/archives/003208.php) Medill, Northwestern University, November 11,2005.

12. USA TODAY (http://www.usatoday.com/news/washington/2006-03-26-scalia-guantanamo_x.htm) (AP) March26, 2006 56

Further reading

13. "US court rejects Guantanamo trial" (http://news.bbc.co.uk/1/hi/world/americas/5129904.stm). BBC News. June29, 2006. Retrieved January 5, 2010.

14. "Hamdan v. Rumsfeld" (http://www.supremecourt.gov/opinions/05pdf/05-184.pdf) (PDF). Supreme Court of theUnited States.

15. "Not Live From Capitol Hill (http://www.slate.com/id/2144780/)", slate.com, by Emily Bazelon, June 29, 200616. 126 S. Ct. at 2799.17. Mahler, Jonathan (2008). The Challenge: Hamdan v. Rumsfeld and the Fight Over Presidential Power. New

York: Farrar, Straus and Giroux, p. 300. ISBN 978-0-374-22320-518. Id. at 2799-2809.19. Id. at 2804.20. Id. at 2808.21. Id. at 2810-2823.22. Mahler, Jonathan (2008). The Challenge: Hamdan v. Rumsfeld and the Fight Over Presidential Power. New

York: Farrar, Straus and Giroux, p. 285. ISBN 978-0-374-22320-523. 126 S. Ct. at 2823-49.24. Id. at 2849-55.25. Citing Webster's Third New International Dictionary, Alito relied on the definition of "special," "relating to a

single thing;" and the definition of "regular," "uniform in course, practice, or occurrence."26. US: Courts No Longer Open to Detainees

(http://www.boston.com/news/nation/washington/articles/2006/10/20/terror_law_renders_detainee_cases_moot?mode=PF), October 20, 2006, Matt Apuzzo, Associated Press Writer , retrieved October 20, 2006.

27. President Bush and Japanese Prime Minister Koizumi Participate in a Joint Press Availability(http://georgewbush-whitehouse.archives.gov/news/releases/2006/06/print/20060629-3.html), June 29, 2006,White House Archives

28. Press Gaggle by Tony Snow (http://georgewbush-whitehouse.archives.gov/news/releases/2006/06/print/20060630-5.html), June 30, 2006, White House Archives

29. Zernike, Kate (July 1, 2006). "Warner Is Uncertain on Legislation for Tribunals"(http://www.nytimes.com/2006/07/01/us/01gitmo.html). New York Times.

30. Abramowitz, Michael; Weisman, Jonathan (July 1, 2006). "GOP Seeks Advantage In Ruling On Trials"(http://www.washingtonpost.com/wp-dyn/content/article/2006/06/30/AR2006063001737.html). WashingtonPost.

31. "Geneva-22 (http://www.slate.com/id/2145592) on slate.com, from Timothy Noah, July 11, 200632. "U.S. will give detainees Geneva rights (http://www.truthout.org/cgi-bin/artman/exec/view.cgi/62/21075)", by

Anne Plummer Flaherty, AP33. Newsflash: Pentagon Agrees to Abide by Supreme Court Ruling -- Or Does It?

(http://balkin.blogspot.com/2006/07/newsflash-pentagon-agrees-to-abide-by.html) Marty Lederman, July 11,2006

34. Lewis, Neil A. (July 1, 2006). "Detainees May Test Reach of Guantánamo Ruling"(http://www.nytimes.com/2006/07/01/us/01geneva.html). New York Times.

35. Supreme Court’s Ruling in Hamdan Means Warrantless Eavesdropping is Clearly Illegal(http://www.crooksandliars.com/2006/07/09/supreme-courts-ruling-in-hamdan-means-warrantless-eavesdropping-is-clearly-illegal/), Glenn Greenwald, July 9, 2006

36. Carol Rosenberg (June 4, 2007). "Military panels hear captives' side of story"(http://www.miamiherald.com/news/americas/cuba/story/36587.html). Miami Herald. Retrieved 2007-06-04.

37. Alberts, Sheldon (2007-06-04). "Khadr remains in detention after all charges dropped"(http://www.canada.com/nationalpost/story.html?id=ead5bb60-723b-4f87-a2fe-2dbe0845d8f2). National Post(Canwest MediaWorks Publications Inc.). Retrieved 2007-06-04.

38. "Stuck in Guantanamo: President Bush tried to create a new legal system for terrorism suspects. He created aquagmire instead." (http://www.washingtonpost.com/wp-dyn/content/article/2007/06/06/AR2007060602302.html). Washington Post. June 7, 2007. Retrieved 2007-06-07.

57

Rehnquist, William H. (1998). All the Laws but One: Civil Liberties in Wartime. New York: WilliamMorrow & Co. ISBN 0-688-05142-1.National Security Law for Policymakers and Law Students(http://majorbenjamintalmadge.blogspot.com/2009/03/national-security-law-for-policymakers.html/)Human Rights First: In Pursuit of Justice; Prosecuting Terrorism Cases in the Federal Courts (2009)(https://web.archive.org/web/20091111085043/http://www.humanrightsfirst.org/pdf/090723-LS-in-pursuit-justice-09-update.pdf) at the Wayback Machine (archived November 11, 2009)Mahler, Jonathan (2008), The Challenge: Hamdan v. Rumsfeld and the Fight Over PresidentialPower, New York: Farrar, Straus and Giroux, p. 285, ISBN 978-0-374-22320-5.Happold, Matthew (2007), "Hamdan v Rumsfeld and the Law of War", Human Rights Law Review 7(2): 418–431, doi:10.1093/hrlr/ngm010 (https://dx.doi.org/10.1093%2Fhrlr%2Fngm010).Testimony (http://www.fas.org/irp/congress/2006_hr/071106silliman.html) of Scott Silliman onHamdan v. Rumsfeld: Establishing a Constitutional Process", U.S. Senate Committee on the Judiciary,July 11, 2006

External links

Court documents

Full text of the decision (http://www.supremecourt.gov/opinions/05pdf/05-184.pdf) PDF (1.31 MiB)Full text (http://www.law.cornell.edu/supct/html/05-184.ZS.html) (HTML with links to precedents,statutes, and U.S. Constitution)Full text (http://www.vlex.us/caselaw/US-Supreme-Court/Recent-Opinions/2100-320635,01.html) -in vLex.us, HTML with links.U.S. Supreme Court Official Reporter's Transcript of Oral Argument(http://www.supremecourt.gov/oral_arguments/argument_transcripts/05-184.pdf) PDF (301 KiB)Full text transcript of the oral argument(http://www.supremecourt.gov/oral_arguments/argument_transcripts/05-184.pdf) PDF (301 KiB)Groups File Amicus Briefs in Case Involving Osama Bin Laden's Driver(http://www.phrusa.org/research/torture/amicusbrief-hamdan.html), Physicians for Human Rightswww.hamdanvrumsfeld.com (http://www.hamdanvrumsfeld.com) — A website devoted to the case;contains briefs and other pertinent documentsPetition for a writ of certiorari: Brief for the respondents in opposition(http://www.usdoj.gov/osg/briefs/2004/0responses/2004-0702.resp.html), US Department of Justice,December 2004Text of the July 15th ruling (http://pacer.cadc.uscourts.gov/docs/common/opinions/200507/04-5393a.pdf) PDF (67.7 KiB), U.S. Court of Appeals for the District of Columbia Circuit, July 15, 2005.BRIEF OF LEGAL SCHOLARS AND HISTORIANS AS AMICI CURIAE IN SUPPORT OFPETITIONER, SALIM AHMED HAMDAN, v DONALD H. RUMSFELD, SECRETARY OFDEFENSE, et al., No. 05-184 (http://www.oyez.org/cases/2000-2009/2005/2005_05_184/briefs/Amicus%20Brief%20of%20Quirin%20Historians_001.pdf).

Pentagon documents

Military Commission Order No. 1 (http://www.defenselink.mil/news/Mar2002/d20020321ord.pdf)

News reports, commentary

High Court Rejects Detainee Tribunals (http://www.washingtonpost.com/wp-58

dyn/content/article/2006/06/29/AR2006062900928_pf.html), Washington Post, June 29, 2006Hamdan v. Rumsfeld: The Supreme Court Affirms International Law(http://jurist.law.pitt.edu/forumy/2006/06/hamdan-v-rumsfeld-supreme-court.php), JURIST, June 30,2006Hamdan, Common Article 3 and the True Spirit of the Law of War(http://jurist.law.pitt.edu/forumy/2006/07/hamdan-common-article-3-and-true.php), JURIST, July 3,2006U.S. Charges Yemeni Described as Bin Laden Bodyguard (http://www.washingtonpost.com/wp-dyn/articles/A50013-2004Jul14.html), Washington Post, July 14, 2004Fourth Guantanamo Detainee Is Charged (http://www.washingtonpost.com/wp-dyn/articles/A49809-2004Jul14.html), Washington Post, July 14, 2004Bin Laden driver charged in first Guantanamo hearing(http://www.usatoday.com/news/washington/2004-08-24-gitmo-driver_x.htm), USA Today, August25, 2004Court permits terrorists to be tried by military commissions(http://www.wlf.org/upload/071505LURS.pdf), Washington Legal Foundation, July 15, 2005Protecting America's Freedom: National Security and Defense(http://www.wlf.org/Litigating/casedetail.asp?detail=303), Washington Legal Foundation, July 15,2005"The Nation's Second-Highest Court" Upholds Military Commissions(http://writ.corporate.findlaw.com/dorf/20050720.html), FindLaw, July 20, 2005Understanding Hamdan v. Rumsfeld(http://www.willamette.edu/~blong/LegalEssaysII/GuantanamoI.html)Why Hamdan is Right about Conspiracy Liability (http://jurist.law.pitt.edu/forumy/2006/03/why-hamdan-is-right-about-conspiracy.php), JURISTWhy the Court Said No (http://www.nybooks.com/articles/19212), David D. Cole, New York Reviewof Books, August 10, 2006"George Clooney To Direct Matt Damon In Aaron Sorkin's War On Terror"(http://www.webcitation.org/query?url=http%3A%2F%2Fmoviesblog.mtv.com%2F2009%2F09%2F22%2Fgeorge-clooney-to-direct-matt-damon-in-aaron-sorkins-war-on-terror%2F%23more-21632&date=2009-09-23). MTV. 2009-09-23. Archived from the original (http://moviesblog.mtv.com/2009/09/22/george-clooney-to-direct-matt-damon-in-aaron-sorkins-war-on-terror/#more-21632) on 2009-09-23.

Retrieved from "http://en.wikipedia.org/w/index.php?title=Hamdan_v._Rumsfeld&oldid=651326843"

Categories: United States Supreme Court cases of the Roberts Court 2006 in United States case lawExtrajudicial prisoners of the United States United States Supreme Court casesGeorge W. Bush administration controversies United States military case law Human rights case law


59

Hamdi v. Rumsfeld

Supreme Court of the United StatesArgued April 28, 2004Decided June 28, 2004

Full case name Yaser Esam Hamdi and Esam FouadHamdi as next friend of Yaser EsamHamdi, Petitioners v. Donald H.Rumsfeld, Secretary of Defense, etal.

Citations 542 U.S. 507 (more)124 S. Ct. 2633; 159 L. Ed. 2d 578;2004 U.S. LEXIS 4761; 72 U.S.L.W.4607; 2004 Fla. L. Weekly Fed. S486

Prior history Order for attorney access granted,E.D. Va., 5-29-02; reversed andremanded, 294 F.3d 598 (4th Cir.2002); motion to dismiss denied, 243F.Supp.2d 527 (E.D. Va. 2002);reversed and remanded, 316 F.3d450 (4th Cir. 2003); rehearingdenied, 337 F.3d 335 (4th Cir. 2003);cert. granted, 540 U.S. 1099 (2004)

Subsequenthistory

Remanded to district court, 378 F.3d426 (4th Cir. 2004)

Argument Oral argument(http://www.oyez.org/cases/2000-2009/2003/2003_03_6696/argument)

OpinionAnnouncement

Opinion announcement(http://www.oyez.org/cases/2000-2009/2003/2003_03_6696/opinion)

HoldingU.S. citizens designated as enemy combatants by the

Executive Branch have a right to challenge theirdetainment under the Due Process Clause. FourthCircuit Court of Appeals vacated and remanded.


William RehnquistAssociate Justices

Hamdi v. RumsfeldFrom Wikipedia, the free encyclopedia

Hamdi v. Rumsfeld, 542 U.S. 507 (2004), is a UnitedStates Supreme Court case in which the Courtrecognized the power of the government to detainenemy combatants, including U.S. citizens, but ruledthat detainees who are U.S. citizens must have therights of due process, and the ability to challenge theirenemy combatant status before an impartial authority.

It reversed the dismissal by a lower court of a habeascorpus petition brought on behalf of Yaser EsamHamdi, a U.S. citizen who was being detainedindefinitely as an illegal enemy combatant after beingcaptured in Afghanistan in 2001. Following the court'sdecision, on October 9, 2004, the U.S. governmentreleased Hamdi without charge and deported him toSaudi Arabia, where his family lived and he had grownup, on the condition that he renounce his U.S.citizenship and commit to travel prohibitions and otherconditions.

Contents1 Background

1.1 Early life and capture1.2 Detention and legal challenge1.3 District case1.4 Appellate case

2 Opinion of the Court3 Subsequent developments4 See also5 Footnotes6 References7 Further reading8 External links

Background

Early life and capture

60

John P. Stevens · Sandra Day O'ConnorAntonin Scalia · Anthony Kennedy

David Souter · Clarence ThomasRuth Bader Ginsburg · Stephen Breyer

Case opinionsPlurality O'Connor, joined by Rehnquist,

Kennedy, BreyerConcur/dissent Souter, joined by GinsburgDissent Scalia, joined by StevensDissent Thomas

Laws appliedU.S. Const. art. II, amend. V; 18 U.S.C. § 4001

(http://www.law.cornell.edu/uscode/18/4001.html);115 Stat. 224 (Authorization for Use of Military

Force)

Hamdi during hisdetention at GuantanamoBay.

Yaser Esam Hamdi was born in Louisiana as a citizenof the United States. In 1980, while still a child, hemoved with his family to Saudi Arabia.[1]

In the late summer of 2001,Hamdi at the age of 20went to Afghanistan,traveling on his own for thefirst time. He was doingrelief work for less thantwo months before beingcaptured by the AfghanNorthern Alliance. Theyturned him over to U.S.military authorities duringthe U.S. invasion.[2] Hewas classified as an enemy combatant by the U.S. armed forces and detained inconnection with ongoing hostilities.[3]

Hamdi's father said that Hamdi had gone to Afghanistan to do relief work andwas trapped there when the U.S. invasion began, attempting to oust the

Taliban.[4]

Detention and legal challenge

After his capture in 2001, Hamdi was detained and interrogated in Afghanistan.[5] In January 2002, theAmericans transferred Hamdi to Guantanamo Bay.[5] In April 2002, when officials discovered that he heldU.S. (as well as Saudi) citizenship, they transferred him to a Naval prison brig in Norfolk, Virginia andfinally to the Naval Consolidated Brig in Charleston, South Carolina.[5] In June 2002, Hamdi's father, EsamFouad Hamdi, filed a habeas corpus petition in the United States District Court for the Eastern District ofVirginia to challenge his detention.[6]

The Bush administration claimed that because Hamdi was caught in arms against the U.S., he could beproperly detained as an enemy combatant,[7] without any oversight of presidential decision making, andwithout access to an attorney or the court system. The administration argued that this power wasconstitutional and necessary to effectively fight the War on Terror, declared by the Congress of the UnitedStates in the Authorization for Use of Military Force Act passed after the September 11th terrorist attacks.The government used its detention authority to ensure that terrorists were no longer a threat while activecombat operations continued and to ensure suspects could be fully interrogated.

District case

The Honorable Robert G. Doumar ruled that Hamdi's father was a proper "next friend" having standing tosue on behalf of his son, and ordered that a federal public defender be given access to Hamdi. On appeal,however, the Fourth Circuit reversed the District Court's order, ruling that the District Court had failed to

61

give proper deference to the government's "intelligence and security interests," and that it should proceedwith a properly deferential investigation.

The case was sent back to the District Court, which denied the government's motion to dismiss Hamdi'spetition. Judge Doumar found the government's evidence supporting Hamdi's detention "woefullyinadequate," and based predominantly on hearsay and bare assertions. The District Court ordered thegovernment to produce numerous documents for in camera review by the court that would enable it toperform a "meaningful judicial review," such as the statements by the Northern Alliance regarding Hamdi'scapture, the dates and circumstances of his capture and interrogations, and a list of all the officials involvedin the determination of his "enemy combatant" status.

Appellate case

The government appealed Judge Doumar's order to produce the evidence, and the Fourth Circuit againreversed the District Court. Because it was "undisputed that Hamdi was captured in a zone of active combatin a foreign theater of conflict," the Fourth Circuit said that it was not proper for any court to hear achallenge of his status. It ruled that the broad warmaking powers delegated to the President under ArticleTwo of the United States Constitution and the principle of separation of powers prohibited courts frominterfering in this vital area of national security.

After the Fourth Circuit denied a petition for rehearing en banc, Hamdi's father appealed to the U.S.Supreme Court. It granted certiorari review and reversed the Fourth Circuit's ruling. Hamdi was representedbefore the Court by the late Federal Public Defender Frank W. Dunham, Jr., and the Government's side wasargued by the Principal Deputy Solicitor General, Paul Clement.

Opinion of the CourtThough no single opinion of the Court commanded a majority, eight of the nine justices of the Court agreedthat the Executive Branch does not have the power to hold a U.S. citizen indefinitely without basic dueprocess protections enforceable through judicial review.

Justice O'Connor wrote a plurality opinion representing the Court's judgment, which was joined by ChiefJustice Rehnquist and Justices Breyer and Kennedy. O'Connor wrote that although Congress had expresslyauthorized the detention of enemy combatants in its Authorization for Use of Military Force (AUMF)passed after 9/11, due process required that Hamdi have a meaningful opportunity to challenge his enemycombatant status.

Justice O'Connor used the three-part test of Mathews v. Eldridge to limit the due process to be received.This required notice of the charges and an opportunity to be heard, though because of the burden of ongoingmilitary conflict upon the Executive, normal procedural protections, such as placing the burden of proof onthe government or the ban on hearsay, need not apply. O'Connor suggested the Department of Defensecreate fact-finding tribunals similar to the AR 190-8 to determine whether a detainee merited continueddetention as an enemy combatant.

In response, the United States Department of Defense created Combatant Status Review Tribunals,modeling them after the AR 190-8. O'Connor did not write at length on Hamdi's right to an attorney,because by the time the Court rendered its decision, Hamdi had been granted access to one. But, O'Connorwrote that Hamdi "unquestionably has the right to access to counsel in connection with the proceedings on

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remand." The plurality held that judges need not be involved in reviewing these cases, rather only an"impartial decision maker" was required. Justice O'Connor also limited the reach of the Court’s conclusionregarding the executive authority to detain enemy combatants:

"For purposes of this case, the enemy combatant that [the government] is seeking to detain is anindividual who, it alleges, was part of or supporting forces hostile to the United States orcoalition partners in Afghanistan and who engaged in an armed conflict against the UnitedStates there. We therefore answer only the narrow question before us, whether the detention ofcitizens falling within that definition is authorized."[8]

The plurality asserted that the Judiciary must not defer to the Executive with respect to detentions. Insteadthe constitution empowers the Judiciary to act as a check on Executive power in this realm. JusticeO'Connor wrote:

“ [W]e necessarily reject the Government's assertion that separation of powers principlesmandate a heavily circumscribed role for the courts in such circumstances. Indeed, theposition that the courts must forgo any examination of the individual case and focusexclusively on the legality of the broader detention scheme cannot be mandated by anyreasonable view of separation of powers, as this approach serves only to condense powerinto a single branch of government. We have long since made clear that a state of war is nota blank check for the President when it comes to the rights of the Nation's citizens.'Youngstown Sheet & Tube Co. v. Sawyer,' 343 U. S., at 587. Whatever power the UnitedStates Constitution envisions for the Executive in its exchanges with other nations or withenemy organizations in times of conflict, it most assuredly envisions a role for all threebranches when individual liberties are at stake. [...] Likewise, we have made clear that,unless Congress acts to suspend it, the Great Writ of habeas corpus allows the JudicialBranch to play a necessary role in maintaining this delicate balance of governance, servingas an important judicial check on the Executive's discretion in the realm of detentions. [...] itwould turn our system of checks and balances on its head to suggest that a citizen could notmake his way to court with a challenge to the factual basis for his detention by hisgovernment, simply because the Executive opposes making available such a challenge.Absent suspension of the writ by Congress, a citizen detained as an enemy combatant isentitled to this process. ”

Justice David Souter, joined by Justice Ruth Bader Ginsburg, concurred with the plurality's judgment thatdue process protections must be available for Hamdi to challenge his status and detention, providing amajority for that part of the ruling. However, they dissented from the plurality's ruling that AUMFestablished Congressional authorization for the detention of enemy combatants.

Justice Antonin Scalia's dissent, joined by Justice John Paul Stevens, went the furthest in restricting theExecutive power of detention. Scalia asserted that based on historical precedent, the government had onlytwo options to detain Hamdi: either Congress must suspend the right to habeas corpus, or Hamdi must betried under normal criminal law. Scalia wrote that the plurality, though well-meaning, had no basis in lawfor trying to establish new procedures that would be applicable in a challenge to Hamdi's detention—it wasonly the job of the Court to declare it unconstitutional and order his release or proper arrest, rather than toinvent an acceptable process for detention.

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Justice Clarence Thomas was the only justice who sided entirely with the Executive branch and the FourthCircuit's ruling, based on his view of the security interests at stake and the President's broad war-makingpowers. Thomas wrote that the Court's rationale would also require due process rights for bombing targets:"Because a decision to bomb a particular target might extinguish life interests, the plurality’s analysis seemsto require notice to potential targets." Thomas also wrote that Congress intended that the AUMF authorizedsuch detentions. Thomas would later make use of this dissent in Turner v. Rogers in 2011.

Subsequent developmentsAlthough by the terms used in the Court's holdings, they were apparently limited to "citizen-detainees," thelast paragraph of section III, D of the O'Connor plurality (four justices: O'Connor, Rehnquist, Kennedy, andBreyer) relies on the Geneva Convention and states that Habeas Corpus should be available to an "allegedenemy combatant."

On the same day, the Court held in Rasul v. Bush (2004) that U.S. courts have jurisdiction to hearhabeas corpus petitions filed by the Guantanamo detainees, and other foreign nationals.

The government conceded that some very limited due process rights, allowing for hearings to determine thedetainees' status as enemy combatants and the right to legal counsel, would be extended to all of theGuantanamo detainees, citizen and non-citizen alike. The application of the Court's decisions in these casesis consistent with the fact that the other two justices in the Hamdi majority, as well as two of the dissentingjustices (Scalia and Stevens), were more restrictive in their willingness to concede any of the detentionpowers requested by the government for Guantanamo detainees in the Hamdi case.

In regard to the detention of detainees without charge, in section I of the O'Connor plurality opinion, theplurality relied on the time-honored traditions of war, the Geneva Convention, and a long list of otherinternational treaties, to hold that the government had authority under the Authorization for Use of MilitaryForce (2001) to hold any enemy combatants, provided enemy combatants had been seized on the battlefieldparticipating in active hostilities, for the sole objective of preventing an enemy combatant from returning tothe battlefield, and then only so long as there continued to be “active hostilities.”[8] The plurality held thatsuch protective detention could be applied to both citizen and non-citizen enemy combatants.

The plurality opinion stated:

“ There can be no doubt that individuals who fought against the United States in Afghanistanas part of the Taliban, an organization known to have supported the al Qaeda terroristnetwork responsible for those attacks, are individuals Congress sought to target in passingthe AUMF. We conclude that detention of individuals falling into the limited category weare considering, for the duration of the particular conflict in which they were captured, is sofundamental and accepted an incident to war as to be an exercise of the "necessary andappropriate force" Congress has authorized the President to use. [...] A citizen, no less thanan alien, can be "part of or supporting forces hostile to the United States or coalitionpartners" and "engaged in an armed conflict against the United States," [...]; such a citizen, ifreleased, would pose the same threat of returning to the front during the ongoing conflict [asan alien].[...] Because detention to prevent a combatant's return to the battlefield is afundamental incident of waging war, in permitting the use of "necessary and appropriateforce", Congress has clearly and unmistakably authorized detention in the narrowcircumstances considered here. [...] Under the definition of enemy combatant that we accepttoday as falling within the scope of Congress' authorization, Hamdi would need to be "part64

of or supporting forces hostile to the United States or coalition partners" and "engaged in anarmed conflict against the United States" to justify his detention in the United States for theduration of the relevant conflict. ”

The U.S. government had argued that it had the right to detain enemy combatants indefinitely for the twopurposes of interrogation and to prevent a return to the battlefield. Justice O’Connor rejected the firstpurpose by stating definitively that "indefinite detention for the purpose of interrogation is not authorized.”With regard to the second purpose, the plurality held "Necessary and appropriate force" amounted toauthorization to detain “for the duration of the relevant conflict," in order to prevent enemy combatants fromrejoining the fight.[8]

Of the four justices outside the plurality, Justices Ginsburg and Souter limited their opinions to theirposition that Section 4001(a) of Title 18 of the United States Code (the Non-Detention Act; enacted toprevent the sort of detention that occurred when the United States placed Japanese-American citizens inconcentration camps during World War II), prevented the detention of U.S. citizens. Justice Scalia (whoseopinion was joined by Justice Stevens), restricted his holding to citizen-detainees and implied that anyoneheld outside of United States' territory might be beyond the reach of the Court altogether. Again, the Rasulcase did not directly address the detention issue, and any hearings would be limited to the determination ofenemy combatant status.

In Hamdan v. Rumsfeld (2006), the Court decided that the "military commissions" created to tryunlawful combatants for war crimes suffered from certain fatal procedural defects under the UniformCode of Military Justice and the Geneva Convention, and were without other legal authority toproceed. They overruled Congress' attempt to deprive the Court of jurisdiction to decide that issue bypassing the Detainee Treatment Act. Justices in the majority (particularly Justices Kennedy andBreyer) disagreed with Justice Stevens as to whether the "charge" of conspiracy could be maintainedto justify the determination of unlawful combatant status. Although the Court struck down themilitary commissions as created by the Executive Branch, they did not provide the detainees withdirect access to the federal courts, but only with access to a fair and impartial hearing to a tribunalconstitutionally authorized by Congress and proceeding with certain due process guarantees (such asone operated under terms similar to those provided by Article I courts under the UCMJ or accordingto the terms of the Third Geneva Convention of 1949).

On October 17, 2006, the president signed the Military Commissions Act, passed by Congress andauthorizing a type of military tribunal to be used at Guantanamo Bay detention camp, as requested bythe Bush administration. That fall, the administration transferred fourteen high-value detainees toGuantanamo Bay from black sites overseas.

In Boumediene v. Bush (2008), the Court ruled that detainees, and other foreign nationals, do have theright to direct access to federal courts to challenge their detentions.

See alsoDonald RumsfeldCenter for Constitutional Rights, a New York City–based legal nonprofit organization that legallyrepresents over 150 of the Guantanamo Bay detaineesTerrorismDonald Vance

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Footnotes

ReferencesSupreme Court of the United States (June 2004). "Hamdi v. Rumsfeld (Syllabus)"(http://www.law.cornell.edu/supct/pdf/03-6696P.ZS).Supreme Court of the United States (June 2004). "Hamdi v. Rumsfeld (Opinion)"(http://www.law.cornell.edu/supct/pdf/03-6696P.ZO).Supreme Court of the United States (June 2004). "Hamdi v. Rumsfeld (Scalia Dissent)"(http://www.law.cornell.edu/supct/pdf/03-6696P.ZD).Supreme Court of the United States (June 2004). "Hamdi v. Rumsfeld (Thomas Dissent)"(http://www.law.cornell.edu/supct/pdf/03-6696P.ZD1).Supreme Court of the United States (June 2004). "Hamdi v. Rumsfeld (Souter Concur in Judgement)"(http://www.law.cornell.edu/supct/pdf/03-6696P.ZX).Supreme Court of the United States (April 2004). "Hamdi v. Rumsfeld (Oral Argument Transcript)"(http://wayback.archive.org/web/20040616034958/http://www.jenner.com/files/tbl_s69NewsDocumentOrder/FileUpload500/354/03-6696_argument_hamdi.pdf) (PDF).Frank W. Dunham, Jr. (Counsel of Record) (February 2004). "Hamdi v. Rumsfeld (Brief for the Petitioners)"(http://wayback.archive.org/web/20040921204906/http://www.jenner.com/files/tbl_s69NewsDocumentOrder/FileUpload500/156/Brief_Petitioners.pdf) (PDF).Theodore B. Olson (Counsel of Record) (March 2004). "Hamdi v. Rumsfeld (Brief for the Respondents)"(http://wayback.archive.org/web/20041109091842/http://www.jenner.com/files/tbl_s69NewsDocumentOrder/FileUpload500/216/Brief_Respondents.pdf) (PDF).The United States Court of Appeals for the 4th Circuit (January 2003). "Hamdi v. Rumsfeld (Opinion)"(http://pacer.ca4.uscourts.gov/opinion.pdf/027338.P.pdf) (PDF).

1. "This case arises out of the detention of a man whom the Government alleges took up arms with the Talibanduring this conflict. His name is Yaser Esam Hamdi. Born an American citizen in Louisiana in 1980, Hamdimoved with his family to Saudi Arabia as a child." p. 1

2. "By 2001, the parties agree, [Hamdi] resided in Afghanistan. At some point that year, he was seized by membersof the Northern Alliance, a coalition of military groups opposed to the Taliban government, and eventually wasturned over to the United States military." p.2

3. "The U.S. armed forces in Afghanistan determined that Hamdi is an enemy combatant who should be detained inconnection with the ongoing hostilities." p. 1

4. "Hamdi's father has asserted in documents found elsewhere in the record that his son went to Afghanistan to do'relief work,' and that he had been in that country less than two months before September 11, 2001, and could nothave received military training. The 20-year-old was traveling on his own for the first time, his father says, and'[b]ecause of his lack of experience, he was trapped in Afghanistan once that military campaign began.'" p. 3-4

5. "The Government asserts that it initially detained and interrogated Hamdi in Afghanistan before transferring himto the United States Naval Base in Guantanamo Bay in January 2002. In April 2002, upon learning that Hamdi isan American citizen, authorities transferred him to a naval brig in Norfolk, Virginia, where he remained until arecent transfer to a brig in Charleston, South Carolina." p. 2

6. "In June 2002, Hamdi’s father, Esam Fouad Hamdi, filed a petition for writ of habeas corpus, naming aspetitioners both Hamdi and himself as next friend." p. 17

7. Kathleen M. Sullivan and Gerald Gunther, Constitutional Law: Sixteenth Edition (Foundation Press: New York,2007) 273.

8. Amy Kalman and Chris Schroeder. " 'Hamdi v. Rumsfeld': Americans Captured on the Battlefield Can BeDetained Without Criminal Charges — But They Are Entitled to a Hearing"(http://web.law.duke.edu/publiclaw/supremecourtonline/commentary/hamvrum). Duke Law Commentary.Retrieved 6 January 2013.

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Further readingJackson A.; Niday, II (2008). "The War against Terror as War against the Constitution". Canadian Reviewof American Studies 38 (1): 101–117. doi:10.3138/cras.38.1.101(https://dx.doi.org/10.3138%2Fcras.38.1.101).

External linksFull text of the Court's opinions in Hamdi v. Rumsfeld(http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=03-6696&friend) atFindLawNPR audio on the decision (http://www.npr.org/features/feature.php?wfId=3022055)The Center for Constitutional Rights section on Hamdi v. Rumsfeld with detailed documents andinsight (http://ccrjustice.org/ourcases/past-cases/hamdi-v.-rumsfeld-(amicus))FindLaw "war on terror" section (http://news.findlaw.com/legalnews/us/terrorism/index.html)The Supreme Court, the Detainees, and the "War on Terrorism"(http://writ.news.findlaw.com/scripts/printer_friendly.pl?page=/mariner/20040705.html) (FindLaw)Hamdi v. Rumsfeld: U.S. Supreme Court Brief Resource Center, U.S. Supreme Court Amici CuriæBriefs(http://wayback.archive.org/web/20040304145444/http://www.jenner.com/news/news_item.asp?id=12551224) (Jenner and Block Law Firm)Yaser Esam Hamdi v. Donald Rumsfeld Settlement Agreement(http://news.findlaw.com/hdocs/docs/hamdi/91704stlagrmnt.html) (FindLaw)

Retrieved from "http://en.wikipedia.org/w/index.php?title=Hamdi_v._Rumsfeld&oldid=645381994"

Categories: United States Supreme Court cases United States civil commitment case lawUnited States separation of powers case law United States habeas corpus case law2004 in United States case law Guantanamo captives' habeas corpus petitionsAmerican Civil Liberties Union litigation United States Supreme Court cases of the Rehnquist Court


67

Hughes-Ryan Act

Other shorttitles

Foreign Assistance Act of 1974Hughes-Ryan Act of 1974

Long title An Act to amend the Foreign Assistance Act of1961, and for other purposes.

Nicknames Foreign Assistance Act

Enacted by the 93rd United States Congress

Effective December 30, 1974

Citations

Public Law 93-559 (http://www.gpo.gov/fdsys/pkg/STATUTE-88/pdf/STATUTE-88-Pg1795.pdf)

Statutes atLarge

88 Stat. 1795 (http://legislink.org/us/stat-88-1795),Sec. 662-663

Codification

Titlesamended

22 U.S.C.: Foreign Relations and Intercourse

U.S.C.sectionsamended

22 U.S.C. ch. 32(http://www.law.cornell.edu/uscode/text/22/chapter-32) § 2422

Legislative history

Introduced in the Senate as S. 3394(https://www.congress.gov/bill/93rd-congress/senate-bill/3394) by Harold E. Hughes (D-Iowa) and Leo Ryan(D-CA) on April 29, 1974Committee consideration by Senate Foreign RelationsPassed the Senate on December 4, 1974 (46-45(http://www.govtrack.us/congress/votes/93-1974/s1090))Passed the House on December 11, 1974 (201–189(http://www.govtrack.us/congress/votes/93-1974/h1038), inlieu of H.R. 17234)Reported by the joint conference committee onDecember 17, 1974; agreed to by the Senate on December

Hughes–Ryan ActFrom Wikipedia, the free encyclopedia

The Hughes–Ryan Act is a 1974 UnitedStates federal law that amended the ForeignAssistance Act of 1961. The Act was namedfor its co-authors, Senator Harold E. Hughes(D-Iowa) and Representative Leo Ryan (D-CA). The Act required the President of theUnited States to report all covert operationsof the Central Intelligence Agency to one ormore Congressional committees within a settime limit.

This amendment addressed the question ofCIA and Defense Department covert actions,and prohibited the use of appropriated fundsfor their conduct unless and until thePresident issues an official "Finding" thateach such operation is important to thenational security and submits these Findingsto the appropriate Congressionalcommittees – a total of six committees, atthe time, growing to eight committees afterthe House and Senate "select committees"on intelligence were established.

The legislation was meant to ensure that theintelligence oversight committees withinCongress were told of CIA actions within areasonable time limit. Senator Hughes, inintroducing the legislation in 1973, also sawit as a means of limiting major covertoperations by military, intelligence, andnational security agents conducted withoutthe full knowledge of the president.

Contents1 History2 Notes3 References4 See also

68

17, 1974 (49–43(http://www.govtrack.us/congress/votes/93-1974/s1127))and by the House on December 18, 1974 (209–189(http://www.govtrack.us/congress/votes/93-1974/h1061))Signed into law by President Gerald R. Ford on December30, 1974

Congressman Leo Ryan

HistoryBy the early years of the 1970s, theunpopular war in Southeast Asia and theunfolding Watergate scandal brought the eraof minimal oversight to a screeching halt.The Congress was determined to rein in theNixon administration and to ascertain the extent to which the nation's intelligence agencies had beeninvolved in questionable, if not outright illegal, activities. A major stimulus for the amendment came from1972 and 1973 hearings of the Senate Armed Services Committee, provoked by Senator Hughes, a memberof the committee, into covert military operations in Cambodia, Laos, and North Vietnam in the early 1970s.The committee had found that Air Force and Navy air elements had conducted secret air strikes and falsifiedafter-action reports to conceal the activity. For Hughes and several other senators, the military activityrepresented a secret war conducted through back-channel communications from the White House directly tofield commanders in the Pacific Theater and the Vietnam War.

A series of troubling revelations started to appear in the press concerning intelligence activities. The dambroke on 22 December 1974, when the New York Times published a lengthy article by Seymour Hershdetailing operations engaged in by the CIA over the years that had been dubbed the "family jewels." Covertaction programs involving assassination attempts against foreign leaders and covert attempts to subvertforeign governments were reported for the first time. In addition, the article discussed efforts by intelligenceagencies to collect information on the political activities of US citizens.

These revelations convinced many Senators and Representatives that the Congress itself had been too lax,trusting, and naive in carrying out its oversight responsibilities.

The first legislative response was enactment in 1974 of the Hughes–Ryan Amendment to the Foreign Assistance Act of 1961.[1] Thepassage of the act posed four fundamental implications for executivepower as it relates to covert action. First, the Act established ultimateaccountability of the President for all covert action conducted by theCIA. As a result, this removed most vestiges of "plausibledeniability" on the part of the President in case the action were to beexposed to the public or political rivals. Third, the act fundamentallyexpanded circle of "witting" persons in Congress – leading to adramatically higher risk of exposure through leaks in the event ofCongressional opposition. Fourth, assuming these three featuresstand, the passage of the Act created both de facto and de jureCongressional veto power. This power could be usedconstitutionally, whereby the Congress could simply refuse to fundthe covert action in question, either through withholding of funds orthrough leaking the issue to the press.

Notes1. ^ Information is from CIA site, Center for the Study of Intelligence, which is a US governmental

organization. Therefore the original information compiled on this wikisite is free of copyright. See69

Copyright and U.S. Government works

References

See alsoIntelligence Oversight ActChurch CommitteeClark AmendmentBoland AmendmentForeign Assistance Act of 1974

Retrieved from "http://en.wikipedia.org/w/index.php?title=Hughes–Ryan_Act&oldid=624019779"

Categories: 1974 in law Cold War history of the United StatesUnited States federal defense and national security legislation Leo Ryan 1974 in international relations

This page was last modified on 3 September 2014, at 14:59.Text is available under the Creative Commons Attribution-ShareAlike License; additional terms mayapply. By using this site, you agree to the Terms of Use and Privacy Policy. Wikipedia® is aregistered trademark of the Wikimedia Foundation, Inc., a non-profit organization.

70

In re Neagle

Supreme Court of the United StatesArgued March 4–5, 1890Decided April 14, 1890

Full casename

In re David Neagle

Citations 135 U.S. 1(https://supreme.justia.com/us/135/1/case.html)(more)10 S. Ct. 658; 34 L. Ed. 55; 1890 U.S. LEXIS2006

Priorhistory

Appeal from the Circuit Court of the UnitedStates for the Northern District of California

HoldingSection 3 of Art. II of the U.S. Constitution requires that

the Executive Branch "take care that the laws befaithfully executed." The court determined that the

appointment of bodyguards to Supreme Court Justicesensured the faithful execution of the law of the United

States. The court also relied on a statute grantingmarshals "the same powers, in executing the laws of theUnited States, as sheriffs and their deputies in such State

may have, by law, in executing the laws thereof."Court membership

Chief JusticeMelville Fuller

Associate JusticesSamuel F. Miller · Stephen J. Field ·

Joseph P. BradleyJohn M. Harlan · Horace Gray

Samuel Blatchford · Lucius Q.C. Lamar IIDavid J. BrewerCase opinions

Majority Miller, joined by Bradley, Harlan, Gray,Blatchford, Brewer

Dissent Lamar, joined by FullerField took no part in the consideration or decision of the case.

Laws applied

In re NeagleFrom Wikipedia, the free encyclopedia

In re Neagle, 135 U.S. 1 (1890)[1], was a UnitedStates Supreme Court decision that determined thequestion of whether the Attorney General of theUnited States had authority to appoint U.S. Marshalsas bodyguards to Supreme Court Justices.

FactsU.S. Marshal David Neagle was appointed by theattorney general to serve as a bodyguard to JusticeStephen J. Field while he rode circuit in California.David S. Terry, a disappointed litigant with a grudgeagainst Field, approached and appeared to be aboutto attack Field. Neagle shot and killed him. Neaglewas arrested by California authorities on a charge ofmurder. The United States sought to secure therelease of Neagle on a writ of habeas corpus. In theabsence of a law specifically authorizing theappointment of bodyguards for Supreme CourtJustices, the government relied on a statute thatmade the writ available to those "in custody for anact done or omitted in pursuance of a law of theUnited States."

See alsoIn reList of United States Supreme Court cases,volume 135

71

U.S. Const. Art. III, Sec. 788 of the Revised Statutes ofthe United States


Cunningham v. Neagle

External links(http://www.oyez.org/oyez/resource/case/182/)In re Neagle atoyez.org

Retrieved from "http://en.wikipedia.org/w/index.php?title=In_re_Neagle&oldid=644675087"

Categories: United States Supreme Court cases 1890 in United States case lawUnited States Supreme Court cases of the Fuller Court


72

Little v. Barreme

Supreme Court of the United StatesArgued December 16, 19, 1801

Decided February 27, 1804Full casename

George Little, et al. v. Barreme, et al.

Citations 6 U.S. 170(https://supreme.justia.com/us/6/170/case.html)(more)2 L. Ed. 243; 1804 U.S. LEXIS 255; 2 Cranch170

Court membershipChief JusticeJohn Marshall

Associate JusticesWilliam Cushing · William PatersonSamuel Chase · Bushrod Washington

Alfred MooreCase opinions

Majority Marshall, joined by unanimousLaws applied

U.S. Const.

Little v. BarremeFrom Wikipedia, the free encyclopedia

Little v. Barreme, 6 U.S. 170 (1804), was a UnitedStates Supreme Court case in which the Court foundthat the President of the United States does not have"inherent authority" or "inherent powers" whichallow him to ignore a law passed by the UnitedStates Congress.

Contents1 Summary2 Facts3 Procedural history4 Issues5 Holding

5.1 Reasoning6 See also7 References8 External links

SummaryA Presidential executive order was invalidatedbecause the President was operating outside of hisexpress Congressional authority.

FactsThe case arose out of "an interesting and revealing incident" that occurred during the "Quasi War" withFrance at the end of the 18th century.[1] The frigate USS Boston commanded by captain George Littlecaptured a Danish vessel, the Flying Fish, under orders of the Secretary of the Navy on behalf of PresidentJohn Adams "to intercept any suspected American ship sailing to or from a French port."[2] The Congress,however, had passed a law authorizing the navy to seize "vessels or cargoes [that] are apparently, as well asreally, American" and "bound or sailing to any [French] port" in an attempt to prevent American vesselstransporting goods to France. The Flying Fish was sailing from and not to a French port. Captain Little wasdeclared to be liable for executing a command that was illegal in nature. Little appealed to the SupremeCourt, where the decision was upheld.

Procedural history73

1. District Court, found for Petitioner2. Circuit Court of Massachusetts, reversed, found for Respondent3. United States Supreme Court, affirmed, found for Respondent

Issues1. Whether an order of the President, which in effect attempts to make law, can override an act of

Congress.2. Officers are responsible for execution of illegal commands, despite nature of military chain of

command.

HoldingNo, an order of the President which is in contradiction with an act of Congress is illegally put forth.

Reasoning

The legislative branch makes laws and the executive branch enforces the laws. The Act of Congress onlyprovided for the capture of vessels traveling to France. "The Flying Fish was on a voyage from, not to, aFrench port, and was therefore, had she even been an American vessel, not liable to capture on the highseas." The Act limited the president’s authority by only allowing the capture of certain vessels. ThePresident acted contrary to these limitations.


References1. Woods, Thomas (2005-07-07) Presidential War Powers (http://www.lewrockwell.com/woods/woods45.html),

LewRockwell.com2. Smith, Jean Edward. John Marshall: Definer of A Nation.(c) 1996, Henry Holt and Company, Inc. New York,

NY. p. 339

External linksFull text of the decision courtesy of Findlaw.com (http://laws.findlaw.com/us/6/170.html)LoveAllPeople.org: "Inherent Presidential Power Is Always Subject To The Inherent CongressionalPowers To Make The Laws And Enforce Oversight Of The Executive Branch, Even In Time Of War"(http://www.loveallpeople.org/inherentpowers.html)

Retrieved from "http://en.wikipedia.org/w/index.php?title=Little_v._Barreme&oldid=644644523"

Categories: France–United States relations United States admiralty case lawUnited States Supreme Court cases 1804 in United States case law

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United States federal sovereign immunity case law Quasi-War United States executive ordersUnited States presidential history Denmark–United States relationsUnited States Supreme Court cases of the Marshall Court


75

Medellín v. Texas

Supreme Court of the United StatesArgued October 10, 2007Decided March 25, 2008

Full casename

José Ernesto Medellín v. Texas


Citations 552 U.S. 491 (more)128 S. Ct. 1346; 170 L. Ed. 2d 190; 2008U.S. LEXIS 2912; 76 U.S.L.W. 4143; 2008-1 U.S. Tax Cas. (CCH) P50,242; 21 Fla. L.Weekly Fed. S 126

Prior history Medellín v. State, No. 71,997 (Tex. Crim.App., May 16, 1997); petition denied, S.D.Tex.; certificate of appealability denied, 371F.3d 270 (5th Cir. 2004); cert. granted, 543U.S. 1032 (2005); cert. dismissed, 544 U.S.660 (2005) (per curiam) (Medellín I); Exparte Medellín, 223 S.W. 3d 315 (Tex.Crim. App. 2006); cert. granted Ex parteMedellín, 550 U.S. 917 (2007)

Subsequenthistory

Stay and petition denied, 554 U.S. 759(2008) (Medellín III)

Argument Oral argument(http://www.oyez.org/cases/2000-2009/2007/2007_06_984/argument/)

HoldingNeither Case Concerning Avena and Other Mexican

Nationals (Mex. v. U.S.), 2004 I. C. J. 12 (Judgment ofMar. 31) nor the President's Memorandum to the Attorney

General (Feb. 28, 2005) constitutes enforceable federal lawthat pre-empts state limitations on the filing of habeas

corpus petitions.Court membership

Chief JusticeJohn G. Roberts

Associate Justices

Medellín v. TexasFrom Wikipedia, the free encyclopedia

Medellín v. Texas, 552 U.S. 491 (2008), is aUnited States Supreme Court decision that held thateven if an international treaty may constitute aninternational commitment, it is not bindingdomestic law unless Congress has enacted statutesimplementing it or unless the treaty itself is "self-executing." Also, the Court held that decisions ofthe International Court of Justice are not bindingdomestic law and that, without authority from theUnited States Congress or the Constitution, thePresident of the United States lacks the power toenforce international treaties or decisions of theInternational Court of Justice.[1]

Contents1 History2 Decision

2.1 Justice John Paul Stevensconcurrence2.2 Dissent

3 Execution4 See also5 References6 Further reading7 External links

HistoryThe United States ratified the United NationsCharter on October 24, 1945.[2] Article 92 of theCharter established the International Court ofJustice.[3] The ICJ Statute, which established theprocedures and jurisdiction of the ICJ and wasattached to the U.N. Charter, delineates two waysin which a nation may consent to ICJ jurisdiction:It may consent generally to jurisdiction on anyquestion arising under a treaty or general

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Case opinionsMajority Roberts, joined by Scalia, Kennedy,

Thomas, AlitoConcurrence StevensDissent Breyer, joined by Souter, Ginsburg

Laws appliedOptional Protocol Concerning the Compulsory Settlement

of Disputes to the Vienna Convention, April 24, 1963,(1970) 21 U.S.T. 325, T.I.A.S. No. 6820; Article 36(1)(b)of the Vienna Convention on Consular Relations; Article94 of the United Nations Charter; U.S. Const., Art. II, §3

international law, or it may consent specifically tojurisdiction over a particular category of cases ordisputes pursuant to a separate treaty.[4]

In 1969, the United States ratified the ViennaConvention on Consular Relations of April 24,1963,[5] and the Optional Protocol Concerning theCompulsory Settlement of Disputes to the ViennaConvention of April 24, 1963.[6] Article 36 of theVienna Convention requires that foreign nationalswho are arrested or detained be given notice"without delay" of their right to have their embassyor consulate notified of that arrest. The OptionalProtocol provides that disputes arising out of theinterpretation or application of the ViennaConvention "shall lie within the compulsory jurisdiction of the International Court of Justice".[7]

The United States withdrew from general ICJ jurisdiction on October 7, 1985.[8]

On June 24, 1993, José Ernesto Medellín (an 18-year-old Mexican citizen) and several other gang membersparticipated in the murder of Jennifer Ertman and Elizabeth Peña, when they raped a 14-year-old and 16-year-old girl for an hour in Houston, Texas. Both girls were killed to prevent them from identifying theirassailants. Medellín strangled one of the girls with her own shoelaces.[9][10]

Hours after Medellin's arrest he admitted to his part in the crime and boasted of having "virgin blood" on hisunderpants.[11]

Medellín was arrested five days later, and signed a confession after being given his Miranda warning. Texasauthorities did not, however, advise him of his right to contact his consulate under the terms of the ViennaConvention.[9][10] Medellín was convicted of rape and murder, and sentenced to death in 1997. He appealed,and raised the issue of his Vienna Convention rights as part of his appeal, but his conviction was upheld bythe trial court and by the Texas Court of Criminal Appeals.[12]

In 2003, Medellín filed a petition for habeas corpus in United States district court. The district court deniedrelief, holding that Medellín's Vienna Convention claim should have been raised at trial (not on appeal) andhe had failed to show prejudice against his case arising from the Vienna Convention violation.[13]

Also in 2003, Mexico brought suit against the United States in the ICJ, claiming that the United States hadfailed to notify 51 defendants (all Mexican citizens having been accused in state courts of committingcrimes in the U.S.) of their Vienna Convention right to notify their consulate. Medellín was one of the 51Mexican nationals named in the suit. The following year, the ICJ ruled in Case Concerning Avena andOther Mexican Nationals (Mex. v. U. S.), 2004 I.C.J. 12 (Judgment of March 31) (Avena) that the 51Mexican nationals were entitled to review and reconsideration of their convictions and sentences.[14]

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Medellín's appeal now found its way to the Fifth Circuit Court of Appeals. Medellín raised the ICJ's rulingin Avena before the Fifth Circuit, but the federal appellate court denied relief.[15]

On March 7, 2005, after the ICJ's judgment in Avena, the United States withdrew from the OptionalProtocol.[16][17]

Medellín appealed to the U.S. Supreme Court, which granted a writ of certiorari.[18]

Before the Supreme Court could hear the case, however, President George W. Bush issued a Memorandumto the United States Attorney General.[19] In the Memorandum, President Bush asserted authority under theConstitution and the various laws of the United States to order states to review the convictions andsentences of foreign nationals who had not been advised of their Vienna Convention rights. Because of thePresident's Memorandum, Medellín filed a second case in state court for habeas corpus.[20] The U.S.Supreme Court then dismissed Medellín's first petition for certiorari in a per curiam decision, Medellín v.Dretke, 544 U.S. 660 (2005) (Medellín I).[21]

The Texas Court of Criminal Appeals dismissed Medellín's second appeal,[20] and the U.S. Supreme Courtgranted certiorari a second time.[22]

As Medellín's second appeal was under consideration in Texas, the U.S. Supreme Court decided Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006). Although the decision did not involve individuals named in theAvena judgment, the Court held the ICJ's ruling in Avena to be in error. Absent a clear and expressstatement to the contrary in either the Vienna Convention and the Optional Protocol, the Court held inSanchez-Llamas, the procedural rules of each nation govern the implementation of the treaty. SinceSanchez-Llamas' rights had been observed under both state and federal law as well as various rulings of theSupreme Court, the High Court upheld his conviction.[23]

DecisionChief Justice John G. Roberts wrote the majority's opinion.

The majority held that the Avena judgment is not enforceable as domestic law. A treaty is not bindingdomestic law, it said, unless Congress has enacted statutes implementing it or the treaty itself conveys anintention that it is "self-executing."[24] None of the relevant treaties – the Optional Protocol, the U.N.Charter, or the ICJ Statute – were self-executing, and no implementing legislation had been enacted, theCourt found.[25]

The Court also rejected Medellín's claim that Article 94 of the U.N. Charter requires the United States to"undertake to comply" with the ICJ ruling. Chief Justice Roberts observed that Article 94(2) of the Charterprovides for explicit enforcement for noncompliance by referral to the United Nations Security Council, andfor appeals to be made only by the aggrieved state (not an individual such as Medellín).[26] Even so, theUnited States clearly reserved the right to veto any Security Council resolutions.[26] The majority also held

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that the ICJ statute contained in the U.N. Charter also forbade individuals from being parties to suits beforethe International Court. The ICJ statute is a pact between nations, Justice Roberts said, and only nations (notindividuals) may seek its judgment.[27]

Relying on Sanchez-Llamas, the Supreme Court then held that, absent a clear and express statement to thecontrary in the relevant treaties, domestic procedural rules govern a treaty's implementation.[28]

The Court also rejected Medellín's argument that the President's February 28, 2005 Memorandum wasbinding on state courts. The Court relied on Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952),recognizing that "plainly compelling interests" were at stake in the Medellín case. Yet:

Such considerations, however, do not allow us to set aside first principles. The President'sauthority to act, as with the exercise of any governmental power, 'must stem either from an actof Congress or from the Constitution itself.'[29]

The majority concluded that neither condition had been met. Neither the government nor the defendant hadcited any statutory authority which authorized the President to act. Instead, the President claimed that theOptional Protocol and U.N. Charter implicitly gave him the authority to act. The Court disagreed: "ThePresident has an array of political and diplomatic means available to enforce international obligations, butunilaterally converting a non-self-executing treaty into a self-executing one is not among them."[30] ThePresident also claimed that Congress had acquiesced in the exercise of presidential power by failing to actfollowing the resolution of prior ICJ controversies. But, Roberts held, "A review of the Executive's actionsin those prior cases, however, cannot support the claim that Congress acquiesced in this particular exerciseof Presidential authority, for none of them remotely involved transforming an international obligation intodomestic law and thereby displacing state law."[31] The President also founded his action on "related"statutory responsibilities and an "established role" in litigating foreign policy concerns. But none of theexamples cited in the government's brief supported that conclusion, the majority ruled, and none of theexamples remotely indicated that the President may pre-empt state law.[32]

The government had also claimed that the Memorandum was an exercise of the President's authority toresolve international claims under his executive authority. The Court recognized that this was a long-standing practice "never-before questioned."[33] But relying on Dames & Moore v. Regan, 453 U.S. 654(1981), the Court observed that "[p]ast practice does not, by itself, create power."[33] Prior uses of executiveauthority to settle international disputes all occurred in narrow circumstances, and did not involve thecomplete setting aside of state law, as the defendant sought in the present case.[34]

Finally, Medellín argued that the President's Memorandum was a valid exercise of presidential power basedon the president's authority to "take Care that the Laws be faithfully executed", as granted in the Article II,§3 of the United States Constitution. The majority observed that the government refused to rely on ArticleII, §3, which undercut Medellín's claim. Justice Roberts then concluded that, since the ICJ's decision inAvena was not domestic law, the "take care" clause did not apply.[35]

The judgment of the Texas Court of Criminal Appeals was affirmed.

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Huntsville Unit, the site of executionsin the State of Texas

Justice John Paul Stevens concurrence

Justice John Paul Stevens concurred with the majority, but in his concurring opinion he stated that eventhough he concurs with the result of majority he thinks "this case presents a closer question than the Court'sopinion allows." He concludes that the Supreme Court cannot enforce the I.C.J. opinion in Avena. Tosupport that conclusion he maintains that "terms of the United Nations Charter do not necessarilyincorporate international judgments into domestic law."

Dissent

Justice Breyer wrote in the dissent that in his view, the ICJ treaty was "self-executing", based on a readingof other treaties that had gone into effect without additional Congressional action; and therefore, he wrote,"I believe the treaty obligations, and hence the judgment [of the ICJ], resting as it does upon the consent ofthe United States to the ICJ's jurisdiction, bind the courts no less than would 'an act of the [federal]legislature.'"

One similar example Breyer cited was the 1796 case Ware v. Hylton, which, Breyer wrote, was illustrativeof what "the Founders meant when they wrote [in the Supremacy Clause of the United States Constitution]that 'all Treaties ... shall be the supreme Law of the Land.'" In Ware v. Hylton, the Supreme Court hadagreed with a British creditor that a provision of the Treaty of Paris of 1783, which had been ratified by theUnited States's Congress of the Confederation, overruled a Virginia state law regarding the repayment ofdebts to Britons; and, as the treaty was "addressed to the Judicial Branch", Congress had not had to enact adomestic law enforcing the treaty provision.

ExecutionMedellín was executed at 9:57pm on August 5, 2008 after his last-minute appeals were rejected by the Supreme Court.[36] GovernorRick Perry rejected calls from Mexico and Washington, D.C. todelay the execution, citing the torture, rape and strangulation of twoteenage girls in Houston 15 years before as just cause for the deathpenalty.[37]

See also

References1. Medellín v. Texas, 552 U.S. 491 (2008) (No. 06-984).2. United Nations Charter, 59 Stat. 1051, T.S. No. 993 (1945).3. Statute of the International Court of Justice, 59 Stat. 1055, T.S. No. 993 (1945).4. Medellín v. Texas, 552 U.S. 491 (2008) (No. 06-984), p. 4.5. Vienna Convention on Consular Relations, 21 U.S.T. 77, T.I.A.S. No. 6820 (1970).6. Optional Protocol Concerning the Compulsory Settlement of Disputes to the Vienna Convention, 21 U.S.T. 325,

T.I.A.S. No. 6820 (1970). 80

Further readingGeslison, Benjamin A. (2009). "Treaties, Execution, and Originalism in Medellín v. Texas, 128 S. Ct.1346 (2008)" (http://www.harvard-jlpp.com/wp-content/uploads/2009/03/geslison_final.pdf) (PDF).

T.I.A.S. No. 6820 (1970).7. Article I, Optional Protocol Concerning the Compulsory Settlement of Disputes to the Vienna Convention, cited

in Medellín v. Texas, 552 U.S. 491 (2008) (No. 06-984), p. 3.8. U.S. Department of State Letter and Statement Concerning Termination of Acceptance of ICJ Compulsory

Jurisdiction, October 7, 1985, cited in Medellín v. Texas, 552 U.S. 491 (2008) (No. 06-984), p. 4.9. David Stout, "Justices Rule Against Bush on Death Penalty Case," The New York Times, March 25, 2008.

(http://www.nytimes.com/2008/03/25/washington/25cnd-texas.html)10. Mark Sherman, "Court Backs Texas in Dispute With Bush," Associated Press, March 25, 2008.

(http://ap.google.com/article/ALeqM5i0V7A97KgoY8Goz9la5CWe8bm7ewD8VKM7300)11. Allen Turner, "Medellin executed for rape, murder of Houston teens," Houston Chronicle, August 6, 2008.

(http://www.chron.com/disp/story.mpl/metropolitan/5924476.html)12. Medellín v. State, No. 71,997 (Tex. Crim. App., May 16, 1997); Medellín v. Texas, 552 U.S. 491 (2008) (No. 06-

984), p. 5-6.13. Medellín v. Cockrell, Civ. Action No. H–01–4078 (SD Tex., June 26, 2003).14. In the Case Concerning Avena and Other Mexican Nationals (Mex. v. U. S.), 2004 I.C.J. 12 (Judgment of March

31).15. Medellín v. Dretke, 371 F. 3d 270 (2004).16. "Letter from Condoleezza Rice, Secretary of State, to Kofi A. Annan, Secretary-General of the United Nations"

(http://www.state.gov/documents/organization/87288.pdf) (PDF). Retrieved 24 January 2012. cited in Medellín v.Texas, 552 U.S. 491 (2008) (No. 06-984), p. 4.

17. Charles Lane, "U.S. Quits Pact Used in Capital Cases," The Washington Post, March 9, 2005.(http://www.washingtonpost.com/wp-dyn/articles/A21981-2005Mar9.html)

18. Medellín v. Dretke, 544 U.S. 660 (2005) (per curiam) (Medellín I).19. Memorandum to the Attorney General, February 28, 2005, cited in Medellín v. Texas, 552 U.S. 491 (2008) (No.

06-984), p. 7.20. Ex parte Medellín, 223 S.W. 3d 315 (Tex. Crim. App. 2006).21. Medellín v. Texas, 552 U.S. 491 (2008) (No. 06-984), p. 7.22. Medellín v. Texas, 550 U. S. ___ (2007) (Medellín II).23. Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006).24. Medellín v. Texas, 552 U.S. 491 (2008) (No. 06-984), p. 8.25. Medellín v. Texas, 552 U.S. 491 (2008) (No. 06-984), p. 10.26. Medellín v. Texas, 552 U.S. 491 (2008) (No. 06-984), p. 13.27. Medellín v. Texas, 552 U.S. 491 (2008) (No. 06-984), p. 15.28. Medellín v. Texas, 552 U.S. 491 (2008) (No. 06-984), p. 13, 21.29. Medellín v. Texas, 552 U.S. 491 (2008) (No. 06-984), p. 28, quoting Youngstown Sheet & Tube Co. v. Sawyer,

343 U. S. 579, at 582.30. Medellín v. Texas, 552 U.S. 491 (2008) (No. 06-984), p. 30.31. Medellín v. Texas, 552 U.S. 491 (2008) (No. 06-984), p. 33.32. Medellín v. Texas, 552 U.S. 491 (2008) (No. 06-984), p. 34-35.33. Medellín v. Texas, 552 U.S. 491 (2008) (No. 06-984), p. 36, quoting Dames & Moore v. Regan, 453 U.S. 654

(1981), at 686.34. Medellín v. Texas, 552 U.S. 491 (2008) (No. 06-984), p. 36.35. Medellín v. Texas, 552 U.S. 491 (2008) (No. 06-984), p. 37.36. Supreme Court of the United States (2008-08-05). "Jose Ernesto Medellin v. Texas (Per Curiam)"

(http://www.scotusblog.com/wp/wp-content/uploads/2008/08/medellin-opinion-8-5-08.pdf) (PDF). SCOTUSblog.Retrieved 2008-08-05.

37. McKinley, James C., Jr. (2008-08-06). "Texas Executes Mexican Despite Objections"(http://www.nytimes.com/2008/08/06/us/06execute.html). New York Times.

81

Harvard Journal of Law & Public Policy 32 (2): 767.McGuinness, Margaret E. (2008). "Three Narratives of Medellín v. Texas". Suffolk Transnational LawReview 31 (2): 227. ISSN 1072-8546 (https://www.worldcat.org/issn/1072-8546).Charnovitz, Steve (July 2008). "Revitalizing the U.S. Compliance Power". American Journal ofInternational Law (The American Journal of International Law, Vol. 102, No. 3) 102 (3): 551–562.doi:10.2307/20456643 (https://dx.doi.org/10.2307%2F20456643). JSTOR 20456643(https://www.jstor.org/stable/20456643).Turner, James A. (February 2010). "The Post-Medellin Case for Legislative Standing."(http://digitalcommons.wcl.american.edu/stusch_lawrev/20/). American University Law Review 59(3): 732–779.

External linksSlip opinion of the case on the U.S. Supreme Court Web site(http://www.supremecourt.gov/opinions/07pdf/06-984.pdf)

Retrieved from "http://en.wikipedia.org/w/index.php?title=Medellín_v._Texas&oldid=645401767"

Categories: United States Supreme Court cases United States federalism case lawUnited States Treaty Clause case law 2008 in United States case law Mexico–United States relationsInternational Court of Justice cases Capital punishment in TexasUnited States Supreme Court cases of the Roberts Court


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Neutrality Act of 1794From Wikipedia, the free encyclopedia

The Neutrality Act of 1794 makes it illegal for an American to wage war against any country at peace withthe United States.

The Act declares in part:[1]

“ If any person shall within the territory or jurisdiction of the United States begin or set onfoot or provide or prepare the means for any military expedition or enterprise...against theterritory or dominions of any foreign prince or state of whom the United States was at peacethat person would be guilty of a misdemeanour ”

The act also forbids foreign war vessels to outfit in American waters and sets a three mile territorial limit atsea.[2]

The act was amended several times and remains in force.

Origins and evolutionOne reason for the act was to create a liability for violation of Section 8 of Article One of the United StatesConstitution, which reserves to the United States Congress the power to decide to go to war.[3]

The Continental Congress previously had an alliance with France in 1778[4] that France accused the UnitedStates of violating with the 1794 American Jay Treaty with Great Britain. The French Ambassador to theUnited States, Edmond-Charles Genêt, had been actively recruiting American privateers for attacks onSpain and Great Britain, with whom the French Republican Government was at war.

Some individuals in America were supporting the French Republican Government by engaging inprivateering[5] and other Americans were engaging in filibuster military operations against British Canadaand Spanish possessions in Florida and South America.

This led to George Washington's Proclamation of Neutrality in 1793 and the act of 1794.

The Act was used in the trials of Aaron Burr, William S. Smith and Etienne Guinet, who, with FrenchmanJean Baptist LeMaitre, were convicted of outfitting an armed ship to take part in France's war against GreatBritain.[6]

The Act of 1794 was superseded by the Neutrality Act of 1817[7] that included States that had recentlybecome independent from Spain that were not mentioned in the original act.[8] Unrecognised governmentssuch as "colonies, districts, or people" are given the same recognition as "states and princes" in the lastclause of section 5.[9] Henry Clay called it "an Act for the benefit of Spain against the republics ofAmerica."[9]

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The Neutrality Act of 1817 also prescribes maximum penalites of three years imprisonment and up to athree thousand dollar fine.[10]

The Act was updated again in 1838 during the 1837 Rebellions in Canada.

The Neutrality Act was reenacted and amended several times since, and remains in force as 18 U.S.C. 960(1976).[11][12]

Recent applicationsIn 1981, nine men involved in Operation Red Dog were sentenced to three years in prison under theNeutrality Act; they had planned to overthrow the government of Dominica.[13][14]

In the 2007 Laotian coup d'état conspiracy allegation, the US government alleged after a sting operation thata group of conspirators planned to violate the Neutrality Act by overthrowing the government ofCommunist Laos.[15] The United States Government has since dropped all charges against these defendants.

In January 2015 two US residents were charged with violating the Neutrality Act for their role in the 2014Gambian coup d'état attempt [16]

References1. Kwakwa, Edward K. (1992). The International Law of Armed Conflict: Personal and Material Fields of

Application. Dordrecht: Martinus Nijhoff Publishers. p. 116. ISBN 0-7923-1558-8.2. Kim, Sun Pyo (2004). Maritime Delimitation and Interim Arrangements in North East Asia. Martinus Nijhoff.

p. 225. ISBN 90-04-13669-X.3. Boyle, Francis A. (2007). Protesting Power: War, Resistance, and Law. Rowman & Littlefield Publishers, Inc.

p. 78. ISBN 0-7425-3892-3.4. Cunliffe, Marcus; Kenneth W. Leish (1968). The American Heritage History of the Presidency. American

Heritage Pub. Co.5. Benton, Thomas Hart (1857). Abridgment of the Debates of Congress, from 1789 to 1856: Dec. 5. 1796-March 3,

1803. D. Appleton. p. 126.6. U S v. GUINET, 2 U.S. 321 (http://supreme.justia.com/us/2/321/case.html) (U.S. Supreme Court 1795).7. Evans, Lawrence Boyd (1922). Leading Cases on International Law. Callaghan and Co.8. Wheaton, Henry; Richard Henry (1866). Elements of International Law. Little, Brown & Company. p. 439.9. Beamis, George (1864). Precedents of American Neutrality. The University of Michigan. p. 38.

10. May, Robert E. (2002). Manifest Destiny's Underworld: Filibustering in Antebellum America. University ofNorth Carolina Press. pp. Chapter 1. ISBN 0-8078-2703-7.

11. Jules Lobel (1983), "The Rise and Decline of the Neutrality Act: Sovereignty and Congressional War Powers inUnited States Foreign Policy" (http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/hilj24&div=4&id=&page=), Harvard International Law Journal 24

12. 18 U.S.C. 960 (http://www.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00000960----000-.html)13. "2 Guilty in New Orleans for Plot on Dominica Invasion" (http://www.nytimes.com/1981/06/21/us/2-guilty-in-

new-orleans-for-plot-on-dominica-invasion.html), The New York Times, June 21, 198114. "Klansmen Get 3-year Terms", Boston Globe, July 23, 198115. Weiner, Tim (2008-05-11). "Gen. Vang Pao’s Last War" (http://www.nytimes.com/2008/05/11/magazine/11pao-

t.html). The New York Times Magazine.16. http://www.justice.gov/opa/pr/two-defendants-charged-their-role-attempted-coup-gambia

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Retrieved from "http://en.wikipedia.org/w/index.php?title=Neutrality_Act_of_1794&oldid=660919933"

Categories: United States foreign relations legislation Legal history of the United States


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Nicaragua v. United States

Court International Court of JusticeFull casename

Case Concerning the Military andParamilitary Activities in and AgainstNicaragua (Nicaragua v. United Statesof America)[1]

Decided June 27, 1986Citation(s) 1986 I.C.J. 14

Case opinions

Separate Opinion: Nagendra SinghSeparate Opinion: Manfred Lachs

Separate Opinion: José María RudaSeparate Opinion: Taslim Olawale Elias

Separate Opinion: Roberto AgoSeparate Opinion: José Sette-Camara

Separate Opinion: Ni Zhengyu

Dissent: Shigeru OdaDissent: Stephen SchwebelDissent: Robert Jennings

Court membershipJudgessitting

Nagendra Singh, Guy Ledreit deLacharrière, Roberto Ago, MohammedBedjaoui, Taslim Olawale Elias,Manfred Lachs, Kéba Mbaye, NiZhengyu, Shigeru Oda, José MaríaRuda, Stephen Schwebel, José Sette-Camara, Robert Jennings, Claude-Albert Colliard (ad hoc)

Nicaragua v. United StatesFrom Wikipedia, the free encyclopedia

The Republic of Nicaragua v. The United States ofAmerica (1986) ICJ 1(http://www.worldlii.org/int/cases/ICJ/1986/1.html) is apublic international law case decided by the InternationalCourt of Justice (ICJ). The ICJ ruled in favor ofNicaragua and against the United States and awardedreparations to Nicaragua. The ICJ held that the U.S. hadviolated international law by supporting the Contras intheir rebellion against the Nicaraguan government and bymining Nicaragua's harbors. The United States refused toparticipate in the proceedings after the Court rejected itsargument that the ICJ lacked jurisdiction to hear the case.The U.S. later blocked enforcement of the judgment bythe United Nations Security Council and therebyprevented Nicaragua from obtaining any actualcompensation.[2] The Nicaraguan government finallywithdrew the complaint from the court in September 1992(under the later, post-FSLN, government of VioletaChamorro), following a repeal of the law requiring thecountry to seek compensation.[3]

The Court found in its verdict that the United States was"in breach of its obligations under customaryinternational law not to use force against another State","not to intervene in its affairs", "not to violate itssovereignty", "not to interrupt peaceful maritimecommerce", and "in breach of its obligations underArticle XIX of the Treaty of Friendship, Commerce andNavigation between the Parties signed at Managua on 21January 1956."

The Court had 16 final decisions upon which it voted. InStatement 9, the Court stated that while the U.S.encouraged human rights violations by the Contras by themanual entitled Psychological Operations in GuerrillaWarfare, this did not, however, make such actsattributable to the U.S.[4]

Contents1 Background and History of US Intervention in Nicaragua

1.1 Nicaragua's submissions2 Judgment

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2 Judgment2.1 Findings2.2 The ruling2.3 Legal clarification and importance2.4 How the judges voted2.5 Dissent

3 Certain witnesses against the US3.1 First witness: Commander Luis Carrion3.2 Second witness: Dr. David MacMichael3.3 Third witness: Professor Michael Glennon3.4 Fourth witness: Father Jean Loison3.5 Fifth witness: William Hüper

4 UN voting5 U.S. defense and response6 Significance

6.1 Third-party interpretations7 See also8 Notes9 References10 External links

Background and History of US Intervention in NicaraguaThe first armed intervention by the United States in Nicaragua occurred under President Taft. In 1909, heordered the overthrow of Nicaraguan President José Santos Zelaya. During August and September 1912, acontingent of 2300 U.S. Marines landed at the port of Corinto and occupied León and the railway line toGranada. A pro-U.S. government was formed under the occupation. The 1914 Bryan-Chamorro Treatygranted perpetual canal rights to the U.S. in Nicaragua and was signed ten days before the U.S.-operatedPanama Canal opened for use, thus preventing anyone from building a competing canal in Nicaraguawithout U.S. permission.[5]

In 1927, under Augusto César Sandino, a major peasant uprising was launched against both the U.S.occupation and the Nicaraguan establishment. In 1933, the Marines withdrew and left the National Guard incharge of internal security and elections. In 1934, Anastasio Somoza García, the head of the National Guard,ordered his forces to capture and murder Sandino. In 1937, Somoza assumed the presidency, while still incontrol of the National Guard, and established a dictatorship that his family controlled until 1979.[6]

The downfall of the regime is attributed to its embezzlement of millions of dollars in foreign aid that wasgiven to the country in response to the devastating 1972 earthquake. Many moderate supporters of thedictatorship began abandoning it in the face of growing revolutionary sentiment. The Sandinista (FLSN)movement organized relief, began to expand its influence and assumed the leadership of the revolution.[7] Apopular uprising brought the FSLN to power in 1979. The United States had long been opposed to thesocialist FSLN, and after the revolution the Carter administration moved quickly to support the Somocistaswith financial and material aid. When Ronald Reagan took office, he augmented the direct support to an

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anti-Sandinista group, called the Contras, which included factions loyal to the former dictatorship. WhenCongress prohibited further funding to the Contras, Reagan continued the funding through arms sales thatwere also prohibited by Congress.[8]

Nicaragua's submissions

Nicaragua charged:

(a) That the United States, in recruiting, training, arming, equipping, financing, supplying andotherwise encouraging, supporting, aiding, and directing military and paramilitary actions in andagainst Nicaragua, had violated its treaty obligations to Nicaragua under:

Article 2 (4) of the United Nations Charter;Articles 18 and 20 of the Charter of the Organization of American States;Article 8 of the Convention on Rights and Duties of States;Article I, Third, of the Convention concerning the Duties and Rights of States in the Event ofCivil Strife.

(b) That the United States had breached international law by

1. violating the sovereignty of Nicaragua by:

armed attacks against Nicaragua by air, land and sea;incursions into Nicaraguan territorial waters;aerial trespass into Nicaraguan airspace;efforts by direct and indirect means to coerce and intimidate the Government ofNicaragua.

2. using force and the threat of force against Nicaragua.3. intervening in the internal affairs of Nicaragua.4. infringing upon the freedom of the high seas and interrupting peaceful maritime commerce.5. killing, wounding and kidnapping citizens of Nicaragua.

Nicaragua demanded that all such actions cease and that the United States had an obligation to payreparations to the government for damage to their people, property, and economy.

It is noteworthy that the United States, the defaulting party, was the only member that put forwardarguments against the validity of the judgment of the court, arguing that it passed a decision that it "hadneither the jurisdiction nor the competence to render." Members that sided with the United States inopposing Nicaragua's claims did not challenge the court's jurisdiction, its findings, nor the substantivemerits of the case.[9] Pursuant to general and customary international law, the United States has anobligation to Nicaragua to respect the sovereignty of Nicaragua. ii. Pursuant to general and customaryinternational law, the United States has an obligation to Nicaragua not to use force or the threat of forceagainst Nicaragua. iii. Pursuant to general and customary international law, the United States has anobligation to Nicaragua not to intervene in the internal affairs of Nicaragua.

Judgment

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The very long judgment first listed 291 points, among them that the United States had been involved in the"unlawful use of force." The alleged violations included attacks on Nicaraguan facilities and naval vessels,the mining of Nicaraguan ports, the invasion of Nicaraguan air space, and the training, arming, equipping,financing and supplying of forces (the "Contras") and seeking to overthrow Nicaragua's Sandinistagovernment. This was followed by the statements that the judges voted on.[10]

Findings

The court found evidence of an arms flow between Nicaragua and insurgents in El Salvador between 1979-81. However, there was not enough evidence to show that the Nicaraguan government was imputable forthis or that the US response was proportional. The court also found that certain transborder incursions intothe territory of Guatemala and Costa Rica, in 1982, 1983 and 1984, were imputable to the Government ofNicaragua. However, neither Guatemala nor Costa Rica had made any request for US intervention; ElSalvador did in 1984, well after the US had intervened unilaterally.[1](http://www.gwu.edu/~jaysmith/nicus3.html)

"As regards El Salvador, the Court considers that in customary international law the provision of arms to theopposition in another State does not constitute an armed attack on that State. As regards Honduras and CostaRica, the Court states that, in the absence of sufficient information as to the transborder incursions into theterritory of those two States from Nicaragua, it is difficult to decide whether they amount, singly orcollectively, to an armed attack by Nicaragua. The Court finds that neither these incursions nor the allegedsupply of arms may be relied on as justifying the exercise of the right of collective self-defence."[11]

Regarding human rights violations by the Contras, "The Court has to determine whether the relationship ofthe contras to the United States Government was such that it would be right to equate the Contras, for legalpurposes, with an organ of the United States Government, or as acting on behalf of that Government. TheCourt considers that the evidence available to it is insufficient to demonstrate the total dependence of thecontras on United States aid. A partial dependency, the exact extent of which the Court cannot establish,may be inferred from the fact that the leaders were selected by the United States, and from other factorssuch as the organisation, training and equipping of the force, planning of operations, the choosing of targetsand the operational support provided. There is no clear evidence that the United States actually exercisedsuch a degree of control as to justify treating the contras as acting on its behalf... Having reached the aboveconclusion, the Court takes the view that the Contras remain responsible for their acts, in particular thealleged violations by them of humanitarian law. For the United States to be legally responsible, it wouldhave to be proved that that State had effective control of the operations in the course of which the allegedviolations were committed."[11]

The Court concluded that the United States, despite its objections, was subject to the Court's jurisdiction.The Court had ruled on 26 November by 11 votes to one that it had jurisdiction in the case on the basis ofeither Article 36 (i.e. compulsory jurisdiction) or the 1956 Treaty of Friendship, Commerce and Navigationbetween the United States and Nicaragua. The Charter provides that, in case of doubt, it is for the Courtitself to decide whether it has jurisdiction, and that each member of the United Nations undertakes tocomply with the decision of the Court. The Court also ruled by unanimity that the present case wasadmissible.[9] The United States then announced that it had "decided not to participate in furtherproceedings in this case." About a year after the Court's jurisdictional decision, the United States took thefurther, radical step of withdrawing its consent to the Court's compulsory jurisdiction, ending its previous 40

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year legal commitment to binding international adjudication. The Declaration of acceptance of the generalcompulsory jurisdiction of the International Court of Justice terminated after a 6-month notice oftermination delivered by the Secretary of State to the United Nations on October 7, 1985. [12]

Although the Court called on the United States to "cease and to refrain" from the unlawful use of forceagainst Nicaragua and stated that the US was "in breach of its obligation under customary international lawnot to use force against another state" and ordered it to pay reparations, the United States refused to comply.[2] (http://www.redress.org/publications/TerrorismReport.pdf) As a permanent member of the SecurityCouncil, the U.S. has been able to block any enforcement mechanism attempted by Nicaragua.[13] OnNovember 3, 1986 the United Nations General Assembly passed, by a vote of 94-3 (El Salvador, Israel andthe US voted against), a non-binding resolution (http://www.un.org/documents/ga/res/41/a41r031.htm)urging the US to comply.[3] (http://www.ejil.org/journal/Vol6/No4/art2-01.html)

The ruling

On June 27, 1986, the Court made the following ruling:

The Court

1. Decides that in adjudicating the dispute brought before it by the Application filed by the Republic ofNicaragua on 9 April 1984, the Court is required to apply the "multilateral treatyreservation"contained in proviso (c) to the declaration of acceptance of jurisdiction made underArticle 36, paragraph 2, of the Statute of the Court by the Government of the United States ofAmerica deposited on 26 August 1946;

2. Rejects the justification of collective self-defence maintained by the United States of America inconnection with the military and paramilitary activities in and against Nicaragua the subject of thiscase;

3. Decides that the United States of America, by training, arming, equipping, financing and supplyingthe contra forces or otherwise encouraging, supporting and aiding military and paramilitary activitiesin and against Nicaragua, has acted, against the Republic of Nicaragua, in breach of its obligationunder customary international law not to intervene in the affairs of another State;

4. Decides that the United States of America, by certain attacks on Nicaraguan territory in 1983-1984,namely attacks on Puerto Sandino on 13 September and 14 October 1983, an attack on Corinto on 10October 1983; an attack on Potosi Naval Base on 4/5 January 1984, an attack on San Juan del Sur on7 March 1984; attacks on patrol boats at Puerto Sandino on 28 and 30 March 1984; and an attack onSan Juan del Norte on 9 April 1984; and further by those acts of intervention referred to insubparagraph (3) hereof which involve the use of force, has acted, against the Republic of Nicaragua,in breach of its obligation under customary international law not to use force against anotherState;

5. Decides that the United States of America, by directing or authorizing over Rights of Nicaraguanterritory, and by the acts imputable to the United States referred to in subparagraph (4) hereof, hasacted, against the Republic of Nicaragua, in breach of its obligation under customary internationallaw not to violate the sovereignty of another State;

6. Decides that, by laying mines in the internal or territorial waters of the Republic of Nicaragua duringthe first months of 1984, the United States of America has acted, against the Republic of Nicaragua,in breach of its obligations under customary international law not to use force against anotherState, not to intervene in its affairs, not to violate its sovereignty and not to interrupt peacefulmaritime commerce;

7. Decides that, by the acts referred to in subparagraph (6) hereof the United States of America has90

acted, against the Republic of Nicaragua, in breach of its obligations under Article XIX of the Treatyof Friendship, Commerce and Navigation between the United States of America and the Republic ofNicaragua signed at Managua on 21 January 1956;

8. Decides that the United States of America, by failing to make known the existence and location of themines laid by it, referred to in subparagraph (6) hereof, has acted in breach of its obligations undercustomary international law in this respect;

9. Finds that the United States of America, by producing in 1983 a manual entitled 'Operacionessicológicas en guerra de guerrillas', and disseminating it to contra forces, has encouraged thecommission by them of acts contrary to general principles of humanitarian law; but does not find abasis for concluding that any such acts which may have been committed are imputable to the UnitedStates of America as acts of the United States of America;

10. Decides that the United States of America, by the attacks on Nicaraguan territory referred to insubparagraph (4) hereof, and by declaring a general embargo on trade with Nicaragua on 1 May 1985,has committed acts calculated to deprive of its object and purpose the Treaty of Friendship,Commerce and Navigation between the Parties signed at Managua on 21 January 1956;

11. Decides that the United States of America, by the attacks on Nicaraguan territory referred to insubparagraph (4) hereof, and by declaring a general embargo on trade with Nicaragua on 1 May 1985,has acted in breach of its obligations under Article XIX of the Treaty of Friendship, Commerce andNavigation between the Parties signed at Managua on 21 January 1956;

12. Decides that the United States of America is under a duty immediately to cease and to refrain from allsuch acts as may constitute breaches of the foregoing legal obligations;

13. Decides that the United States of America is under an obligation to make reparation to the Republic ofNicaragua for all injury caused to Nicaragua by the breaches of obligations under customaryinternational law enumerated above;

14. Decides that the United States of America is under an obligation to make reparation to the Republic ofNicaragua for all injury caused to Nicaragua by the breaches of the Treaty of Friendship, Commerceand Navigation between the Parties signed at Managua on 21 January 1956;

15. Decides that the form and amount of such reparation, failing agreement between the Parties, will besettled by the Court, and reserves for this purpose the subsequent procedure in the case;

16. Recalls to both Parties their obligation to seek a solution to their disputes by peaceful means inaccordance with international law.[11]

Legal clarification and importance

The ruling did in many ways clarify issues surrounding prohibition of the use of force and the right of self-defence.[14] Arming and training the Contra was found to be in breach with principles of non-interventionand prohibition of use of force, as was laying mines in Nicaraguan territorial waters.

Nicaragua's dealings with the armed opposition in El Salvador, although it might be considered a breachwith the principle of non-intervention and the prohibition of use of force, did not constitute "an armedattack", which is the wording in article 51 justifying the right of self-defence.

The Court considered also the United States claim to be acting in collective self-defence of El Salvador andfound the conditions for this not reached as El Salvador never requested the assistance of the United Stateson the grounds of self-defence.

In regards to laying mines, "...the laying of mines in the waters of another State without any warning ornotification is not only an unlawful act but also a breach of the principles of humanitarian law underlyingthe Hague Convention No. VIII of 1907."

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How the judges voted

Votes of Judges - Nicaragua v. United States

Operative Paragraph (https://web.archive.org/web/20060818212237/http://www.icj-cij.org/icjwww/icases/inus/inus_isummaries/inus_isummary_19860627.htm)

Judge 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16President Nagendra Singh

(India) Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes

Vice-President deLacharrière (France) Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes

Judge Ago (Italy) Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes YesJudge Elias (Nigeria) No Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes YesJudge Lachs (Poland) Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes

Judge Mbaye (Senegal) Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes YesJudge Ni (People'sRepublic of China) No Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes

Judge Oda (Japan) Yes No No No No No Yes No No No No No No Yes Yes YesJudge Ruda (Argentina) No Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes YesJudge Schwebel (United

States) Yes No No No No No No Yes Yes No No No No No No Yes

Judge Sette-Camara(Brazil) No Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes

Judge Sir RobertJennings (United

Kingdom)Yes No No No No No Yes Yes Yes No No No No Yes Yes Yes

Judge ad hoc Colliard(France) Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes

Dissent

Judge Schwebel’s dissent was twice as long as the actual judgment. Judge Schwebel argued that theSandinista government came to power with support of foreign intervention similar to what it was nowcomplaining about. He argued that the Sandinista government achieved international recognition andreceived large amounts of foreign aid in exchange for commitments they subsequently violated. He citedevidence that the Sandinista government had indeed supported the rebels in El Salvador and noted thatNicaragua’s own CIA witness contradicted their assertions that they had never at any point supported therebels in El Salvador. The CIA witness said that there was no evidence of weapon shipments since early1981, but Schwebel argued that he could not credibly explained why opponents of Contra aid such ascongressman Boland, who also saw the evidence, believed that weapon shipments were ongoing. He furtherargued that Daniel Ortega publicly admitted such shipments in statements in 1985 and 1986. Furthermore,there was no dispute that the leadership of the rebels operated in Nicaragua from time to time.

He stated that in August 1981 the U.S. offered to resume aid to Nicaragua and to not support regime changein exchange for Nicaraguan commitments to not support the rebels in El Salvador. These proposals wererejected by the Sandinistas, and judge Schwebel argued that the U.S. was entitled to take action in collectiveself-defense with El Salvador by authorizing contra aid in December 1981. He stated that further U.S.proposals to resolve the issue made in early 1982 were also ignored by the Sandinistas. The Sandinistagovernment in 1983 began advancing proposals in which it would undertake not to support the rebels, but

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Schwebel noted that these were coupled with demands that the U.S. cease supporting the lawful governmentof El Salvador. The judge noted that since early 1985 the U.S. had increasingly made regime change aprimary objective but argued this was not inconsistent with self-defense because it was reasonable to believethat Nicaragua would not maintain any commitments unless Sandinista power was diluted.

The judge said that both sides of the wars in Nicaragua and El Salvador had committed atrocities. He saidthe U.S. mining of Nicaraguan harbors was unlawful in regard to third parties, but not Nicaragua.[15]

Certain witnesses against the US

First witness: Commander Luis Carrion

The first witness called by Nicaragua was Nicaragua's first Vice Minister of the Interior, Commander LuisCarrion. Commander Carrion had overall responsibility for state security and was in charge of allgovernment operations in the "principal war zone". He was responsible for monitoring United Statesinvolvement in military and paramilitary activities against Nicaragua, directing Nicaragua's military andintelligence efforts against the contra guerrillas.

Commander Carrion began by explaining the condition of the contras prior to United States' aid inDecember 1981. Commander Carrion stated that the contras consisted of insignificant bands of poorlyarmed and poorly organized members of Somoza's National Guard, who carried out uncoordinated borderraids and rustled cattle (presumably for food).

In December 1981, the U.S. Congress authorized an initial appropriation of 19 million dollars to financeparamilitary operations in Nicaragua and elsewhere in Central America. Because of this aid, CommanderCarrion stated that the contras began to become centralized and received both training and weapons from theCIA. During 1982 the contra guerrillas engaged the Sandinista armed forces in a series of hit and run borderraids and carried out a number of sabotage operations including:

1. the destruction of two key bridges in the northern part of Nicaragua, and2. the planting of bombs in Nicaraguan civil aircraft in Mexico and in the baggage area of a Nicaraguan

port.

The United States Central Intelligence Agency, and Argentine military officers financed by the CIA, wereengaged in the training of the contra forces. The guerrillas received both basic infantry training as well astraining in specialized sabotage and demolition for "special operation groups".

The U.S. Congress apportioned new funds for the contras to the amount of $30 million at the end of 1982.This made it possible for the contra forces to launch a military offensive against Nicaragua. According toCommander Carrion, the offensive known as "C Plan" had the objective of capturing the Nicaraguan bordertown of Jalapa in order to install a provisional government, which could receive international recognition.This plan failed.

After the failure of the Jalapa offensive the contras changed their tactics from frontal assaults to economicwarfare against State farms, coffee plantations, grain storage centers, road junctions, etc.

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The CIA began to support the contras by setting up and coordinating a communications and logisticalsystem. The CIA supplied aircraft and the construction of airfields in the Honduran border area next toNicaragua. This allowed the contras to carry out deep penetration raids into the more developed andpopulated areas of the Nicaraguan interior. U.S. Army engineers created this airfield. The purpose of thesedeep penetration attacks upon economic targets was to weaken the Nicaraguan economy, causing ashortages of goods.

As a part of its training program for the contras, the CIA prepared and distributed a manual entitledPsychological Operations in Guerrilla Warfare. This manual included instructions in the "use of implicit andexplicit terror", and in the "selective use of violence for propaganda effects". Commander Carrion explainedthat the manual was given to the Contras, "All of these terrorist instructions have the main purpose ofalienating the population from the Government through creating a climate of terror and fear, so that nobodywould dare support the Government". The manual calls for the "neutralization" (i.e. assassination) ofSandinista local government officials, judges, etc. for purposes of intimidation. It was openly admitted bythe President Reagan in a press conference that the manual had been prepared by a CIA contract employee.

After the United States Congress approved an additional $24 million aid to the contras in December 1983, anew offensive was launched, named Plan Sierra. This offensive involved approximately 7000 members ofthe contra forces. As in earlier attacks, the initial objective of this offensive was to capture the border townof Jalapa to install a provisional government, which the CIA informed the contras would be immediatelyrecognized by the United States Government. But this contra offensive was also repulsed by the Nicaraguangovernment forces.

In the beginning of 1984, the contras made a major effort to prevent the harvesting of the coffee crop, whichis one of Nicaragua's most important export products. Coffee plantations and state farms where coffee isgrown were attacked, vehicles were destroyed, and coffee farmers were killed.

Commander Carrion testified that the ability of the contras to carry out military operations was completelydependent upon United States funding, training and logistical support. Carrion stated that the U.S.Government supplied the contras with uniforms, weapons, communications equipment, intelligence,training, and coordination in using this material aid.

In September 1983, CIA operatives blew up Nicaragua's only oil pipeline, which was used to transport oilfrom off-loading facilities to storage tanks on shore. The United States was also directly involved in a largescale sabotage operation directed against Nicaragua's oil storage facilities. This last attack was carried outby CIA contract employees termed by that organization as "Unilaterally Controlled Latin Assets" (UCLAs).The CIA personnel were also directly involved in a helicopter attack on a Nicaraguan army training camp.One of the helicopters was shot down by Nicaraguan ground fire resulting in the death of two U.S. citizens.

Commander Carrion testified that the United States was involved in the mining of Nicaragua's portsbetween February - April 1984. The mining operation was carried out by CIA ships directing the operationfrom international waters, while the actual mining was carried out by CIA employees on board speedboatsoperating inshore. After the mine-laying was completed the speedboats returned to the mother vessel.[16][17]

Carrion stated that 3,886 people had been killed and 4,731 wounded in the four years since the contrasbegan their attacks. Carrion estimated property damage at $375 million.[18]

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Commander Carrion stated if the United States stopped aid, support and training, this would result in theend of the contras military activities within three months. Asked why he was so sure of this, CommanderCarrion answered, "Well, because the contras are an artificial force, artificially set up by the United States,that exists only because it counts on United States direction, on United States training, on United Statesassistance, on United States weapons, on United States everything...Without that kind of support anddirection the contras would simply disband, disorganize, and thus lose their military capacity in a very shorttime".[16]

Second witness: Dr. David MacMichael

David MacMichael was an expert on counter-insurgency, guerrilla warfare, and Latin American affairs, hewas also a witness because he was closely involved with U.S. intelligence activities as a contract employeefrom March 1981 - April 1983. MacMichael worked for Stanford Research Institute, which was contractedby the U.S. Department of Defense. After this he worked two years for the CIA as a "senior estimatesofficer", preparing the National Intelligence Estimate. Dr. MacMichael's responsibility was centered uponCentral America. He had top-secret clearance. He was qualified and authorized to have access to all relevantU.S. intelligence concerning Central America, including intelligence relating to alleged Nicaraguan supportfor, and arms shipments to the anti-Government insurgents in El Salvador. He took part in high levelmeetings of the Latin American affairs office of the CIA. Including a fall 1981 meeting, which submittedthe initial plan to set up a 1500-man covert force on the Nicaraguan border, shipping arms from Nicaraguato the El Salvador insurgents. This plan was approved by President Reagan.[18][19]

"The overall purpose (for the creation of the contras) was to weaken, even destabilize the NicaraguanGovernment and thus reduce the menace it allegedly posed to the United States' interests in CentralAmerica..."

Contra paramilitary actions would "hopefully provoke cross-border attacks by Nicaraguan forces and thusserve to demonstrate Nicaragua's aggressive nature and possibly call into play the Organization of AmericanStates' provisions (regarding collective self-defense). It was hoped that the Nicaraguan Government wouldclamp down on civil liberties within Nicaragua itself, arresting its opposition, so demonstrating its allegedlyinherent totalitarian nature and thus increase domestic dissent within the country, and further that therewould be reaction against United States citizens, particularly against United States diplomatic personnelwithin Nicaragua and thus to demonstrate the hostility of Nicaragua towards the United States".

In response to repeated questions as to whether there was any substantial evidence of the supplyof weapons to the guerrilla movement in El Salvador- either directly by the NicaraguanGovernment itself-or with the knowledge, approval or authorization of the NicaraguanGovernment of either non-official Nicaraguan sources, or by third country nationals inside oroutside Nicaragua, using Nicaraguan territory for this purpose, Dr. MacMichael answered thatthere was no such evidence. In the opinion of the witness it would not have been possible forNicaragua to send arms to the insurgents in El Salvador in significant amounts (as alleged bythe U.S. Government) and over a prolonged period, without this being detected by the U.S.intelligence network in the area...Counsel for Nicaragua, asked the witness several timeswhether any detection of arms shipments by or through Nicaragua had taken place during theperiod he was employed by the CIA. (MacMichael) answered repeatedly that there was no suchevidence. He also stated that after his employment had terminated, nothing had occurred thatwould cause him to change his opinion. He termed the evidence that had been publicly

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disclosed by the U.S. Government concerning Nicaraguan arms deliveries to the El Salvadoraninsurgents as both "scanty" and "unreliable". The witness did however state that based onevidence, which had been gathered immediately prior to his employment with the CIA,evidence he had already actually seen, there was substantial evidence that arms shipments werereaching El Salvador from Nicaragua - with the probable involvement and complicity of theNicaraguan Government - through late 1980 up until the spring of 1981....But this evidence,which most importantly had included actual seizures of weapons, which could be traced toNicaragua, as well as documentary evidence and other sources, had completely ceased by early1981. Since then, no evidence linking Nicaragua to shipments of arms in any substantialquantities had resumed coming in.[19]

Third witness: Professor Michael Glennon

Mr. Glennon testified about a fact-finding mission he had conducted in Nicaragua to investigate allegedhuman rights violations committed by the contra guerrillas, sponsored by the International Human RightsLaw Group, and the Washington Office on Latin America. Glennon conducted the investigation with Mr.Donald T. Fox who is a New York attorney and a member of the International Commission of Jurists.

They traveled to Nicaragua, visiting the northern region where the majority of contra military operationstook place. The two lawyers interviewed around 36 northern frontier residents who had direct experiencewith the contras. They also spoke with the U.S. Ambassador to Nicaragua, and with senior officials of theU.S. Department of State in Washington after returning to the United States.

No hearsay evidence was accepted. Professor Glennon stated that those interviewed were closely questionedand their evidence was carefully cross-checked with available documentary evidence. Doubtful"testimonies" were rejected, and the results were published in April 1985. The conclusions of the reportwere summarized by Glennon in Court:

"We found that there is substantial credible evidence that the contras were engaged with somefrequency in acts of terroristic violence directed at Nicaraguan civilians. These are individualswho have no connection with the war effort-persons with no economic, political or militarysignificance. These are Individuals who are not caught in the cross-fire between Governmentand contra forces, but rather individuals who are deliberately targeted by the contras for acts ofterror. "Terror" was used in the same sense as in recently enacted United States law, i.e. "anactivity that involves a violent act or an act dangerous to human life that Is a violation or thecriminal law, and appears to be intended to intimidate or coerce a civilian population, toInfluence the policy of a government by intimidation or coercion, or to affect the conduct of agovernment by assassination or kidnapping".

In talks with U.S. State Department officials, at those in Managua U.S. Embassy, and with officials inWashington, Professor Glennon had inquired whether the U.S. Government had ever investigated humanrights abuses by the contras. Professor Glennon testified that no such investigation had ever been conducted,because in the words of a ranking State Department official who he could not name, the U.S. Government

96

maintained a policy of "intentional ignorance" on the matter. State Department officials in Washington- hadadmitted to Glennon that "it was clear that the level of atrocities was enormous". Those words "enormous"and "atrocities" were the ranking State Department official's words.[20]

Fourth witness: Father Jean Loison

Father Jean Loison was a French priest who worked as a nurse in a hospital in the northern frontier regionclose to Honduras.

Asked whether the contras engaged in acts of violence directed against the civilian population, FatherLoison answered:

"Yes, I could give you several examples. Near Quilali, at about 30 kilometers east of Quilali,there was a little village called El Coco. The contras arrived, they devastated it, they destroyedand burned everything. They arrived in front of a little house and turned their machinegun fireon it, without bothering to check if there were any people inside. Two children, who had takenfright and hidden under a bed, were hit. I could say the same thing of a man and woman whowere hit, this was in the little co-operative of Sacadias Olivas. It was just the same. They toohad taken fright and got into bed. Unlike El Coco, the contras had just been on the attack, theyhad encountered resistance and were now in flight. During their flight they went into a house,and seeing that there were people there, they threw grenade. The man and the woman werekilled and one of the children was injured."

About contra kidnappings:

"I would say that kidnappings are one of the reasons why some of the peasants have formedthemselves into groups. Here (indicates a point on the map) is Quilali. Between Quilali andUilili, in this region to the north, there are hardly any peasants left of any age to bear arms,because they have all been carried off"."

Father Loison described many examples of violence, mostly indiscriminate, directed at the civilianpopulation in the region where he resides. The picture that emerges from his testimony is that the contrasengage in brutal violation of minimum standards of humanity. He described murders of unarmed civilians,including women and children, rape followed in many instances by torture or murder, and indiscriminateterror designed to coerce the civilian population. His testimony was similar to various reports including theInternational Human Rights Law Group, Amnesty International, and others.[21]

Fifth witness: William Hüper

William Hüper was Nicaragua's Minister of Finance. He testified about Nicaragua economic damage,including the loss of fuel as a result of the attack in the oil storage facilities at Corinto, the damage toNicaragua's commerce as a result of the mining of its ports, and other economic damage.[22]

UN voting 97

After five vetoes in the Security Council between 1982 and 1985 of resolutions concerning the situation inNicaragua [4] (http://www.globalpolicy.org/security/membship/veto/vetosubj.htm), the United States madeone final veto on 28 October 1986[23] (France, Thailand, and United Kingdom abstaining) of a resolutioncalling for full and immediate compliance with the judgment.[24]

Nicaragua brought the matter to the U.N. Security Council, where the United States vetoed a resolution (11to 1, 3 abstentions) calling on all states to observe international law. Nicaragua also turned to the GeneralAssembly, which passed a resolution 94 to 3 calling for compliance with the World Court ruling. Twostates, Israel and El Salvador, joined the United States in opposition. At that time, El Salvador was receivingsubstantial funding and military advisement from the U.S., which was aiming to crush a Sandinista-likerevolutionary movement by the FMLN. At the same session, Nicaragua called upon the U.N. to send anindependent fact-finding mission to the border to secure international monitoring of the borders after aconflict there; the proposal was rejected by Honduras with U.S. backing. A year later, on November 12,1987, the General Assembly again called for "full and immediate compliance" with the World Courtdecision. This time only Israel joined the United States in opposing adherence to the ruling.[25][26]

U.S. defense and responseThe United States refused to participate in the merits phase of the proceedings, but the Court found that theUS refusal did not prevent it from deciding the case. The Court also rejected the United States defense thatits action constituted collective self-defense. The United States argued that the Court did not havejurisdiction, with U.S. ambassador to the United Nations Jeane Kirkpatrick dismissing the Court as a "semi-legal, semi-juridical, semi-political body, which nations sometimes accept and sometimes don't." [27]

The United States had signed the treaty accepting the Court's decision as binding, but with the exceptionthat the court would not have the power to hear cases based on multilateral treaty obligations unless itinvolved all parties to the treaty affected by that decision or the United States specially agreed tojurisdiction. The court found that it was obliged to apply this exception and refused to take on claims byNicaragua based on the United Nations Charter and Organization of American States charter, but concludedthat it could still decide the case based on customary international law obligations with 11-4 majority.

After five vetoes in the Security Council between 1982 and 1985 of resolutions concerning the situation inNicaragua [5] (http://www.globalpolicy.org/security/membship/veto/vetosubj.htm), the United States madeone final veto on 28 October 1986[23] (France, Thailand, and United Kingdom abstaining) of a resolutioncalling for full and immediate compliance with the Judgement.[24]

When the same resolution was brought before the United Nations General Assembly on 3 November it waspassed.[25] Only El Salvador and Israel voted with the U.S. against it. El Salvador's ruling junta was at thattime receiving substantial funding and military advisement from the U.S., which was aiming to crush aSandinista-like revolutionary movement by the FMLN. In spite of this resolution, the U.S. still chose not topay the fine.

Significance

Third-party interpretations98

Professor of International Law, Anthony D'Amato, writing for the American Journal of International Law,Vol. 80, 1986, commented on this case, stating that "...law would collapse if defendants could only be suedwhen they agreed to be sued, and the proper measurement of that collapse would be not just the drasticallydiminished number of cases but also the necessary restructuring of a vast system of legal transactions andrelations predicated on the availability of courts as a last resort. There would be talk of a return to the law ofthe jungle." The author also notes that the case resulted in an unusual candor. A month after the announcedwithdrawal, Secretary of State Shultz suggested, and President Reagan later confirmed in a pressconference, that the goal of U.S. policy was to overthrow the Sandinista Government of Nicaragua (seeN.Y. Times, Feb. 22, 1985, at A10, cols. 1, 3). Although this was what Nicaragua had alleged to be the U.S.goal, while the case was actively pending, the United States could not concede that goal without serious riskof undermining its litigating position.[6] (http://anthonydamato.law.northwestern.edu/Adobefiles/A85d-nicar.pdf)

See alsoIran-Contra AffairList of International Court of Justice casesPsychological Operations in Guerrilla Warfare

Notes1. Official name: Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of

America), Jurisdiction and Admissibility, 1984 ICJ REP. 392 June 27, 1986.2. Morrison, Fred L. (January 1987). "Legal Issues in The Nicaragua Opinion"

(http://bailey83221.livejournal.com/55750.html). American Journal of International Law 81 (1): 160–166.doi:10.2307/2202146 (https://dx.doi.org/10.2307%2F2202146). JSTOR 2202146(https://www.jstor.org/stable/2202146). "Appraisals of the ICJ's Decision. Nicaragua vs United State (Merits)"

3. "Human Rights Watch World Report 1993 - Nicaragua"(http://www.unhcr.org/refworld/publisher,HRW,,NIC,467fca491e,0.html). Retrieved September 18, 2009.

4. "Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) Merits,Judgment, I.C.J. Reports 1986, p. 14." (http://www.gwu.edu/~jaysmith/nicus3.html). International Court ofJustice. Retrieved 2006-09-05."Summary of the Judgment of 27 June 1986" (http://www.icj-cij.org/docket/index.php?sum=367&code=nus&p1=3&p2=3&case=70&k=66&p3=5). International Court of Justice. Retrieved2006-09-05.

5. Walter, Knut (1993). The Regime of Anastasio Somoza, 1936-1956. The University of North Carolina Press.pp. 10–12. ISBN 0-8078-2106-3.

6. Walker, Thomas W. (2003). Nicaragua: Living in the Shadow of the Eagle, 4th Edition. Westview Press. pp. 25–27. ISBN 0-8133-4033-0.

7. Zimmerman, Matilde (2000). Sandinista: Carlos Fonseca and the Nicaraguan Revolution. Duke UniversityPress. pp. 173, 209–210. ISBN 0-8223-2595-0.

8. Dent, David W. (2005). Historical Dictionary of US-Latin American Relations. Greenwood Press. p. 129.ISBN 0-313-32196-5.

9. "United States Decides Not to Participate in World Court Case Initiated by Nicaragua". UN Chronicle 22(January). January 1985.

10. {broken link}"International Court of Justice Year 1986, 27 June 1986, General list No. 70, paragraphs 251, 252,157, 158, 233." (http://www.gwu.edu/~jaysmith/nicus3.html). International Court of Justice. Retrieved2006-07-30. Large PDF file from the ICJ website (http://web.archive.org/web/20050530111816/http://www.icj-cij.org/icjwww/icases/inus/inus_ijudgment/inus_ijudgment_19860627.pdf)

11. ICJ Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America)(http://www.icj-cij.org/docket/index.php?sum=367&code=nus&p1=3&p2=3&case=70&k=66&p3=5)99

ReferencesD'Amato, Anthony (1985). "Modifying U.S. Acceptance of the Compulsory Jurisdiction of the World Court"(http://anthonydamato.law.northwestern.edu/Adobefiles/A85b-modify.pdf) (PDF). American Journal ofInternational Law 79 (2): 385–405. doi:10.2307/2201709 (https://dx.doi.org/10.2307%2F2201709).JSTOR 2201709 (https://www.jstor.org/stable/2201709). [PDF file]D'Amato, Anthony (1987). "Trashing Customary International Law"(http://anthonydamato.law.northwestern.edu/Adobefiles/a87a-trashing.pdf) (PDF). American Journal ofInternational Law 81 (1): 101–105. doi:10.2307/2202136 (https://dx.doi.org/10.2307%2F2202136).JSTOR 2202136 (https://www.jstor.org/stable/2202136). "Appraisals of the ICJ's Decision. Nicaragua vs UnitedState (Merits)" [PDF file]D'Amato, Anthony (1986). "The United States Should Accept, By a New Declaration, The General CompulsoryJurisdiction of The World Court" (http://anthonydamato.law.northwestern.edu/Adobefiles/A86a-worldct.pdf)(PDF). American Journal of International Law 80 (2): 331–336. doi:10.2307/2201963(https://dx.doi.org/10.2307%2F2201963). JSTOR 2201963 (https://www.jstor.org/stable/2201963). [PDF file]Falk, Richard (1987). "The World Court's Achievement" (http://bailey83221.livejournal.com/56750.html).American Journal of International Law 81 (1): 106–112. doi:10.2307/2202137(https://dx.doi.org/10.2307%2F2202137). JSTOR 2202137 (https://www.jstor.org/stable/2202137). "Appraisalsof the ICJ's Decision."Franck, Thomas M. (1987). "Some Observations on the ICJ's Procedural and Substantive Innovations"(http://bailey83221.livejournal.com/54578.html). American Journal of International Law 81 (1): 116–121.doi:10.2307/2202139 (https://dx.doi.org/10.2307%2F2202139). JSTOR 2202139(https://www.jstor.org/stable/2202139). "Appraisals of the ICJ's Decision. Nicaragua vs United States (Merits)"

(http://www.icj-cij.org/docket/index.php?sum=367&code=nus&p1=3&p2=3&case=70&k=66&p3=5)12. Robert J. Delahunty, John Yoo (2006). "Executive Power V. International Law". Harvard Journal of Law &

Public Policy 30.13. Constanze Schulte (January 2004). COMPLIANCE WITH DECISIONS OF THE INTERNATIONAL COURT OF

JUSTICE 81. New York: Oxford University Press. pp. 282–285. ISBN 0-19-927672-2.14. UN Charter art.2(4) and art. 51, both considered to be customary international law15. Dissent of Judge Schwebel (http://www.icj-cij.org/docket/files/70/6523.pdf) International Court of Justice16. Gill, Terry D. (1989). Litigation strategy at the International Court a case study of the Nicaragua v United States

dispute. Dordrecht. ISBN 0-7923-0332-6. p. 187-19117. "Nicaragua Mining: Self-defense or Terrorism?;Recovery: Is It Reagan's?;Ancestors -- Fifty-Three Fossils

Transcript #2229". The MacNeil/Lehrer NewsHour. April 12, 1984. Senator Barry Goldwater said he was told ina letter from CIA Director William Casey that President Reagan himself had approved the mining in writing.This was confirmed by Secretary Dam on the MacNeil/Lehrer NewsHour: "Well, let me put it this way. Allcovert action programs are approved by the President or they don't go forward."

18. "World Court Hears Charges vs. U.S". Facts on File World News Digest: 702 D1. September 20, 1985.19. Gill, p. 191-19320. Gill, p. 193-195.21. Gill, p. 195.22. Gill, p. 195-196.23. United Nations Security Council Verbatim Report 2718. S/PV.2718 (http://www.un.org/ga/search/view_doc.asp?

symbol=S/PV.2718) page 40. 28 October 1986. Retrieved 2007-09-19.24. United Nations Security Council Document S/18428 (http://www.un.org/ga/search/view_doc.asp?

symbol=S/18428) 28 October 1986. Retrieved 2007-09-19.25. United Nations General Assembly Session 41 Resolution 31. A/RES/41/31

(http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/41/31) 3 November 1986. Retrieved 2007-09-19.26. Noam Chomsky (1989). "4". Necessary Illusions, Adjuncts of Government. New York: Oxford University Press.27. "International Law PSCI 0236 > International Law PSCI 0236 > Introduction"

(https://segue.middlebury.edu/index.php?action=site&site=psci0236a-f06). middlebury.edu. Retrieved2006-09-05.

100

Gill, Terry D. (1989). Litigation strategy at the International Court a case study of the Nicaragua v United Statesdispute. Dordrecht. ISBN 0-7923-0332-6.Howard Friel; Richard A. Falk (2004). The Record of the Paper: How the New York Times Misreports USForeign Policy. Verso. ISBN 1-84467-019-8. p. 184.Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua V. United States ofAmerica). United Nations Publications. January 1, 2000. ISBN 92-1-070826-1. |first1= missing |last1= inAuthors list (help)Maier, Harold G. (January 1987). "Appraisals Of The ICJ's Decision: Nicaragua V. United States (Merits)"(http://bailey83221.livejournal.com/57749.html). The American Society of International Law 81 (1): 77–78.doi:10.2307/2202132 (https://dx.doi.org/10.2307%2F2202132). JSTOR 2202132(https://www.jstor.org/stable/2202132). 81 A.J.I.L. 77Morrison, Fred L. (January 1987). "Legal Issues in The Nicaragua Opinion"(http://bailey83221.livejournal.com/55750.html). American Journal of International Law 81 (1): 160–166.doi:10.2307/2202146 (https://dx.doi.org/10.2307%2F2202146). JSTOR 2202146(https://www.jstor.org/stable/2202146). "Appraisals of the ICJ's Decision. Nicaragua vs United State (Merits)"Schachter, Oscar (April 1989). "Self-Defense and the Rule of Law"(http://bailey83221.livejournal.com/57401.html). American Journal of International Law 83 (2): 259–277.doi:10.2307/2202738 (https://dx.doi.org/10.2307%2F2202738). JSTOR 2202738(https://www.jstor.org/stable/2202738). 83 A.J.I.L. 259Scheffer, David J. (July 11, 1986). "U.S. Must Not Be the Outlaw on Nicaragua"(http://bailey83221.livejournal.com/60404.html). Los Angeles Times: 5.

External linksThe Contras and the U.S. (http://repository.library.georgetown.edu/handle/10822/552661) from theDean Peter Krogh Foreign Affairs Digital Archives(http://repository.library.georgetown.edu/handle/10822/552494)Military Aid to the Contras (http://repository.library.georgetown.edu/handle/10822/552623) from theDean Peter Krogh Foreign Affairs Digital Archives(https://repository.library.georgetown.edu/handle/10822/552494/browse?type=title)Nicaragua : Whose Side Are We On? (http://repository.library.georgetown.edu/handle/10822/552661)from the Dean Peter Krogh Foreign Affairs Digital Archives(http://repository.library.georgetown.edu/handle/10822/552494)"Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States OfAmerica) - overview" (http://www.icj-cij.org/docket/index.php?p1=3&p2=3&k=66&PHPSESSID=05fad554ae9feec6f32e8fcea282db53&case=70&code=nus&p3=4). International Court of Justice. Retrieved June 16, 2007.

"Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States OfAmerica) - Summary of the Judgment of 27 June 1986" (http://www.icj-cij.org/docket/index.php?sum=367&code=nus&p1=3&p2=3&case=70&k=66&p3=5). International Court of Justice. RetrievedJune 16, 2007.

Retrieved from "http://en.wikipedia.org/w/index.php?title=Nicaragua_v._United_States&oldid=660339469"

Categories: Nicaragua–United States relations International Court of Justice cases History of NicaraguaIran–Contra affair 1986 in case law 1986 in Nicaragua 1986 in the United States1986 in international relations Reagan administration controversies Nicaraguan Revolution

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102

Orlando v. Laird – Case Brief Summary

Summary of Orlando v. Laird, 443 F.2d 1039, cert. denied 404 U.S. 869 (2d Cir. 1971).

FactsOrlando (P) was drafted by the United States Army to serve in Vietnam. Orlando commenced an action toenjoin Secretary of Defense Laird (D), the Secretary of the Army, and commanding officers fromenforcing their deployment orders. The District Court ruled against Orlando and the Supreme Courtdenied certiorari.

IssueIs Congress’s delegation of war making authority under the Constitution a discoverable andmanageable standard such that decisions to go to war are not foreclosed from judicial ruling by thepolitical question doctrine?

Holding and RuleYes. Congress’s delegation of war making authority under the Constitution is a discoverable andmanageable standard such that decisions to go to war are not foreclosed from judicial ruling by thepolitical question doctrine.

The test of is whether there is any action by Congress sufficient to authorize or ratify the military activityin question. The court held that the facts were sufficient to support a conclusion that this test had beensatisfied. The form in which Congress takes to ratify the acts of the President is a political question and isoutside the power and manageable standards under which this court could judge such actions. However,the court held that Congress had clearly ratified the acts of the President regarding these matters.

DispositionJudgment affirmed.

103

See Baker v. Carr for a constitutional law case brief in which the United States Supreme Court set forththe factors to be considered in determining whether a case presents a political question and is thereforenonjusticiable.

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Padilla v. Hanft

Indefinite Detention of Enemy Combatant, Padilla v. Hanft (Fourth Circuit)(amicus). Filed June 13, 2005. Counsel: Ann Beeson, ACLU National Office, ArtEisenberg, NYCLU, Rebecca K. Glenberg.

In 2002, Jose Padilla, who is a United States citizen, was arrested at O’HareInternational Airport by FBI agents executing a material witness arrest warrant. Padillawas transferred to New York, where he was held as a material witness in connectionwith a grand jury investigation of the terrorist attacks of September 11, 2001. In June,the President had issued an order naming Padilla an “enemy combatant” andtransferring his custody to the Department of Defense, which immediately seizedPadilla and, without notice to counsel, transported him to a high security military brigin South Carolina. Padilla’s appointed counsel immediately filed a habeas corpuspetition on his behalf. For years, the government filed no charges against Padilla, butheld him incommunicado, not even allowing visits from his attorney. The caseeventually reached the Supreme Court, which held that Padilla had filed his habeaspetition had been filed in the wrong court.

In 2004, Padilla’s counsel filed a new habeas corpus petition in the U.S. District Courtfor South Carolina. The District Court ruled that Padilla’s detention had not beenauthorized by Congress and was therefore unlawful. The government appealed to theFourth Circuit. Our amicus brief in support of Padilla argues that the indefinite militarydetention of Padilla violates the core constitutional principles of due process of law andthe supremacy of civilian authority over military. On September 9, 2005, the FourthCircuit Court of Appeals reversed the trial court's decision and held that the presidentwas authorized to detain enemy combatants under the Authorization of Use of MilitaryForce passed by Congress in the wake of September 11. Padilla then filed a petitionfor certiorari in the United States Supreme Court, which was denied on April 3, 2006.While the Supreme Court was considering Padilla's petition for review, the governmenttransferred Padilla to civilian custody in an attempt to sidestep the Court's review, andcharged him with terrorismrelated offenses. The criminal trial began in September2006.

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Hufaiza Parhat, et al.,v. Robert M. Gates, etal., Petitioners' motionfor entry of protectiveorder, December 18,2006


Hufaiza Parhat v.Robert M. Gates --decided June 20, 2008

Parhat v. GatesFrom Wikipedia, the free encyclopedia

Parhat v. Gates No. 06-1397 (D.C. Cir.) is a petition for reviewunder the Detainee Treatment Act of 2005 filed on behalf of HozaifaParhat, and six other Uyghur detainees held in extrajudicial detentionin the United States Guantanamo Bay detention camps, inCuba.[1][2][3][4]

Susan Baker Manning, one of Parhat's attorneys, commented:[5]

“If we’re going to hold people, possibly for the rest oftheir lives, it seems eminently fair that we should look atall the evidence to see if they are or are not the peoplewho should be at Guantánamo.”

Contents1 Rasul v. Bush2 Appeal under the Detainee Treatment Act3 See also4 References

Rasul v. BushInitially, the Bush Presidency asserted that none of the captives apprehended during the "global war onterror" were protected by the Geneva Conventions. The Bush Presidency asserted that the Guantanamo BayNaval Base was not United States territory, and that it was not subject to United States law. Consequently,they challenged that the captives were entitled to submit writs of habeas corpus.

The Supreme Court of the United States ruled, in Rasul v. Bush, that the Guantanamo base was covered byUS law.

Appeal under the Detainee Treatment ActOn Monday June 23, 2008, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit announcedits decision of three days earlier overturning the determination of Parhat's Combatant Status ReviewTribunal.[6][7][8] The court had only published a one paragraph announcement as its full ruling containedclassified material, and an unclassified version had not yet been prepared.

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On Monday June 30, 2008 the court published a 39-page opinion, written by Circuit JudgeGarland.[9][10][11] The ruling was published with a limited number of redactions.

See alsoQassim v. Bush

References1. Lyle Denniston (May 10, 2007). "New developments on detainees"

(http://web.archive.org/web/20070907031146/http://www.scotusblog.com/movabletype/archives/2007/05/new_development.html). Scotusblog. Archived from the original(http://www.scotusblog.com/movabletype/archives/2007/05/new_development.html) on 2007-09-07. Retrieved2007-09-18.

2. "Order list: 551 U.S." (http://www.supremecourt.gov/orders/courtorders/062907pzor.pdf) (PDF). Supreme Courtof the United States. June 29, 2007. Retrieved 2008-01-07.

3. "Nos. 06-1195 and 06-1196 -- In the Supreme Court of the United States"(http://www.usdoj.gov/osg/briefs/2006/0responses/2006-1195.resp.pdf) (PDF). Supreme Court of the UnitedStates. March 2007. Retrieved 2008-01-05.

4. "Nos. 06-1195 and 06-1196 -- In the Supreme Court of the United States"(http://www.usdoj.gov/osg/briefs/2006/0responses/2006-1195.resp.rehearing.pdf) (PDF). Supreme Court of theUnited States. June 2007. Retrieved 2008-01-05.

5. William Glaberson (September 12, 2007). "Officials Cite Danger in Revealing Detainee Data"(http://www.nytimes.com/2007/09/12/washington/12gitmo.html?ref=todayspaper). New York Times. p. A18.Retrieved 2007-09-12.

6. James Vicini (June 23, 2008). "Appeals court rules for Guantanamo prisoner"(http://www.washingtonpost.com/wp-dyn/content/article/2008/06/23/AR2008062300844.html). WashingtonPost. Retrieved 2008-06-23. mirror (http://www.webcitation.org/query?url=http%3A%2F%2Fwww.washingtonpost.com%2Fwp-dyn%2Fcontent%2Farticle%2F2008%2F06%2F23%2FAR2008062300844.html&date=2008-06-23)

7. "In first, court rejects military's ruling in Guantanamo case"(http://www.mcclatchydc.com/homepage/story/41907.html). McClatchy News Service. June 23, 2008. Retrieved2008-06-23.

8. "US appeals court rejects classification of Chinese Muslim as an enemy combatant"(http://www.iht.com/articles/ap/2008/06/23/america/NA-GEN-US-Guantanamo-Chinese-Muslim.php).International Herald Tribune. June 23, 2008. Retrieved 2008-06-23.

9. Mike Nizza (2008-06-30). "Snark Injection for Guantanamo Trial"(http://thelede.blogs.nytimes.com/2008/06/30/snark-injection-for-guantanamo-trial/?hp). New York Times.Retrieved 2008-06-30.

10. Merrick B. Garland (2008-06-30). "Huzaifa Parhat v. Gates"(http://pacer.cadc.uscourts.gov/common/opinions/200806/06-1397-1124487.pdf) (PDF). United StatesDepartment of Justice. Retrieved 2008-06-30.

11. William Glaberson (2008-06-30). "Court Is Skeptical of U.S. Evidence in Guantánamo Case"(http://www.nytimes.com/2008/07/01/washington/01gitmo.html?hp). New York Times. Retrieved 2008-06-30.

Retrieved from "http://en.wikipedia.org/w/index.php?title=Parhat_v._Gates&oldid=661042692"

Categories: United States habeas corpus case law109

United States Court of Appeals for the District of Columbia Circuit cases 2008 in United States case lawGuantanamo captives' habeas corpus petitions United States case law stubs


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Prize Cases

Supreme Court of the United StatesArgued February 10, 1863Decided March 10, 1863

Full casename

The Brig Amy Warwick; The SchoonerCrenshaw; The Barque Hiawatha; TheSchooner Brilliante.

Citations 67 U.S. 635(https://supreme.justia.com/us/67/635/case.html)(more)17 L. Ed. 459, 2 Black 635, 1862 U.S. LEXIS282

HoldingThe President did have the authority to order a blockadeand impound ships, even without a formal declaration of

warCourt membership

Chief JusticeRoger B. Taney

Associate JusticesJames M. Wayne · John Catron

Samuel Nelson · Robert C. GrierNathan Clifford · Noah H. Swayne

Samuel F. Miller · David DavisCase opinions

Majority Grier, joined by Wayne, Swayne, Miller, DavisDissent Nelson, joined by Clifford, Catron, Taney

Laws appliedArticle II of the United States Constitution, Law of the Sea

Prize CasesFrom Wikipedia, the free encyclopedia

Prize Cases (1863) – 67 U.S. 635[1] – was a caseargued before the Supreme Court of the UnitedStates in 1862 during the American Civil War. TheSupreme Court's decision declared constitutionalthe blockade of the Southern ports ordered byPresident Abraham Lincoln. The opinion in thecase was written by Supreme Court Justice RobertCooper Grier.

Contents1 Background2 Decision3 Dissent by Justice Nelson4 Conclusion5 See also6 References7 External links

BackgroundFacing the secession of several states from theUnion and the possibility of open hostilities,Abraham Lincoln did not ask Congress to declarewar on the Confederate States of America as hebelieved this would be tantamount to recognizingthe Confederacy as a nation. Instead, Lincolninstituted a naval blockade which had importantlegal ramifications because nations do not blockadetheir own ports; rather, they close them. Byordering a blockade, Lincoln essentially declaredthe Confederacy to be belligerents instead ofinsurrectionists.

The Confederate States were mostly agrarian, and almost all of their machined and manufactured goodswere imported. At the beginning of the war there was only one significant steel mill and manufactory in theSouth, the Tredegar Iron Works in Richmond, Virginia. Moreover, the Southern economy depended on theexport of cotton, tobacco and other crops. The blockade of the South resulted in the capture of dozens ofAmerican and foreign ships, both those attempting to run the highly efficient blockade and smuggle goodsand munitions to the South as well as those attempting to smuggle exports from the South.

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DecisionThe question before the court dealt with the seized ships, but it reached widely into the legality of warsagainst acts of belligerence, whether or not officially declared. It rose through the lower Federal courtsthrough lawsuits by Northern merchants whose ships were seized by U.S. Navy warships enforcing theblockade. In admiralty, a ship captured during war may be kept as a prize. If there is no formal war,capturing ships and impounding them is piracy. Plaintiffs contended that the blockade was not legal becausea war had not been declared, thus making it perfectly legal to run the blockade and sell war materiel in theblockaded Southern ports. On March 10, 1863, the Court ruled that the states of the Southern Confederacywere in insurrection and at war against the United States by acts of belligerency on April 12 and April 17,1861, to wit: the firing upon Fort Sumter and the Privateering Act proclaimed by Confederate PresidentJefferson Davis. Lincoln's Proclamation of Blockade was made on April 19, 1861, [Navy Official Records,Series 1, Volume 5, page 620] two days after Davis's call for privateers and it was founded upon actingagainst privateers, not an open policy of warfare as was later recommended by the ranking General of theArmy, Winfield Scott.

In making its decision, the Court looked to recent British interpretations of international law, and concludedthat the Southern Confederacy was indeed a belligerent, but a belligerent did not have to be a nation andfurthermore that the name of the war was irrelevant. Justice Robert Grier wrote the 5-4 majority opinionstating, "...it is not necessary to constitute war, that both parties should be acknowledged as independentnations or sovereign States." While the court acknowledged that the United States Congress had, in July1861, adopted a law ratifying and approving the President's proclamation after the fact, as well as otheractions taken since then to prosecute the war, that was not the point. Grier further wrote, "...The Presidentwas bound to meet it [the war] in the shape it presented itself, without waiting for Congress to baptize itwith a name." By this decision, the Supreme Court upheld the President's executive powers to act inaccordance with the Presidential oath of office, "to preserve, protect and defend the Constitution of theUnited States" and to act expediently as the Commander-in-Chief in time of war—a de facto war existingsince April 12, 1861.

Dissent by Justice NelsonThe dissenting opinion by the Court noted that the President is not given authority by the Constitution todeclare war; the power to declare war lies with Congress. The Civil War did not exist until it was declaredso by Congress. Lincoln ordered the blockade before Congress had declared a war. As such, Nelson and theminority believed that the blockade was unconstitutional. They further contend that even had Lincoln beengranted the authority for the blockade, he would need to provide the neutral parties with a proper notice ofseizure.

ConclusionThe Supreme Court found the decision by President Lincoln to impose a blockade to be constitutional.


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Referenceshttp://supreme.justia.com/us/67/635/case.html

External links Works related to Prize Cases at Wikisource

^ 67 U.S. 635 (http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=67&page=635) Full text of the opinion courtesy of Findlaw.com.Oyez Official Supreme Court media, summary of The Prize Cases, and link to written opinion.(http://www.oyez.org/cases/1851-1900/1862/1862_0/)Legal Information Institute Dissent by Justice Nelson(http://www.law.cornell.edu/supct/html/historics/USSC_CR_0067_0635_ZD.html)

Retrieved from "http://en.wikipedia.org/w/index.php?title=Prize_Cases&oldid=656957676"

Categories: United States Supreme Court cases United States admiralty case law1862 in United States case law United States Supreme Court cases of the Taney Court

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Reid v. Covert

Supreme Court of the United StatesArgued May 3, 1956

Reargued February 27, 1957Decided June 10, 1957

Full casename

Reid, Superintendent, District of Columbia Jailv. Clarice Covert

Citations 354 U.S. 1(https://supreme.justia.com/us/354/1/case.html)(more)77 S. Ct. 1222; 1 L. Ed. 2d 1148; 1957 U.S.LEXIS 729

HoldingThe Constitution supersedes all treaties ratified by the UnitedStates Senate. The military may not try the civilian wife of a

soldier under military jurisdiction.Court membership

Chief JusticeEarl Warren

Associate JusticesHugo Black · Felix Frankfurter

William O. Douglas · Harold H. BurtonTom C. Clark · John M. Harlan II

William J. Brennan, Jr. · Charles E. WhittakerCase opinions

Plurality Black, joined by Warren, Douglas, BrennanConcurrence FrankfurterConcurrence HarlanDissent Clark, joined by Burton

Whittaker took no part in the consideration or decision of the case.

Laws appliedU.S. Const. Art. VI

Reid v. CovertFrom Wikipedia, the free encyclopedia

Reid v. Covert, 354 U.S. 1 (1957), was alandmark United States Supreme Court case inwhich the Court ruled that the Constitutionsupersedes international treaties ratified by theUnited States Senate. According to the decision,"this Court has regularly and uniformlyrecognized the supremacy of the Constitutionover a treaty," although the case itself was withregard to an executive agreement, not a "treaty"in the U.S. legal sense, and the agreement itselfhas never been ruled unconstitutional.

Contents1 Background2 Opinion of the Court3 See also4 References5 Further reading6 External links

BackgroundThe case involved Clarice Covert, who had beenconvicted by a military tribunal of murdering herhusband. At the time of Mrs. Covert's allegedoffense, an executive agreement was in effectbetween the United States and United Kingdomwhich permitted United States' military courts toexercise exclusive jurisdiction over offensescommitted in Great Britain by Americanservicemen or their dependents.

Opinion of the CourtThe Court found: "No agreement with a foreignnation can confer power on the Congress, or onany other branch of Government, which is free from the restraints of the Constitution." The Court's coreholding of the case is that U.S. Citizen civilians abroad have the right to Fifth Amendment and SixthAmendment constitutional protections.

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The Court found it unconstitutional to adjudge U.S. citizen civilians in military courts, under the UCMJ.

The Court agreed with the petitioners, concluding that as United States citizens they were entitled to theprotections of the Bill of Rights, notwithstanding that they committed crimes on foreign soil. The Courtdistinguished Reid from the Insular Cases: The "Insular Cases" can be distinguished from the present casesin that they involved the power of Congress to provide rules and regulations to govern temporarilyterritories with wholly dissimilar traditions and institutions.[1]

Justice Black declared: "The concept that the Bill of Rights and other constitutional protections againstarbitrary government are inoperative when they become inconvenient or when expediency dictatesotherwise is a very dangerous doctrine and if allowed to flourish would destroy the benefit of a writtenConstitution and undermine the basis of our government."[1]

Justice Harlan's concurrence reaffirmed the application of Fifth Amendment and Sixth Amendment rights ofdependents of armed services members.

The court initially ruled against Mrs. Covert, but changed its mind and issued a new decision in her favorafter her lawyer, Frederick Bernays Wiener, famously made a successful petition for rehearing. This is theonly time the Supreme Court has changed its mind as the result of a petition for rehearing.[2]

See alsoBotiller v. DominguezWilson v. Girard

References1. Reid v. Covert (http://www.law.cornell.edu/supct/html/historics/USSC_CR_0354_0001_ZO.html), SUPREME

COURT OF THE UNITED STATES, retrieved 2013-09-262. Reid v. Covert (http://www.oyez.org/cases/1950-1959/1955/1955_701_2), The Oyez Protect at IIT Chicago-Kent

College of Law, retrieved 2013-11-22

Further readingGreen, Sedgwick W. (1958). "The Treaty Making Power and the Extraterritorial Effect of theConstitution: Reid v. Covert and the Girard" (http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/mnlr42&div=43&id=&page=). Minnesota Law Review 42:825.

External links Works related to Reid v. Covert at Wikisource

Reid v. Covert, 354 U.S. 1 (https://supreme.justia.com/cases/federal/us/354/1/) (1957).

Retrieved from "http://en.wikipedia.org/w/index.php?title=Reid_v._Covert&oldid=644778280"115

Categories: 1957 in United States case law United States Supreme Court casesUnited States foreign relations case law United States Supreme Court cases of the Warren Court


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Rumsfeld v. Padilla

Supreme Court of the United StatesArgued April 28, 2004Decided June 28, 2004

Full casename

Donald H. Rumsfeld, Secretary ofDefense, Petitioner v. José Padillaand Donna R. Newman, as NextFriend of José Padilla

Citations 542 U.S. 426 (more)124 S. Ct. 2711; 159 L. Ed. 2d 513;2004 U.S. LEXIS 4759; 72 U.S.L.W.4584; 2004 Fla. L. Weekly Fed. S466

Prior history On writ of certiorari to the UnitedStates Court of Appeals for theSecond Circuit. Padilla v. Rumsfeld,352 F.3d 695, 2003 U.S. App.LEXIS 25616 (2d Cir. N.Y., 2003)

Subsequenthistory

Remanded for entry of an order ofdismissal without prejudice, Padillav. Hanft, 2005 U.S. Dist. LEXIS2921 (D.S.C., Feb. 28, 2005)

HoldingHabeas corpus petition had been improperly filed inthe U.S. District Court for the Southern District ofNew York, and should have been filed in the U.S.District Court for the District of South Carolina;petition should have named Padilla's immediate

custodian, not the Secretary of Defense.Court membership

Chief JusticeWilliam RehnquistAssociate Justices

John P. Stevens · Sandra Day O'ConnorAntonin Scalia · Anthony Kennedy

David Souter · Clarence ThomasRuth Bader Ginsburg · Stephen Breyer

Case opinions

Rumsfeld v. PadillaFrom Wikipedia, the free encyclopedia

Rumsfeld v. Padilla, 542 U.S. 426(https://supreme.justia.com/cases/federal/us/542/426/)(2004), was a United States Supreme Court case, in whichJosé Padilla, an American citizen, sought habeas corpusrelief against Secretary of Defense Donald Rumsfeld, as aresult of his detention by the military as an "unlawfulcombatant."

On May 8, 2002, Padilla, a U.S. citizen, flew fromPakistan to Chicago's O'Hare International Airport. As heleft the plane, Padilla was apprehended by federal agentsexecuting a material witness warrant issued by the UnitedStates District Court for the Southern District of NewYork in connection with its grand jury investigation intothe September 11th attacks by terrorists. Initially Padillawas considered a "material witness," without chargesfiled, and given very limited access to legal counsel. Hewas later classified as an "enemy combatant," which, theBush administration claimed as justification to imprisonhim indefinitely, and without legal recourse or access, aswith non-citizen suspects in the war on terror.

Padilla's attorney, Donna Newman, claiming to act as hisnext friend and on his behalf, filed a petition for habeascorpus in the United States District Court for theSouthern District of New York. On December 4, 2002,the court denied the petition and held that the President ofthe United States, as Commander-in-Chief had theauthority to designate as an "enemy combatant" anAmerican citizen captured on American soil, and, throughthe Secretary of Defense, to detain him for the duration ofarmed conflict with al-Qaida.

The case was appealed to the United States Court ofAppeals for the Second Circuit, which held that thePresident lacked the authority to order the militarydetentions of American citizens captured on Americansoil.

The case was petitioned to the United States SupremeCourt. The principal issue before the Court was whetherthe Congressional Authorization for Use of MilitaryForce post September 11 gave the president the powers todetain a United States citizen under military custody byclassifying the detainee as an "enemy combatant." 117

Majority Rehnquist, joined by O'Connor,Scalia, Kennedy, Thomas

Concurrence Kennedy, joined by O'ConnorDissent Stevens, joined by Souter, Ginsburg,

BreyerLaws applied

U.S. Const. art. II, U.S. Const. amend. V; 18U.S.C. § 4001

(http://www.law.cornell.edu/uscode/18/4001.html);115 Stat. 224 (Authorization for Use of Military

Force)

Otherwise, the president would run afoul of the Non-Detention Act, which provides that "No citizen shall beimprisoned or otherwise detained by the United Statesexcept pursuant to an Act of Congress.[1]

The Court did not decide this issue. Instead, the Courtheld that the habeas corpus petition had been improperlyfiled. It ruled that because Padilla was being held in a brig(military prison) in South Carolina, the petition shouldhave been filed in the United States District Court for theDistrict of South Carolina and should have named thecommander of the brig and not the Secretary of Defense (because the brig commander was Padilla's"immediate custodian"). The Court reversed the decision of the United States Court of Appeals for theSecond Circuit and remanded the case for dismissal without prejudice - that is, it overruled the Court ofAppeals decision and ordered the dismissal of the case, allowing Padilla to refile the petition. Thus theprincipal issue of the case had not been resolved.

Paul Clement, Principal Deputy Solicitor General at the time, gave oral argument for the United States(Rumsfeld); Jennifer Martinez, a law professor and human rights lawyer, gave oral argument on behalf ofPadilla and Newman.

Contents1 Background2 Supreme Court Cases3 See also4 References5 External links

BackgroundThe case was argued only two days before the Abu Ghraib prison abuse scandal was first shown to thegeneral public in a The New Yorker article by Seymour M. Hersh (April 30), which showed digital photostaken by guards. The story was subsequently taken up by CBS and broadcast on nationwide television.

The timing of the two events is relevant for understanding political context —before the publicizing ofincriminating photographs of abused Iraqi detainees, the United States was largely dominated by a politicalclimate wherein the charge of abuse was only anecdotal —it was weighed lightly as compared to appeals fornational security. Still, the rendered decision came after news of the scandal broke, and the degree to whichthe Abu Ghraib case had influence is speculative.

During the oral argument, Justice Ruth Bader Ginsburg asked some pointed questions of Clement — someof which directly treated the issue of abuse. An important dialogue features a comment by Deputy SolicitorGeneral Paul Clement which denies the claim that the United States uses torture:

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Justice GinsburgSuppose the executive says mild torture, we think, will help get this information. It's not a soldier whodoes something against the Code of Military Justice, but it's an executive command. Some systems dothat to get information.

ClementWell, our executive doesn't. And I think, I mean...

Justice GinsburgWhat's constraining? That's the point. Is it just up to the good will of the executive, or is there anyjudicial check?

Supreme Court CasesEx Parte MilliganEx Parte QuirinJohnson v. EisentragerHamdi v. RumsfeldRasul v. Bush

See alsoList of United States Supreme Court cases, volume 542List of United States Supreme Court cases

References1. 18 U.S.C. § 4001 (http://www.law.cornell.edu/uscode/18/4001.html)

External linksRumsfeld v. Padilla(http://www.law.duke.edu/publiclaw/supremecourtonline/certgrants/2003/rumvpad.html), U.S.Supreme Court DecisionAbstract (http://www.oyez.org/oyez/resource/case/1730/) (OYEZ)Oral argument (http://www.oyez.org/oyez/audio/1730/argument.smil) in RealMedia format (OYEZ)Tatler blog entry (http://tatler.typepad.com/tatler/2004/05/rumsfeld_v_padi.html) noting the issue'sconnection to Abu Ghraib

Retrieved from "http://en.wikipedia.org/w/index.php?title=Rumsfeld_v._Padilla&oldid=660295393"

Categories: Extrajudicial prisoners of the United States United States Supreme Court cases2004 in United States case law American Civil Liberties Union litigationUnited States Supreme Court cases of the Rehnquist Court United States Fifth Amendment case law

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Sami Al-ArianBorn January 14, 1958

Kuwait

Ethnicity Palestinian

Alma mater Southern Illinois UniversityNorth Carolina State University

Occupation Professor of computer engineering

Employer University of South Florida

Religion Islam

Spouse(s) Nahla Al-Najjar

Children AbdullahLailaLeenaAliLama

Parent(s) Amin;Laila

Sami Al-ArianFrom Wikipedia, the free encyclopedia

Sami Amin Al-Arian (Arabic: أ�� ا��ن �� ; bornJanuary 14, 1958) is a Palestinian-American civil rightsactivist who was a computer engineering professor atUniversity of South Florida. He pled guilty in 2006 toconspiracy to contribute services to or for the benefit ofthe Palestine Islamic Jihad, a Specially DesignatedTerrorist organization.[1][2]

He was indicted in 2003 on multiple counts related tosupporting a Palestinian group on the State Department'sterrorist list. At his trial the jury acquitted on 8 of 17counts, and deadlocked on the remaining 9 counts. Hethen pleaded guilty in 2006, pursuant to a plea agreement,to conspiracy to help a "specially designated terrorist"organization, the Palestinian Islamic Jihad.[1][3][4] Al-Arian was sentenced to 57 months in prison, given creditfor time served, and ordered deported following hisprison term.[3] He was to serve the balance of 19 months.

In November 2006, because he refused to testify before afederal grand jury after the court held that he had no legalbasis for his refusal, he was held in civil contempt andimprisoned for his contempt of court by a Virginia districtcourt judge.[5] He served 13 months in prison for his civil contempt, until the court lifted its contempt orderin December 2007.[5]

In 2007 and 2008, the United States Department of Justice subpoenaed Al-Arian to testify before a grandjury. He again refused to testify, and prosecutors charged him with criminal contempt in June 2008.[6][7] InSeptember 2008, Al-Arian was released from detention on bond.[8] He remained under house arrest, as heawaited a trial on criminal contempt charges.[9][10]

He was deported to Turkey on February 4, 2015.[11]

Contents1 Early life and education

1.1 Kuwait and Egypt1.2 United States

2 Tenured at University of South Florida3 Activism

3.1 Community involvement and WISE121

3.1 Community involvement and WISE3.2 Emerson film and investigation3.3 Citizenship3.4 Mazen Al-Najjar3.5 Political involvement

4 O'Reilly controversy4.1 Television interview4.2 Academic freedom4.3 Loftus debacle

5 Indictment and acquittal5.1 Indictment5.2 Trial5.3 Plea agreement5.4 Sentencing

6 Civil and criminal contempt prosecutions; 2006–present6.1 Grand jury subpoenas, refusal to testify, civil contempt, and hunger strikes6.2 Criminal contempt proceedings; house arrest; deportation

7 Personal life7.1 Film

8 Notes9 See also10 References11 External links

Early life and education

Kuwait and Egypt

Al-Arian was born on January 14, 1958 in Kuwait. His parents, Amin and Laila Al-Arian, were Palestinianrefugees after the creation of Israel in 1948.[12][13] After the 1948 Palestine war, Amin had to leave behindthe family soap factory in Jaffa and flee towards the Gaza Strip's refugee camps.[14] Amin's family migratedto Kuwait in 1957 where Sami Al-Arian was born.[14] Under Kuwaiti law, his parents had legal residentstatus but he was not eligible for citizenship.[15] In 1966, his family was expelled from Kuwait after refusingto become informants for Kuwaiti intelligence.[13] He received his primary and secondary education atCairo, Egypt.[15][16] During the early 1970s, Sami learned English from American TV shows, includingKojak, Starsky and Hutch, Baretta, and The Fugitive.[14] He left Egypt in 1975, and returned in 1979 for avisit when he married Nahla Al-Najjar.[15]

United States

Amin Al-Arian used all of his life savings to send Sami to America for an education.[14] In 1975, Al-Ariancame to the United States to study engineering at Southern Illinois University.[17] In 1978, he graduatedwith a major in Electrical Sciences and Systems Engineering.[18] At North Carolina State University, he

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earned his master's degree in 1980 and doctorate in 1985.[15][18]

Tenured at University of South FloridaHe moved to Temple Terrace after he was hired as an assistant professor to teach computer engineering atUniversity of South Florida on January 22, 1986.[15][16][19] He was granted permanent resident status forUnited States in March 1989.[20] He was promoted from an assistant professor to an associate professor withtenure.[15] He received many accolades relating to teaching including the Jerome Krivanek DistinguishedTeacher Award in 1993 and a salary raise based on merit grades via the Teaching Incentive Program in1994.[15]

Activism

Community involvement and WISE

He was very involved in the local community. He served as an imam for a local mosque and as a charterofficer for the local religious school.[14][15] In 1992, he hosted a local cable-access show — Peace be uponyou.[14]

He rose to national prominence for his pursuit of civil rights of Muslim-Americans and raising awareness ofthe Palestinian plight. Al-Arian criticized the peace process led by Palestinian Authority president YasserArafat and advocated support for the Palestinian uprisings against Israeli occupation during the 1980s andearly 1990s.[21][22] On October 20, 1988, Al-Arian established the Islamic Concern Project, which includeda committee devoted to raising charity for Palestine.[17][23] In 1990–91, his continued involvement inpromoting dialogue between the West and Middle East[24] led to the creation of World and Islam StudiesEnterprise (WISE), which served as a think tank that promoted public policy initiatives.[15][17] WISE andUniversity of South Florida formally agreed to cooperate on March 11, 1992.[4][15][25] WISE publishedjournals, supported graduate student education, and held seminars between American and Middle Easternscholars.[26]

Emerson film and investigation

Steve Emerson published a controversial film in November 1994 that accused WISE as a terrorist frontorganization which Al-Arian vehemently denied.[27] In May 1995, Michael Fechter of the Tampa Tribuneexpanded on Emerson's film. Fechter's articles were criticized by fellow journalists for instigating bigotrythrough reckless journalism.[26][28] Sami Al-Arian's daughter, Laila Al-Arian, lambasted Emerson and theTribune for publishing photographs of their home, school, and family car.[29] In November 1995, federalagents investigating "violations of perjury and immigration laws" searched Sami Al-Arian's home for sixhours to seize bank statements dating as far back as 1986, airline passes, telephone bills, AAA travel maps,family videotapes, audiotapes, and computer disks.[17][30] A three-month independent inquiry was led byprominent Tampa lawyer and former USF President William Reece Smith that involved hundreds of

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documents and 59 interviews.[31] The investigation reported in May 1996 that there was "no evidence" tosupport the allegation that Al-Arian or WISE supported terrorism.[31] The report went on to conclude thatUniversity of South Florida officials acted appropriately in collaborating with WISE.[31] The 99-page reportwas lauded by USF President Betty Castor for its “comprehensive, thoughtful, and detailed analysis”.[31] InJune 1996, Florida universities Chancellor Charles Reed also said their investigation found no links betweenWISE and terror organizations.[32]

In May 1996, Villanova University canceled a seminar that involved many speakers including Al-Arianafter the Anti-Defamation League (ADL) complained about the possibility of riots.[21] The Middle EastStudies Association of North America (MESA), the United States's largest association of Middle Eastscholars, approved a resolution that rebuked ADL for "creating an atmosphere of intimidation that resultedin the cancellation of an academic event".[33] USF placed Al-Arian on paid administrative leave in May1996 pending the outcome of a federal investigation which had an indefinite time frame.[17] Studentscomplained in August 1997 after a graduation requirement course taught by Al-Arian was cancelled.[34]

After consultation with authorities who brought no charges after a three-year federal investigation,[35] USFdecided to reinstate him in August 1998.[36]

Citizenship

He applied for U.S. citizenship in January 1994. Although he was informed that he passed all of therequirements to obtain citizenship in September 1994, he was neither granted nor denied citizenship. Federallaw requires notification within 120 days after the citizenship examination. In October 1995, he filed suit fora judge to award him citizenship directly.[37] His petition for citizenship was denied in March 1996 underthe pretense of unlawfully voting in a 1994 Hillsborough County local election.[37][38] But a stateinvestigation discovered no discrepancies and vindicated him because voter registration deputies gave Al-Arian the voter registration card via mail to vote in the 1994 local election.[37]

Mazen Al-Najjar

Sami Al-Arian's brother-in-law Mazen Al-Najjar was jailed for nearly five years, accused of having links toPalestinian terrorists.[39] In May 1997, Al-Najjar was incarcerated in Miami, Florida without charge andwas held in jail indefinitely on the basis of secret evidence.[22][40] Although Judge McHugh found Al-Najjarto be a respected member of a community, McHugh denied bail on the basis of secret evidence in May1997.[22] In May 2000, U.S. district judge John A. Leonard ordered a rehearing because Al-Najjar's right todue process had been violated when the government did not cede evidence in order for Al-Najjar to defendhimself.[41][42] During the first day of the rehearing in August 2000, the government called Al-Arian totestify. Several legal analysts and Al-Arian were convinced that Al-Arian, not Al-Najjar, was the focus ofthe Al-Najjar's court case.[43] On the advice of his attorney, Al-Arian cited the 5th Amendment to 99 of 102questions.[41] Because Al-Najjar was a Palestinian born in Gaza during Egyptian control of the region, Al-Najjar essentially had no citizenship anywhere and the allegations that he was connected to terrorists had

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ruined attempts to find a country to take him, his wife, and three young daughters.[42] Al-Najjar wasreleased in December 2000 after a judge ruled the government had no evidence to continue holdinghim.[44][45][notes 1] He overstayed his US student visa, and was deported in August 2002.[39]

Political involvement

Inspired by Al-Najjar's predicament, Al-Arian co-founded the Tampa Bay Coalition for Peace and Justice,which focused on the use of secret evidence and other civil rights issues in Antiterrorism and EffectiveDeath Penalty Act of 1996 and Illegal Immigration Reform and Immigrant Responsibility Act of 1996. In2000, Al-Arian co-founded and led the National Coalition to Protect Political Freedom.[46] Newsweeknamed him as a "premier civil rights activist" for his efforts to repeal the use of secret evidence in trials.[16]

Al-Arian visited the White House four times from 1997 to 2001.[47]

During the 2000 presidential election, Al-Arian contacted Al Gore's campaign and Bush's campaign toaddress the use of secret evidence to detain U.S. citizens without charge.[14] Al-Arian met Bush during acampaign stop at the Florida Strawberry Festival to remonstrate against the Clinton administration's use ofsecret evidence.[48] After presidential debates in which Bush decried the use of secret evidence as a form ofracial profiling against Arab-Americans, Al-Arian began campaigning for Bush as the candidate most likelyto end discrimination.[14] During the White House briefing that announced Bush as the winner of theelection, Al-Arian received a spot in the front row for his voter outreach efforts in Florida.[14] On June 20,2001, Al-Arian joined 160 Muslim-American activists in a White House briefing with Bush senior adviserKarl Rove.[49] But in a separate White House event on June 28, his son Abdullah – a congressional intern –made national headlines when he was escorted out by Secret Service without explanation. Twenty fourMuslim community leaders walked out also to protest Abdullah's ejection.[46][47] The Secret Service laterapologized for the incident citing "confusion by one of its guards".[47] President Bush personally apologizedin a letter to Nahla and thanked the family for their charitable contributions to the Muslim communitiesaround the world.[14]

The Tampa Bay Muslim Alliance (TBMA) and Al-Arian had helped the resettlement of 50 families fleeingfrom the Bosnian War. Al-Arian and other leaders of TBMA condemned the September 11 attacks in theimmediate aftermath. Al-Arian encouraged the nation to pursue those responsible but simultaneouslydiscouraged acts of war that might impact innocent people. He discouraged radio talk show hosts fromspreading hate-filled rhetoric and called for national unity.[50] Al-Arian led the local Muslim community inorganizing a blood drive in solidarity with the victims of September 11.

O'Reilly controversy

Television interview

On September 26, 2001, Al-Arian was invited to appear on The O'Reilly Factor to discuss Arab-Americanreactions to the 9/11 attacks.[14][51] O'Reilly never addressed the reactions of Arab-Americans[14] andconfronted Al-Arian with a 1988 recording of him shouting "death to Israel".[52]

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O'REILLY: In – in 1988, you did a little speaking engagement in Cleveland, and you werequoted as saying, "Jihad is our path. Victory to Islam. Death to Israel. Revolution. Revolutionuntil victory. Rolling to Jerusalem." Did you say that?

AL-ARIAN: Let me just put it into context. When president Bush talked about crusade, weunderstand what he meant here. The Muslim world thought he is going to carry a cross and goinvade the Muslim world and turn them into Christians. We have to understand the context.When you say "Death to Israel," you mean death to occupation, death to apartheid, death tooppression, death to...(sentence interrupted)

O'Reilly ended his interview by calling for the Central Intelligence Agency to shadow Al-Arian. USFspokesman Michael Reich said that "O'Reilly's comments were nothing but speculation."[53] The O'Reillyinterview caused Al-Arian to receive death threats from throughout the country.[54]

Academic freedom

In October 2001, USF president Judy Genshaft placed Al-Arian on paid administrative leave and prohibitedAl-Arian from entering USF property because she believed Al-Arian's presence would compromise campussecurity.[55][56] During winter recess when students and faculty were on leave in December 2001, Genshaftand the USF Board of Trustees declared their intention to fire Al-Arian from teaching at USF because ofacademic disruption and problems for campus safety. The Faculty Senate President Gregory Pavezacondemned the intention to fire as underhanded because the professors did not have their voices heard.[57]

The faculty adviser to the Board of Trustees resigned in protest of the firing.[58] The Faculty Senate held anemergency meeting in January 2002 in which they approved by wide majorities a resolution that condemnedthe firing as an assault to academic freedom.[14][59] United Faculty of Florida, the faculty union representingUSF professors, voted to throw its full support behind Al-Arian and condemned the university forexaggerating security concerns.[60]

CNN did an interview with Al-Arian in January 2002 in which Al-Arian accused the university of allowingthose who make death threats dictate the limits of academic freedom.[61] Florida Governor Jeb Bush enteredinto the fray when he offered support for Genshaft's decision for Al-Arian's dismissal.[62] An editorial fromthe The New York Times criticized Bush and the university's handling of the case as an affront to freedom ofspeech.[63] In late January, several student organizations at USF rallied on campus to protest Genshaft'sfiring of Al-Arian.[64] At the Unitarian Universalist Fellowship in Lakeland in February 2002, Al-Ariandiscussed the history of the Israeli-Palestinian conflict and answered questions from the communityregarding his USF quandary.[65] Roy Weatherford, the President of the USF Faculty Union, lambasted thedecision to fire Al-Arian in front of Genshaft in a faculty summit in March 2002.[66] Following the summit,the American Association of University Professors (AAUP) revealed that it was conducting an investigationon Genshaft to determine if she had violated academic freedom.[66] In late April 2002, AAUP investigatorsreported that Genshaft was wavering on her decision to fire Al-Arian, especially if the university was

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officially censured. AAUP investigators went on to conclude that Genshaft's decision to place Al-Arian onpaid administrative leave rather than suspension reflected her lack of faith in legal advice that green-lightedAl-Arian's firing. USF denied the report and denied that AAUP's decision for censure would factor in Al-Arian's firing.[67]

The largest national teacher's union, American Federation of Teachers, called on Genshaft in July 2002 toprotect academic freedom by the reinstatement of Al-Arian.[68] AAUP's investigating committee determinedUSF's premise for Al-Arian's removal was "insubstantial" and cited "grave issues of academic freedom anddue process". Civil libertarians and professors nationwide condemned USF for willingly capitulating topost-9/11 hysteria.[14] Former Central Intelligence Agency (CIA) agent Vincent Cannistraro publiclyrebuked allegations against Al-Arian and testified in a civil disposition that Al-Arian had no ties to illegalorganizations.[14][69]

The investments of the Genshaft Family Foundation (GFF) in corporate bonds of the IndustrialDevelopment Bank of Israel came under scrutiny in September 2002. Several internet petitions also citedGenshaft's Jewish faith to raise support against Al-Arian. Genshaft denied knowing about the corporatebonds and said her decisions were neither affected by her investments nor her religion in the Al Ariancase.[70] John Esposito, a prominent scholar of Middle East, cancelled his USF speech in October 2002 toprotest Genshaft's contraventions on academic freedom.[71]

Because Genshaft feared the punitive lawsuits if she fired Al-Arian, Genshaft continued to pursue the Al-Arian's dismissal through an unusual step in which she asked Hillsborough Circuit Court to determinewhether firing Al-Arian would violate Al-Arian's First Amendment rights.[72] District Court judge SusanBucklew dismissed Genshaft's case in December 2002. After Al-Arian filed a grievance contending thatGenshaft broke the union contract by disciplining Al-Arian, Genshaft reversed course and affirmed Al-Arian was never disciplined.[73] But a week after a federal indictment on Al-Arian, Genshaft fired him onFebruary 27, 2003 by using the indictment as legal cover to protect the university from any ensuinglawsuit.[74]

Loftus debacle

In March 2002, John Loftus compounded on O'Reilly's accusations by citing anonymous sources and filinga lawsuit that claimed Al-Arian used state-regulated organizations to launder money.[75] Al-Arian's defenseteam derided the lawsuit as a publicity seeking stunt and suggested Loftus needed mental treatment.[76][77]

Loftus's lawsuit was summarily dismissed by the judge for failing to adequately show how Loftus waspersonally injured by Al-Arian's alleged activities.[76]

Indictment and acquittal

Indictment

After one of the Justice Department's longest-running and most controversial terrorism investigations,federal prosecutors filed an indictment on February 21, 2003 which charged Al-Arian with racketeering forPalestine Islamic Jihad (PIJ). Al-Arian was indicted with co-defendants Ghassan Ballut, Hatim Fariz, and

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Sameeh Hammoudeh.[78] Attorney General John Ashcroft hailed the vastly expanded powers of the PatriotAct as fundamental to the indictment. Arab American groups condemned the indictment as persecution forAl-Arian's advocacy of Palestinian causes.[79] Local community activists, Iraq war protesters, and Muslim-Americans held demonstrations regularly on Al-Arian's affair in the weeks following the indictment.[80] Al-Arian labeled his arrest a consequence of post-9/11 hysteria at a public pronouncement in front of acourthouse rally by his supporters.[81]

Trial

Al-Arian's five-month, 13-day trial began with frenzied attention from national media outlets. Theprosecution's case was built largely on FBI wiretaps and fax transmissions gathered between 1994 and thetime of Mr. Al-Arian's arrest in 2003. The surveillance included roughly 20,000 hours of dialogue from472,000 wiretapped telephone conversations on 18 tapped lines gathered from 1994 to 2003.[82] While suchwiretaps taken by the intelligence arm of the FBI are usually kept secret from federal criminal investigators,provisions in the Patriot Act and the Foreign Intelligence Surveillance Act allow their use in certain trialsdealing with terrorism.[83] At the end of the prosecution's case, Al-Arian's lawyers chose not to present anywitnesses in his defense and rested without offering a defense, hoping to leave the burden of proof squarelyon the government's shoulders.[84] The trial concluded in November 2005. After 13 days of deliberations,the jury acquitted Al-Arian in December on 8 of 17 counts and deadlocked on the remaining nine. Two co-defendants were acquitted of all charges and another co-defendant was also acquitted on majority of hischarges.[85] The verdict was seen as a major embarrassment to the government's prosecution and to thePatriot Act.[86]

At trial, the prosecution accused Al-Arian of aiding Palestine Islamic Jihad (PIJ), which the Clintonadministration issued an executive order declaring the PIJ a "specially designated terrorist" organization in1995. The executive order barred "making or receiving contributions, funds, goods or services" to benefitthe PIJ, and outlawed actions designed to evade the ban. Federal prosecutors presented several transcripts ofphone conversations and fax exchanges that Al-Arian had with PIJ leaders before such communicationsbecame illegal in 1995. None involved any discussion of an attack against the U.S. or reflected advanceknowledge of attacks in the Middle East.[4]

FBI agent Kerry Myers testified that the PIJ had planned an attack inside the U.S., but that all informationabout the plot was classified and he could not discuss it. Under cross-examination, Myers admitted that thePIJ had never carried out an attack outside Israel and the occupied territories.[87]

In April 2005, the faculty union United Faculty of Florida passed resolutions to send a representative to Al-Arian's trial and to express support for Al-Arian's constitutional right to a fair trial with fair treatment ofprisoners.[88]

Plea agreement

On February 28, 2006, Al-Arian signed a plea agreement in which he agreed to plead guilty to one count ofconspiracy to contribute services to or for the benefit of the PIJ, a Specially Designated Terroristorganization, in violation of 18 U.S.C. § 371.[1][89] In return, the U.S. Attorney: a) agreed to dismiss the

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other eight remaining charges in the superseding indictment; b) agreed not to charge Al-Arian with anyother crimes known to the government at the time of the execution of the agreement; c) agreed not to enterany recommendation as to the imposition or amount of a fine; d) agreed with Al-Arian that an appropriatesentence would be 46–57 months in prison; and e) covenanted that if no adverse information were receivedsuggesting such a recommendation to be unwarranted, the U.S. would recommend that Al-Arian receive asentence "at the low end of the applicable guideline range, as calculated by the Court".[1] As part of the deal,Al-Arian agreed to be deported once his prison sentence ended.[1][90] The plea agreement provided that itwas "limited to the Office of the United States Attorney for the Middle District of Florida and theCounterterrorism Section of the Department of Justice, and cannot bind other federal, state, or localprosecuting authorities."[1][5] It also provided that it "constitutes the entire agreement between thegovernment and [Al-Arian] ... and no other promises, agreements, or representations exist or have beenmade to [Al-Arian]".[1][5] The district court judge asked Al-Arian whether he had been promised anythingelse by anyone to induce his guilty plea, and he said that he had not.[5] The plea agreement was unsealedand accepted by Judge James S. Moody on April 17, 2006.[90] The count carried a maximum sentence offive years imprisonment, a $250,000 fine, and three years of supervised release.[1] Al-Arian remained incustody pending his sentencing and deportation. The deal came after 11 years of Federal Bureau ofInvestigation investigations, wiretaps and searches, and three and a half years of trial preparation, time Al-Arian spent in jail, most of it in solitary confinement.[91]

Supporters of Al-Arian said the agreement was reached in part to end his family's suffering and to reunitethem.[92][93]

Sentencing

Judge Moody sentenced al-Arian to the maximum 57 months in prison and three years of supervised releaseon May 1, 2006, and gave him credit for time served.[3] Prosecutors said al-Arian would serve the balanceof 19 months, and then be deported. In his ruling, Moody harshly criticized al-Arian.[94][95] Al-Arian wenton a 62-day hunger strike to protest the ruling.[96]

Amnesty International demanded his immediate release and called for an investigation on his treatment inprison. It deemed his pre-trial detention conditions to be "gratuitously punitive" and "inconsistent withinternational standards for humane treatment".[97] In a 2007 letter to Ashcroft, the human rightsorganization went on to declare that his “unacceptably harsh and punitive” abuse by prison guards was“based, at least in part, on his political background.”[96][98]

Civil and criminal contempt prosecutions; 2006–presentAl-Arian was subpoenaed three times to testify in terrorism-related investigations before Virginia federalgrand juries between 2006 and 2008. Each time, he refused to testify. He challenged the initial subpoena infour different federal courts, each of which held that he was in fact required to testify. He was imprisonedfor 13 months for civil contempt for failing to testify in compliance with the first subpoena. He is awaitingtrial as well for criminal contempt for his failure to testify in compliance with the second and thirdsubpoenas.

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Grand jury subpoenas, refusal to testify, civil contempt, and hunger strikes

In May 2006, the U.S. District Court for the Eastern District of Virginia issued a subpoena to Al-Arian totestify before a federal grand jury in Alexandria, Virginia, in an investigation into the alleged financing ofterror by the Herndon, Virginia-based International Institute of Islamic Thought (IIIT).[5][99] The subpoenawas served on Al-Arian in October 2006.[5] He sought to quash it on the assertion that his plea agreementprevented his being forced to testify before the Virginia grand jury.[5] He said the government had agreedthat he would not be required to cooperate with it in any manner, though that specific agreement was notreflected in the written plea agreement.[5] In a verbal agreement that he says appears in court transcripts,federal prosecutors agreed he would not have to testify in Virginia.[100] Second, Al-Arian also said herefused to testify because he believed "his life would be in danger if he testified."[99] Third, Al-Arianclaimed he has no information that could further the investigation.[99] Fourth, Al-Arian said he would nottestify because he felt IIIT was inappropriately charged.[101] When called before the grand jury on October19, Al-Arian refused to answer questions about IIIT.[102]

A Virginia District Court held that he had no legal basis to refuse to testify. The court held him in civilcontempt, and imprisoned him on November 16, 2006, for contempt of court, with the days served for civilcontempt not counting towards the days of imprisonment he had remaining on his guilty conspiracy plea.[5]

He appealed the Virginia District Court decision to the Fourth Circuit Court of Appeals, which affirmed thelower court's ruling.[5] Thirteen months later, on December 14, 2007, the Virginia District Court lifted itscontempt order, starting the clock ticking again on his days-served on his conspiracy guilty plea sentence.[5]

A Florida District Court also held that the plea agreement was not ambiguous, and did not prevent thegovernment from issuing a subpoena requiring him to testify before a grand jury.[5] Al-Arian, who isdiabetic, began a 60-day hunger strike on January 22, 2007, to "protest continued governmentharassment."[99][103] By March 20, 2007, the 6-foot-tall (1.8 m) Al-Arian had gone from 202 to 149 pounds(92 to 68 kg).[100] Al-Arian appealed the Florida District Court decision to the Eleventh Circuit Court ofAppeals, which upheld the lower court on January 25, 2008.[5] It pointed out that the plea agreement did notcontain any mention of whether Al-Arian would be compelled to testify in front of a grand jury in thefuture.[5] It also noted that the agreement said it reflected all promises and agreements between Al-Arianand the government, and that this accorded with Al-Arian's statement, when questioned by the trial courtjudge, that there were no promises or inducements made to him other than those reflected in the writtenagreement.[5] Furthermore, the court observed that the plea agreement only spoke to the issue of thegovernment prosecuting Al-Arian for crimes known to the office at the time of the agreement, but did notimmunize Al-Arian from future subpoenas.[5] The court therefore held the plea agreement to be clear,unambiguous, and to not grant Al-Arian immunity from the grand jury subpoena.[5] The Justice Departmentissued its third subpoena later that month.[101]

In March 2008 he began another hunger strike, to protest his subpoena.[101] He ended his hunger strike twomonths later.[104] A 2011 NPR report claimed some of the people associated with this case were imprisonedin a highly restrictive Communication Management Unit.[105]

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Criminal contempt proceedings; house arrest; deportation

On June 26, 2008, he was indicted by a grand jury in the Eastern District of Virginia on two counts ofcriminal contempt, for unlawfully and willfully refusing court orders that he testify as a grand jury witnesson October 16, 2007, and March 20, 2008.[106] On September 2, 2008, he was released from custody andput under house arrest at his daughter Laila's residence in Northern Virginia, where he is being monitoredelectronically while he awaits trial on criminal contempt charges.[9][107][108]

At a January 2009 hearing to schedule his trial, his attorneys filed documents saying Al-Arian "didcooperate and answer questions on IIIT" for federal prosecutors. Attorneys alleged Virginia prosecutors are"ultimately not interested in IIIT ... but want to revisit the Tampa trial."[10] In a motion filed on March 4,2009, prosecutors in Virginia acknowledged that when Al-Arian took the plea deal in early 2006,prosecutors in Tampa believed that it exempted him from testifying in other cases.[109] This affirms sworndeclarations submitted to the court by Al-Arian's Florida trial attorneys, Bill Moffitt[110] and LindaMoreno.[111]

On March 9, 2010 Judge Leonie Brinkema postponed the criminal contempt trial, pending a motion bydefense attorneys to dismiss the charges in the case.[112] While under federal law, Al-Arian could not bejailed for more than 18 months for civil contempt, the law does not have a time limit for criminalcontempt.[113] On June 27, 2014 Assistant U.S. Attorney Gordon D. Kromberg moved to dismiss theindictment, but because the case has dragged on so long they decided to drop the case and beginproceedings to deport Al-Arian.[114]

On February 4, 2015 Al-Arian was deported from the United States to Turkey. He was flown on acommercial flight from Dulles International Airport from Fairfax, Virginia to Turkey. In a statementreleased by his former attorney, Jonathan Turley, Al-Arian said in part, "After 40 years, my time in the U.S.has come to an end." He added, “But despite the long and arduous ordeal and hardships suffered by myfamily, I leave with no bitterness or resentment in my heart whatsoever. In fact, I’m very grateful for theopportunities and experiences afforded to me and my family in this country, and for the friendships we’vecultivated over the decades. These are lifelong connections that could never be affected by distance.”.[115]

Personal life

He is married to Nahla Al-Najjar, and they have five children.[25] Nahla was born in 1961.[16] Nahla raised$30,000 per year from 1990 to 1995 for blind and orphaned children in Palestine.[116] His son Abdullah Al-Arian was an intern for U.S. Representative David E. Bonior in 2001.[117] Al-Arian's eldest daughter, LailaAl-Arian, is a producer for Al Jazeera English in Washington, DC, and a freelance journalist and contributorto the Huffington Post[118] and The Nation.[119]

Film

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USA vs. Al-Arian is an award-winning 2007 documentary film by Norwegian director Line Halvorsen aboutAl-Arian and his family during and after his trial from his family's point of view, and a commentary on theU.S. justice system under the Patriot Act.[120][121] The documentary was hosted by two MPs and screened inthe Norwegian parliament.[122]

Notes1. Al-Najjar was again detained in November 2001 by Immigration and Naturalization Service (INS). He was held

in detention officially for overstaying his student visa in the 1980s. His supporters accused the government ofsubverting civil liberties in the wake of the September 11 attacks. Al-Najjar was granted a two-week tourist visaby Bahrain. But en route to Ireland, Bahrain reversed its decision to accept Al-Najjar. After negotiations, Al-Najjar flew to Italy and then landed in Lebanon, which granted him a six-month visitor's visa beginning inAugust 2002.

See alsoSami Al-Arian indictments and trial

References1. "Plea Agreement; U.S. v. Al-Arian" (http://nefafoundation.org/miscellaneous/FeaturedDocs/U.S._v_Al-

Arian_pleaagr.pdf) (PDF). February 28, 2006. Retrieved March 8, 2010.2. U.S. Department of Justice (February 20, 2003). "Members of the Palestinian Islamic Jihad Arrested; Charged

with Racketeering and Conspiracy to Provide Support to Terrorists"(http://nefafoundation.org/miscellaneous/FeaturedDocs/U.S._v_Al-Arian_dojprind.pdf) (PDF). Press Release.Retrieved March 8, 2010.

3. U.S. Department of Justice (May 1, 2006). "Sami Al-Arian Sentenced to 57 Months in Prison for AssistingTerrorist Group" (http://nefafoundation.org/miscellaneous/FeaturedDocs/U.S._v_Al-Arian_dojprsentencing.pdf)(PDF). Press Release. Retrieved March 8, 2010.

4. MegLaughlin, In his plea deal, what did Sami Al-Arian admit to?(http://www.sptimes.com/2006/04/23/Hillsborough/In_his_plea_deal__wha.shtml), St. Petersberg Times, April23, 2006.

5. U.S. Court of Appeals for the Eleventh Circuit (January 25, 2008). "U.S. v. Al-Arian"(http://nefafoundation.org/miscellaneous/FeaturedDocs/U.S._v_Al-Arian_11thcircappeals.pdf) (PDF). Appealfrom the U.S. District Court for the Middle District of Florida. Retrieved March 8, 2010.

6. Al-Arian Gets Federal Subpoena (http://www2.tbo.com/content/2008/mar/04/me-al-arian-gets-federal-subpoena/), Elaine Silvestrini, March 4, 2008.

7. Elaine Silvestrinin, Al-Arian Arraigned On Contempt Charges (http://www2.tbo.com/content/2008/jun/30/al-arian-arraigned-contempt-charges/), Tampa Tribune, June 30, 2008.

8. "BREAKING: Sami Al-Arian Released on Bond – KABOBfest" (http://www.kabobfest.com/2008/09/breaking-sami-al-arian-released-on-bond.html). kabobfest.com.

9. Joseph Goldstein, Al-Arian Is Freed, but More Charges Await (http://www.nysun.com/national/al-arian-is-freed-but-more-charges-await/85081/), New York Sun, September 3, 2008.

10. Judge sets trial for Sami Al-Arian on criminal contempt charge(http://www.tampabay.com/news/courts/criminal/article968358.ece), Tampa Tribune, January 17, 2009.

11. Jodie Tillman, Ex-USF professor Sami al-Arian deported to Turkey(http://www.tampabay.com/news/courts/sami-al-arian-leaves-us-and-goes-to-turkey/2216534), Tampabay.com,February 5, 2015.

12. Debenport, Ellen (March 10, 1991). "Arab-Americans' feelings mixed on postwar hoopla". St. Petersburg Times.132

13. Varian, Bill (February 21, 2003). "Al-Arian's rise in U.S. began in academics"(http://www.sptimes.com/2003/02/21/TampaBay/Al_Arian_s_rise_in_US.shtml). Tampa Bay Times. RetrievedOctober 20, 2012.

14. Leiby, Richard (July 28, 2002). "Talking Out of School; Was an Islamic Professor Exercising His Freedom orPromoting Terror?". The Washington Post.

15. Camp, Paul. "Guide to the Sami Al-Arian Collection, 1986–2007" (http://www.lib.usf.edu/aeon/eads/index.html?eadrequest=true&ead_id=U29-00074-A06). University of South Florida Libraries – Special & DigitalCollections. Retrieved October 21, 2012.

16. Gay, Kathlyn (2011). American Dissidents: An Encyclopedia of Activists, Subversives, and Prisoners ofConscience, Volume 1 (http://books.google.com/books?id=ZzQVpPvlVMcC&pg=PA18&lpg=PA18&dq=sami+al+arian&source=bl&ots=aktiqNd2YS&sig=wu_8AhTRoC3jrsb4TMGony-vID8&hl=en&sa=X&ei=XxGEUN3EGZKK9gT_uIGwCA&ved=0CEkQ6AEwBg#v=onepage&q=sami%20al%20arian&f=false). ABC-CLIO. pp. 17–22. ISBN 1598847643. Retrieved October 20, 2012.

17. "Events in the Sami Al-Arian Investigation" (http://news.google.com/newspapers?id=3wowAAAAIBAJ&sjid=1v0DAAAAIBAJ&pg=4792,8100841&dq=sami+al-arian&hl=en). LakelandLedger. December 21, 2003ev. Retrieved March 11, 2010. Check date values in: |date= (help)

18. "The Strange Trial of Dr. Sami Al-Arian: Controversies around Secret Evidence, Academic Freedom, and FreeSpeech" (http://web.archive.org/web/20110603022134/http://pluralism.org/reports/view/97). The PluralismProject. Harvard University. 2005. Archived from the original (http://www.pluralism.org/reports/view/97) onOctober 20, 2012. Retrieved October 21, 2012.

19. Laughlin, Meg (June 30, 2007). "Al-Arian" (http://www.webcitation.org/query?url=http%3A%2F%2Fwww.sptimes.com%2F2007%2F06%2F30%2FHillsborough%2FAl_Arian_s_wife_bids_.shtml&date=2012-10-21). St. Petersburg Times. Archived from the original(http://www.sptimes.com/2007/06/30/Hillsborough/Al_Arian_s_wife_bids_.shtml) on October 21, 2012.Retrieved October 21, 2012.

20. Mitch Stacy (December 7, 2005). "Fla. ex-professor cleared of some terror charges"(http://www.boston.com/news/nation/articles/2005/12/07/fla_ex_professor_cleared_of_some_terror_charges/).The Boston Globe. Archived (http://www.webcitation.org/query?url=http%3A%2F%2Fwww.boston.com%2Fnews%2Fnation%2Farticles%2F2005%2F12%2F07%2Ffla_ex_professor_cleared_of_some_terror_charges%2F&date=2012-10-21) from the original on October 21, 2012. "The caseagainst Sami al-Arian, 47, had been seen as one of the biggest courtroom tests yet of the Patriot Act's expandedsearch-and-surveillance powers."

21. Harper, James (May 3, 1996). "USF professor's address canceled after threat". St. Petersburg Times.22. Aschoff, Susan (May 7, 2000). "Accused of being suspicious". St. Petersburg Times.23. "University Seeks to Fire Scholar For Reputed Link to Terrorism" (http://www.webcitation.org/query?

url=http%3A%2F%2Fwww.nytimes.com%2F2002%2F08%2F22%2Fus%2Funiversity-seeks-to-fire-scholar-for-reputed-link-to-terrorism.html&date=2012-10-21). New York Times. August 22, 2002. Archived from the original(http://www.nytimes.com/2002/08/22/us/university-seeks-to-fire-scholar-for-reputed-link-to-terrorism.html) onOctober 21, 2012. Retrieved October 21, 2012.

24. Kaufman, Jonathan (October 1, 2001). "In the war of words, a Palestinian professor tests limits of liberty". WallStreet Journal.

25. "Biography: Who is Dr. Sami Al-Arian?" (http://www.freesamialarian.com/index.php?option=com_content&view=article&id=7&Itemid=5). FreeSamiAlArian.com. Archived(http://www.webcitation.org/query?url=http%3A%2F%2Fwww.freesamialarian.com%2Findex.php%3Foption%3Dcom_content%26view%3Darticle%26id%3D7%26Itemid%3D5&date=2012-10-21) from the original on October 21, 2012.

26. Harper, James (November 3, 1995). "Federal agents investigate ex-USF teacher". St. Petersburg Times.27. Rosen, Marty (January 11, 1996). "Anger rises in media debate". St. Petersburg Times.28. Harper, James (November 9, 1995). "E-mail tells little of ex-professor". St. Petersburg Times.29. Rosen, Marty (January 11, 1996). "USF-Muslim stories draw fiery debate". St. Petersburg Times.30. Harper, James (November 21, 1995). "Professor's home, office searched". St. Petersburg Times.31. Harper, James (May 30, 1996). "USF ties to Islamic group cleared". St. Petersburg Times.32. Wheat, Jack (June 2, 1995). "USF Program Probed for Arab Terrorist Link". Miami Herald.133

33. Harper, James (November 28, 1996). "Jewish group rebuked for 'silencing' USF scholar". St. Petersburg Times.34. Aschoff, Susan (St. Petersburg Times). "USF teacher in legal limbo, not class". St. Petersburg Times. Check date

values in: |date= (help);35. Aschoff, Susan (March 14, 1998). "USF consults investigators in plan to reinstate Al-Arian". St. Petersburg

Times.36. Aschoff, Susan (August 26, 1998). "Professor back at USF after suspension". St. Petersburg Times.37. Harper, James (October 25, 1995). "Professor sues over citizenship delay". St. Petersburg Times.38. Sugg, John (April 17, 2006). "Jailed Palestinian Professor Sami Al-Arian to Be Deported After Prosecutors Fail

to Convict Him on a Single Charge"(http://www.democracynow.org/2006/4/17/jailed_palestinian_professor_sami_al_arian). Democracy Now.Retrieved October 21, 2012.

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Press.45. Aschoff, Susan (September 12, 2001). "Tampa's Muslims brace for backlash". St. Petersburg Times.46. Murphy, Caryle (June 29, 2001). "Muslim Leaders Leave White House Briefing; Removal of Intern Leads to

Walkout". The Washington Post.47. Aschoff, Susan (July 29, 2001). "Professor's son ejected from D.C. meeting". St. Petersburg Times.48. Mangan, Dan (February 24, 2003). "White House twist in terror prof's case". The New York Post.49. Stanton, John (June 6, 2005). "Suspected terror financier to highlight ties to Bush, Hill.". CongressDaily: 6.50. Persaud, Babita (September 19, 2001). "Bay area Muslims lament toll of terrorism // Leaders call for justice, not

war". St. Petersburg Times.51. "The Case of Sami al-Arian" (http://www.democracynow.org/2004/7/9/the_case_of_sami_al_arian). Democracy

Now!. July 9, 2004. Retrieved October 28, 2012.52. Transcript: O'Reilly Interviews Al-Arian in September 2001

(http://www.foxnews.com/story/2003/02/20/transcript-oreilly-interviews-al-arian-in-september-2001/). FoxNews. September 26, 2001

53. Lush, Tamara (September 28, 2001). "TV terrorist talk leads USF to address security"(http://www.sptimes.com/News/092801/news_pf/TampaBay/TV_terrorist_talk_lea.shtml). St. Petersburg Times.Retrieved October 29, 2012.

54. Melone, Mary Jo (September 30, 2001). "Where hard evidence is lacking, fear fills the void"(http://www.sptimes.com/News/093001/Columns/Where_hard_evidence_i.shtml). St. Petersburg Times.Retrieved October 29, 2012.

55. "Threats continue after professor leaves". St. Petersburg Times. October 14, 2001.56. Klein, Barry (December 19, 2001). "USF trustees to hear report on Al-Arian". St. Petersburg Times.57. Persaud, Babita (January 1, 2002). "Faculty to discuss Al-Arian firing". St. Petersburg Times.58. Persaud, Babita (January 4, 2002). "Adviser protests Al-Arian decision". St. Petersburg Times.59. Klein, Barry; Babita Persaud (January 10, 2002). "Faculty leaders refuse to back Al-Arian firing". St. Petersburg

Times.60. Persaud, Babita (January 11, 2002). "USF faculty union supports Al-Arian". St. Petersburg Times.61. Ling, Lisa; Diana Muriel (January 14, 2002). "Interview with Sami Al-Arian". CNN.62. Rufty, Bill (February 13, 2002). "Ousted USF Professor Sami Al-Arian to discuss controversy, Islamic issues,

speaking his mind". The Ledger.63. "Protecting Speech on Campus". The New York Times. January 27, 2002.64. Brannon, Rob (January 24, 2002). "U. South Florida students rally for academic freedom". University Wire (The

Oracle).65. Lofty, Bill (February 14, 2002). "Professor defends his beliefs under attack; Al-Arian draws respect for his

courage". The Ledger.66. O'Donnell, Chris (March 8, 2002). "U. South Florida president criticized at lecture". University Wire (The

Oracle). 134

67. Brink, Graham (April 26, 2002). "Investigator: USF chief wavering on Al-Arian's fate". St. Petersburg Times.68. Kumar, Anita (July 9, 2002). "Teachers union urges USF to restore Al-Arian". St. Petersburg Times.69. Brink, Graham (August 20, 2002). "Al-Arian called a jihad founder". St. Petersburg Times.70. Murphy, Chuck (September 14, 2002). "Genshaft allies cite her religion in Al-Arian case"

(http://www.sptimes.com/2002/09/14/TampaBay/Genshaft_allies_cite_.shtml). St. Petersburg Times. RetrievedDecember 25, 2012.

71. Kumar, Anita (September 14, 2002). "USF speech canceled in protest"(http://www.sptimes.com/2002/09/14/TampaBay/USF_speech_canceled_i.shtml). St. Petersburg Times.Retrieved December 25, 2012.

72. Kumar, Anita (October 17, 2002). "Al-Arian asks judge to put USF dispute out of court". St. Petersburg Times.73. Kumar, Anita (January 7, 2003). "Al-Arian files USF grievance". St. Petersburg Times.74. Kumar, Anita (February 27, 2013). "USF fires Al-Arian after terrorism charges". St. Petersburg Times.75. Brink, Graham (March 26, 2002). "Transcript quotes Al-Arian speaking at rallies". St. Petersburg Times.76. Brink, Graham (July 2, 2002). "Suit against Al-Arian filed again". St. Petersburg Times.77. Brannon, Rob (July 8, 2002). "Lawsuit refiled against U. South Florida professor". University Wire (The Oracle).78. Lichtblau, Eric; Judith Miller (January 21, 2003). "Threats and responses: The Money Trail; Indictment ties U.S.

professor to terror group" (http://www.nytimes.com/2003/02/21/us/threats-responses-money-trail-indictment-ties-us-professor-terror-group.html). The New York Times. Retrieved December 27, 2012.

79. Lichtblau, Eric; Judith Miller (February 22, 2003). "Threats and responses: The Professor, Officials Say CaseAgainst professor had been hindered" (http://www.nytimes.com/2003/02/22/world/threats-responses-professor-officials-say-case-against-professor-had-been.html). The New York Times. Retrieved December 29, 2012.

80. Edwards, Bob; Greg Allen (February 28, 2003). "Firing of Professor Sami Al-Arian from the University of SouthFlorida". National Public Radio.

81. La Corte, Rachel (February 25, 2003). "Al-Arian calls self 'prisoner of conscience,' victim of hysteria". TheAssociated Press State & Local Wire.

82. Whoriskey, Peter (December 14, 2005). "Ex-Professor won court case but not his freedom"(http://www.washingtonpost.com/wp-dyn/content/article/2005/12/13/AR2005121301697.html). The WashingtonPost. Retrieved November 30, 2013.

83. "Terrorism trial of ex-professor gets started in Florida". The Chronicle of Higher Education 51 (41). June 17,2005.

84. Gravois, John (December 16, 2005). "Al-Arian Acquitted of 8 Terrorism Charges". The Chronicle Of HigherEducation 52 (17).

85. Meg Laughlin, Jennifer Liberto and Justin George, 8 times, Al-Arian hears 'Not guilty'(http://www.sptimes.com/2005/12/07/Tampabay/8_times__Al_Arian_hea.shtml), St. Petersburg Times,December 7, 2005.

86. Bartlett, Thomas (April 28, 2006). "Al-Arian to Be Deported in Deal With Prosecutors". The Chronicle OfHigher Education 52 (34).

87. Fechter, Michael (August 24, 2005). "Witness: Islamic Jihad Planned Strike In U.S."(http://www.tampatrib.com/FloridaMetro/MGBHQF7YQCE.html). Tampa Bay Tribune (Media General Inc.).Retrieved March 26, 2007.

88. Goodman, Robin (September 1, 2006). "Sami al-Arian, the Politics of Injury, and the Academic Bill of Right".College Literature 33 (4): 113–36. doi:10.1353/lit.2006.0053 (https://dx.doi.org/10.1353%2Flit.2006.0053).

89. "Hillsborough: Plea deal overcame the discord"(http://www.sptimes.com/2006/04/24/Hillsborough/Plea_deal_overcame_th.shtml). Sptimes.com. April 24, 2006.Retrieved March 16, 2010.

90. U.S. Department of Justice (April 17, 2006). "Sami Al-Arian Pleads Guilty to Conspiracy to Provide Services toPalestinian Islamic Jihad" (http://nefafoundation.org/miscellaneous/FeaturedDocs/U.S._v_Al-Arian_dojprguiltyplea.pdf) (PDF). Press Release. Retrieved March 8, 2010.

91. Meg Laughlin,Plea deal overcame the discord(http://www.sptimes.com/2006/04/24/Hillsborough/Plea_deal_overcame_th.shtml), St. Petersburg Times, April24, 2006.

92. Al-Arian gets 18 more months in prison(http://www.sptimes.com/2006/05/01/State/Al_Arian_gets_18_more.shtml), Associated Press, Published May 1,2006 135

93. Al-Arian's plea ends an ordeal; He agreed to a single count of conspiracy to end his family's turmoil, his attorneysays. (http://www.sptimes.com/2006/04/18/Tampabay/Al_Arian_s_plea_ends_.shtml), St. Petersburg Times,April 18, 2006.

94. Steinhauer, Jennifer (May 1, 2006). "Palestinian to Be Imprisoned Before Deportation"(http://www.nytimes.com/2006/05/01/us/01cnd-islamic.html?hp&ex=1146542400&en=19620dd1d723e57c&ei=5094&partner=homepage). The New York Times. RetrievedMarch 9, 2010.

95. "Prof. Gets 18 Months More in Terror Case" (http://www.washingtonpost.com/wp-dyn/content/article/2006/05/01/AR2006050100379.html). washingtonpost.com.

96. "Film review: "USA vs Al-Arian" " (http://electronicintifada.net/content/film-review-usa-vs-al-arian/3529).Institute for Middle East Understanding (The Electronic Intifada). December 4, 2007. Retrieved November 30,2013.

97. "USA: Amnesty International raises concern about prison conditions of Dr Sami Al-Arian | AmnestyInternational"(http://web.archive.org/web/20080711034915/http://web.amnesty.org/library/Index/ENGAMR511102003?open&of=ENG-360). Web.amnesty.org. Archived from the original(http://web.amnesty.org/library/Index/ENGAMR511102003?open&of=ENG-360) on July 11, 2008. RetrievedMarch 16, 2010.

98. Hudson, Audrey (February 20, 2007). "Muslim groups fast for jailed Al-Arian"(http://www.washingtontimes.com/news/2007/feb/20/20070220-105235-9410r/). The Washington Times.Retrieved November 30, 2013.

99. Witness Is Silent in Terror Probe: Ex-Professor Says Grand Jury Testimony Would Endanger Him.(http://www.washingtonpost.com/wp-dyn/content/article/2006/11/13/AR2006111301205.html) Washington Post.November 14, 2006.

100. Gaunt Al-Arian shocks family(http://www.sptimes.com/2007/03/20/Hillsborough/Gaunt_Al_Arian_shocks.shtml) by Meg Laughlin. St.Petersburg Times. March 20, 2007.

101. Fears, Darryl (March 22, 2008). "Refusal Keeps Terrorism Convict in Prison; Former Professor Fights Attemptsto Force His Testimony Against Muslim Charities" (http://www.webcitation.org/query?url=http%3A%2F%2Fwww.washingtonpost.com%2Fwp-dyn%2Fcontent%2Farticle%2F2008%2F03%2F21%2FAR2008032102775.html&date=2012-10-21). TheWashington Post. Archived from the original (http://www.washingtonpost.com/wp-dyn/content/article/2008/03/21/AR2008032102775.html) on October 21, 2012. Retrieved March 9, 2010.

102. "Florida Professer in Prison for Terror Ties on Hunger Strike to Protest 'Harassment' "(http://www.foxnews.com/story/0,2933,246380,00.html). Fox News.

103. Family says inmate's hunger strike not near end. (http://www.wilmingtonstar.com/apps/pbcs.dll/article?AID=/20070217/NEWS/702170359/-1/State) Wilmington Star (NC). February 17, 2007.

104. "Al-Arian Enters 19th Day of Hunger Strike in Protest of "Government Harassment" "(http://www.democracynow.org/2008/3/21/al_arian_enters_19th_day_of). Democracy Now!.

105. DATA & GRAPHICS: Population Of The Communications Management Units(http://www.npr.org/2011/03/03/134227726/data-graphics-population-of-the-communications-management-units), Margot Williams and Alyson Hurt, NPR, 3-3-11, retrieved 2011 03 04 from npr.org

106. U.S. v. Al-Arian, Indictment, U.S. District Court for the Eastern District of Virginia, June 26, 2008, accessedMarch 8, 2010(http://www.nefafoundation.org/miscellaneous/FeaturedDocs/US_v_AlArian_IndictmentContempt.pdf)

107. "Ex-Professor in Palestinian Case Is Freed After 5 Years" (http://www.washingtonpost.com/wp-dyn/content/article/2008/09/02/AR2008090202973.html). washingtonpost.com.

108. Laila Al-Arian, http://www.thenation.com/article/168373/when-your-father-accused-terrorism# When YourFather Is Accused of Terrorism], The Nation, June 13, 2012.

109. Click here to post a comment. "Federal judge says Sami Al-Arian plea deal does matter – St. Petersburg Times"(http://www.tampabay.com/news/courts/criminal/article981644.ece). Tampabay.com. Retrieved March 16, 2010.

110. Administrator. "William B. Moffit Declaration on Plea Deal" (http://www.freesamialarian.com/index.php?option=com_content&view=article&id=295:william-b-moffit-declaration-on-plea-deal&catid=31:documents-a-releases-). freesamialarian.com. 136

External linksFOX News transcript of O'Reilly interview (http://www.foxnews.com/story/0,2933,61096,00.html),September 26, 2001News Links and "Sami Al-Arian, in his words" quotations(http://www.sptimes.com/2003/02/21/TampaBay/Sami_Al_Arian__in_his.shtml), St. PetersburgTimes, February 23, 2003USA vs. Al-Arian official site in English (http://www.usavsalarian.com/) and Norwegian(http://www.usamotalarian.no).Anita Kumar, Al-Arian Demands USF Restore his Standing(http://www.sptimes.com/2003/01/07/TampaBay/Al_Arian_demands_USF_.shtml) – St. PetersburgTimes, January 7, 2003Links to 2006–2007 trial coverage from the St. Petersburg Times(http://www.sptimes.com/2005/webspecials05/al-arian/index.shtml)Melva Underbakke and Paul Findley, Two Views: Sami Al-Arian’s Plea “Bargain”(http://www.washington-report.org/archives/July_2006/0607032.html), Washington Report on MiddleEast Affairs, July 2006Exclusive Interview: Sami Al-Arian, Professor Who Defeated Controversial Terrorism Charges, isDeported from U.S. (https://firstlook.org/theintercept/2015/02/05/sami-al-arian-charged-terrorism-never-convicted-deported-today-u-s/) The Intercept, 2015

Retrieved from "http://en.wikipedia.org/w/index.php?title=Sami_Al-Arian&oldid=660870076"

Categories: 1958 births Living people Muslim activists American people of Palestinian descentPrisoners and detainees of the United States federal government Terrorism in the United StatesPeople from Hillsborough County, Florida University of South Florida faculty

111. Administrator. "Linda Moreno Declaration on Plea Deal" (http://www.freesamialarian.com/index.php?option=com_content&view=article&id=296:&catid=31:documents-a-releases-). freesamialarian.com.

112. [2] (http://www.miamiherald.com/news/florida/AP/story/940573.html)113. "Al-Arian Indicted for Refusal To Testify in Charities Cases" (http://www.nysun.com/foreign/al-arian-indicted-

for-refusal-to-testify/80821/). nysun.com.114. Matt Zapotosky, Va. prosecutors move to drop charges against ex-professor

(http://www.washingtonpost.com/local/crime/va-prosecutors-move-to-drop-charges-against-ex-professor/2014/06/27/20326416-fe36-11e3-b1f4-8e77c632c07b_story.html), Washington Post, June 27, 2014.

115. Elaine Silvestrini, ‘Grateful’ former USF professor Al-Arian deported to Turkey(http://tbo.com/news/crime/grateful-al-arian-leaves-us-for-turkey-20150205/), Tbo.com, February 5, 2015.

116. Chachere, Vickie (October 11, 2000). "Sister of jailed Tampa man testifies he has no terrorist ties". AssociatedPress.

117. Intern's removal prompts Bush apology (http://www.highbeam.com/doc/1G1-76022067.html), UPI, June 29,2001.

118. "Laila Al-Arian" (http://www.huffingtonpost.com/laila-alarian). huffingtonpost.com.119. "Authors – The Nation" (http://www.thenation.com/directory/bios/laila_al_arian). thenation.com.120. Jay Weissberg, "USA vs Al-Arian" (Movie review) (http://www.variety.com/review/VE1117932652.html?

categoryid=31&cs=1&query=USA+vs+Al%2DArian), Variety, February 19, 2007121. "Sarasota Herald-Tribune – Google News Archive Search" (http://news.google.com/newspapers?

id=QvMeAAAAIBAJ&sjid=YIYEAAAAIBAJ&pg=2480,398374&dq=sami+al-arian&hl=en). google.com.122. Kinane, Sean (April 17, 2007). "Department of injustice". Nation.

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North Carolina State University alumni Kuwaiti prisoners and detainees People from CairoSouthern Illinois University Carbondale alumni American activists Palestinian expatriates in Kuwait


138

Attorney GeneralJohn Ashcroft

Sami Al-Arian indictments and trialFrom Wikipedia, the free encyclopedia

Sami Al-Arian indictments and trial began on February 20, 2003, the U.S. Department of Justiceannounced that Al-Arian had been arrested as the alleged leader of the Palestine Islamic Jihad (PIJ) in theU.S., and Secretary of the PIJ's central worldwide governing group (the "Shura Council").[1][2] It alsocharged three others living in the U.S., as well as four outside the U.S.[1][2] These included Al-Arian's long-time top USF/WISE associate Ramadan Abdullah Shallah, who had been designated a Specially DesignatedTerrorist by the U.S. in 1995, and was accused of being Secretary General of the PIJ.[1][2][3]

The PIJ was identified as an international terrorist organization, with cells throughout the world, thatsupports jihad and martyrdom, responsible for the deaths of among others Americans Alisa Flatow (20 yearsold) and Shoshana Ben-Yishai (16 years old).[1][2][4] In 1995 the PIJ, Syrian-based and largely financed byIran, had been designated a "Specially Designated Terrorist" by the U.S., and in 1997 it had been designateda "foreign terrorist organization".[2][3][4][5][6]

A 50-count indictment returned by a federal grand jury in Tampa charged the defendants under theRacketeer Influenced and Corrupt Organizations Act (RICO) with operating a racketeering enterprise from1984 that engaged in violent activities, as well as: conspiracy within the U.S. to kill and maim personsabroad, conspiracy to provide material support and resources to PIJ, conspiracy to violate emergencyeconomic sanctions, engaging in various acts of interstate extortion, perjury, obstruction of justice, andimmigration fraud.[1][2][4] The indictment alleged a ten-year conspiracy to support PIJ worldwide, helpsolve internal PIJ disputes and financial problems, help disseminate PIJ claims it was responsible forterrorist attacks in Israel, and raise funds within the U.S. for "violent jihad."[2] It alleged numerous PIJ-associated terrorist acts, resulting in the murders of over 100 people in Israel and the OccupiedTerritories.[1][2] It claimed that PIJ, ICP, and WISE operated together as an illegal enterprise.[2][4] It alsoalleged that the defendants used USF, where some of them were teachers or students, as cover and as ameans to bring other PIJ members into the U.S., purportedly for academic meetings and conferences.[2][4]

Attorney General John Ashcroft said that Al-Arian and his co-defendantsplayed:

a substantial role in international terrorism. They are 'material supporters'of foreign terrorist organizations. They finance ... and assist acts of terror.Our message to them is clear: We make no distinction between those whocarry out terrorist attacks, and those who knowingly finance, manage, orsupervise terrorist organizations.[1]

Al-Arian told reporters: “it’s all about politics”, and his attorney labeled theindictment a “work of fiction.”[7]

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The indictment was later expanded into a 53-count superseding indictment in September 2004.[4] It chargedAl-Arian with: 1) conspiracy to commit racketeering; 2) conspiracy to murder or maim persons outside theU.S.; 3) conspiracy to provide material support to a foreign terrorist organization (the PIJ); 4) conspiracy tomake and receive contributions of funds, goods, and services for the benefit of Specially DesignatedTerrorists (the PIJ); 5) use of the mail or any facility in interstate or foreign commerce to promote unlawfulactivity; 6) providing material support to a foreign terrorist organization; 7) money laundering; 8) attempt toprocure naturalization unlawfully; and 9) obstruction of justice.[4]

Contents1 Trial2 Guilty plea, pursuant to plea agreement3 Sentencing4 Civil and criminal contempt prosecutions; 2006-2014

4.1 Grand jury subpoenas, refusal to testify, civil contempt, and hunger strikes4.2 Criminal contempt proceedings; house arrest

5 Rashad Hussein comments6 References7 External links

TrialAl-Arian was tried with co-defendants Ghassan Ballut, Hatim Fariz, and Sameeh Hammoudeh in the UnitedStates District Court for the Middle District of Florida in Tampa, beginning on June 6, 2005.[8] At trial, FBIagent Kerry Myers testified that the PIJ had planned an attack inside the U.S., but that all information aboutthe plot was classified and he could not discuss it. Under cross-examination, Myers admitted that the PIJhad never carried out an attack outside Israel and the "occupied territories." Myers also testified that duringits 10-year investigation of the defendants, the FBI intercepted 472,239 telephone calls on 18 tapped lines.However, none involved any discussion of an attack against the U.S. or reflected advance knowledge ofattacks in the Middle East.[9] Furthermore, some of the conversations occurred before PIJ was designated aForeign Terrorist Organization in 1995.[10]

The five-month trial featured 80 witnesses and 400 transcripts of intercepted phone conversations and faxes.At the end of the prosecution's case, Al-Arian's attorneys rested without offering a defense, and the trialconcluded on November 14, 2005.[8] On December 6, 2005, after 13 days of deliberations, the juryacquitted Al-Arian on 8 of 17 counts.[8] It deadlocked on the 9 other counts,[8] with 10-2 favoring acquittal.The jury deadlocked on what the prosecutors described as three of the most important four conspiracycharges against Al-Arian, including the charge of conspiracy to provide services to the PIJ.[11] A co-defendant also was acquitted on some charges and faced deadlocks on others, and two co-defendants wereacquitted of all charges. U.S. Justice Department officials said they were considering whether to retry Al-Arian and co-defendant Hatem Fariz on the jury deadlock charges, one of which carried a life sentence.[12]

140

Jurors had mixed reactions.[13] One who voted for acquittal said, "They have so little on [Al-Arian] that I'mdisappointed. Most of us think he gave in because he was so sick of being in jail."[13] But one of the fewjurors who believed Al-Arian was guilty on nine counts, causing a mistrial, said:

Like another person on the jury, I was convinced Mr. Al-Arian was still working with the PIJafter it was illegal. He was a very smart man and knew how not to be obvious. For me, theabsence of evidence didn't mean there was no evidence. For me, it suggested a coverup, whichhe admitted to, in the plea agreement.[13]

Guilty plea, pursuant to plea agreementOn February 28, 2006, Al-Arian signed a plea agreement in which he agreed to plead guilty to one count ofconspiracy to contribute services to or for the benefit of the PIJ, a Specially Designated Terroristorganization, in violation of 18 U.S.C. § 371.[5][14] In return, the U.S. Attorney: a) agreed to dismiss theother eight remaining charges in the superseding indictment; b) agreed not to charge Al-Arian with anyother crimes known to the government at the time of the execution of the agreement; c) agreed not to enterany recommendation as to the imposition or amount of a fine; d) agreed with Al-Arian that an appropriatesentence would be 46–57 months in prison; and e) covenanted that if no adverse information were receivedsuggesting such a recommendation to be unwarranted, the U.S. would recommend that Al-Arian receive asentence "at the low end of the applicable guideline range, as calculated by the Court".[5]

In the agreement, Al-Arian said that he was pleading guilty because he was "in fact" guilty.[5] Al-Arianadmitted knowing "that the PIJ achieved its objectives by, among other means, acts of violence."[15] As partof the deal, Al-Arian agreed to be deported once his prison sentence ended.[5][11]

The plea agreement provided that it was "limited to the Office of the United States Attorney for the MiddleDistrict of Florida and the Counterterrorism Section of the Department of Justice, and cannot bind otherfederal, state, or local prosecuting authorities."[5][16] It also provided that it "constitutes the entire agreementbetween the government and [Al-Arian] ... and no other promises, agreements, or representations exist orhave been made to [Al-Arian]".[5][16]

Attorney General Alberto Gonzales said:

We have a responsibility not to allow our nation to become a safe haven for those who provideassistance to ... terrorists. Sami Al-Arian has already spent significant time behind bars, andwill now lose the right to live in the country he calls home as a result of his confessed criminalconduct on behalf of the [PIJ], which is the same conduct he steadfastly denied in publicstatements over the past decade.[11]

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Attorney GeneralAlberto Gonzales

At the plea agreement hearing, U.S. Magistrate Thomas B. McCoun said, " ifyou're satisfied you're guilty or you believe it's in your best interest to pleadguilty ... let me know that." Al-Arian replied, "I believe it's in my best interestto enter a plea."[17]

The district court judge asked Al-Arian whether he had been promisedanything else by anyone to induce his guilty plea, and he said that he hadnot.[16] The plea agreement was unsealed and accepted by Judge James S.Moody on April 17, 2006.[11] The count carried a maximum sentence of fiveyears imprisonment, a $250,000 fine, and three years of supervised release.[5]

Al-Arian remained in custody pending his sentencing and deportation.

The deal came after 11 years of Federal Bureau of Investigationinvestigations, wiretaps and searches, and three and a half years of trialpreparation, time Al-Arian spent in jail, most of it in solitary confinement.[17] Amnesty International saidAl-Arian's pre-trial detention conditions "appeared to be 'gratuitously punitive'", and that "the restrictionsimposed on Dr. Al-Arian appeared to go beyond what were necessary on security grounds and wereinconsistent with international standards for humane treatment.".[18]

Supporters of Al-Arian said the agreement was reached in part to end his family's suffering and to reunitethem.[15][19][20]

On July 25, 2006, Fariz pleaded guilty to one count of providing nonviolent services to associates ofPalestinian Islamic Jihad. He was sentenced to 37 months in prison. He was released on May 26, 2010.[21]

SentencingJudge Moody sentenced al-Arian to the maximum 57 months in prison and three years of supervised releaseon May 1, 2006, and gave him credit for time served.[8] Prosecutors said al-Arian would serve the balanceof 19 months, and then be deported.

In his ruling, Moody harshly criticized al-Arian for doing nothing to stop suicide bombings perpetrated bythe PIJ. "I find it interesting that you praise this country in public," he said, "the one you called GreatSatan."[22] He continued:

You lifted not one finger. To the contrary, you laughed when you heard of the bombings... Youare a master manipulator. The evidence is clear in this case. You were a leader of the PIJ.[8][23]

Describing the PIJ suicide bombings, the judge said: "Anyone with even the slightest bit of humancompassion would be sickened. Not you, you saw it as an opportunity to solicit more money to carry outmore bombings."[22] Reacting to Al-Arian's contention that he had raised money for charities, Moody said:"Your only connection to widows and orphans was that you create them."[24]

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Civil and criminal contempt prosecutions; 2006-2014Al-Arian was subpoenaed three times to testify in terrorism-related investigations before Virginia federalgrand juries between 2006 and 2008. Each time, he refused to testify. He challenged the initial subpoena infour different federal courts, each of which held that he was in fact required to testify. He was imprisonedfor 13 months for civil contempt for failing to testify in compliance with the first subpoena. He is awaitingtrial as well for criminal contempt for his failure to testify in compliance with the second and thirdsubpoenas.

Grand jury subpoenas, refusal to testify, civil contempt, and hunger strikes

Subpoena

In May 2006, the U.S. District Court for the Eastern District of Virginia issued a subpoena to Al-Arian totestify before a federal grand jury in Alexandria, Virginia, in an investigation into the alleged financing ofterror by the Herndon, Virginia-based International Institute of Islamic Thought (IIIT).[16][25] HomelandSecurity agent David Kane described alleged ties between Al-Arian and IIIT in an affidavit that wasunsealed in 2003, saying that IIIT was once the largest contributor to a PIJ group run by Al-Arian.[25] Kanealso alluded to a letter from a leader of IIIT to Al-Arian saying he considered him and leaders of thePalestinian resistance to be "a part of us and an extension of us."[26]

Refusal to testify

The subpoena was served on Al-Arian in October 2006.[16] He sought to quash it on the assertion that hisplea agreement prevented his being forced to testify before the Virginia grand jury.[16] He said thegovernment had agreed that he would not be required to cooperate with it in any manner, though thatspecific agreement was not reflected in the written plea agreement.[16] In a verbal agreement that he saysappears in court transcripts, federal prosecutors agreed he would not have to testify in Virginia.[27]

Second, Al-Arian also said he refused to testify because he believed "his life would be in danger if hetestified."[25] Third, Al-Arian claimed he has no information that could further the investigation.[25] Fourth,Al-Arian said he would not testify because he felt IIIT was inappropriately charged.[28] Finally, anotherexplanation for his not testifying was presented by his wife, who said:

My husband is a man of principle, and he will never turn into an informant. We admire him andare proud of him. In our culture, as Palestinians, if a person becomes an informant for thegovernment, this is very shameful.[29]

When called before the grand jury on October 19, Al-Arian refused to answer questions about IIIT.[30]

Virginia District Court, civil contempt, and Fourth Circuit Court of Appeals

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A Virginia District Court held that he had no legal basis to refuse to testify. The court held him in civilcontempt, and imprisoned him on November 16, 2006, for contempt of court, with the days served for civilcontempt not counting towards the days of imprisonment he had remaining on his guilty conspiracy plea.[16]

He appealed the Virginia District Court decision to the Fourth Circuit Court of Appeals, which affirmed thelower court's ruling.[16] Thirteen months later, on December 14, 2007, the Virginia District Court lifted itscontempt order, starting the clock ticking again on his days-served on his conspiracy guilty pleasentence.[16]

Florida District Court; hunger strike

A Florida District Court also held that the plea agreement was not ambiguous, and did not prevent thegovernment from issuing a subpoena requiring him to testify before a grand jury.[16] Al-Arian, who isdiabetic, began a 60-day hunger strike on January 22, 2007, to "protest continued governmentharassment."[25][31] By March 20, 2007, the 6-foot-tall (1.8 m) Al-Arian had gone from 202 to 149 pounds(92 to 68 kg).[27]

Eleventh Circuit Court of Appeals

Al-Arian appealed the Florida District Court decision to the Eleventh Circuit Court of Appeals, whichupheld the lower court on January 25, 2008.[16] It pointed out that the plea agreement did not contain anymention of whether Al-Arian would be compelled to testify in front of a grand jury in the future.[16] It alsonoted that the agreement said it reflected all promises and agreements between Al-Arian and thegovernment, and that this accorded with Al-Arian's statement, when questioned by the trial court judge, thatthere were no promises or inducements made to him other than those reflected in the written agreement.[16]

Furthermore, the court observed that the plea agreement only spoke to the issue of the governmentprosecuting Al-Arian for crimes known to the office at the time of the agreement, but did not immunize Al-Arian from future subpoenas.[16] The court therefore held the plea agreement to be clear, unambiguous, andto not grant Al-Arian immunity from the grand jury subpoena.[16] The Justice Department issued its thirdsubpoena later that month.[28]

Professor Robert Chesney, of Wake Forest University Law School, said:

It is certainly not uncommon for the government to expect a defendant to testify in the wake ofa plea agreement. In this instance, the agreement is silent on the question, and the court ofappeals agrees with the government that this leaves the door open to subpoena his testimony.

Hunger strike

In March 2008 he began another hunger strike, to protest his subpoena.[28] He ended his hunger strike twomonths later.[32]

Criminal contempt proceedings; house arrest

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On June 26, 2008, he was indicted by a grand jury in the Eastern District of Virginia on two counts ofcriminal contempt, for unlawfully and willfully refusing court orders that he testify as a grand jury witnesson October 16, 2007, and March 20, 2008.[33] On September 2, 2008, he was released from custody and putunder house arrest at his daughter Laila's residence in Northern Virginia, where he is being monitoredelectronically while he awaits trial on criminal contempt charges.[34][35][36]

At a January 2009 hearing to schedule his trial, his attorneys filed documents saying Al-Arian "didcooperate and answer questions on IIIT" for federal prosecutors. Attorneys alleged Virginia prosecutors are"ultimately not interested in IIIT … but want to revisit the Tampa trial."[35] In a motion filed on March 4,2009, prosecutors in Virginia acknowledged that when Al-Arian took the plea deal in early 2006,prosecutors in Tampa believed that it exempted him from testifying in other cases.[37] This affirms sworndeclarations submitted to the court by Al-Arian's Florida trial attorneys, Bill Moffitt[38] and LindaMoreno.[39]

On March 9, Judge Leonie Brinkema postponed the criminal contempt trial, pending a motion by defenseattorneys to dismiss the charges in the case.[40] While under federal law, Al-Arian could not be jailed formore than 18 months for civil contempt, the law does not have a time limit for criminal contempt.[41]

Rashad Hussein commentsRashad Hussain's comments on Sami Al-Arian became the subject of coverage in the media after RashadHussain was appointed United States Special Envoy to the Organisation of the Islamic Conference inFebruary 2010. The controversy concerned remarks made by Hussain in 2004, criticizing procedural issuesin the U.S. terror prosecution of Sami Al-Arian.[42] He "drew sharp criticism from conservatives for callingthe prosecution of some terror suspects 'politically motivated,' a comment both Hussain and The WhiteHouse denied."[43] The Council on Foreign Relations stated that, "The controversy led to a larger questionof whether the United States should engage the Organization of Islamic Conference diplomatically."[44]

In 2004, while a student at Yale, Hussain attended a Muslim Students Association conference in Chicagoand participated in a panel discussion on civil rights. Laila Al-Arian, a daughter of Sami Al-Arian, was alsoon the panel. During the discussion, Hussain made critical statements about the US terror prosecution ofSami Al-Arian and other terrorism suspects, such as Chaplain James Yee and Brandon Mayfield.[20]According to recordings obtained by Politico in 2010, Hussain referred to the cases as examples of"politically motivated prosecutions." [20] He was careful to say that he was not offering an opinion onwhether Al-Arian was guilty of the charges that he was a top leader of the U.S. branch of the PalestinianIslamic Jihad, a "specially designated terrorist" organization.[20][21] In 2006, Al-Arian pleaded guilty toone charge of conspiracy to help the Palestinian Islamic Jihad, was sentenced to 57 months in prison (inother words, time served), and agreed to be deported following his prison term.[21][22]

Opinions differ on whether the recording shows that Hussain using the term "prosecutions," or"persecutions," and whether he said that the prosecutions were "used to squash political dissent," quotationsfrom a 2004 story that Hussain denied making.[23] After the controversy over the statements, PressSecretary Robert Gibbs expressed continued White House confidence in Hussain, noting, "This is an

145

individual that has written extensively on why some have used religious devices like the Qur'an to justifythis [terrorism] and why that is absolutely wrong. And has garnered support from both the left and the rightso we obviously have confidence.”[45]

Originally, journalist Shannon Bream of Fox News reported that The White House attributed the"controversial remarks defending al-Arian" to Laila al-Arian.[42] Later, Jake Tapper, the Senior WhiteHouse Correspondent for ABC News, reported that the "controversy was all the more confusing because theremarks were reported in the WRMEA in 2004, but the editor, Delinda Hanley, later removed the commentsfrom the Web site, though she didn't recall why. In an email to Politico, Delinda C. Hanley, editor of theWRMEA, wrote that "Laila Al-Arian said the things attributed to Rashad Hussain, and an intern whoattended the event and wrote up the article made an error, which was corrected on our Web site by deletingthe two quotes in their entirety."

Later, in the April 2010 edition of WRMEA, Hanley wrote:

Four or five years after the above item was published, this writer received a phone call or aphone message, I honestly can’t remember, on a date I can’t recall—we get so many calls I’mlucky if I can remember a conversation a week later!—saying Hussain had been misquoted inKandil’s article. I don’t remember if it was a misquote or misattribution and, since Kandil hadleft the magazine years ago, I did not contact her. But I do remember asking our webmaster toremove the quote in question—because this sequence of events was unusual. Normally wepublish a correction or objection as a letter to the editor (see, respectively, p. 6 of this issue andthe letter from Daniel Pipes on p. 3 of our October 2001 issue). Years after the fact, however,that seemed pointless. Now that oversight has come back to haunt me—and, more importantly,hurt Obama’s envoy pick.[46]

In The Washington Post article titled Rashad Hussain, a Muslim and new U.S. envoy, is bridge between twoworlds, Hussain is quoted as saying that his "extensive writings on this topic make it clear that I condemnterrorism unequivocally in all its forms. I'd be happy to put that against one sentence from 2004 that Ibelieve was taken out of context."[47] In his May 11, 2010 interview with Asharq Al-Awsat, Hussain wasasked, "During your studies in law college in University of Yale you have criticize Sami Al-Aryan’s trialand you have considered it represents a kind of politically motivated prosecution. Do you think that thecourts in U.S. still suffer from identification of terrorism with the Muslims?" Hussain responded, "Youknow in that case that I said very clearly on the panel that I wasn’t commenting on any of the specificallegations on him but I was making a comment about the process that was used in that case."[48]

References1. U.S. Department of Justice (February 20, 2003). "Members of the Palestinian Islamic Jihad Arrested; Charged

with Racketeering and Conspiracy to Provide Support to Terrorists"(http://nefafoundation.org/miscellaneous/FeaturedDocs/U.S._v_Al-Arian_dojprind.pdf) (PDF). Press Release.Retrieved March 8, 2010.

2. "U.S. v. Al-Arian; Indictment; U.S. District Court, Middle District of Florida, Tampa Division"(http://nefafoundation.org/miscellaneous/FeaturedDocs/U.S._v_Al-Arian_Indictment.pdf) (PDF). February 19,2003. Retrieved March 8, 2010.

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3. Mintz, John (June 5, 2005). "Trial to Reveal Reach Of U.S. Surveillance" (http://www.washingtonpost.com/wp-dyn/content/article/2005/06/04/AR2005060401319_2.html). The Washington Post. Retrieved March 8, 2010.

4. "U.S. v. Al-Arian; Superseding Indictment" (http://nefafoundation.org/miscellaneous/FeaturedDocs/U.S._v_Al-Arian_SpcIndictment.pdf) (PDF). September 2004. Retrieved March 8, 2010.

5. "Plea Agreement; U.S. v. Al-Arian" (http://nefafoundation.org/miscellaneous/FeaturedDocs/U.S._v_Al-Arian_pleaagr.pdf) (PDF). February 28, 2006. Retrieved March 8, 2010.

6. Miller, Judith (July 23, 2002). "Traces of Terror: The Money Trail; A Professor's Activism Leads Investigators toLook Into Possible Terrorism Links" (http://www.nytimes.com/2002/07/23/us/traces-terror-money-trail-professor-s-activism-leads-investigators-look-into.html?pagewanted=1). The New York Times. RetrievedMarch 9, 2010.

7. Isikoff, Michael (March 3, 2003). "Hiding in Plain Sight: Did a Muslim professor use activism as a cloak forterror?". Newsweek. p. 27.

8. U.S. Department of Justice (May 1, 2006). "Sami Al-Arian Sentenced to 57 Months in Prison for AssistingTerrorist Group" (http://nefafoundation.org/miscellaneous/FeaturedDocs/U.S._v_Al-Arian_dojprsentencing.pdf)(PDF). Press Release. Retrieved March 8, 2010.

9. Fechter, Michael (August 24, 2005). "Witness: Islamic Jihad Planned Strike In U.S."(http://www.tampatrib.com/FloridaMetro/MGBHQF7YQCE.html). Tampa Bay Tribune (Media General Inc.).Retrieved March 26, 2007.

10. MegLaughlin, In his plea deal, what did Sami Al-Arian admit to?(http://www.sptimes.com/2006/04/23/Hillsborough/In_his_plea_deal__wha.shtml), St. Petersburg Times, April23, 2006.

11. U.S. Department of Justice (April 17, 2006). "Sami Al-Arian Pleads Guilty to Conspiracy to Provide Services toPalestinian Islamic Jihad" (http://nefafoundation.org/miscellaneous/FeaturedDocs/U.S._v_Al-Arian_dojprguiltyplea.pdf) (PDF). Press Release. Retrieved March 8, 2010.

12. Meg Laughlin, Jennifer Liberto and Justin George, 8 times, Al-Arian hears 'Not guilty'(http://www.sptimes.com/2005/12/07/Tampabay/8_times__Al_Arian_hea.shtml), St. Petersburg Times,December 7, 2005.

13. Laughlin, Meg (April 23, 2006). "In his plea deal, what did Sami Al-Arian admit to?; Buried within legalese: anadmission that he continued to aid relatives and colleagues associated with PIJ after it was designated a terroristgroup." (http://www.sptimes.com/2006/04/23/Hillsborough/In_his_plea_deal__wha.shtml). St. Petersburg Times.Retrieved February 28, 2010.

14. "Hillsborough: Plea deal overcame the discord"(http://www.sptimes.com/2006/04/24/Hillsborough/Plea_deal_overcame_th.shtml). Sptimes.com. 2006-04-24.Retrieved 2010-03-16.

15. Elaine Silvestrini, "Al-Arian Admits His Role In Jihad"(http://www.defenddemocracy.org/in_the_media/in_the_media_show.htm?doc_id=367467), Tampa Tribune,April 18, 2006

16. U.S. Court of Appeals for the Eleventh Circuit (January 25, 2008). "U.S. v. Al-Arian"(http://nefafoundation.org/miscellaneous/FeaturedDocs/U.S._v_Al-Arian_11thcircappeals.pdf) (PDF). Appealfrom the U.S. District Court for the Middle District of Florida. Retrieved March 8, 2010.

17. Meg Laughlin,Plea deal overcame the discord(http://www.sptimes.com/2006/04/24/Hillsborough/Plea_deal_overcame_th.shtml), St. Petersburg Times, April24, 2006.

18. "USA: Amnesty International raises concern about prison conditions of Dr Sami Al-Arian | AmnestyInternational" (http://web.amnesty.org/library/Index/ENGAMR511102003?open&of=ENG-360).Web.amnesty.org. Retrieved 2010-03-16.

19. Al-Arian gets 18 more months in prison(http://www.sptimes.com/2006/05/01/State/Al_Arian_gets_18_more.shtml), Associated Press, Published May 1,2006

20. Al-Arian's plea ends an ordeal; He agreed to a single count of conspiracy to end his family's turmoil, his attorneysays. (http://www.sptimes.com/2006/04/18/Tampabay/Al_Arian_s_plea_ends_.shtml), St. Petersburg Times,April 18, 2006.

21. http://www.sptimes.com/2006/07/26/Tampabay/Al_Arian_associate_ge.shtml147

22. Steinhauer, Jennifer (May 1, 2006). "Palestinian to Be Imprisoned Before Deportation"(http://www.nytimes.com/2006/05/01/us/01cnd-islamic.html?hp&ex=1146542400&en=19620dd1d723e57c&ei=5094&partner=homepage). The New York Times. RetrievedMarch 9, 2010.

23. "Ex-professor gets over 4 years in Florida Jihad case" (http://news.oneindia.in/2006/05/01/ex-professor-gets-over-4-years-in-florida-jihad-case-1146512148.html), Reuters, May 1, 2006

24. Stacy, Mitch, "Prof. Gets 18 Months More in Terror Case", The Washington Post, May 1, 2006, accessed March8, 2010 (http://www.washingtonpost.com/wp-dyn/content/article/2006/05/01/AR2006050100379.html)

25. Witness Is Silent in Terror Probe: Ex-Professor Says Grand Jury Testimony Would Endanger Him.(http://www.washingtonpost.com/wp-dyn/content/article/2006/11/13/AR2006111301205.html) Washington Post.November 14, 2006.

26. Lichtblau, Eric, "Court Papers Show Charges That Group Aided Terrorists", The New York Times, October 18,2003, accessed March 8, 2010 (http://www.nytimes.com/2003/10/18/us/court-papers-show-charges-that-group-aided-terrorists.html)

27. Gaunt Al-Arian shocks family(http://www.sptimes.com/2007/03/20/Hillsborough/Gaunt_Al_Arian_shocks.shtml) by Meg Laughlin. St.Petersburg Times. March 20, 2007.

28. Fears, Darryl (March 22, 2008). "Refusal Keeps Terrorism Convict in Prison; Former Professor Fights Attemptsto Force His Testimony Against Muslim Charities" (http://www.washingtonpost.com/wp-dyn/content/article/2008/03/21/AR2008032102775.html). The Washington Post. Retrieved March 9, 2010.

29. Markon, Jerry, "Ex-Professor's Contempt Citation Prolonged", The Washington Post, June 22, 2007, accessedMarch 8, 2010 (http://www.washingtonpost.com/wp-dyn/content/article/2007/06/21/AR2007062102032.html)

30. "Florida Professor in Prison for Terror Ties on Hunger Strike to Protest 'Harassment'", Fox News, January 24,2010, accessed March 11, 2010 (http://www.foxnews.com/story/0,2933,246380,00.html)

31. Family says inmate's hunger strike not near end. (http://www.wilmingtonstar.com/apps/pbcs.dll/article?AID=/20070217/NEWS/702170359/-1/State) Wilmington Star (NC). February 17, 2007.

32. Democracy Now! | Al-Arian Enters 19th Day of Hunger Strike in Protest of "Government Harassment"(http://www.democracynow.org/2008/3/21/al_arian_enters_19th_day_of)

33. U.S. v. Al-Arian, Indictment, U.S. District Court for the Eastern District of Virginia, June 26, 2008, accessedMarch 8, 2010(http://www.nefafoundation.org/miscellaneous/FeaturedDocs/US_v_AlArian_IndictmentContempt.pdf)

34. Joseph Goldstein, Al-Arian Is Freed, but More Charges Await (http://www.nysun.com/national/al-arian-is-freed-but-more-charges-await/85081/), New York Sun, September 3, 2008.

35. Judge sets trial for Sami Al-Arian on criminal contempt charge(http://www.tampabay.com/news/courts/criminal/article968358.ece), Tampa Tribune, January 17, 2009.

36. "Ex-Professor in Palestinian Case Is Freed After 5 Years", The Washington Post, September 3, 2008, accessedMarch 8, 2010 (http://www.washingtonpost.com/wp-dyn/content/article/2008/09/02/AR2008090202973.html)

37. Click here to post a comment. "Federal judge says Sami Al-Arian plea deal does matter - St. Petersburg Times"(http://www.tampabay.com/news/courts/criminal/article981644.ece). Tampabay.com. Retrieved 2010-03-16.

38. William B. Moffit Declaration on Plea Deal (http://www.freesamialarian.com/index.php?option=com_content&view=article&id=295:william-b-moffit-declaration-on-plea-deal&catid=31:documents-a-releases-)

39. Linda Moreno Declaration on Plea Deal (http://www.freesamialarian.com/index.php?option=com_content&view=article&id=296:&catid=31:documents-a-releases-)

40. [1] (http://www.miamiherald.com/news/florida/AP/story/940573.html)41. Gerstein, Josh, "Al-Arian Indicted for Refusal To Testify in Charities Cases", New York Sun, June 27, 2008,

accessed March 11, 2010 (http://www.nysun.com/foreign/al-arian-indicted-for-refusal-to-testify/80821/)42. Bream, Shannon (February 16, 2010). "Obama's Islamic Envoy Quoted Defending Man Charged With Aiding

Terrorists" (http://www.foxnews.com/politics/2010/02/16/obamas-islamic-envoy-disputes-report-quoting-defending-terror-convict/). Fox News. Retrieved February 22, 2010.

43. Goler, Wendell (April 27, 2010). "Obama’s New OIC Envoy Defended Activist Who Aided Terrorist Group"(http://whitehouse.blogs.foxnews.com/2010/04/27/president-obamas-relationship-with-american-muslims-is-a-quiet-oneon/). Fox News. Retrieved April 28, 2010.

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External linksLinks to 2006-2007 trial coverage from the St. Petersburg Times(http://www.sptimes.com/2005/webspecials05/al-arian/index.shtml)

Retrieved from "http://en.wikipedia.org/w/index.php?title=Sami_Al-Arian_indictments_and_trial&oldid=615330097"

Categories: Terrorism in the United States

This page was last modified on 2 July 2014, at 18:40.Text is available under the Creative Commons Attribution-ShareAlike License; additional terms mayapply. By using this site, you agree to the Terms of Use and Privacy Policy. Wikipedia® is aregistered trademark of the Wikimedia Foundation, Inc., a non-profit organization.

44. Johnston, Toni (June 29, 2010). "The Organization of the Islamic Conference"(http://www.cfr.org/publication/22563/organization_of_the_islamic_conference.html?breadcrumb=%2Fpublication%2Fby_type%2Fbackgrounder). Council on Foreign Relations. Retrieved July 2,2010.

45. Gerstein, Josh (February 22, 2010). "W.H. affirms confidence in Islam envoy"(http://www.politico.com/blogs/joshgerstein/0210/WH_affirms_confidence_in_Islam_envoy_Hussain.html). ThePolitico. Retrieved February 22, 2010.

46. Hanley, Delinda (April 2010). "Smear Campaign Targets Rashad Hussain, Obama’s Special Envoy to OIC"(http://wrmea.com/component/content/article/349-2010-april/8805-smear-campaign-targets-rashad-hussain-obamas-special-envoy-to-oic.html). Washington Report on Middle Eastern Affairs. Retrieved April 28, 2010.

47. Wilson, Scott (March 1, 2010). "Rashad Hussain, a Muslim and new U.S. envoy, is bridge between two worlds"(http://www.washingtonpost.com/wp-dyn/content/article/2010/02/28/AR2010022801912.html). WashingtonPost. Retrieved March 23, 2010.

48. Nafa, Ibrahim (May 14, 2010). "Interview with US Envoy to the OIC Rashad Hussain"(http://aawsat.com/english/news.asp?section=1&id=20943). Asharq Al-Awsat. Retrieved May 16, 2010.

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Smith v. Maryland


Full casename

Michael Lee Smith v. Maryland

Citations 442 U.S. 735(https://supreme.justia.com/us/442/735/case.html)(more)99 S. Ct. 2577; 61 L. Ed. 2d 220; 1979 U.S.LEXIS 134

Priorhistory

Cert. to the Court of Appeals of Maryland


Warren E. BurgerAssociate Justices

William J. Brennan, Jr. · Potter StewartByron White · Thurgood Marshall

Harry Blackmun · Lewis F. Powell, Jr.William Rehnquist · John P. Stevens

Case opinionsMajority Blackmun, joined by Burger, White, Rehnquist,

StevensDissent Stewart, joined by BrennanDissent Marshall, joined by Brennan

Powell took no part in the consideration or decision of the case.

Smith v. MarylandFrom Wikipedia, the free encyclopedia

Smith v. Maryland, 442 U.S. 735 (1979),[1] was acase in which the Supreme Court of the UnitedStates held that the installation and use of the penregister was not a "search" within the meaning ofthe Fourth Amendment, and hence no warrant wasrequired. The pen register was installed ontelephone company property at the telephonecompany's central offices. In the Majority opinion,Justice Blackmun rejected the idea that theinstallation and use of a pen register constitutes aviolation of the "legitimate expectation of privacy"since the numbers would be available to andrecorded by the phone company anyway.

Contents1 Background2 Court Opinion3 See also4 References5 Further reading

BackgroundIn Katz v. United States (1967), the United StatesSupreme Court established its "reasonableexpectation of privacy" test. It overturnedOlmstead v. United States and held that a buggingwas a constitutionally-protected search, becausethere was a reasonable expectation that thecommunication would be private. The governmentwas then required to get a warrant to execute asearch using a bug.

In Smith v. Maryland, the Supreme Court held that a pen register is not a search because the "petitionervoluntarily conveyed numerical information to the telephone company." Since the defendant had disclosedthe dialed numbers to the telephone company so they could connect his call, he did not have a reasonableexpectation of privacy in the numbers he dialed. The court did not distinguish between disclosing thenumbers to a human operator or just the automatic equipment used by the telephone company.

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The Smith decision left pen registers completely outside constitutional protection. If there were to be anyprivacy protection, it would have to be enacted by Congress as statutory privacy law.

Court OpinionThe justices that held the decision argued that:

Given a pen register's limited capabilities, therefore, petitioner's argument that itsinstallation and use constituted a "search" necessarily rests upon a claim that he had a"legitimate expectation of privacy" regarding the numbers he dialed on his phone.

This claim must be rejected. First, we doubt that people in general entertain any actualexpectation of privacy in the numbers they dial. All telephone users realize that they must"convey" phone numbers to the telephone company, since it is through telephone companyswitching equipment that their calls are completed. All subscribers realize, moreover, thatthe phone company has facilities for making permanent records of the numbers they dial,for they see a list of their long-distance (toll) calls on their monthly bills. In fact, penregisters and similar devices are routinely used by telephone companies "for the purposesof checking billing operations, detecting fraud, and preventing violations of law." UnitedStates v. New York Tel. Co., 434 U.S., at 174 -175.

Further it was argued that is not unreasonable to assume that the telephone company would use electronicequipment to keep records of all telephone numbers dialed.

Electronic equipment is used not only to keep billing records of toll calls, but also "to keepa record of all calls dialed from a telephone which is subject to a special rate structure."

The argument was made that since telephone numbers are needed to connect your calls that this informationcannot be considered private as telephone companies would have access to this information in order toconnect your call.

Telephone users, in sum, typically know that they must convey numerical information tothe phone company; that the phone company has facilities for recording this information;and that the phone company does in fact record this information for a variety of legitimatebusiness purposes. Although subjective expectations cannot be scientifically gauged, it istoo much to believe that telephone subscribers, under these circumstances, harbor anygeneral expectation that the numbers they dial will remain secret.

See also151

List of United States Supreme Court cases, volume 442

References1. 442 U.S. 735 (http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=442&page=735)

Full text of the opinion courtesy of Findlaw.com.

Further readingApplegate, John; Grossman, Amy (1980). "Pen Registers after Smith v. Maryland". Harv. C.R.-C.L. L.Rev. 15 (3): 753–778.Andrea Peterson from the Washington Post's The Switch in an article named "The NSA says it‘obviously’ can track locations without a warrant. That’s not so obvious.(http://www.washingtonpost.com/blogs/the-switch/wp/2013/12/04/the-nsa-says-it-obviously-can-track-locations-without-a-warrant-thats-not-so-obvious/)" on December 4, 2013 on the background ofthe case.

Retrieved from "http://en.wikipedia.org/w/index.php?title=Smith_v._Maryland&oldid=644797844"

Categories: United States Supreme Court cases United States Fourth Amendment case lawPrivacy of telecommunications United States communications regulation case lawUnited States privacy case law Legal history of Maryland 1979 in United States case law1979 in Maryland United States Supreme Court cases of the Burger CourtUnited States Supreme Court stubs


152

HOME / / / TABBAA V. CHERTOFF (CHALLENGING DHS POLI...

Tabbaa v. Chertoff (Challenging DHS policy or practiceof detaining, interrogating Americans returning fromIslamic conference)E.D.N.Y., Index No. 05 Civ. 1918 (direct)

This case challenged a federal policy that targeted thousands of people who attended Islamicconferences taking place outside the United States in December 2004 for a special terrorism-screeningprocess. The policy authorizes border agents to detain and interrogate American citizens returning tothe U.S. from Islamic conferences, and to enter the names and information of these citizens into afederal database.

Organized by college students, the Reviving the Islamic Spirit (RIS) Conference is a mainstreamcultural and religious gathering that advocates peace, tolerance, and unity. The plaintiffs in this caseattended the December 2004 RIS Conference, held at the Toronto Skydome, which featured speakers,included religious activities, and was endorsed by prominent politicians. The plaintiffs’ activities at theconference were entirely lawful, and nothing about those activities would provide any basis forsuspecting the plaintiffs of unlawful conduct. As happened with dozens of other RIS Conferenceparticipants, the plaintiffs were singled out by U.S. Customs and Border Protection (CBP) agents.Although the plaintiffs are American citizens and showed valid identification, each was detained at theU.S.-Canadian border for several hours before being released. They were frisked, interrogated,photographed and fingerprinted for entry into CBP and other federal databases.

On April 20, 2005, the NYCLU, ACLU and the Council on American-Islamic Relations filed a suitagainst the Department of Homeland Security (DHS), claiming that by implementing a policyauthorizing such actions, the DHS violated the plaintiffs’ rights under the First and FourthAmendments to the U.S. Constitution and under the Religious Freedom Restoration Act. The suitsought to enjoin the defendants from detaining, interrogating, fingerprinting, and photographing U.S.citizens who are Muslim and are returning to the country after attending religious conferences. The suitalso sought an order to expunge or destroy all information, fingerprints, or photographs that wereunlawfully obtained from the plaintiffs during their detention.

In December 2005, both parties moved for summary judgment. On Dec. 21, 2005, the District Courtruled that the plaintiffs’ First and Fourth Amendment rights were not violated and granted thedefendant’s motion for summary judgment and dismissed the plaintiffs’ case. The NYCLU filed a noticeof appeal to the U.S. Court of Appeals, Second Circuit, on Jan. 4, 2006.

Oral argument was heard on April 19, 2007. On Nov. 26, 2007, the Second Circuit affirmed the DistrictCourt’s grant of summary judgment to the defendants. In doing so, it ruled that the challenged policywas subject to strict scrutiny, rejecting the defendant’s contention that border detentions weregoverned exclusively by a very relaxed Fourth Amendment standard. Nonetheless, the court held thatthe policy met heightened scrutiny because it was sufficiently tailored to a government concern thatterrorists might attend the Toronto conference.

Attorneys involved in this case included Chris Dunn, Udi Ofer, Arthur Eisenberg, Donna Lieberman,Michael Wishnie; Catherine Kim, Corey Stoughton (NYCLU and ACLU); Arsalan Iftikhar, KhurrumWahid (CAIR)

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Trials related to the September 11 attacksFrom Wikipedia, the free encyclopedia

This page lists trials related to the September 11, 2001 terrorist attacks.

Contents1 Zacarias Moussaoui2 Mounir El Motassadeq3 Khalid Sheikh Mohammed, Ramzi bin al-Shibh, Mustafa Ahmad al-Hawsawi, Ali Abd al-AzizAli and Walid Bin Attash

3.1 Possible guilty plea3.2 Transfer of the Case to a Civilian Court3.3 Transfer of the case back to a military commission

4 References5 External links

Zacarias MoussaouiZacarias Moussaoui was in jail in Minnesota when the September 11 attacks unfolded. On December 11,2001, Moussaoui was indicted by a federal grand jury in United States District Court for the Eastern Districtof Virginia on six federal charges: conspiracy to commit acts of terrorism transcending national boundaries,conspiracy to commit aircraft piracy, conspiracy to destroy aircraft, conspiracy to use weapons of massdestruction, conspiracy to murder United States employees, and conspiracy to destroy property.[1] Theindictment of Zacarias Moussaoui named as unindicted co-conspirators Ramzi Bin al-Shibh and Mustafa al-Hawsawi, among others, for their role in the attack "to murder thousands of innocent people in New York,Virginia and Pennsylvania."

On January 12, 2002, Moussaoui refused to enter any plea to the charges and so Judge Leonie Brinkemaentered pleas of not guilty. A hearing was held on April 22, 2002, to determine his right to self-representation, for by then Moussaoui had declined the assistance of his court-appointed attorneys, andasked to defend himself. At another hearing on June 13, 2002, Brinkema deemed him competent to defendhimself and allowed the case to move forward. However, Moussaoui later requested the occasionalassistance of attorneys to help him with technical issues.

Moussaoui admitted his involvement with al-Qaeda, but claimed he was not involved in the 9/11 attacks.Rather, he claimed that he was preparing for a separate attack. Khalid Sheikh Mohammed had earlier toldinvestigators that Moussaoui met with him prior to September 11, but that he, Mohammed, chose not to usehim. No evidence directly linking Moussaoui to the 9/11 attacks has yet been released.

The trial highlighted a tension in the United States between the judiciary and national security. Moussaouimade requests for access to confidential documents and the right to call captive al-Qaeda members aswitnesses, notably bin al-Shibh, Khalid Shaikh Mohammed, and Mustafa Ahmed al-Hawsawi. Both requests

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were claimed by prosecutors to be potential threats to national security. Brinkema denied the motion toaccess confidential documents, although Moussaoui was permitted to use several al-Qaeda prisoners aswitnesses.

Brinkema put the death penalty "off limits" on October 2, 2003, in reply to government defiance of herorder to provide access to Moussaoui's witnesses. The Fourth Circuit Court of Appeals reversed theBrinkema ruling, holding that the US government could use summaries of interviews/interrogations of thesewitnesses. On March 21, 2005, the United States Supreme Court, without comment, declined to hearMoussaoui's pre-trial appeal of the Fourth Circuit's decision, returning the case to Brinkema.

On April 22, 2005, in one of the court sessions near the end of that phase of the proceedings, Moussaouisurprised the whole audience by pleading guilty to all charges, while at the same time denying having anyintention to produce a massacre like 9/11. He said that it was not his conspiracy, and that he intended to freeSheikh Omar Abdel-Rahman. According to Moussaoui, his master plan was to hijack a Boeing 747-400,since the plane is one of a few that could reach Afghanistan from the US without any intermediate stops.

On February 6, 2006, Moussaoui shouted "I am al-Qaeda. They do not represent me; they are Americans,"referring to his attorneys while being escorted from the courtroom in front of 120 potential jurors.[2]

In March 2006, during the Moussaoui trial, several premises made headlines, including FBI agents statingthat the bureau was aware, years before the attacks in 2001, that al-Qaeda planned to use planes to destroyimportant buildings,[3] and Brinkema's decision to consider dismissal of the death penalty. Brinkemaannounced her decision in response to a violation by the attorney for the Transportation SecurityAdministration, Carla Martin, of a pretrial order barring witnesses from exposure to any opening statementsor trial testimony. Martin had e-mailed seven Federal Aviation Administration officials describing openingstatements of the prosecution and commentary on government witnesses from the start of the testimony,effectively 'coaching the witnesses'.[4] Brinkema said, "In all the years I've been on the bench, I have neverseen such an egregious violation of a rule on witnesses," and described the situation as a "significant errorby the government affecting the... integrity of the criminal justice system of the United States in the contextof a death case." However, days later, under significant media attention, Brinkema decided not to dismissthe case, and instead ruled that witnesses could not testify and the government would be allowed to continueto seek the death penalty.[5]

On March 27, 2006, Moussaoui testified that he and "shoe bomber" Richard Reid had planned to crash ahijacked airplane into the White House in the September 11 attacks. No direct connection betweenMoussaoui and Reid had ever before been alleged, and this testimony contradicted earlier testimony byMoussaoui that he had been intended for an operation after September 11. When asked why he hadpreviously lied, he stated that "You're allowed to lie for jihad. You're allowed any technique to defeat yourenemy."[6][7] There has been commentary in the mainstream media that Moussaoui's preference to die as anidentified 9/11 plotter rather than receive a life sentence as a member of an unrealized scheme throws doubton his self-admitted connection to 9/11.[8][9][10]

Since Moussaoui was in jail in Minnesota when the September 11 attacks unfolded in seeking a deathsentence, prosecutors were required to prove that he "intentionally participated in an act... and the victimdied as a direct result of the act." Moussaoui admitted he knew about the attacks and did nothing to stopthem.

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Having entered a guilty plea, Moussaoui was eligible for the death penalty. Germany said it would notrelease evidence against Moussaoui unless the US promised not to seek death as punishment. On April 27,2005, French Justice Minister Dominique Perben said, "When France gave elements of information aboutMr Moussaoui to the American justice, I obtained a written engagement of the United States not to use theseelements to require or execute the death penalty."[11]

On March 13, 2006, Brinkema recessed the death-penalty case against Moussaoui because of a breachagainst the rules on witnesses. Seven FAA officials were previously sent emails by TSA attorney CarlaMartin outlining the prosecution's opening statements and providing commentary on government witnessesfrom the first day of testimony. Martin was placed on administrative leave over the incident and may facecontempt of court charges. On March 14, 2006, Brinkema ruled that the prosecution could continue to seekthe death penalty against Moussaoui, but could not use key witnesses coached by Martin. On April 3, 2006,the jury in his case decided that Moussaoui was eligible for the death penalty.

At Moussaoui's sentencing trial, FBI agent Greg Jones testified that prior to the attacks, he urged hissupervisor, Michael Maltbie, "to prevent Zacarias Moussaoui from flying a plane into the World TradeCenter." Maltbie had refused to act on 70 requests from another agent, Harry Samit, to obtain a warrant tosearch Moussaoui's computer.[12]

On May 3, 2006, the jury reached a verdict: that Moussaoui be sentenced to life in prison without thepossibility of parole. Moussaoui was sentenced to six consecutive life terms on May 4,[13] as JudgeBrinkema expressed her belief that the sentence was an appropriate one, inasmuch as it would depriveMoussaoui of "martyrdom in a great big bang of glory" and of the "chance to speak again", after Moussaouientered the courtroom proclaiming his victory and asserting that the United States would "never get Osamabin Laden". As he was leaving the courtroom he said, "America, you lost and I won." And he clapped hishands twice. A single juror saved Moussaoui from death. The foreman of the 12-person federal jury told TheWashington Postthat the panel voted 11-1, 10-2 and 10-2 in favor of the death penalty on the three chargesfor which Moussaoui was eligible for execution.[1] (http://www.washingtonpost.com/wp-dyn/content/article/2006/05/11/AR2006051101884.html) A unanimous vote on any one of the threeterrorism charges was required to return a death sentence.

On May 8, 2006, Moussaoui filed papers with the federal court in Alexandria, Virginia requesting towithdraw his guilty plea, stating that his earlier claim of participation in the September 11 plot was a"complete fabrication." He said that he was "extremely surprised" that he was not sentenced to death. "I nowsee that it is possible that I can receive a fair trial even with Americans as jurors," he said.[14] However,federal sentencing rules forbid pleas to be withdrawn after a sentence has already been executed, andMoussaoui had already waived his rights to appeal.

On May 13, 2006, a group of US marshals ordered Moussaoui out of his holding cell in Alexandria,Virginia and flew him, via Conair, from Virginia to Colorado to begin serving his sentence at the supermaxUnited States Penitentiary Administrative Maximum Facility, located in Florence, Colorado.[15] The facility- considered the most secure federal penitentiary—is called the "Alcatraz of the Rockies". He is federalprisoner number 51427-054.[16]

On July 31, 2006, the 1,202 exhibits presented during the case of United States v. Zacarias Moussaoui wereposted online,[17] marking the first time the exhibits of a criminal case in US courts were so published.

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On November 20, 2007, Judge Brinkema publicly stated that the US government had provided incorrectinformation about evidence in the Moussaoui trial and that due to those actions, she was consideringordering a new trial in a related terrorism case, that of Ali al-Timimi, a Virginia Muslim cleric. Brinkemasaid that she could no longer trust the CIA and other government agencies on how they represent classifiedevidence in terror cases after Moussaoui case prosecutors admitted that the CIA had assured her that novideotapes or audiotapes existed of interrogations of certain high-profile terrorism detainees, but later, in aletter made public Nov. 13, two such videotapes and one audio tape were made known.[18]

Mounir El MotassadeqMounir El Motassadeq, a Moroccan living in Germany who belonged to the Hamburg cell apartment ownedby Mohamed Atta and lived in by many other people who would later go on to lead the September 11, 2001attacks, in February 2003 was convicted in Germany of over 3,000 counts of accessory to murder in directrelation to the September 11 attacks, but the conviction was rejected on appeal. Though the German JusticeMinistry pressed the United States to allow Ramzi bin al-Shibh to testify, the US refused, and the verdictand sentence were set aside.

Motassadeq was re-tried and convicted on August 19, 2005 of "membership in a "terrorist organization".That conviction was also rejected in appeal.[2] (http://today.reuters.com/business/newsarticle.aspx?type=tnBusinessNews&storyID=nL19618150),[3](http://www.cbc.ca/world/story/2005/08/19/Moroccan_convicted050819.html),[4](http://www.suntimes.com/output/terror/cst-nws-cell20.html),[5](http://www.guardian.co.uk/september11/story/0,11209,1552975,00.html)

On February 7, 2006, Germany's Federal Constitutional Court ordered an early release of Motassadeq. Thehighest court of Germany ruled there was an absence of proof that Motassadeq was informed about theSeptember 11 terrorist plot.[6] (http://news.bbc.co.uk/2/hi/europe/4690712.stm)

On November 15, 2006, the German Federal Supreme Court ruled on the appeals: They considered theevidence as sufficient to prove that Motassadeq knew about and was involved in the preparation of the planto hijack the planes and is hence guilty of accessory in 246 counts of murder. This is the number of victimsthat died in the planes but does not include the victims on ground. The Oberlandesgericht (state supremecourt) in Hamburg then took up the trial again in order to decide on the sentencing.[7](http://www.sueddeutsche.de/,tt2m3/deutschland/artikel/765/91674/) Two days later, the Federal SupremeCourt also revoked the release order and Motassadeq was arrested again. On January 8, 2007, he wassentenced by the Oberlandesgericht Hamburg to 15 years in prison, the maximum sentence possible underGerman law. The Federal Constitutional Court of Germany did not accept to revise his case. On May 2 theFederal Court of Justice of Germany rejected a plea for revision. His lawyers are currently thinking aboutboth calling upon the European Court of Human Rights and trying to get the case reopened - his twoultimate legal choices left.[8] (http://de.wikinews.org/wiki/Revision_im_El-Motassadeq-Prozess_abgewiesen)

Khalid Sheikh Mohammed, Ramzi bin al-Shibh, Mustafa Ahmadal-Hawsawi, Ali Abd al-Aziz Ali and Walid Bin Attash

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On February 11, 2008, US Department of Defense charged Khalid Sheikh Mohammed as well as Ramzi binal-Shibh, Mustafa Ahmad al-Hawsawi, Ali Abd al-Aziz Ali and Walid Bin Attash for the September 11attacks under the military commission system, as established under the Military Commissions Act of 2006.

These individuals were arrested in 2002-2003 in Pakistan and held by CIA in undisclosed locations.

On September 6, 2006, American President George W. Bush confirmed, for the first time, that the CIA hadheld "high-value detainees" in secret interrogation centers. He also announced that fourteen senior captives,including Khalid Sheikh Mohammed, were being transferred from CIA custody, to military custody, atGuantanamo Bay and that these fourteen captives could now expect to face charges before Guantanamomilitary commissions.

In a September 29, 2006 speech, President Bush stated "Once captured, Abu Zubaydah, Ramzi bin al-Shibh,and Khalid Sheikh Mohammed were taken into custody of the Central Intelligence Agency. The questioningof these and other suspected terrorists provided information that helped us protect the American people.They helped us break up a cell of Southeast Asian terrorist operatives that had been groomed for attacksinside the United States. They helped us disrupt an al Qaeda operation to develop anthrax for terroristattacks. They helped us stop a planned strike on a US Marine camp in Djibouti, and to prevent a plannedattack on the US Consulate in Karachi, and to foil a plot to hijack passenger planes and to fly them intoHeathrow Airport and London's Canary Wharf."[19]

In March 2007, Mohammed testified before a closed-door hearing in Guantánamo Bay. According totranscripts of the hearing released by the Pentagon, he said "I was responsible for the 9/11 operation, from Ato Z." The transcripts also show him confessing to: organizing the 1993 World Trade Center bombing; theBali nightclub bombings; and Richard Reid's attempted shoe bombing. He also confessed to planningattacks on Heathrow Airport and Big Ben clock tower in London, Pearl's murder in 2002, and plannedassassination attempts on Pope John Paul II, Pervez Musharraf and Bill Clinton.[20]

Khalid Sheikh Mohammed as well as Ramzi bin al-Shibh, Mustafa Ahmad al-Hawsawi, Ali Abd al-Aziz Aliand Walid Bin Attash have reportedly been charged with the murder of almost 3000 people, terrorism andproviding material support for terrorism and plane hijacking; as well as attacking civilian objects,intentionally causing serious bodily injury and destruction of property in violation of the law of war. Thecharges against them list 169 overt acts allegedly committed by the defendants in furtherance of theSeptember 11 events". The charges include 2,973 individual counts of murder—one for each person killedin the 9/11 attacks.[9] (http://news.bbc.co.uk/2/hi/americas/7437164.stm)

The US government is seeking the death penalty, which would require the unanimous agreement of thecommission judges.

Possible guilty plea

On December 8, 2008, Khalid Sheikh Mohammed and his four co-defendants told the judge stating that theywished to confess and plead guilty to all charges. The plea will be delayed until mental competency hearingsfor Mustafa Ahmad al-Hawsawi and Ramzi bin al-Shibh can be held; Mohammed said, "We want everyoneto plead together."[21][22] Spencer Ackerman, writing in the Washington Independent, reported thatPresiding Officer Stephen Henley had to consider whether he was authorized to accept guilty pleas.

Transfer of the Case to a Civilian Court 159

On 13 November 2009 US Attorney General Eric Holder announced that Khalid Sheikh Mohammed, RamziBin al-Shibh, Walid bin Attash, Ali Abdul Aziz Ali and Mustafa Ahmed al-Hawsawi will all be transferredto the U.S. District Court for the Southern District of New York for trial. He also expressed confidence thatan impartial jury would be found "to ensure a fair trial in New York."[23]

On 21 January 2010 all charges have been withdrawn in the military commissions against the five suspectsin the Sept. 11, 2001 terror attacks being held at Guantanamo Bay. The charges were dropped "withoutprejudice" - a procedural move that allows federal officials to transfer the men to trial in a civilian court andalso leaves the door open, if necessary, to bring charges again in military commissions.[24]

In February 2010 Fox News reported that the legal counsel of Khalid Sheikh Mohammed, and the legalcounsel of several other captives, was halted without warning.[24] The attorneys had made the trip toGuantanamo in the usual manner—a trip that requires advising authorities of the purpose of their trip.However, upon their arrival in Guantanamo, they were informed they were no longer allowed to see theirclients. They were told that letters to their clients, telling them that they had travelled to Cuba, to see them,could not be delivered, as they were no longer authorized to write to their clients. Camp authorities toldthem that since the charges against their clients had been dropped, while the Department of Justice figuredout where to charge them, they no longer needed legal counsel. Camp authorities told them that,henceforward, all access to the captives had to be approved by Jay Johnson, the Department of Defense'sGeneral Counsel. Fox reported that during earlier periods when the charges had been dropped the captiveshad still been allowed to see their attorneys. Fox claimed that questions they asked camp authorities lead tothe captives' access to their attorneys being restored.

Transfer of the case back to a military commission

On 7 January 2011 US President Barack Obama signed National Defense Authorization Act whichexplicitly prohibits the use of US Defense Department funds to transfer detainees from Guantanamo Bay tothe United States or other countries. It also bars Pentagon funds from being used to build facilities in theUnited States to house detainees, as the president originally suggested. The move essentially barred theadministration from trying detainees in civilian courts. The president objected to the provision in the billbefore signing it, calling it "a dangerous and unprecedented challenge to critical executive branch authority"but also said his team would work with the US Congress to "seek repeal of these restrictions."[25]

On 4 April 2011 Attorney General Eric Holder announced that Khalid Sheikh Mohammed and four other9/11 terror suspects will face a military trial at the Guantanamo Bay detention facility. In announcing hisdecision, Holder blasted Congress for imposing restrictions on the Justice Department's ability to bring themen to New York for civilian trials. "After thoroughly studying the case, it became clear to me that the bestvenue for prosecution was in federal court. I stand by that decision today," Holder said. "As the presidenthas said, those unwise and unwarranted restrictions (imposed by Congress) undermine our counterterrorismefforts and could harm our national security. Decisions about who, where and how to prosecute have alwaysbeen - and must remain - the responsibility of the executive branch." Holder insisted, "We were prepared tobring a powerful case against Khalid Sheikh Mohammed and his four co-conspirators - one of the mostwell-researched and documented cases I have ever seen in my decades of experience as a prosecutor." Headded, "Had this case proceeded in Manhattan or in an alternative venue in the United States, as I seriouslyexplored in the past year, I am confident that our justice system would have performed with the same

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distinction that has been its hallmark for over 200 years." Holder had promised to seek the death penalty foreach of the five men and on 4 April he warned that it is an "open question" if such a penalty can be imposedby a military commission if the defendants plead guilty.[26]

References1. UNITED STATES OF AMERICA v. ZACARIAS MOUSSAOUI - Indictment.

(http://www.usdoj.gov/ag/moussaouiindictment.htm) United States District Court for the Eastern District ofVirginia Alexandria Division, United States Department of Justice, December 2001. Retrieved on 2007-01-03.

2. Moussaoui: 'I am al Qaeda'. (http://www.cnn.com/2006/LAW/02/06/moussaoui.trial/index.html) CNN (2006-02-06).

3. Barakat, Matthew.Moussaoui Jury Watches Video Testimony. (http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2006/03/08/national/a090713S88.DTL) Associated Press (2006-03-08).

4. Government Can Seek Death Penalty Against Moussaoui. (http://www.nbc4.com/news/7960042/detail.html)NBC4.com (2006-03-13).

5. Government Can Seek Death Penalty In 9/11 Case.(http://www.thebostonchannel.com/consumer/8001206/detail.html) TheBostonChannel.com (2006-03-14).

6. Moussaoui lies 'let 9/11 happen'. (http://news.bbc.co.uk/1/hi/world/americas/4850988.stm) BBC News (2006-03-27.)

7. Hirschkorn, Phil.Moussaoui: White House was my 9/11 target.(http://www.cnn.com/2006/LAW/03/27/moussaoui/index.html) CNN (2006-03-27.)

8. Lithwick, Dahlia. When You Wish Upon a Scar; Zacarias Moussai finally makes his dream come true.(http://www.slate.com/id/2139185/) Slate (2006-04-03.)

9. Serrano, Richard A.In Court, Two 20th Hijackers Stand Up.(http://pqasb.pqarchiver.com/latimes/access/1014178801.html?dids=1014178801:1014178801&FMT=ABS&FMTS=ABS:FT&type=current&date=Apr+3%2C+2006&author=Richard+A.+Serrano&pub=Los+Angeles+Times&edition=&startpage=A.1&desc=The+Nation) Los AngelesTimes (2006-04-03.)

10. Moussaoui Says He Was to Hijack 5th Plane.(http://www.cbsnews.com/stories/2006/03/27/ap/national/mainD8GK7DEG0.shtml) Associated Press (2006-03-27.)

11. (French) Kacem, Abdel.Le deal de la France avec Washington.(http://fides.ifrance.com/fides/html/mousaou1.html) Fidès Journal (2002-11-29)

12. Markon, Jerry and Timothy Dwyer.Damning evidence highlights FBI bungles.(http://www.smh.com.au/news/world/damning-evidence-highlights-fbi-bungles/2006/03/21/1142703358754.html) The Sydney Morning Herald (2006-03-22).

13. Moussaoui formally sentenced, still defiant. (http://www.msnbc.msn.com/id/12615601) MSNBC (2006-05-04).14. Asseo, Laurie.Moussaoui Seeks to Withdraw Guilty Plea in Sept. 11 Attacks.

(http://www.bloomberg.com/apps/news?pid=10000103&sid=aM4lKxRGuqBQ) Bloomberg (2006-05-08).15. "U.S. Marshals Deliver Zacarias Moussaoui to "ADMAX" Prison"

(http://web.archive.org/web/20070806172354/http://usmarshals.gov/news/chron/2006/051306a.htm). USMarshals (http://www.usmarshals.gov/). May 13, 2006. Archived from the original(http://www.usmarshals.gov/news/chron/2006/051306a.htm) on 2007-08-06. Retrieved 2007-09-09.

16. "Inmate Locator" (http://www.bop.gov/iloc2/InmateFinderServlet?Transaction=IDSearch&needingMoreList=false&IDType=IRN&IDNumber=51427-054&x=20&y=21). bop.gov.

17. United States v. Zacarias Moussaoui Criminal, No. 01-455-A Trial Exhibits.(http://www.vaed.uscourts.gov/notablecases/moussaoui/exhibits/) United States District Court Eastern District ofVirginia. Retrieved on 2007-01-03.

18. Moussaoui judge questions government (http://news.yahoo.com/s/ap/20071120/ap_on_re_us/terror_paintball)19. White House,Remarks by the President on the Global War on Terror (http://georgewbush-

whitehouse.archives.gov/news/releases/2006/09/20060929-3.html), September 29, 2006

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External linksOfficial site of the U.S. Defence Department on Military Commissions (Khalid Sheikh Mohammed etal. case documents) (http://www.defenselink.mil/news/commissionsCo-conspirators.html)

Retrieved from "http://en.wikipedia.org/w/index.php?title=Trials_related_to_the_September_11_attacks&oldid=637487676"

Categories: Proceedings surrounding the September 11 attacks

This page was last modified on 10 December 2014, at 16:13.Text is available under the Creative Commons Attribution-ShareAlike License; additional terms mayapply. By using this site, you agree to the Terms of Use and Privacy Policy. Wikipedia® is aregistered trademark of the Wikimedia Foundation, Inc., a non-profit organization.

20. "Key 9/11 suspect confesses guilt" (http://news.bbc.co.uk/2/hi/americas/6452573.stm). BBC News (BBC). 2007-03-15. Retrieved 2007-03-15.

21. Reuters wire service (December 8, 2008). "Sept. 11 Defendants Ask to Plead Guilty"(http://www.nytimes.com/reuters/us/guantanamo-hearings-pleas.html). The New York Times. RetrievedDecember 8, 2008."Top 9/11 suspects to plead guilty" (http://news.bbc.co.uk/1/hi/world/americas/7770856.stm). BBC News.December 8, 2008. Retrieved December 8, 2008.

22. Spencer Ackerman (2008-12-08). "Coersion and Military Law: Does a Plea After Torture Stand?"(http://washingtonindependent.com/21398/coersion-and-military-law). Washington Independent. Retrieved2008-12-08. mirror (http://www.webcitation.org/query?url=http%3A%2F%2Fwashingtonindependent.com%2F21398%2Fcoersion-and-military-law&date=2008-12-09)

23. Terry Frieden, Chris Kokenes (2009-11-13). "Accused 9/11 plotter Khalid Sheikh Mohammed faces New Yorktrial". CNN.

24. Catherine Herridge (2010-01-22). "Charges Withdrawn in Military Commissions for Sept. 11 Suspects"(http://www.foxnews.com/politics/2010/01/22/charges-withdrawn-military-commissions-sept-suspects/). FoxNews.

25. Jason Ryan and Huma Khan. "9/11 Mastermind Khalid Sheikh Mohammed to be Tried by Military Commission"(http://abcnews.go.com/Politics/911-mastermind-khalid-sheikh-mohammed-military-commission/story?id=13291750). ABC News.

26. "Accused 9/11 terror suspects to face military trials"(http://edition.cnn.com/2011/US/04/04/guantanamo.tribunals/index.html#). cnn.com.

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United States v. Curtiss-Wright Export Corp.

Supreme Court of the United StatesArgued November 19–20, 1936

Decided December 21, 1936Full casename

United States v. Curtiss-Wright ExportCorporation et al.

Citations 299 U.S. 304(https://supreme.justia.com/us/299/304/case.html)(more)299 U.S. 304, 57 S.Ct. 216, 81 L.Ed. 255

Priorhistory

Judgment sustaining a demurrer to theindictment, 14 F.Supp. 230 (D. D.C. 1932)

HoldingWhile the Constitution does not explicitly say that all ability

to conduct foreign policy is vested in the President, it isnonetheless given implicitly and by the fact that the

executive, by its very nature, is empowered to conductforeign affairs in a way that Congress cannot and should

not.Court membership

Chief JusticeCharles E. HughesAssociate Justices

Willis Van Devanter · James C. McReynoldsLouis Brandeis · George Sutherland

Pierce Butler · Harlan F. StoneOwen J. Roberts · Benjamin N. Cardozo

Case opinionsMajority SutherlandDissent McReynolds

Stone took no part in the consideration or decision of the case.

United States v. Curtiss-Wright Export Corp.From Wikipedia, the free encyclopedia

United States v. Curtiss-Wright Export Corp.,299 U.S. 304 (1936),[1] was a United StatesSupreme Court case involving principles of bothgovernmental regulation of business and thesupremacy of the executive branch of the federalgovernment to conduct foreign affairs. TheSupreme Court concluded not only that foreignaffairs power was vested in the nationalgovernment as a whole but also that the Presidentof the United States had "plenary" powers in theforeign affairs field that was not dependent uponcongressional delegation.

Contents1 Background2 Issue3 Decision of the Court4 See also5 References6 Further reading7 External links

BackgroundCongress, acting by joint resolution, hadauthorized the President to place an embargo onarms shipments to South American countriesengaged in the Chaco War. Acting pursuant to theresolution, President Franklin Rooseveltproclaimed such an embargo. When Curtiss-Wright Export Corp. was indicted for violating theembargo through the sale of bombers and fighterplanes to Bolivia, it defended itself on the groundsthat the embargo and the proclamation were voidbecause Congress had improperly delegated legislative power to the executive branch by leaving what wasessentially a legislative determination to the President's "unfettered discretion."

In 1936, the defendant Curtiss-Wright Corporation was charged with illegally sending arms of war toBolivia prior to the revocation of the first proclamation.[1]

163

IssueThe defendant raised several issues for consideration by the Court:

1. Did the Joint Resolution passed by Congress grant too much authority (and legislative power) to thePresident, in violation of the non-delegation doctrine?

2. Was the President required by due process considerations to make findings of fact in support of theproclamation?

3. Did the revocation of the May 1934 proclamation operate to eliminate the penalty for its violation?

Decision of the CourtJustice Sutherland wrote in his opinion of the Court:

The ["powers of the federal government in respect of foreign or external affairs and those inrespect of domestic or internal affairs"] are different, both in respect of their origin and theirnature. The broad statement that the federal government can exercise no powers except thosespecifically enumerated in the Constitution, and such implied powers as are necessary andproper to carry into effect the enumerated powers, is categorically true only in respect of ourinternal affairs.

And he added:

It is important to bear in mind that we are here dealing not alone with an authority vested in thePresident by an exertion of legislative power, but with such an authority plus the very delicate,plenary and exclusive power of the President as the sole organ of the federal government in thefield of international relations–a power which does not require as a basis for its exercise an actof Congress, but which, of course, like every other governmental power, must be exercised insubordination to the applicable provisions of the Constitution.

While the Constitution does not explicitly say that all ability to conduct foreign policy is vested in thePresident, it is nonetheless given implicitly and by the fact that the executive, by its very nature, isempowered to conduct foreign affairs in a way that Congress cannot and should not. The Court stated that"there is sufficient warrant for the broad discretion vested in the President to determine whether theenforcement of the statute will have a beneficial effect upon the reestablishment of peace in the affectedcountries."[1]

The upshot of this ruling not only upheld export limitations on the grounds of national security (similar onesstill exist today) but also established the broader principle of executive supremacy in national security andforeign affairs, one of the reasons advanced in the 1950s in favor of the almost-successful attempt to add theBricker Amendment to the Constitution.

The Court has not recognized the full scope of executive power suggested by Justice Sutherland's sweepinglanguage. Congressional authorization may be necessary to legitimize many executive acts. In Regan v.Wald (1984), for example, the Supreme Court cited Curtiss-Wright in upholding the constitutionality of the164


United States v.Curtiss-Wright ExportCorporation

president's regulations restricting travel to Cuba expressly on the ground that they had been authorized byCongress. On the other hand, in Federal Energy Administration v. Algonquin SNG, Inc. (1976), the Courtvalidated presidential restrictions on oil imports, based on very broad congressional language delegatingapparently unlimited regulatory authority to the executive branch.

In an opinion written by Justice Sutherland, the Supreme Court rejected these arguments and found in favorof the government. Despite the controversy surrounding it, the Curtiss-Wright decision is one of theSupreme Court's most influential. Most cases involving conflicts between the executive and legislativebranches involve political questions that the courts refuse to adjudicate. Therefore, the sweeping language ofCurtiss-Wright is regularly cited to support executive branch claims of power to act without congressionalauthorization in foreign affairs, especially when there is no judicial intervention to interpret the meaning ofthat text.


References1. United States v. Curtiss-Wright, 299 U.S. 304 (1936).

Further readingRobert A. Divine, “The Case of the Smuggled Bombers,” in Quarrels That Have Shaped theConstitution, edited by John A. Garraty (New York: Harper & Row, 1987)

External links^ 299 U.S. 304(http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=299&page=304) Full text ofthe opinion courtesy of Findlaw.com.Summary of case from OYEZ(http://www.oyez.org/cases/1901-1939/1936/1936_98)

Retrieved from "http://en.wikipedia.org/w/index.php?title=United_States_v._Curtiss-Wright_Export_Corp.&oldid=644770676"

Categories: 1936 in United States case law United States Supreme Court casesUnited States foreign relations case law Bolivia–United States relationsUnited States Supreme Court cases of the Hughes Court

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166

United States v. Lee

Supreme Court of the United StatesArgued October 18–19, 1882Decided December 4, 1882

Full casename

United States v. Lee. Kaufman and another v.Same.

Citations 106 U.S. 196(https://supreme.justia.com/us/106/196/case.html)(more)1 S. Ct. 240; 27 L.Ed. 171; 16 Otto 196

Priorhistory

Error to the Circuit Court of the United States forthe Eastern District of Virginia.

HoldingSovereign immunity does not extend to officers of the

government.Court membership

Chief JusticeMorrison Waite

Associate JusticesSamuel F. Miller · Stephen J. FieldJoseph P. Bradley · John M. Harlan

William B. Woods · T. Stanley MatthewsHorace Gray · Samuel Blatchford

Case opinionsMajority Miller, joined by Field, Harlan, Matthews,

BlatchfordDissent Gray, joined by Waite, Bradley, Woods

Laws appliedAct for the Collection of Taxes in the Insurrectionary

Districts (12 Stat. at L. 422); Fifth Amendment

United States v. LeeFrom Wikipedia, the free encyclopedia

United States v. Lee, 106 U.S. 196

(https://supreme.justia.com/cases/federal/us/106/196/) (1882),[1][2] is a 5-to-4 ruling by the United StatesSupreme Court which held that the Constitution's prohibition on lawsuits against the federal government didnot extend to officers of the government themselves.[3] The case involved the heir of Mary Anna Custis Lee,wife of Confederate States of America General Robert E. Lee, who sued to regain control of ArlingtonHouse and its grounds. Arlington had been seized by the United States government in 1861 and eventuallyconverted into Arlington National Cemetery. The estate had been sold to pay outstanding taxes, but the167

lawsuit contested the tax sale as improper. A jury found in favor of the Lees.[4] The Supreme Court, too,concluded that the tax sale was illegal.[5][6][7][8] In stripping the federal officers of their sovereignimmunity, the Supreme Court agreed that suit against them was proper.[6][9]

The jury verdict returned Arlington to the Lee family, but only temporarily. The family never returned toArlington, but rather sold the estate to the United States government in 1883 for $150,000 ($3,796,607 in2015 dollars).[10]

Contents1 Background

1.1 History of the Arlington estate1.2 Seizure of the estate1.3 Suit by Lee's heirs

2 Opinion of the Court2.1 Dissent

3 Subsequent developments4 Footnotes5 Bibliography

Background

History of the Arlington estate

John Parke Custis, son of Martha Parke Custis Washington and stepson of George Washington, purchased1,100 acres (450 ha) of forest and farm land in 1778 and called it "Arlington."[11][12] The estate was locateddirectly across the Potomac River from the future site of Washington, D.C., in what was then AlexandriaCounty (now known as Arlington County). John Custis died in 1781, and his son, George Washington ParkeCustis, inherited the property. G.W.P. Custis hired George Hadfield, then supervising construction of theUnited States Capitol, to design and build a two-story Greek Revival house atop the most prominent hill onthe property, a mansion Custis named "Arlington House."[11] G.W.P. Custis' daughter, Mary Anna, marriedRobert E. Lee in 1831.[11] Custis died in 1857, leaving his estate and Arlington House to his daughter.[13]

Seizure of the estate

In April 1861, Virginia seceded from the United States and Robert E. Lee resigned his commission in theUnited States Army on April 20, 1861, and joined the military forces of the Confederate States ofAmerica.[12] On May 7, troops of the Virginia militia occupied Arlington and Arlington House.[14] WithConfedrate forces occupying Arlington's high ground, the capital of the Union was left in an untenablemilitary position.[15] Although unwilling to leave Arlington House, Mary Lee believed her estate wouldsoon be invested with federal soldiers. So she buried many of her family treasures on the grounds and leftfor her sister's estate at Ravensworth in Fairfax County, Virginia, on May 14.[16][17] On May 3, General168

Union troops pose in front ofArlington House during the AmericanCivil War.

Winfield Scott ordered Brigadier General Irvin McDowell to clear Arlington and the city of Alexandria,Virginia, of all troops not loyal to the United States.[18] McDowell occupied Arlington without oppositionon May 24.[19]

On June 7, 1862, the U.S. Congress enacted the Act for theCollection of Taxes in the Insurrectionary Districts (12 Stat. at L.422), legislation which imposed a property tax on all land in"insurrectionary" areas of the United States.[20] The 1863amendments to the statute required these taxes to be paid inperson.[17][21] Congress knew that few Confederate sympathizerswould appear in person to pay the tax, thus allowing the federalgovernment to seize large amounts of property and auction it off toraise money for the war effort.[21] A tax of $92.07 ($1,764 in 2015dollars) was levied on the Arlington estate in 1863.[17][21] But MaryLee, afflicted with severe rheumatoid arthritis and behindConfederate lines in Richmond, Virginia, gave the payment to hercousin, Philip R. Fendall (who lived in Alexandria).[21] The taxcollectors refused to accept his payment.[22] On January 11, 1864,the entire estate was auctioned off to pay the tax due.[17][22] (With a

50 percent penalty for nonpayment, the total of tax and fine was $138.11 ($2,083 in 2015 dollars).)[23]

Although the auction was well-attended, the U.S. government was the only bidder and won the property for$26,800 ($392,047 in 2015 dollars) (less than its assessed value of $34,100 ($863,095 in 2015 dollars)).[22]

With local cemeteries in Alexandria County and Alexandria filling rapidly with war dead, QuartermasterGeneral of the United States Army Montgomery C. Meigs proposed using 200 acres (81 ha) of the Arlingtonestate as a cemetery.[12] The first burial there was made on May 13, 1864.[12] United States Secretary ofWar Edwin M. Stanton approved the establishment of a military cemetery on June 15, 1864, creatingArlington National Cemetery.[17][24] By the end of the war in April 1865, more than 16,000 people had beenburied at Arlington.[12] In September 1866, a memorial and a burial vault (containing the remains of 2,111U.S. and Confederate soldiers who died at the First Battle of Bull Run, Second Battle of Bull Run, andalong the Rappahannock River) were buried in Lee's former rose garden on the mansion's east side beneaththe Civil War Unknowns Monument, a memorial to honor unknown soldiers who had died during theAmerican Civil War.[12][25]

Suit by Lee's heirs

Robert E. Lee made no attempt to restore his title to Arlington before his death in 1870.[25] Mary Lee diedin 1873, having returned to the house a few months before her death.[25] Too upset at its condition, sherefused to enter and left after just a few moments.[25]

169

George WashingtonCustis Lee in 1865, in hisConfederate general'suniform.

In April 1874,[26] Robert E. and Mary Lee's eldest son, George Washington Custis Lee, petitioned Congressfor payment for the Arlington estate.[27] Lee argued that tax sale of the entire property (rather than just thatportion needed to pay the tax debt) amounted to confiscation and was unconstitutional.[27] He also arguedthat the tax collectors' refusal to accept payment made the proceedings null and void.[27] Finally, he assertedthat the federal government should only be able to secure a life interest in the property (in other words, seizeit only as long as Mary Lee lived) and could not assert title to the estate without the consent of the state ofVirginia.[27] He offered not to litigate the seizure of Arlington if paid.[27] Lee's petition was referred to theUnited States House Committee on the Judiciary on April 6, but it was not acted on.[26][27]

In April 1877, Lee filed suit in Alexandria County circuit court to eject the U.S.government from Arlington.[28] His suit named, among others, FrederickKaufman (a civilian in the United States Department of War who oversawArlington National Cemetery) and R.P. Strong (a U.S. Army officer whosupervised the portion of Arlington which had become an Army post).[29]

Almost a thousand others were named in the suit, all of them former AfricanAmerican slaves who had been allowed to form a settlement known asFreedmen's Village on part of the estate.[30] On July 6, United States AttorneyGeneral Charles Devens filed a writ of certiorari asking that the case betransferred to the United States Circuit Court for the Eastern District ofVirginia, a request which the federal court approved three days later.[30] OnJuly 16, Devens filed a motion to have Lee's suit dismissed on the grounds thatthe Constitution made the federal government immune to suits at law (unless itgave its consent).[31] Lee filed a demurrer, pointing out that the government hadtaken the contradictory position of being a private buyer in a tax sale and yetasserting sovereign immunity as if its purchase were a governmental act.[32] On

March 15, 1878, the circuit court held that not only did the court have jurisdiction to decide the issue butthat the lawsuit presented a controversy over facts which should be decided by a jury.[33] A jury trial washeld January 24–30, 1879, in Alexandria.[34] The jury found for Lee, concluding that the demand to acceptpayment only in person violated the Constitution's due process guarantees.[4]

The federal government asked on April 6, 1879, that the jury verdict be set aside on the basis of theSupreme Court's ruling in Carr v. United States, 98 U.S. 433,[35] (a decision handed down on March 3, afterthe jury's verdict had been reached).[4] Carr v. United States involved a case where the city of SanFrancisco, California, transferred title to property within the city to the federal government even though aprivate citizen claimed title to the land. The Supreme Court reaffirmed in Carr that the federal governmentcannot be sued without its consent, that a suit against an officer or agent of the federal government does notbind the government itself, and that courts do not have jurisdiction over title suits against the federalgovernment's officers and agents.[36] Only when property has been transferred by the courts does a privatecitizen establish a right to establish or reclaim rights to title.[36] But the circuit court in Lee held that muchof the decision in Carr was dicta, and reaffirmed the jury decision.[37]

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Two appeals were made to the U.S. Supreme Court. The first was by the United States government itself,while the second was made by the government on behalf of Kaufman and Strong.[38] The question waswhether the title actually transferred to the federal government. If yes, then Lee had no claim; but if not,then Lee had standing to sue to reclaim his title to the land.[38] To determine this, the Supreme Court firsthad to rule out all other grounds for a suit, and then determine whether the tax sale actually transferred thetitle.[39]

Opinion of the CourtAssociate Justice Samuel Freeman Miller wrote the decision for the majority, joined by Associate JusticesStephen Johnson Field, John Marshall Harlan, Stanley Matthews, and Samuel Blatchford. Most of Miller'sruling was technical.[40]

After reviewing the facts of the case,[41] Miller presented the two critical questions in the case: 1) Werethere other grounds for a suit other than transfer of title in error, and 2) whether the tax sale had actuallytransferred title.[42] The members of the Court were agreed that there no errors regarding interpretation ofthe law by the circuit court, in the jury instructions, or in the documents of the tax sale.[43] But, citingBennett v. Hunter, 72 U.S. 326 (1869),[44] (which had involved the nearby Abingdon estate); Tacey v. Irwin,85 U.S. 549 (1873);[45] and Atwood v. Weems, 99 U.S. 183 (1878),[46] the majority reaffirmed that a taxcollector's refusal to accept payment was the equivalent of payment.[47] The majority considered whether arule had been properly adopted by the tax commissioners to accept payment only from the title holder himor her self, and found that it had properly been adopted.[48] However, the majority found that denial of ataxpayer's right to pay through an agent was improper:[5]

...[T]he commissioners, having in the execution of the law acted upon a rule which deprived theowner of the land of an important right, a right which went to the root of the matter, a right which hasin no instance known to us or cited by counsel been refused to a tax-payer, the sale made under suchcircumstances is invalid, as much so as if the tax had been actually paid or tendered.

The government claimed that prior Court rulings on tax payment regulations were not applicable becausethe 1862 the law specifically required payment to be made in person, but the Court disagreed anddistinguished its previous decisions as being based on the 1862 law and its 1863 amendments.[49] Thegovernment also claimed that the law did not permit payment to be made between the announcement of thetax sale and the date of the sale if the government were the purchaser.[50] But the majority pointed out thatthis created a contradiction: How could the title holder know that the government was the purchaser untilthe actual purchase had occurred?[50] This made no sense, and subsequently that section of the law wasinvalid.

The Court next considered whether payment had been attempted. Relying on Cooley v. O'Connor, 79 U.S.391 (1870),[51] the majority noted that nothing in the law or the Constitution indicated that the government'stitle to land "should have any greater effect as evidence of title than in the case of a private purchaser, norwhy it should not be subject to the same rules in determining its validity, nor why the payment or tender of

171

Justice Samuel Miller, whowrote the majority opinion inLee.

the tax, interest, and costs, should not be made by an agent in the one case as in the other."[52] Since therewas uncontested evidence that Lee had attempted to make payment in full, the tax should have beenconsidered paid.[52]

But did sovereign immunity bar any challenge to the government's title, once title had been transferred?Justice Miller engaged in a lengthy historical review of the privilege ofsovereign immunity, its roots in English and common law, its acceptance inColonial America, its enshrinement in the Constitution, and its growingacceptance by the courts of the United States.[53] But the Lee lawsuit wasagainst Kaufman and Strong as individuals, not just the United Statesgovernment. The government argued that title in the Arlington estate washeld by the government, not these officers, and thus was immunized againstsuit.[54] The Court, citing Meigs v. M'Clung's Lessee 13 U.S. 11 (1815),[55]

concluded there was no difference whether the officers were in possessionof the land themselves or whether they held the land as agents of thegovernment.[56] The Court relied heavily on Osborn v. Bank of the UnitedStates, 22 U.S. 738 (1824),[57] in which officers of the state of Ohio (ratherthan the state itself) were sued but the actual party affected was thesovereignly immune state.[58] The majority reaffirmed the statement ofprinciple in Davis v. Gray:[59] "Where the State is concerned, the Stateshould be made a party, if it can be done."[60] The Court agreed that muchof the holding in Carr v. United States was dicta, and could not be relied upon by the government.[61]

The government also claimed that since Arlington had been put to a lofty public use (a cemetery and a fort),Lee should not be able to disturb title to it after so long a period of time. But the Court strongly disagreed,arguing that the Fifth Amendment made no such distinction.[62] In ringing language, the majority upheldLee's right against deprivation of property without due process of law:[63]

The defence stands here solely upon the absolute immunity from judicial inquiry of every one whoasserts authority from the executive branch of the government, however clear it may be made that theexecutive possessed no such power. Not only no such power is given, but it is absolutely prohibited,both to the executive and the legislative, to deprive any one of life, liberty, or property without dueprocess of law, or to take private property without just compensation. ... No man in this country is sohigh that he is above the law. No officer of the law may set that law at defiance with impunity. All theofficers of the government, from the highest to the lowest, are creatures of the law, and are bound toobey it. It is the only supreme power in our system of government, and every man who by acceptingoffice participates in its functions is only the more strongly bound to submit to that supremacy, and toobserve the limitations which it imposes upon the exercise of the authority which it gives. Courts ofjustice are established, not only to decide upon the controverted rights of the citizens as against eachother, but also upon rights in controversy between them and the government; and the docket of thiscourt is crowded with controversies of the latter class. Shall it be said, in the face of all this, and of theacknowledged right of the judiciary to decide in proper cases, statutes which have been passed byboth branches of Congress and approved by the President to be unconstitutional, that the courts cannotgive a remedy when the citizen has been deprived of his property by force, his estate seized andconverted to the use of the government without lawful authority, without process of law, and withoutcompensation, because the President has ordered it and his officers are in possession? If such be the172

law of this country, it sanctions a tyranny which has no existence in the monarchies of Europe, nor inany other government which has a just claim to well-regulated liberty and the protection of personalrights.

The decision of the circuit court was affirmed.[64]

Dissent

Associate Justice Horace Gray wrote a dissent, which was joined by Chief Justice Morrison Waite andAssociate Justices Joseph P. Bradley, and William Burnham Woods.

Justice Gray extensively reviewed the facts of the case.[65] Then Gray asserted the critical principle in thecase: "The sovereign is not liable to be sued in any judicial tribunal without its consent. The sovereigncannot hold property except by agents."[66] Like the majority, the dissenters also provided a lengthy historyof the right of sovereign immunity, but underscoring the uniform inviolability of the right.[67] Citing UnitedStates v. Clarke, 33 U.S. 436 (1834),[68] the dissent reasserted that a lawsuit against the United States mustbe brought under the explicit authority of an act of Congress or the courts have no jurisdiction over it.[69]

Gray also reviewed the authority of private citizens to bring suit in the United States Court of Claims.[70]

To permit Lee's suit, Gray argued, would open the United States to a multitude of suits over title to land itheld.[71] The cases cited by the majority (such as United States v. Peters, Osborn v. Bank of United States,Meigs v. M'Clung, and Davis v. Gray) were improperly cited, Gray argued, as in each case "either themoney was in the personal possession of the defendants and not in the possession of the State, or the suitwas to restrain the defendants by injunction from doing acts in violation of the Constitution of the UnitedStates."[72] It was one thing for the Court to eject or dispossess officers or agents of the United States fromland or funds; such actions, Gray concluded, continued to immunize the United States government fromsuits.[73] Carr v. United States reaffirmed this principle, he concluded.[74] To blur the distinction betweenofficer and state or to assume or imply it without the state's consent, as the majority does, Gray said, wouldleave the sovereign immunity right in shambles.[75]

Once the United States asserted that it was a party to the case, Gray concluded, the courts had nojurisdiction and should not have heard the case.[76] Once the United States interposed itself betweenKaufman and Strong and the plaintiff, the courts should not have ordered trial to proceed against them,either.[77] Because the courts had no jurisdiction, the dissenters refused to address the issue of the validity ofthe title.[77]

Subsequent developmentsThe U.S. government faced the daunting prospect of having to disinter 17,000 bodies and transfer Arlingtonback to the Lee family.[25] Additionally, much of the estate had been developed into the new Army post ofFort Myer.[10] After several months of difficult negotiations, Lee and the government settled on a sale price

173

Arlington House at ArlingtonNational Cemetery in 2005.

of $150,000 ($3,796,607 in 2015 dollars).[10][25] Congress enacted legislation funding the purchase onMarch 3, 1883; Lee signed over the title on March 31; and the title transfer was recorded on May 14,1883.[10][25]

United States v. Lee is one of three important federal sovereign immunity cases, and the most importantdoctrinally.[6][78] The case showed just how sharply divided theSupreme Court was over the scope and legitimacy of sovereignimmunity in the United States.[79] The majority opinion questionedwhether sovereign immunity was appropriate in a republic, andsuggested that it had been adopted in an unprincipled and carelessway by previous court decisions.[79] The decision was the first torefuse to extend sovereign immunity to officers of the state acting asindividuals,[3] a principle which would later become known as the"stripping doctrine".[80] The decision also revised the SupremeCourt's "nominal party rule," first enunciated in Osborn and Davis.In those cases, the Court had salvaged federal and state sovereignimmunity by creating a bright-line legal fiction that the suits wereagainst government officers in their capacity as individuals and not acting on behalf of the state. The Courtin Lee reaffirmed this "nominal party rule" but only with five votes[3]—which proved to be the last time itwas invoked.[81] In Louisiana ex rel. Elliot v. Jumel, 107 U.S. 711 (1882),[82] a majority of the Court upheldthe "nominal party rule" but refused to invoke it on an technicality.[83] In New Hampshire v. Louisiana, 108U.S. 76 (1883),[84] the Court abandoned the "nominal party rule" in favor of a "real party interest test."[85]

The Court openly rejected the rule (without necessarily overturning its previous decision) in In re Ayers,123 U.S. 443 (1887).[86][87] Nevertheless, the Court did not overturn Lee but rather distinguished itnarrowly and continued to affirm its basic principles in Jumel and Ayers.[88]

United States v. Lee also sharply limited the sovereign immunity doctrine by implying that it could besubordinated to other, more fundamental rights such as the Fifth Amendment's prohibition against "takings"without just compensation and due process.[89] Justice Miller's ringing endorsement of the rights ofindividuals is seen as endorsing the concept that, in the United States, the people are the sovereign—not thegovernment.[90] In Tindal v. Wesley, 167 U.S. 204 (1897),[91] the Supreme Court expressly extended the Leedecision to "takings" suits against states (which had previously been barred by the Court's constitutionalinterpretations).[88][92][93]

Although Lee seemed to invite a full-scale reconsideration of the doctrine of sovereign immunity,subsequent Supreme Court decisions in Larson v. Domestic & Foreign Commerce Corporation, 337 U.S.682 (1949)[94] and Malone v. Bowdoin, 369 U.S. 643 (1962)[95] sharply limited the impact of the LeeCourt's decision.[96][97] Larson and Malone specifically carved out only two areas in which an officer of theUnited States may be sued: 1) If the officer acts outside her or his legally prescribed scope of authority, or2) If the officer acts in a way that is unconstitutional.[98]

174

Interestingly, the Lee decision also created a contradiction within the Supreme Court's approach to federal-state relations. Article I, Section 8, Clause 17 of the United States Constitution bars the federal governmentfrom acquiring the land of any state except with that state's express permission.[99] In United States v. Penn,48 F. 669, 670 (C.C.E.D. Va. 1880), a circuit court had held that the federal government held no jurisdictionover Arlington National Cemetery because it had not obtained Virginia's permission to hold title to theland.[99] The Lee Court never addressed this issue, and in fact came to the opposite conclusion (its decisionto return the property to the Lee family being founded on other grounds).[99]

At least one legal historian has concluded that Lee also laid an early foundation for the doctrine of executiveimmunity.[100]

In many ways, the Lee decision is also more famous for its defense of the rights of citizens than itssovereign immunity jurisprudence. Miller's defense of the rights of the individual ("No man...is above thelaw...") is considered "elegantly elaborated" by lawyer Lawrence Walsh.[101] Constitutional law scholarLouise Weinberg called the language "ringing".[102] Another legal scholar called the language "remarkable"and emphatic.[93]

Footnotes1. United States v. Lee Kaufman. Wikisource.2. Desty, Robert, ed. (1883). "United States v. Lee; Kaufman and another v. Same. December 4, 1882 (106 U.S.

196)" (http://books.google.com/books?id=9U03AAAAIAAJ&pg=PA240#v=onepage&f=false). Supreme CourtReporter. Cases Argued and Determined in the United States Supreme Court, October Term, 1882: October,1882-February 1883 (Saint Paul, MN: West Publishing Company) 1: 240–286. Retrieved 2011-08-22.

3. Durchslag, 2002, p. 53.4. Chase, 1930, p. 191.5. United States v. Lee, 106 U.S. 196, 202, citing Hills v. Exchange Bank, 105 U.S. 319 (1881).6. Meyer, 1998, p. 140.7. Amar, 1987, p. 1512.8. On this point, the Court was unanimous. See: Grant, 1996, p. 203, note 254.9. Jackson, 1969, p. 96; Stephenson, 2003, p. 74.

10. Holt, 2010, p. 336.11. Silber, 2003, p. 125.12. "Arlington National Cemetery," 2009, p. 77.13. Silber, 2003, p. 126.14. Hansen, 2001, p. 69.15. Chase, 1930, p. 173.16. McCaslin, 2004, p. 79-80.17. Atkinson, 2007, p. 25.18. Chase, 1930, p. 175-176.19. Chase, 1930, p. 176.20. "Arlington," 2000, p. 77.21. Poole, 2009, p. 54-55.22. Poole, 2009, p. 55.23. Chase, 1930, p. 180.24. McCaslin, 2004, p. 82.25. Atkinson, 2007, p. 26.26. Chase, 1930, p. 182.27. Randall, 1913, p. 35. 175

28. Chase, 1930, p. 183.29. Chase, 1930, p. 183-184.30. Chase, 1930, p. 184.31. Chase, 1930, p. 184-185.32. Chase, 1930, p. 185.33. Chase, 1930, p. 187-188.34. Chase, 1930, p. 189.35. Carr v. United States. Wikisource.36. Carr v. United States, 98 U.S. 433.37. Chase, 1930, p. 192.38. Chase, 1930, p. 193.39. Chase, 1930, p. 193-194.40. Randall, 1913, p. 36.41. United States v. Lee, 106 U.S. 196, 196-199.42. United States v. Lee, 106 U.S. 196, 199.43. United States v. Lee, 106 U.S. 196, 199-200.44. Bennett v. Hunter. Wikisource.45. Tacey v. Irwin. Wikisource.46. Atwood v. Weems. Wikisource.47. United States v. Lee, 106 U.S. 196, 200.48. United States v. Lee, 106 U.S. 196, 200-202.49. United States v. Lee, 106 U.S. 196, 202-203.50. United States v. Lee, 106 U.S. 196, 203.51. Cooley v. O'Connor. Wikisource.52. United States v. Lee, 106 U.S. 196, 204.53. United States v. Lee, 106 U.S. 196, 205-210.54. United States v. Lee, 106 U.S. 196, 110.55. Meigs v. M'Clung's Lessee. Wikisource.56. United States v. Lee, 106 U.S. 196, 210-211.57. Osborn v. President Directors and Company of the Bank of the United States. Wikisource.58. United States v. Lee, 106 U.S. 196, 212-213.59. Davis v. Gray. Wikisource.60. United States v. Lee, 106 U.S. 196, 215, citing Davis v. Gray, 83 U. S. 203 (1872) at 221.61. United States v. Lee, 106 U.S. 196, 216-217.62. United States v. Lee, 106 U.S. 196, 217-220.63. United States v. Lee, 106 U.S. 196, 220-221.64. United States v. Lee, 106 U.S. 196, 223.65. United States v. Lee, 106 U.S. 196, 224-226.66. United States v. Lee, 106 U.S. 196, 226.67. United States v. Lee, 106 U.S. 196, 226-239.68. United States v. Clarke. Wikisource.69. United States v. Lee, 106 U.S. 196, 239.70. United States v. Lee, 106 U.S. 196, 239-241.71. United States v. Lee, 106 U.S. 196, 242.72. United States v. Lee, 106 U.S. 196, 242-243.73. United States v. Lee, 106 U.S. 196, 244-248.74. United States v. Lee, 106 U.S. 196, 248.75. United States v. Lee, 106 U.S. 196, 249.76. United States v. Lee, 106 U.S. 196, 249-251.77. United States v. Lee, 106 U.S. 196, 251.78. Sisk, Noone, Steadman, and Lester, 2006, p. 80; Jaffee, 1963, p. 25.79. Sisk, Noone, Steadman, and Lester, 2006, p. 81.80. Sisk, Noone, Steadman, and Lester, 2006, p. 81-82.81. Jacobs, 1972, p. 16. 176

BibliographyAmar, Akhil Reed. "Of Sovereignty and Federalism." Yale Law Journal. 96:1425 (June 1987)."Arlington." Encyclopedia of the American Civil War: A Political, Social, and Military History.David Stephen Heidler, Jeanne T. Heidler, and David J. Coles, eds. New York: W.W. Norton & Co.,2000."Arlington National Cemetery." In Encyclopedia of the Veteran in America. William Pencak, ed.Santa Barbara, Calif.: ABC-CLIO, 2009.Atkinson, Rick. Where Valor Rests: Arlington National Cemetery. Washington, D.C.: NationalGeographic Society, 2007.Berger, Eric. "The Collision of the Takings and State Sovereign Immunity Doctrines." Washington &Lee Law Review. 63:493 (Spring 2006).Chase, Enoch Aquila. "The Arlington Case: George Washington Custis Lee against the United Statesof America." Records of the Columbia Historical Society. 31/32: 1930.Durchslag, Melvyn R. State Sovereign Immunity: A Reference Guide to the United StatesConstitution. Westport, Conn.: Praeger, 2002.Grant, Eric. "A Revolutionary View of the Seventh Amendment and the Just Compensation Clause."Northwestern University Law Review. 91:144 (Fall 1996).Hansen, Harry. The Civil War: A History. New York: Signet, 2001.Holt, Dean W. American Military Cemeteries. Jefferson, N.C.: McFarland & Co., 2010.Jackson, Percival E. Dissent in the Supreme Court: A Chronology. Norman, Okla.: University ofOklahoma Press, 1969.Jacobs, Clyde Edward. The Eleventh Amendment and Sovereign Immunity. Westport, Conn.:Greenwood Press, 1972.Jaffee, Louis L. "Suits Against Governments and Officers: Sovereign Immunity." Harvard LawReview. 77:1 (1963).McCaslin, Richard B. Lee in the Shadow of Washington. Baton Rouge: Louisiana State UniversityPress, 2004.Meyer, Randy L. "The Supreme Court's Analysis in Idaho v. Coeur D'Alene Tribe of Idaho: Is the

82. State of Louisiana Elliott v. Jumel. Wikisource.83. Durchslag, 2002, p. 54.84. State of New Hampshire v. State of Louisiana State of New York. Wikisource.85. Durchslag, 2002, p. 55.86. Ayers Scott McCabe. Wikisource.87. Durchslag, 2002, p. 57.88. Seamon, 1998, p. 173-174.89. Sisk, Noone, Steadman, and Lester, 2006, p. 82.90. Pfafflin, 1992, p. 657.91. Tindal v. Wesley. Wikisource.92. Rosenblatt, 2000, p. 732; Seamon, 2001, p. 1081.93. Berger, 2006, p. 543.94. Larson v. Domestic & Foreign Commerce Corporation. Wikisource.95. Malone v. Bowdoin. Wikisource.96. Sisk, Noone, Steadman, and Lester, 2006, p. 82-88.97. Meyer, 1998, p. 141.98. Sisk, Noone, Steadman, and Lester, 2006, p. 89.99. Paust, 1999, p. 318, note 60.

100. Williams, 1997, p. 976.101. Walsh, 1998, p. 1379.102. Weinberg, 2001, p. 1171.

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Young Exception to the Eleventh Amendment Inapplicable to Indian Tribe Claims?" Toledo LawReview. 30:131 (Fall 1998).Paust, Jordan J. "Non-Extraterritoriality of 'Special Territorial Jurisdiction' of the United States:Forgotten History and the Errors of Erdos." Yale Journal of International Law. 24:305 (Winter 1999).Pfafflin, James R. Encyclopedia of Environmental Science and Engineering. Florence, Ky.: Taylor &Francis, 1992.Poole, Robert M. On Hallowed Ground: The Story of Arlington National Cemetery. New York, N.Y.:Walker & Co., 2009.Randall, J.G. The Confiscation of Property During the Civil War. Indianapolis: Mutual Printing andLithographing Co., 1913.Rosenblatt, Lauren E. "Removing the Eleventh Amendment Barrier: Defending Indian Land TitleAgainst State Encroachment After Idaho v. Coeur d'Alene Tribe." Texas Law Review. 78:719(February 2000).Seamon, Richard H. "The Asymmetry of State Sovereign Immunity." Washington Law Review.76:1067 (October 2001).Seamon, Richard H. "Separation of Powers and the Separate Treatment of Contract Claims Againstthe Federal Government for Specific Performance." Villanova Law Review. 43:155 (1998).Silber, Nina. Landmarks of the Civil War. New York: Oxford University Press, 2003.Sisk, Gregory C.; Noone, Michael F.; Steadman, John Montague; and Lester, Urban A. LitigationWith the Federal Government. 4th ed. Philadelphia, Pa.: American Law Institute, 2006.Stephenson, Donald Grier. The Waite Court: Justices, Rulings, and Legacy. Santa Barbara, Calif.:ABC-CLIO, 2003.Walsh, Lawrence E. "The Future of the Independent Counsel Law." Wisconsin Law Review.1998:1379 (1998).Weinberg, Louise. "Of Sovereignty and Union: The Legends of Alden." University of Notre DameLaw Review. 76:113 (June 2001).Williams, Glenn T. "Temporary Immunity: Distinguishing Case Law Opinions on ExecutiveImmunity and Privilege as the Supreme Court Tackles an Oxymoron." Nova Law Review. 21:969(Spring 1997).

Retrieved from "http://en.wikipedia.org/w/index.php?title=United_States_v._Lee&oldid=644649719"

Categories: 1882 in United States case law United States Supreme Court cases Takings Clause case lawUnited States federal sovereign immunity case lawUnited States Supreme Court cases of the Waite Court


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United States v. U.S. District Court

Supreme Court of the United StatesArgued February 24, 1972


United States v. United States District Court forthe Eastern District of Michigan, et al.(Plamondon, et al., real parties in interest)

Citations 407 U.S. 297(https://supreme.justia.com/us/407/297/case.html)(more)

HoldingThe Court held government officials were obligated to obtain a

warrant before beginning electronic surveillance even ifdomestic security issues were involved. The "inherent vaguenessof the domestic security concept" and the potential for abusing it

to quell political dissent made the Fourth Amendmentprotections especially important when the government engaged

in spying on its own citizens.Court membership

Chief JusticeWarren E. BurgerAssociate Justices

William O. Douglas · William J. Brennan, Jr.Potter Stewart · Byron White

Thurgood Marshall · Harry BlackmunLewis F. Powell, Jr. · William Rehnquist

Case opinionsMajority Powell, joined by Douglas, Brennan, Stewart,

Marshall, BlackmunConcurrence Burger (concurred in the result without opinion)Concurrence DouglasConcurrence White

Rehnquist took no part in the consideration or decision of the case.

Laws appliedU.S. Const. amend. IV

Wikisource has original

United States v. United States District CourtFrom Wikipedia, the free encyclopedia

United States v. U.S. District Court, 407 U.S.297 (1972), also known as the Keith case, wasa landmark United States Supreme Courtdecision that upheld, in a unanimous 8-0ruling, the requirements of the FourthAmendment in cases of domestic surveillancetargeting a domestic threat.

The United States charged John Sinclair,Lawrence 'Pun' Plamondon, and John Forrestwith conspiracy to destroy governmentproperty. One of the defendants, Lawrence'Pun' Plamondon, was also charged with thedynamite bombing of an office of the CentralIntelligence Agency in Ann Arbor, Michigan.The defendants were leaders of the radicalWhite Panther Party. In response to a pretrialmotion by the defense for disclosure of allelectronic surveillance information, Nixon'sattorney general, John Mitchell, claimed heauthorized the wiretaps pursuant to Title III ofthe Omnibus Crime Control and Safe StreetsAct of 1968 and was not required to disclosethe sources. Though warrantless, the actallows for an exception to prevent theoverthrow of the government and when "anyother clear and present danger to the structureor existence of the Government" exists. TheGovernment contended that since thedefendants were members of a domesticorganization attempting to subvert and destroyit, this case fell under the exception clause.

After reading the briefs and hearing oralarguments by Constitutional attorney Hugh"Buck" Davis,[1] Judge Damon Keith[2] of theUnited States District Court for the EasternDistrict of Michigan disagreed and ordered theGovernment to disclose all of the illegallyintercepted conversations to the defendants.The Government appealed, filing a petition fora writ of mandamus with the Court of Appealsfor the Sixth Circuit to set aside the order. The

179

text related to this article:United States v. UnitedStates District Court

Sixth Circuit also rejected the Government's arguments and upheldthe lower court decision. The Supreme Court granted a writ ofcertiorari and heard the case.

Contents1 The decision2 Quotations3 See also4 References5 External links

The decisionThe Supreme Court upheld the prior rulings in the case, holding that the wiretaps were an unconstitutionalviolation of the Fourth Amendment and as such must be disclosed to the defense. This established theprecedent that a warrant needed to be obtained before beginning electronic surveillance even if domesticsecurity issues were involved. Note that the decision applied only to domestic issues; foreign intelligenceoperations were not bound by the same standards. The governing law for electronic surveillance of "foreignintelligence information" between or among "foreign powers" is the Foreign Intelligence Surveillance Act(FISA) of 1978.

QuotationsThe price of lawful public dissent must not be a dread of subjection to an unchecked surveillancepower. Nor must the fear of unauthorized official eavesdropping deter vigorous citizen dissent anddiscussion of Government action in private conversation. For private dissent, no less than open publicdiscourse, is essential to our free society.; Lewis Powell, writing for the Majority.

"As I read it - and this is my fear - we are saying that the President, on his motion, could declare -name your favorite poison - draft dodgers, Black Muslims, the Ku Klux Klan, or civil rights activiststo be a clear and present danger to the structure or existence of the Government."; Senator Hart,quoted by Lewis Powell, writing for the Majority.

History abundantly documents the tendency of Government - however benevolent and benign itsmotives - to view with suspicion those who most fervently dispute its policies. Fourth Amendmentprotections become the more necessary when the targets of official surveillance may be thosesuspected of unorthodoxy in their political beliefs. The danger to political dissent is acute where theGovernment attempts to act under so vague a concept as the power to protect "domestic security."Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protectthat interest becomes apparent.; Lewis Powell, writing for the Majority.

This is an important phase in the campaign of the police and intelligence agencies to obtainexemptions from the Warrant Clause of the Fourth Amendment. For, due to the clandestine nature ofelectronic eaves-dropping, the need is acute for placing on the Government the heavy burden to showthat "exigencies of the situation [make its] course imperative." Other abuses, such as the search180

incident to arrest, have been partly deterred by the threat of damage actions against offendingofficers, the risk of adverse publicity, or the possibility of reform through the political process. Theselatter safeguards, however, are ineffective against lawless wiretapping and "bugging" of which theirvictims are totally unaware. Moreover, even the risk of exclusion of tainted evidence would hereappear to be of negligible deterrent value inasmuch as the United States frankly concedes that theprimary purpose of these searches is to fortify its intelligence collage rather than to accumulateevidence to support indictments and convictions. If the Warrant Clause were held inapplicable here,then the federal intelligence machine would literally enjoy unchecked discretion.; William O.Douglas, in a concurring opinion.

Here, federal agents wish to rummage for months on end through every conversation, no matter howintimate or personal, carried over selected telephone lines, simply to seize those few utterances whichmay add to their sense of the pulse of a domestic underground.; William O. Douglas, in a concurringopinion.

We are told that one national security wiretap lasted for 14 months and monitored over 900conversations. Senator Edward Kennedy found recently that "warrantless devices accounted for anaverage of 78 to 209 days of listening per device, as compared with a 13-day per device average forthose devices installed under court order." He concluded that the Government's revelations posed"the frightening possibility that the conversations of untold thousands of citizens of this country arebeing monitored on secret devices which no judge has authorized and which may remain in operationfor months and perhaps years at a time." Even the most innocent and random caller who uses ortelephones into a tapped line can become a flagged number in the Government's data bank.; WilliamO. Douglas, in a concurring opinion.

See alsoRichard NixonJohn N. MitchellTelephone tappingForeign Intelligence Surveillance Act of 1978ACLU v. NSAList of United States Supreme Court cases, volume 407John Sinclair (poet)

References Works related to United States v. United States District Court at Wikisource

Text of United States v. U.S. District Court, 407 U.S. 297 (1972) is available from: Findlaw(http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=407&page=297) Justia(http://supreme.justia.com/us/407/297/case.html) LII(http://www.law.cornell.edu/supct/search/display.html?terms=70-153&url=/supct/html/historics/USSC_CR_0407_0297_ZS.html)

www.reuther.wayne.edu/files/UP00881.pdf (http://www.reuther.wayne.edu/files/UP00881.pdf) Achievedfiles of Hugh "Buck" Davis.

1. http://www.reuther.wayne.edu/files/UP001881.pdf 181

2. [1] (http://www.fas.org/irp/congress/2003_cr/s051503.html)

External linksUnited States v. US District Court Significance (http://law.jrank.org/pages/23437/United-States-v-U-S-District-Court-Significance.html)The Story of the United States vs. United States District Court (Keith): The Surveillance Power(http://lsr.nellco.org/cgi/viewcontent.cgi?article=1047&context=columbia_pllt)

Retrieved from "http://en.wikipedia.org/w/index.php?title=United_States_v._United_States_District_Court&oldid=644791598"

Categories: United States Supreme Court cases United States Fourth Amendment case law1972 in United States case law United States Supreme Court cases of the Burger Court


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United States v. Yousef case brief

United States v. Yousef327 F2d 56 (2d Cir. 2003)Procedural History:Appeal of criminal conviction.

Overview:Ramzi Yousef (D), Wali Khan Amin Shah (D), and Abdul Hakim Murad (D) appealed from judgments ofconviction entered in the United States District Court for the Southern District of New York on chargesrelating to a conspiracy to bomb twelve U.S. commercial airliners in Southeast Asia. ‐Ramzi Yousef (D) entered Manila under an assumed name in order to execute a plan to attack U.S.airliners. Under the plan, bombs would be placed aboard twelve U.S. aircraft with routes in Southeast Asiaby five individuals. The conspirators would board the plane, assemble the bomb while in flight, and thenexit the plane during its first layover. ‐The plot was discovered two weeks before the intended execution, when Yousef (D) and Murad (D)accidentally started a fire while burning chemicals in their Manila apartment. The fire department involvedthe police department, which found the bomb components, a laptop with notes on the plan, and otherevidence. Philippine authorities arrested Murad (D) and Shah (D), but Shah (D) escaped and evaded captureuntil a year later. Yousef (D) fled to Pakistan, but was captured the following month. Through a multi‐countindictment, Yousef (D), Murad (D), and Shah (D) were charged with various crimes related to theirconspiracy to bomb the planes. A jury found all three guilty on all counts.

Issue:Did the U.S. government (P) exceed its authority by trying an alleged terrorist in the United States, whenthe criminal conduct occurred outside the United States, but involved its airliners?

Rule:The US government did not exceed its authority by trying an alleged terrorist in the US when the criminalconduct occurred outside the US but involved its airlines

Analysis: The Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft generally regulatesjurisdiction over crimes committed on aircraft International law generally requires that there be a genuinelink between the state and the aircraft in order for the state to lawfully assert jurisdiction over crimescommitted on board.

Outcome:‐The U.S. government (P) did not exceed its authority by trying an alleged terrorist in the United States,when the criminal conduct occurred outside the United States but involved its airliners. jurisdiction issupported by both domestic and international law. ‐Because the federal court had jurisdiction over the substantive crimes charged, including attempteddestruction of aircraft in the special aircraft jurisdiction of the United States, it also had derivativejurisdiction over the conspiracy charges. ‐Congress is presumed to intend extraterritorial application of criminal statutes where the nature of thecrime does not depend on the locality of the criminal acts and where restricting the statute to U.S. territorywould severely diminish the statute’s effectiveness. With respect to whether customary international lawprovides a basis for jurisdiction over the case, United States law is not subordinate to customaryinternational law or necessarily subordinate to treaty based international law. Moreover, customaryinternational law does provide a substantial basis for jurisdiction by the United States through the “passivepersonality principle,” because the case involved a plot to bomb U.S. aircraft that would have been carryingU.S. citizens and crews destined for cities in the United States. jurisdiction is also appropriate under the“objective territorial principle” because the purpose of the attack was to influence U.S. foreign policy. ‐Finally, Yousef’s (D) conduct constitutes conduct proscribed by the Montreal Convention, and hisprosecution and conviction is both consistent with and required by the United States’ treaty obligations anddomestic law.

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184

Youngstown Sheet & Tube Co. v. Sawyer

Supreme Court of the United StatesArgued May 12–13, 1952


Youngstown Sheet & Tube Company, et al. v.Charles Sawyer, Secretary of Commerce

Citations 343 U.S. 579(https://supreme.justia.com/us/343/579/case.html)(more)72 S. Ct. 863; 96 L. Ed. 1153; 1952 U.S. LEXIS2625; 21 Lab. Cas. (CCH) P67,008; 1952 TradeCas. (CCH) P67,293; 62 Ohio L. Abs. 417; 47Ohio Op. 430; 26 A.L.R.2d 1378; 30 L.R.R.M.2172

Prior history Injunction granted to plaintiffs, 103 F. Supp. 569(D. D.C. 1952); injunctions stayed, 197 F.2d 582(D.C. Cir. 1952); cert. granted, 343 U.S. 937(1952)

HoldingThe President did not have the inherent authority to seize private

property in the absence of either specifically enumeratedauthority under Article Two of the Constitution or statutoryauthority conferred on him by Congress. DC District Court

affirmed.Court membership

Chief JusticeFred M. Vinson

Associate JusticesHugo Black · Stanley F. Reed

Felix Frankfurter · William O. DouglasRobert H. Jackson · Harold H. Burton

Tom C. Clark · Sherman MintonCase opinions

Majority Black, joined by Frankfurter, Douglas, Jackson,Burton

Concurrence FrankfurterConcurrence DouglasConcurrence Jackson

Youngstown Sheet & Tube Co. v. SawyerFrom Wikipedia, the free encyclopedia

Youngstown Sheet & Tube Co. v. Sawyer,343 U.S. 579

185

Concurrence BurtonConcurrence ClarkDissent Vinson, joined by Reed, Minton

Laws appliedU.S. Const. art. II


Youngstown Sheet &Tube Company v.Sawyer

(https://supreme.justia.com/cases/federal/us/343/579/) (1952), alsocommonly referred to as The Steel Seizure Case, was a UnitedStates Supreme Court decision that limited the power of thePresident of the United States to seize private property in the absenceof either specifically enumerated authority under Article Two of theUnited States Constitution or statutory authority conferred on him byCongress. It was a "stinging rebuff" to President Harry Truman.[1]

Justice Hugo Black's majority decision was, however, qualified by the separate concurring opinions of fiveother members of the Court, making it difficult to determine the details and limits of the President's powerto seize private property in emergencies. While a concurrence, Justice Jackson's opinion is used by mostlegal scholars and members of Congress to assess executive power.

Contents1 Background2 Prior history3 Proceedings before the Court4 Majority opinion5 Concurring opinions

5.1 William O. Douglas5.2 Felix Frankfurter5.3 Robert Jackson5.4 Harold Hitz Burton5.5 Tom Campbell Clark

6 Dissenting opinion7 Effects of the decision8 See also9 References10 Further reading11 External links

BackgroundThe United States was involved in the Korean War in 1950 when troops from North Korea invaded theRepublic of Korea. President Harry Truman sent troops to South Korea without asking for a Congressionaldeclaration of war on North Korea—albeit with a United Nations resolution.

186

President Truman chose not to impose price controls, as the federal government had done during World WarII. Instead, the administration attempted to avoid inflationary pressures through creation of a WageStabilization Board that sought to keep down the inflation of consumer prices and wages while avoidinglabor disputes whenever possible. Those efforts failed, however, to avoid a threatened strike of all of themajor steel producers by the United Steel Workers of America when the steel industry rejected the board'sproposed wage increases unless they were allowed greater price increases than the government was preparedto approve.

The Truman administration believed that a strike of any length would cause severe dislocations for defensecontractors and for the domestic economy as a whole. Unable to mediate the differences between the unionand the industry, Truman decided to seize their production facilities, while he kept the current operatingmanagement of the companies in place to run the plants under federal direction.

Truman might have, rather than seizing the plants, invoked the national emergency provisions of the Taft–Hartley Act to prevent the union from striking. The administration rejected that option, however, both froma distaste for the Act, which had been passed over Truman's veto five years earlier, and because theadministration saw the industry, rather than the union, as the cause of the crisis.

The administration also rejected use of the statutory procedure provided under Section 18 of the SelectiveService Act of 1948 that might have permitted seizure of the industry's steel plants on the ground thatcompliance with this procedure was too time-consuming and the outcome of compliance too uncertain.Truman chose not to go to Congress to obtain additional statutory authorization for a seizure of the steelindustry for the same reasons. That left invocation of the President's inherent authority to act in response toa national emergency.

The Steelworkers favored government seizure of the plants under any available theory to a Taft–Hartleyinjunction against it; Arthur Goldberg, General Counsel for the Steelworkers and the Congress of IndustrialOrganizations, argued that the President had the inherent power to seize the plants, as well as the statutoryauthority under the Selective Service Act and the Defense Production Act.

The steel industry, on the other hand, appears to have been taken by surprise, as it had apparently assumeduntil shortly before Truman made his April 8, 1952 announcement that he would take the less risky step ofseeking a national emergency injunction under the Taft–Hartley Act instead. However, the industry was, asevents showed, ready to act once he announced the seizure by a national television and radio broadcast.

Prior historyThe steel companies reacted immediately, sending attorneys to the home of United States District JudgeWalter Bastian within a half hour of the end of the President's speech to ask for issuance of a temporaryrestraining order. Judge Bastian scheduled a hearing for 11:30 the next day to hear arguments on the motion.

Because hearings on emergency motions came before a randomly chosen judge, the hearing the next daywas before Judge Alexander Holtzoff, a Truman appointee. Judge Holtzoff denied the motion on the groundthat the balance of equities favored the government.

The case was then assigned to Judge David Andrew Pine, who heard the steel companies' motions for apreliminary injunction. From a tactical perspective, both sides focused on the wrong issues: In its papers, thegovernment stressed the ultimate constitutional issue of whether the President had the power to seize the

187

mills; the steel companies appeared to be shying away from that issue by focusing on the equities and askingthe Court merely to enjoin the federal government from entering into a collective bargaining agreement withthe Steelworkers.

Judge Pine indicated, however, that he was interested in the fundamental issue of Presidential power; evenso, the steel companies' attorneys continued to steer the discussion back to the equities and the President'sstatutory power under the Taft–Hartley Act. After the attorney for one of the smaller producers, ArmcoSteel Corporation, finally challenged the government's right to seize its property without Congressionalauthorization, Judge Pine then asked the attorney for the government to respond.

The assistant Attorney General may have done more harm to the government's case than the steel companieshad. Asked by Judge Pine for the source of the President's authority, he offered "Sections 1, 2 and 3 ofArticle II of the Constitution and whatever inherent, implied or residual powers may flow therefrom". Whenthe Court asked if the government took the position that "when the sovereign people adopted theConstitution...it limited the powers of the Congress and limited the powers of the judiciary, but it did notlimit the powers of the Executive", he assured Judge Pine that this was the case. He was, however, unable toname any cases that had held that the President had this power.

His presentation committed the Truman administration to an absolutist version of Presidential power thatwent beyond the administration's own position. Truman's supporters in Congress first distanced themselvesfrom the argument, then spread the message that Truman disavowed it as well. Finally, Truman issued astatement responding to a constituent's letter in which he acknowledged in very general terms the limitationsthat the Constitution imposed on his power to respond in a national emergency.

Two days later, Judge Pine issued an injunction barring the government from continuing to hold the steelplants it had seized. The Steelworkers began their strike within minutes of the announcement of theinjunction. The government promptly appealed.

It first, however, formally requested that Judge Pine stay his order, and permit the government to resumecontrol of the plants, ending the strike by the Steelworkers. He declined to do so. The government thenapplied for a stay in the D.C. Circuit. The Court, sitting en banc, granted the government's request for a stayby a five to four vote on April 30, then denied a motion for reconsideration by the steel companies thatsought to amend the stay order to bar the government from increasing wages by the same margin thefollowing day. The stay granted by the Court of Appeals was conditioned, however, on the government'sfiling of a petition for certiorari by May 2, 1952, and only lasted until the Supreme Court acted on thatpetition.

The government filed its petition for certiorari on May 2, only to discover that the steel companies hadalready filed one of their own. The government renewed its request for a stay.

In the meantime, the White House convened a meeting between the Steelworkers and the major steelcompanies on May 3. Those talks made rapid progress and might have produced an agreement, if theannouncement that the Supreme Court had granted certiorari and issued a stay allowing the government tomaintain possession of the steel mills—but coupled with an order barring any increase in wages during thependency of the appeal—had not removed any incentive the steel companies had to reach agreement on anew contract with the union.

Proceedings before the Court188

The Court set the matter for oral argument on May 12, 1952, less than ten days later. The government's briefopened with an attack on Judge Pine's application of equitable principles to the facts before him, but devotedmuch of its 175 pages to the historical records of governmental seizure of private property during wartime,from the Revolutionary War and the War of 1812 through Lincoln's Emancipation Proclamation and seizureof telegraph and railroad lines to the government's seizure of industrial properties in the First and SecondWorld Wars.

The steel industry's brief focused instead on the lack of statutory authority for this seizure, emphasizingCongress' decision when enacting the Taft–Hartley Act to give the President the power to seek an injunctionagainst strikes that might affect the national economy instead. It denied that the President had any power toseize private property without express legislative authorization, noting that Truman himself had asked forsuch legislative authority when the United Mine Workers of America went out on strike in 1950.

The Court set aside five hours for oral argument, while allowing the Steelworkers and the railroad unions tospeak as amicus curiae. Before an overflow crowd, John W. Davis argued for the steel companies that thePresident had no powers to make laws or, more particularly, to seize property without Congressionalauthorization. He explained away his own actions when he had defended the government's seizure ofproperty while he had been Solicitor General in the Wilson administration and urged the justices to lookbeyond the transitory labor dispute before them to the constitutional principles at stake, closing withThomas Jefferson's words, slightly misquoted, "In questions of power let no more be said of confidence inman but bind him down from mischief by the chains of the Constitution". Justice Frankfurter was the onlyJustice to interrupt Davis with a question, and only one, during his argument.

Truman's Solicitor General Philip B. Perlman had a rockier argument, as the Justices pressed him withquestions on many of the points he made. Justice Jackson took pains to distinguish the facts concerning theseizure of the North American Aviation Company in 1941 which he had overseen as Attorney General at thetime. Justice Douglas commented that if Perlman were correct as to the scope of the President's powers, thenthere was no need for Congress. When Perlman attempted to close on a rousing note, reminding the Justicesthat this was wartime, Justices Jackson and Frankfurter immediately contradicted him, noting that Congresshad not declared war.

Goldberg, speaking for the Steelworkers, addressed whether the Taft–Hartley Act would have allowed forinjunctive relief in these circumstances. The attorneys for the railroad brotherhoods, who were parties to asimilar action coming up for review, addressed the President's inherent powers. Davis then gave his rebuttal,using only a few minutes of the hour he had reserved.

Even despite the Court's evident lack of sympathy for the broad claims of inherent power made by thegovernment, Truman and many other observers expected the Court to uphold his authority to act in theabsence of express statutory authorization. Many commentators predicted that the Court would avoid theconstitutional question, while others stressed the background that all of the Justices had in the New Deal andFair Deal, when the powers of the Presidency had expanded greatly, and the past support of Justices such asBlack, Reed, Frankfurter, and Douglas for the expansive application of the President's war powers.

As it turns out, most of those predictions were wrong. While Justice Burton harbored fears at one point thathe might be the only Justice to vote against the government's position, he was encouraged by his privateconversations with other Justices. In the end, the Court voted 6–3 to affirm the District Court's injunctionbarring the President from seizing the steel plants.

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Majority opinionJustice Black wrote for the majority, although the number of divergent concurring opinions made it clearthat he did not necessarily speak for it. Black took, as he often did, an absolutist view, holding that thePresident had no power to act except in those cases expressly or implicitly authorized by the Constitution oran act of Congress.

Concurring opinions

William O. Douglas

Douglas took a similarly absolutist approach to the President's assertion of inherent power to cope with anational emergency.

Felix Frankfurter

Frankfurter avoided the sweeping condemnation of the administration's claims that Black and Douglas hadoffered. While he would not rule out the possibility that the President might acquire the power to takecertain actions by a long course of conduct unobjected to by Congress, he found the statutory historypersuasive evidence that Congress had not acquiesced, much less authorized seizure of private property inthe absence of a formal declaration of war.

Robert Jackson

Jackson's opinion took a similarly flexible approach to the issue, eschewing any fixed boundaries betweenCongress' and the President's power. Jackson divided Presidential authority vis-à-vis Congress into threecategories (in descending order of legitimacy):

Cases in which the President was acting with express or implied authority from CongressCases in which Congress had thus far been silentCases in which the President was defying congressional orders (the "third category")

Harold Hitz Burton

Burton likewise held that Congress, not the President, possessed the power to act in emergencies because ithad exclusive power to pass legislation. He relied on the language and legislative history of the Taft–HartleyAct to find that Congress had not authorized seizure of plants involved in a labor dispute without expresslegislative authorization. He hedged, however, on whether the President might, in more extremecircumstances, have authority to act.

Tom Campbell Clark

Justice Clark, who had been Truman's Attorney General for four years before Truman appointed him to theCourt, rejected Black's and Douglas' absolutist approach, holding that the President did have some inherentpower to act in the case of grave and imperative national emergencies. Clark refused, however, to define theboundaries of that power; in his view the fact that Congress had provided in the Taft–Hartley Act, the

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Selective Service Act or the Defense Production Act for procedures that the executive could have used,ended the discussion by barring the President from relying on any inherent powers he might otherwise haveto choose a solution other than the ones that Congress had allowed.

Dissenting opinionChief Justice Vinson dissented; Justices Reed and Minton joined him. His opinion dealt at some length withthe history of presidential seizures; in the oral presentation of his opinion he went out of his way to make asarcastic reference to the contrary positions that Jackson and Clark had taken when they were the AttorneysGeneral for Roosevelt and Truman, respectively. Rejecting the view that Congress had limited theexecutive's authority to seize property in this case by providing for different procedures in the legislation ithad enacted, Vinson's opinion nonetheless appeared to recognize Congress' primacy in enacting legislation,justifying the seizure in this case as necessary to preserve the status quo so that Congress could act in thefuture, but mocking arguments based on the Constitution's provision allowing the President to recommendlegislation, rather than to make it himself, as "the messenger-boy concept of the Office".

Effects of the decisionWithin minutes of the Court's ruling, Truman ordered Commerce Secretary Charles Sawyer to return thesteel mills to their owners. Sawyer did so immediately. The Steelworkers went out on strike again shortlythereafter. The strike lasted for more than fifty days until the President threatened to use the somewhatcumbersome procedures under the Selective Service Act to seize the mills.

Truman was stunned by the decision, which he continued to attack years later in his Memoirs. Justice Blackwas concerned enough that Truman would take the decision personally that he invited Truman and hisfellow Justices to a party at his home. Truman, still smarting from the defeat, was mollified somewhat byBlack's hospitality; as he told Black, "Hugo, I don't much care for your law, but, by golly, this bourbon isgood".Template:Http://www.nytimes.com/2004/02/01/weekinreview/the-nation-social-court-the-justice-who-came-to-dinner.html

The multiplicity of opinions made it difficult to determine just what the Court had decided as to whether andwhen the President had authority to act without Congressional authorization. In large part this was the resultof the fact that the administration had made a weak case—the evidence of an actual emergency was tenuous,given the substantial stockpiles of steel products in many sectors of the economy at the time—even weakerby overstating its position and offering incoherent arguments in the early phases of the litigation that turnedpublic opinion against it, while framing the public debate in the most simplistic terms.

The decision nonetheless has had a broad impact. It represented a check on the most extreme claims ofexecutive power at the time. It also represented the Court's assertion of its own role in intervening inpolitical questions, as the Court later did in Baker v. Carr and Powell v. McCormack. The Court also appliedthe Frankfurter-Jackson approach to analyzing Congress' legislative authorization of Presidential action ininvalidating efforts by the Nixon administration to plant wiretaps without prior judicial approval, whileciting it more generally in support of its decision to permit litigation against the President to proceed inClinton v. Jones. The high court also relied on Youngstown in Medellín v. Texas, 06-984 (2008). In thatcase, President Bush had pressured the state of Texas to review the murder conviction of a Mexican citizenwho had tortured and raped two teenage girls in 1993, arguing that a 2004 decision by the InternationalCourt of Justice (ICJ) required law enforcement authorities to tell the accused of his right under the Vienna

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Convention to notify Mexican diplomats of his detention. In a 6-to-3 decision, the Court held that ICJrulings were not enforceable in the United States, and Bush's actions were unconstitutional. QuotingYoungstown Sheet & Tube, Chief Justice John Roberts concluded, "The president's authority to act, as withthe exercise of any governmental power, 'must stem either from an act of Congress or from the Constitutionitself.'"[2]

But the Court drew back from some of the implications of its decision, refusing to rely on Youngstown asauthority to review the failed challenges brought against the War in Vietnam and deferring to theExecutive's authority over foreign policy in cases such as Zemel v. Rusk. The Court cited Youngstown in the2006 decision Hamdan v. Rumsfeld.

See alsoBurnet v. Logan: another Youngstown Steel caseList of United States Supreme Court cases, volume 343

References1. William Rehnquist, The Supreme Court 273 (2d ed. 2004).2. Quoted in David Stout, "Justices Rule Against Bush on Death Penalty Case," New York Times, March 25, 2008.

(http://www.nytimes.com/2008/03/25/washington/25cnd-texas.html)

Further readingCorwin, Edward S. (1953). "The Steel Seizure Case: A Judicial Brick without Straw". Columbia LawReview (Columbia Law Review Association, Inc.) 53 (1): 53–66. doi:10.2307/1119047(https://dx.doi.org/10.2307%2F1119047). JSTOR 1119047 (https://www.jstor.org/stable/1119047).Gifford, Donald G. (2010). Suing the Tobacco and Lead Pigment Industries: Government Litigationas Public Health Prescription (http://www.press.umich.edu/titleDetailDesc.do?id=291047). AnnArbor: University of Michigan Press. p. 318. ISBN 978-0-472-11714-7.Marcus, Maeva (1977). Truman and the Steel Seizure Case: The Limits of Presidential Power. NewYork: Columbia University Press. ISBN 0-231-04126-8.Westin, Alan F. (1990). The Anatomy of a Constitutional Law Case: Youngstown Sheet and Tube Co.v. Sawyer, the Steel Seizure Decision. New York: Columbia University Press. ISBN 0-231-07334-8.

External links^ Text of Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) is available from: Findlaw(http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=343&page=579) Justia(http://supreme.justia.com/us/343/579/case.html)

Youngstown Sheet & Tube Co. v. Sawyer Case Brief at Lawnix.com(http://www.lawnix.com/cases/youngstown-sawyer.html),

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Categories: 1952 in United States case law United States Supreme Court casesUnited States Constitution Article Two case law United Steelworkers litigationUnited States labor case law United States Supreme Court cases of the Vinson Court

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