Vol. 12, No. 33
Covering Cases Published in the Advance Sheets through Aug. 15, 2005

Anti-Terrorism Issues

The Real ID Act and Other Similar "Rights Stripping" Legislation

Hurricane Katrina Update

Hurricane Katrina has ravaged the legal system in a number of states, but particularly Louisiana and Mississippi, to a degree that is astonishing; see, e.g., “Storm Leaves Legal System A Shambles,” by Peter Applebaum and Jonathan D. Glater, The New York Times, Sept. 9, 2005. Because many of our colleagues need your help and support, we have posted a number of links relating to Katrina’s impact on the legal system on the Bulletin Board Section of our Web site; and we particularly urge our readers to check periodically the NACDL’s special “Katrina Disaster Relief Project” on the Internet at http://www.nacdl.org/relief to find ways in which to help.


Booker Box Score
Past Weeks' New Decisions -  134 Total Since Jan. 12, 2005 -  3703

Padilla v. Hanft, No. 05-6396 (4th Cir. 09/09/05) (Judge Luttig)

In a major victory for the Bush Administration, the Fourth Circuit has upheld the authority of the President to detain without charges a suspected terrorist, even when that suspect is an American citizen who has been arrested on U.S. soil.

This case has a long and complex legal history. On May 8, 2002, Jose Padilla was arrested at Chicago's O'Hare International Airport by federal agents executing a material witness warrant issued by the United States District Court for the Southern District of New York in connection with its grand jury investigation into the September 11th terrorist attacks. Padilla was then transported to New York, where he was held in federal criminal custody.

On May 22, 2002, acting through appointed counsel, Padilla moved to vacate the material witness warrant. Two days later, the Government advised the court, ex parte, that it was withdrawing its subpoena; that the President had designated Padilla as an “enemy combatant”; and that Padilla was being transferred to a Naval brig in the far friendlier legal climes of South Carolina. Thereafter, the Government’s case against Padilla became a constantly moving target.

Although Padilla has never been formally charged with any crime - civilian or military - various DOJ officials have claimed that he was planning to set off of dirty bomb in the United States. Later, others claimed that his intended mission was the destruction of U.S. apartment buildings with natural gas. Most recently, Padilla’s continued detention has been justified on the grounds that it is an appropriate means of keeping him from going to Afghanistan to join the Taliban.

In the meantime, Padilla’s habeas case continued in New York, and, ultimately, the Second Circuit ruled, in Padilla v. Rumsfeld, 352 F.3d 696 (2nd Cir. 2003), that the Government does not have the power to detain Padilla, an American citizen, as an “enemy combatant” in a military prison. The case then went to the Supreme Court which ducked the underlying legal issues of Padilla’s detention, but dismissed his habeas action, on the ground that he had failed to name the proper respondent - namely the Commander of the Naval brig where he was then being held in South Carolina. (Rumsfeld v. Padilla, 542 U.S. 426 (2004)).

Starting over, Padilla’s counsel filed a new habeas action in South Carolina; and in Padilla v. Hanft, No. 2:04-2221-26 (D.S.C. Feb. 28, 2005), District Judge Floyd held that President Bush “has no power, neither express nor implied, neither constitutional nor statutory” to continue to hold Jose Padilla, a U.S. citizen, as an "enemy combatant."

Disagreeing with the Second Circuit and Judge Floyd, the Fourth Circuit held in the instant case that the President had the right to detain Padilla as an enemy combatant under the powers granted to the President by Congress in the September 2001 Authorization to Use Military Force (AUMF). Somehow, the panel read the AUMF as "a clear statement" of Congress' grant of authority to the President to detain suspects, including citizens captured in the U.S.; although we feel it takes a giant leap of faith to read the language of the AUMF in support of the contention that Congress actually “intended” to authorize the indefinite detention of American citizens captured in the United States.

In its ruling, the panel repeatedly cited the Supreme Court’s ruling in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), so far the only other case involving the detention of a citizen named as an “enemy combatant” - although in that case the petitioner was arrested in Afghanistan. Here, the panel concluded that the “locus of capture” was not decisive; and it stated: "We can discern no difference in principle" between a designated combatant captured abroad and inside the U.S.

The panel commented: "Like Hamdi, Padilla associated with forces hostile to the United States in Afghanistan. . . . And, like Hamdi, Padilla took up arms against United States forces in that country in the same way and to the same extent as did Hamdi. . . . Because, like Hamdi, Padilla is an enemy combatant, and because his detention is no less necessary than was Hamdi's in order to prevent his return to the battlefield, the President is authorized by the AUMF to detain Padilla as a fundamental incident to the conduct of war."

Judge Luttig’s decision did not accept all of the Government’s arguments; and it did not rule as broadly as the Government wanted. For example, the Court did not rely upon the President's claim that he has "inherent authority" as Commander in Chief to order the designation and detention of terrorist suspects.

The panel also did not agree with the Government that Padilla could be detained indefinitely. It held that he could be held captive as long as hostilities continue. It found that "the United States remains engaged in the conflict with Al Qaeda in Afghanistan," and thus "Padilla's detention has not exceeded in duration that authorized by the AUMF."

However, in a ruling that certainly can’t harm his aspirations to become a Supreme Court Justice, Judge Luttig did express near total deference to the President when he decided that criminal prosecution is not a sufficient alternative to detention of a terrorist suspect. The ruling concludes that the President need not order criminal prosecution when he has decided that would not achieve the wartime objective of preventing a return to battle.


Enwonwu v. Chertoff, 376 F.Supp.2d 42 (D.Mass. 07/12/05) (Judge Young)

Never once to mince words, Judge Young started this 105-page opus by noting some of the pernicious (but little known) consequences of The REAL ID Act of 2005 as follows:

“Arrested by ICE agents on September 13, 2004, his procedural and substantive due process rights violated, Frank Enwonwu has today endured 303 days of imprisonment even though there are no criminal charges pending against him. He seeks the Great Writ of Habeas Corpus established in clause 39 of Magna Carta (1215) and enshrined in our own United States Constitution. U.S. Const. art. I, § 9, cl. 2. For 217 years, through boom and bust, insurgency, civil war, and terrorist attack, this Court -- the oldest United States District Court in America -- has carefully and prudentially administered the Writ of Habeas Corpus to secure the rights of the individual against overreaching by the executive.

“Mr. Enwonwu commenced his action in this Court on March 17, 2005, had an initial hearing 25 days later, and a full evidentiary hearing two weeks after that. This Court took the matter under advisement and commenced a detailed and reflective analysis of an evidentiary record both complex and deeply disturbing.

“Then on May 11, 2005, the Congress stripped this Court of jurisdiction to act in this pending case and all others like it. Though such direct congressional interference in a pending case is virtually unprecedented in all our history, this surprising mandate has gone utterly unnoticed by our people. Evidently, only where an American jury sits to validate the separation of powers among the three branches is trial court jurisdiction immune from such peremptory congressional action.

“How can this be in modern day America?

“Mr. Enwonwu is an immigrant alien.

“He has no right to trial by jury in this type of case and Congress does not much care about immigrant aliens, even those who, after endangering themselves assisting our law enforcement efforts to stem the international drug trade, are deported into the hands of the very drug traders upon whom they have informed.

“Does this shock your conscience as an American? If so, read on and dispassionately judge for yourself.” (Id., at 42-43) (Emphasis added).

From that point on, Judge Young presented an articulate, compelling, and at times, frightening story about the origins and the scope of The Real ID Act of 2005, which was enacted into law on May 11, 2005 as Pub.L. No. 109-13, Div. B. As Judge Young explained:

“Buried within the REAL ID Act are amendments to the Immigration and Nationality Act (‘INA’). Most notably, section 106 of the REAL ID Act (‘Section 106') explicitly limits habeas corpus review of removal orders to the courts of appeals . . . . Section 106 requires district courts to transfer to the appropriate court of appeals, all pending habeas petitions, such as Enwonwu's, which challenge removal orders. . . . (Id., at 81).

“The REAL ID Act imposes a chokehold on the free and proper exercise of the writ of habeas corpus. But it does more. It reveals the drafters' deep distrust of the district courts, the nation's sole jury trial court. . . . If one estimates that in the entire United States there are but 1,000 [similar] cases now to be transferred to start afresh in twelve courts of appeals, then the waste of the taxpayers' money approximates $ 25,000,000.00. This is a high price to pay for congressional distrust of a district court judiciary thought to be 'too soft on immigrant aliens'." (Id., at 83).

While Judge Young’s analysis of the evils of the REAL ID Act is articulate and compelling, his decision become nothing short of frightening as he explains the frequency and the scope of other recent “rights-stripping” laws that Congress has enacted. He defines the “rights-stripping” laws as those that “effectively strip disfavored classes from full access to justice and thereby restrict, if not extinguish, cherished individual rights and liberties.” (Id., at 79). Then, citing from his decision in Gonzalez v. U.S., 135 F.Supp.2d 112, 115 n. 5 (D.Mass. 2001), he continued:

“[The Antiterrorism and Effective Death Penalty Act] and its cousin . . . the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-546 (1996) (codified in scattered sections of the U.S.C.), are recent examples of ‘jurisdiction stripping’ legislation, a legislative technique that descends directly from bills proposed in the 1980s to strip federal courts of jurisdiction over abortion and busing, Note, Powers of Congress and the Court Regarding the Availability and Scope of Review, 114 Harv. L. Rev. 1551, 1552 (2001).

“As commentators have noted, ‘jurisdiction stripping’ is, in effect, ‘rights stripping,’ Laurence H. Tribe, Jurisdictional Gerrymandering: Zoning Disfavored Rights out of the Federal Courts, 16 Harv. C.R.-C.L. L. Rev. 129, 129-30 & n.1 (1981) (arguing that such measures unduly burden constitutional rights); contra Erwin Chemerinsky, Parity Reconsidered: Defining a Role for the Federal Judiciary, 36 U.C.L.A. L. Rev. 233, 261-69 (1988) (discussing study on parity of state and federal courts), because it removes, in a single stroke, the nuanced views of the 674 federal district judges from the rich common law tradition of evolutionary statutory interpretation and leaves the matter solely to twelve circuit courts of appeal and the Supreme Court.

“While society -- acting through Congress -- recoiled from thus rights stripping women and blacks, it had no such hesitancy concerning felons and aliens. Sadly, . . . resort to this technique [has] become more frequent with the concomitant erosion of the very rights a truly independent judiciary was designed to protect.”

There have been a lot of examples of new “rights stripping” legislation since Judge Young’s decision in Gonzalez; and two of the most recent examples are the Streamlined Procedures Act and the Anti-Gang Act.

The Streamlined Procedures Act - This bill is designed to eliminate federal review of criminal cases for the stated purpose of speeding up executions; and it is wending its way through the Halls of Congress as Senate Bill 1088 and House Bill 3035. Using its fancy and deceptive name, the bill would effectively kill the writ of habeas corpus by stripping federal courts of jurisdiction to consider cases in which a prisoner's constitutional rights may have been violated.

We don’t need to say much about this bill because it already has its own informative Web site at http://ccjr.policy.net/proactive/newsroom/release.vtml?id=39165, which is sponsored by The Justice Project. The bill has also received a fair amount of attention from the press: see, e.g., “Hands Off Habeas,” an Editorial from the Washington Post, August 19, 2005; and “Critics say bill would limit court access to the innocent,” by Jon Sawyer, St. Louis Post-Dispatch, July 13, 2005.

The Gang Prevention and Effective Deterrence Act of 2005 - In May, the House of Representatives passed this bill, known as HR 1279, by a vote of 279-144. The bill would expand the range of gang crimes punishable by death, establish many new minimum mandatory sentences, authorize the prosecution of 16- and 17-year-old gang members in federal court as adults, and extend the statute of limitations for all violent crimes from five to 15 years.

To get a sense of the political hype behind this bill, it’s author, Rep. Randy Forbes, R-Va., stated: "We're talking about gangs that are across the country. If they were an army from a foreign country, they would be the sixth-largest army in the world.''

The FAMM Foundation has been at the forefront of the fight against this bill (see, e.g., its summary of this bill on its Website); and the bill has also generated a lot of adverse comment from the press (see, e.g., “Mr. Gonzales’s Gang Warfare,” an Editorial from the Washington Post, Sept. 1, 2005). What has been sorely lacking is any concerted opposition from the criminal defense bar.

Isn’t it time for the criminal defense bar to start speaking out against these spur-of-the-moment vanity bills that are added, late at night, onto some essential piece of legislation, without any debate or advance notice to the world?

Judge Young’s forthright decision in Enwonwu and the rapidly rising number of new “rights stripping” laws are powerful reminders of the callous and shameful manner in which much of our modern-day legislation is enacted by Congress. The “world’s greatest deliberative body” has become a body that eschews deliberation, practices back-room politics that reek of secret agendas and reap nothing but cynicism and distrust from the public. Among the odious techniques that seem to have become standard operating procedure for today’s Congress are the following:

Perhaps none of this should be surprising. After all, the social security system that Congress has devised for the general public isn’t good enough for the Members of Congress and Government officials. They have their own special benefit programs that are far more generous!

Scorecard Of Published Federal Criminal Cases Reviewed By Our Staff:

Court
This Week
Year to Date
Since 1996
Courts of Appeal
70
1589
22,778
District Courts
30
915
12,729

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