Vol. 12, No. 26	Covering Cases Published in the Advance Sheets through June 27, 2005

• Cases based on the Supreme Court’s decision in U.S. v. Booker continue to pour out from the lower courts, and the total has now reached 2,449 reported cases (both published and unpublished) since Jan. 12, 2005. We continue to monitor all of the most important new Booker-related developments, post them on our Website, and report them in P&J each week.

Antiterrorism

• The final outcome of two cases noted this week are destined to have a profound effect on both the type of Government under which we will live in the future and the perception of American justice in the eyes of the rest of the world. In Hamdan, a panel from the D.C. Circuit which included Judge Roberts reversed a district court ruling that the military trials at Guantanamo Bay violated the Geneva Convention, the U.S. Constitution and the U.S. Uniform Code of Military Justice. The decision permits the military to resume its “military commission” war crime trials of suspects held at the controversial prison camp in Cuba; and it represents a significant legal victory for the Administration in its autocratic and badly explained decision to by-pass the Geneva Conventions.
  
  
• On July 19, 2005, the Fourth Circuit heard oral arguments in the latest phase of the Government’s three year efforts to detain and try Jose Padilla as a terrorist in a military court. Padilla, an American citizen, was arrested on May 8, 2002 at Chicago’s O’Hare Airport, and he had been held since then, mostly in a military prison without access to the civilian courts. After a lengthy and complex legal history, Judge Henry Floyd of the D.S.C. finally granted Padilla habeas relief in February of this year. The Government appealed; and, in a case that attracted more than a dozen amicus briefs, the Fourth Circuit (often labeled the most conservative Circuit in the country) is now considering whether the President has the unilateral power to detain indefinitely, without charge, an American citizen seized in a civilian setting in the United States. We have listed numerous resources concerning that appeal in this issue.
  

Quantifying the Various Burdens of Proof

• The Copeland case from the E.D.N.Y. is noted for Judge Weinstein’s detailed discussion of the meaning of the various burdens of proof used by the courts, with particular emphasis on deportation hearings, where an alien must establish prejudice by showing that there is a “reasonable probability” that he would have been granted § 212(c) relief if he had obtained a hearing.
  

Court Orders BOP to Release a Prisoner from Administrative Detention

• The Basciano case is an interesting ruling in which Judge Garaufis of the E.D.N.Y. ordered the BOP to release a pre-trial detainee from administrative detention “forthwith,” since his indefinite and solitary confinement was not reasonably related to the Government’s objective of preventing the detainee, a reputed crime boss, from communicating with other members of his crime family.

U.S. v. Booker - Update

As our Boxscore shows, the number of lower court decisions (both published and unpublished) interpreting and applying the Supreme Court’s seminal sentencing decision in U.S. v. Booker, 125 S.Ct. 738 (Jan. 12, 2005) continues to rise inexorably; and, while the number of new earth-shattering decisions has subsided a bit, we continue to monitor the latest Booker developments on a Circuit by Circuit basis on our Booker Resource Center on the Internet at www.ussguide.com/members/BulletinBoard/Booker/index.cfm/.

Among the week’s more significant new developments were the following:

The U.S. Sentencing Commission has updated its ongoing analysis of sentences imposed since Booker was decided; and that analysis now covers 20,369 federal cases in which sentences were imposed during the period from January 12 through June 6, 2005. The latest figures are particularly relevant in light of recent statements made by Attorney General Gonzales about the impact of Booker on sentences. In a speech on June 21, Gonzales commented that “evidence the Department [of Justice] has seen since the Booker decision suggests an increasing disparity in sentences, and a drift toward lesser sentences.”

In fact, a careful analysis of the latest figures shows that the vast majority of sentences imposed are either within the sentencing ranges recommended by the Guidelines (61.7%), or represented departures that were requested by the Government (23%). That total of 84% is consistent with the historical averages under the Guidelines in recent years and simply does not support Mr. Gonzales’ ill-advised comments. (See, for example, "Questions About AG Gonzales' Speech Advocating a Booker Fix," by Prof. Douglas A. Berman, Sentencing Law and Policy, June 22, 2005; and "Truth In Sentencing? The Gonzales Cases," a special Report, dated July 7, 2005, published by the NACDL, analyzing the cases cited by Atty. Gen. Gonzales in his June 21 speech.)

On the judicial front, we note the decision in U.S. v. Bondurant, No. 04-5935, 2005 U.S. App. LEXIS 14238 (6th Cir. 07/13/05). Even though the court’s ruling was unpublished, it emphasizes the importance of timely objections to disputed facts contained in a defendant’s presentence report (PSR). Here, a panel from the Sixth Circuit held that the failure to object to facts contained in the PSR constitutes a Booker admission. The panel asserted that there were no objections to the facts contained in the PSR and that these "admissions" properly lead to an enhanced advisory Guideline range. In footnote 1 of the opinion, the panel asserted that Bondurant's objections "rested upon a Blakely argument and not that the facts contained in the presentence report were inaccurate." The panel cited, in part, to the Sixth Circuit's recent opinion in U.S. v. Williams, 2005 U.S. App. LEXIS 10695 (6th Cir. June 9, 2005), in finding that Bondurant "admitted the facts that gave rise to the enhancements."

Hamdan v. Rumsfeld, No. 04-5393 (D.C.Cir. July 15, 2005) (Judge Randolph)

In November, 2004, Judge Robertson (D.D.C.) ordered an immediate halt to one of the military trials of the detainees at Guantanamo Bay "until a competent tribunal determines that the petitioner is not entitled to the protections afforded prisoners of war [by] the Geneva Convention." (See, Hamdan v. Rumsfeld, 344 F.Supp.152 (D.D.C. 2004)).

The trial at issue involved Salim Ahmed Hamdan, a Yemeni citizen who was captured in Afghanistan and who is alleged to have been a driver for Osama bin Laden. He was transferred to the military prison at Guantanamo Bay; and he was about to be tried before a special military commission convened under special orders from the President, rather than a court-martial convened under the Uniform Code of Military Justice (UCMJ), when Judge Robertson intervened.

Judge Robertson concluded that the ad hoc military commissions violated the Geneva Conventions, the principal international laws of war, to which the United States is a signatory; violated the Constitution, because, he said, the President did not have the necessary authority from Congress; and violated the UCMJ, which, he said, requires that detainees be tried under the same conditions as American soldiers who are court-martialed.

In a decision written by Judge Randolph, and joined by Judges Williams and Roberts (who President Bush has just nominated for appointment to the Supreme Court), the D.C. Circuit broadly affirmed the right of the President to order such trials before the newly-created military commissions; and, with often disdainful language, it rejected all three of Judge Robertson’s rationales.

The Court concluded that Congress' post-Sept. 11 terrorism resolution and two federal laws "authorized the military commission that will try Hamdan." The Court emphasized that, in one of the resolutions dealing with terrorism, Congress had authorized the president “to use all necessary and appropriate force” against anyone who had abetted the Sept. 11 attacks, and had granted him the authority to prevent international acts of terrorism.

It also said that it was “well-established” that the Geneva Conventions “do not create judicially enforceable rights” - that is, accusations of a violation may not be brought in a lawsuit. Far more significantly, the Court also concluded that the Geneva Convention “does not apply to al Qaeda and its members” - a conclusion that was totally unsupported by any citations to precedent.

Finally, the Court concluded that the military commissions were not bound by the normal rules for courts-martial, in part because Hamdan “does not fit the . . . definition of a ‘prisoner of war’”; and in part because Judge Robertson had erred in concluding that the military commission must comply in all respects with the requirements of the UCMJ.

While each of the legal rationales cited by the Court in support of its wholesale endorsement of the use of the ad hoc military commissions represent unparalleled acquiescence to the Executive Branch, one of the most pithy comments on the impact of this decision came from one of Hamdan's attorneys, Georgetown law professor Neal K. Katyal, who released the following statement following the Court’s decision:

"The U.S. Court of Appeals’ ruling today is contrary to 200 years of constitutional law. We respectfully disagree with it. As the Supreme Court put it 9 years ago in an opinion authored by Justice Kennedy, 'the Framers harbored a deep distrust of executive military power and military tribunals.' Yet today’s ruling places absolute trust in the President, unchecked by the Constitution, statutes of Congress, and longstanding treaties ratified by the Senate of the United States. It gives the President the raw authority to expand military tribunals without limit, threatening the system of international law and armed conflict worldwide. As many retired Generals and Admirals of our military have stated, the cavalier treatment of individuals at Guantanamo Bay, and the setting aside of the Geneva Conventions in the military commission process, threatens our troops, our interests, and our way of life. These issues demand finality, and we will be seeking appropriate review."

Before the ink was dry on this decision, the Government announced that it intended to proceed as soon as possible with its highly controversial military “trials.” See, “Detainee Trials to Resume Soon, Rumsfeld Says,” by Neil A. Lewis, The New York Times, July 19, 2005. We wonder if “Justice” Roberts will recuse himself when this case reaches the Supreme Court?

U.S. v. Basciano, 369 F.Supp.2d 344 (E.D.N.Y. 2005) (Judge Garaufis)

The defendant is this case, Vincent Basciano, a reputed crime boss of the Bonnano family, was incarcerated at the BOP’s MCC facility in Manhattan, where he was being held indefinitely in solitary confinement. Even though he was a pretrial detainee, the Government contended that such restrictions were necessary to prevent Basciano from continuing to “direct the affairs of the Bonnano family, including ordering acts of extreme violence.” (Id., at 347)

Basciano filed a habeas petition seeking his release from his administrative detention and his placement into the general prison population at MDC, Brooklyn. In a rare instance of judicial intervention into the deference normally accorded to prison officials, Judge Garaufis ordered the Government to release Basciano from his administrative detention “forthwith,” but under such restrictions as the Government deemed necessary to prevent Basciano from communicating with other Bonnano family members and associates.

Citing the Supreme Court’s seminal ruling on the rights of pretrial detainees, Bell v. Wolfish, 441 U.S. 520 (1979), Judge Gauaufis emphasized that since a pretrial detainee has not been convicted, the Due Process Clause does not permit prison officials to subject him to “punishment.” (Id., at 350). While he acknowledged that the Government’s stated objective of segregating Basciano from other members of the Bonnano crime family was “clearly legitimate,” Judge Garaufis also concluded that the Government’s chosen means of placing Basciano in indefinite and solitary confinement pending a trial that was unlikely to commence for at least 18 months was not reasonably related to the Government’s legitimate objectives, under the standards enunciated in Wolfish. He also specifically observed that “it is well documented that long periods of solitary confinement can have devastating effects on the mental well-being of a detainee” (id., at 352); and he expressed concerns that Basciano’s placement in solitary confinement presented both “practical and psychological obstacles” that would impair Basciano’s ability to prepare his defense.

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