Vol. 13, Nos. 21 & 22	Covering Cases Published in the Advance Sheets through May 29, 2006

New Supreme Court Rulings

• In an important and far-reaching decision that challenged the President’s growing claims of unlimited executive power to deal with the war on terrorism, a sharply divided Supreme Court held, in Hamdan, that President Bush did not have the legal authority to set up military tribunals at Guantanamo Bay, Cuba, to try the detainees on terrorism charges, and that those military commissions violate the “Rule of Law” under both the Uniform Code of Military Justice and the Geneva Convention. In so ruling, the majority specifically held that at least some of the provisions of the Geneva Convention are binding on the U.S. Government and they apply to persons seized in the conflict with al Qaeda.
  
  
  
• In Sanchez-Llamas, the Supreme Court addressed the binding effect of another treaty, the Vienna Convention on Consular Relations (VCCR), which is designed to give foreign nationals access to their consular officers if they are arrested in the U.S. Without deciding whether the rights under the VCCR may be invoked by individuals in a criminal proceeding, a divided Court held that a violation of the VCCR does not require the states to suppress the evidence at issue or to forego their procedural default rules.
  
  
  
• In Clark, the Supreme Court held, by a vote of 6 to 3, that Arizona's law on the insanity defense - which bars the introduction of psychiatric evidence of a mental disorder short of insanity to offset prosecution evidence of criminal intent - does not violate constitutional due process.
  
  
  
• In Marsh, the Supreme Court held, by a 5-to-4 vote, that Kansas' capital sentencing statute, which requires the imposition of the death penalty when the sentencing jury determines that aggravating evidence and mitigating evidence carry equal weight, is constitutional. Four dissenting judges said that the law in question was “morally absurd.”
  
  
  
• In Banks, the Supreme Court held, by a vote of 6 to 2, that a ruling from the Third Circuit holding that a prison policy, forbidding certain inmates any access to newspapers, magazines, and photographs violated the First Amendment, could not be supported as a matter of law; and it remanded the case for further consideration.
  
  

The Thompson Memorandum and the KPMG Lawsuit

• In Stein, Judge Kaplan of the S.D.N.Y. issued a remarkable 83-page ruling in which he found that prosecutors violated the constitutional rights of a group of former KPMG partners by improperly pressuring the firm not to advance them legal fees to pay for their defense.
  
  
  

Editor's Note

In next week’s issue of P&J, we will conclude our review of the final two Supreme Court cases from the 2005-2006 Term, namely U.S. v. Gonzalez-Lopez, No. 05-352 (U.S.S.C. June 26, 2006), where the Supreme Court held that a trial court's erroneous deprivation of a criminal defendant's choice of counsel is not subject to harmless-error analysis; and Washington v. Recuenco, No. 05-83 (U.S.S.C. June 26, 2006), where the Supreme Court held that in the context of criminal sentencing, failure to submit a sentencing factor to the jury is not structural error.

Hamdan v. Rumsfeld, No. 05-184 (U.S.S.C. June 29, 2006) (Justice Stevens)

This lengthy and complex decision deals with the President’s war powers in general and, more specifically, his legal authority to establish unilaterally the military commissions designed to try at least some of the alleged terrorists seized in America’s war on terror. In that sense, the Court’s decision (herein sometimes referred to as “Hamdan III”) is a landmark decision of epic proportions that will certainly be the grist of intense debate and law review articles for decades to come. (See, e.g., “The Court Enters The War, Loudly,” by Adam Liptak, The New York Times, July 2, 2006).

It takes a long time just to read the entire 177 pages that comprise the Court’s full ruling; and the task of digesting the Court’s rulings is complicated by several factors, including the facts that: (a) Justice Kennedy, who joined with the 5 to 3 majority on most of the rulings, expressed reservations about two parts of the Court’s ruling (namely, Parts V and VI-D-iv); and (b) there are six separate, and highly divergent, opinions - the 73-page majority opinion, written by Justice Stevens; separate concurrences by Justices Kennedy and Breyer; and three separate dissents by Justices Scalia, Thomas and Alito. (Chief Justice Roberts recused himself from the case since he participated in the lower court ruling that led to this decision.)

In one sense this case is about Salim Ahmed Hamdan, one of the many detainees being held at the U.S. military prison at the Guantanamo Bay Naval Base in Cuba. But in many ways, Hamdan III is more of a stunning repudiation of the Bush administration’s claim of virtually unlimited power to wage its war on terrorism - beyond the reach of both Congress and the courts. As Justice Breyer stated in his concurrence, the Court’s ruling in this case “ultimately rests upon a single ground: Congress has not issued the Executive a ‘blank check’.”

Hamdan, a Yemeni national, was a driver for Osama bin Laden who was captured in Afghanistan in 2004. He was designated an “enemy combatant,” shipped to Guantanamo Bay and, after several years of captivity, he was scheduled to be tried on various terrorist charges by a special military commission convened under special orders issued by President Bush to deal with persons accused of war crimes in the “war on terror.” Hamdan challenged the lawfulness of the plan to try him before the military commission, rather than before a court-martial convened under the Uniform Code of Military Justice (“UCMJ”).

In Justice Stevens’ words, Hamdan argued, inter alia, that “the procedures that the President has adopted to try him violate the most basic tenets of military and international law, including the principle that a defendant must be permitted to see and hear the evidence against him.”

In Hamdan v. Rumsfeld, 344 F.Supp.2d 152 (D.D.C. Nov. 8, 2004) (Hamdan I) (P&J, 10/18/04), District Judge James Robertson granted Hamdan’s petition for a writ of habeas corpus and stayed Hamdan’s trial before the special military commission, ruling in part that Hamdan was entitled to the full protections of the Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316; and that the military commission convened to try him was established in violation of both the UCMJ the Geneva Convention because it had the power to convict based on evidence Hamdan would never see or hear.

The Government appealed Hamdan I to the D.C.Circuit; and, in Hamdan v. Rumsfeld, 415 F.3d 33 (D.C.Cir. July 15, 2005) (Hamdan II) (P&J, 06/27/05) that court reversed Judge Robertson’s ruling. First, it rejected Hamdan's claim that the President violated the separation of powers inherent in the constitution when he established the military commissions in Guantanamo. The court held Congress authorized the President to establish the commission through its Authorization for the Use of Military Force, issued in 2001 (“AUMF”), and through two provisions of the UCMJ. Second, it rejected Hamdan's contention that the Geneva Convention can be judicially enforced in federal court.

The Supreme Court ultimately granted certiorari to decide whether the military commission convened to try Hamdan has authority to do so, and whether Hamdan may rely on the Geneva Convention in his court proceedings. However, before the Court heard arguments on those issues, Congress enacted the Detainee Treatment Act of 2005 (“DTA”), Pub. L. 109–148, 119 Stat. 2739, which addressed a broad spectrum of issues relating to persons being held as suspects in the war on terror.

Among other things, the DTA provided that “no court, justice, or judge” shall have jurisdiction to consider the habeas application of a Guantanamo Bay detainee. Thus, the Government argued that the DTA had the immediate effect of repealing federal jurisdiction not just over detainee habeas actions yet to be filed but also over any such actions then pending in any federal court—including the Supreme Court. Accordingly, it took the position that the Supreme Court lacked jurisdiction even to review the decision in Hamdan II.

Over the caustic dissent of Justice Scalia, the majority rejected the Government’s argument that the DTA had repealed the Court’s jurisdiction to review Hamdan II, stating: “Ordinary principles of statutory construction suffice to rebut the Government’s theory - at least insofar as this case, which was pending at the time the DTA was enacted, is concerned.”

Once the majority passed that jurisdictional hurdle, it then concluded that the creation of the military commissions (a) exceed the President’s legal authorization given by Congress, and (b) violate both the Federal statutes and international law, including the Geneva Convention and the UCMJ. Justice Stevens wrote: “The procedures that the government has decreed will govern Hamdan’s trial by commission violate these laws.” He then continued:

“It bears emphasizing that Hamdan does not challenge, and we do not today address, the Government’s power to detain him for the duration of active hostilities in order to prevent such harm. But in undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction.”

Of particular significance, the majority rejected the conclusion of the panel in Hamdan II that “the war with al Qaeda evades the reach of the Geneva Conventions” because al Qaeda was not a signatory to the Geneva Convention. The majority stated:

“Article 3 [of the Geneva Convention], often referred to as Common Article 3 . . . , provides that in a ‘conflict not of an international character occurring in the territory of one of the High Contracting Parties [i.e., signatories], each Party to the conflict shall be bound to apply, as a minimum,’ certain provisions protecting ‘[p]ersons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by . . . detention’.”

The importance of that holding is potentially huge. Not only does it undercut one of the major premises of the Bush administration (that persons seized in the war on terror are not entitled to the full panoply of rights normally accorded to prisoners of war), it also seems to resolve the debate about permissible interrogation techniques - since Article 3 provides that detained persons

“shall in all circumstances be treated humanely,” and that “[t]o this end,” certain specified acts “are and shall remain prohibited at any time and in any place whatsoever” - including “cruel treatment and torture” and “outrages upon personal dignity, in particular, humiliating and degrading treatment.”

That standard (which is not limited to the restraints of the Due Process Clause) is far more restrictive than the so-called McCain Amendment which was attached to the 2006 Department of Defense Appropriations Bill (and which President Bush announced, in one of his infamous “signing statements,” he would view “in the context of his broader powers to protect national security”; see “Bush could bypass new torture ban,” by Charlie Savage, Boston Globe, Jan. 4, 2006).

Another item of significance in this decision was the majority’s unequivocal rejection of one of the main arguments invoked by the Bush administration to justify many of its actions since Sept. 11, 2001 - namely that Congress, when it enacted the 2001 Authorization to Use Military Force in Afghanistan and Against Al Qaeda (“AUMF”), implicitly, if not explicitly, authorized the President to engage in a broad series of unilateral actions without regard to existing laws, such as the right to engage in wiretapping of domestic phone calls without seeking the approval of the FISA courts and the right to engage in the NSA’s warrantless eavesdropping program.

It is unclear what changes will ultimately be wrought to President Bush’s broad approach to the war on terror as a result of Hamdan III; but there already are signs that the Administration will seek broad legislative authority at least to try the Guantanamo Bay detainees in some type of a military court. (See, e.g., “Court’s Ruling is Likely to Force Negotiations Over Presidential Power,” by David E. Sanger and Scott Shane, The New York Times, June 30, 2006).

For further analysis of the scope and meaning of this decision, we recommend three commentaries that have been posted on the Internet: (1) “What Hamdan Did Not Decide,” by Lyle Denniston, as posted on SCOTUSBlog; (2) “Hamdan v. Rumsfeld: A (Tentative) Guide for the Perplexed,” by Mark Moller, for the Cato Institute; and (3) “The Significance of Hamdan v. Runsfeld,” by Glenn Greenwald, as posted on Unclaimed Territory on June 29, 2006.

Sanchez-Llamas v. Oregon, No. 04-10566 (U.S.S.C. June 28, 2006) (Justice Roberts)

In this case, the Supreme Court addressed the derivative rights of criminal defendants under a different treaty, namely the Vienna Convention on Consular Relations (“VCCR”), April 24, 1963, 21 U.S.T. 77; and, without resolving whether the VCCR does create any judicially enforceable rights for foreign defendants, the Court held, by a vote of 6 to 3, that suppression was not an appropriate remedy for a violation of Article 36 of the VCCR, and that a state may apply its regular rules of procedural default to such Article 36 claims.

The VCCR was drafted in 1963 for the purpose of “contribut[ing] to the development of friendly relations among nations, irrespective of their differing constitutional and social systems.” At present, 170 countries are party to the VCCR, including the United States, which ratified it in 1969.

Article 36 of the VCCR concerns consular officers’ access to their nationals detained by authorities in a foreign country. That Article provides that when the police of a signatory nation arrest a foreign national, the detaining “authorities shall inform” the foreign national “without delay” of his “righ[t]” to communicate with his nation’s consular officers.

In the instant case, the Supreme Court addressed the claims of two different foreign national defendants who challenged their state court convictions based on violations of the VCCR.

In Sanchez-Llamas v. Oregon, the defendant, a Mexican national, was arrested and convicted for shooting at a police officer. Although the police read him his Miranda warnings, the police did not inform him that he had a right under the VCCR to contact the Mexican Consulate or have the consulate notified of his arrest. Sachez-Llames subsequently made incriminating statements to the police. At trial, Sanchez-Llamas filed a motion to suppress his post-arrest statements, arguing that the police violated his rights of consular notification and access under Article 36 of the VCCR. The trial court denied his motion, the court of appeals affirmed, and Sanchez-Llamas appealed to the Supreme Court of Oregon. The supreme court held that Article 36 of the VCCR does not create any rights that can be asserted in a judicial proceeding and therefore affirmed the denial of the motion to suppress.

In Bustillo v. Johnson, the defendant, a Honduran national, was convicted of murder in Virginia state court. When Bustillo was arrested, the police did not contact the Honduran Consulate or inform Bustillo of his right to communicate with the consulate. At trial, Bustillo argued that another Honduran national, identified as Sirena, committed the murder. However, Bustillo was unable to provide the man's true name or surname, and the jury subsequently found him guilty. Bustillo appealed his conviction, and while his appeal was pending, the Honduran Consulate contacted Bustillo and informed him that had it been contacted about his arrest, it would have been able to provide information about the man identified as Sirena, whose real name was Julio Osorto. Bustillo filed a motion to remand the case to trial in light of the consulate's statement, but the court of appeals denied the motion and affirmed his conviction. The Virginia Supreme Court denied his appeal. Bustillo then filed a petition for habeas relief based on violations of Article 36 of the VCCR. The circuit court denied the petition because Bustillo had not raised the issue at trial. On appeal, the Virginia Supreme Court affirmed, stating only that there was no reversible error.

The Supreme Court granted certiorari to consider three questions: (1) whether Article 36 of the VCCR grants rights that may be invoked by individuals in a judicial proceeding; (2) whether suppression of evidence is a proper remedy for a violation of Article 36; and (3) whether an Article 36 claim may be deemed forfeited under state procedural rules because a defendant failed to raise the claim at trial.

The Bush administration has long opposed the enforcement of international law obligations in U.S. courts, and it has argued that treaties such as the VCCR do not grant any individually enforceable rights. Instead, they contend, as they did in their briefs in this case, that “there is a presumption that a treaty will be enforced through political and diplomatic channels, rather than through the courts.”

Ultimately, the majority concluded that it was “unnecessary to resolve the question whether the Vienna Convention grants individuals enforceable rights. Therefore, for purposes of addressing petitioners’ claims, we assume, without deciding, that Article 36 does grant Bustillo and Sanchez-Llamas such rights.”

However, the Court then went on to hold that neither of the defendants in these two cases were entitled to any relief based on the states’ failure to notify them of their rights under the VCCR. In the Sanchez-Llamas case, the Court ruled that suppression was not an appropriate remedy because “the violation of the right to consular notification . . . is at best remotely connected to the gathering of evidence.” Moreover, the majority noted, “the automatic exclusionary rule applied in our courts is still ‘universally rejected’ by other countries.” Under those circumstances, Justice Roberts wrote, "[i]t would be startling if the Convention were read to require suppression," because "the exclusionary rule as we know it is an entirely American legal creation." He continued that "it is implausible that other signatories to the Convention thought it to require a remedy that nearly all refuse to recognize as a matter of domestic law."

In the Bustillo case, the controlling facts were different: it was not until after his conviction was upheld on appeal that the defendant first argued that he had not been advised of his right to confer with the Honduran consulate. Thus, under Virginia’s rule of procedural default, the argument was raised too late. Accordingly, the central issue was whether the U.S. courts must bend their usual rules against entertaining arguments on appeal that were not raised at trial.

Once again, Justice Roberts held that the defendant was not entitled to any relief; and he pointed to the Court’s earlier decision in Breard v. Greene, 523 U. S. 371 (1998), where the Court refused to set aside a state’s procedural default claims for a VCCR claim. In so ruling, Justice Roberts acknowledged that, since Breard, the International Court of Justice (ICJ) has interpreted the Vienna Convention to preclude the application of procedural default rules to Article 36 claims. However, he stated that rules of procedural default play an important role in the American system and should be respected. He then continued: “If treaties are to be given effect as federal law under our legal system," they are for the Supreme Court to interpret as it would interpret any other law. He said that in contrast to most European legal systems, under the American adversary system "the responsibility for failing to raise an issue generally rests with the parties themselves."

In dissent, four Justices (Breyer, Stevens, Souter and Ginsburg) argued that the majority’s decision represented an “unprecedented” repudiation of a valid treaty and “conflicts not only with the treaty’s language and history, but also with the [International Court of Justice’s] interpretation” of the VCCR. They also contended that the majority’s ruling "leaves states free to deny effective relief for [VCCR] violations, despite America's promise to provide just such relief."

Beard v. Banks, No. 04-1739 (U.S.S.C. June 28, 2006) (Justice Breyer)

Ronald Banks, a prisoner confined in a Long Term Segregation Unit (LTSU) within the Pennsylvania prison system, sued the Pennsylvania Department of Corrections to challenge the constitutionality of a prison rule that bans access to newspapers, magazines and photographs for all inmates housed in the LTSU. The LTSU is the most restrictive of three special units that Pennsylvania maintains for dangerous and recalcitrant prisoners. Prisoners within the LTSU are locked down 23 hours a day and are not even permitted to watch television or listen to the radio. At the time of this lawsuit, approximately 40 inmates were housed in the LTSU.

The prison rule at issue bars inmates in the LTSU from possessing any nonlegal newspapers, newsletters, or magazines during the indefinite duration of their solitary confinement. In addition, any personal photographs, including those of spouses, children, deceased parents, or inspirational mentors, are treated as contraband and confiscated.

In his class action lawsuit, Banks argued that the prison regulation at issue was invalid under the standard established by the Supreme Court in Turner v. Safley, 482 U.S. 78 (1987). In Turner, the Court held that when a prison regulation impinges upon First Amendment freedoms, it is invalid unless “it is reasonably related to legitimate penological interests.” The Turner court also said that a prison regulation cannot withstand constitutional scrutiny if “the logical connection between the regulation and the asserted goal is so remote as to render the policy arbitrary or irrational,” (Turner, id., at 89–90), or if the regulation represents an “exaggerated response” to legitimate penological objectives. (Turner, id., at 98).

The district court granted the prison’s motion for summary judgment and dismissed Bank’s lawsuit. On appeal, a divided panel from the Third Circuit reversed (over the dissent of then-Judge Alito). The majority held that there was insufficient evidence that the prison rule at issue serves any rehabilitative purpose. (Banks v. Beard, 399 F.3d 134 (3rd Cir. Feb. 25, 2005) (Banks I))

Over the separate dissents of Justices Stevens and Ginsburg, the Supreme Court reversed the Third Circuit’s decision in Banks I. In a relatively brief decision that reeks of astonishing unfamiliarity with (or, worse, a lack of concern about) the realities of what life in a unit like the LTSU does to the mind, the majority concluded that prison officials had offered a sufficient justification for the prison policy at issue to be entitled to deference. Writing for the Court, Justice Breyer stated that the prison officials had set forth in their motion

“several justifications for the prison’s policy, including the need to motivate better behavior on the part of particularly difficult prisoners, the need to minimize the amount of property they control in their cells, and the need to assure prison safety, by, for example, diminishing the amount of material a prisoner might use to start a cell fire. We need go no further than the first justification, that of providing increased incentives for better prison behavior. Applying the well-established substantive and procedural standards set forth in Part II, we find, on the basis of the record before us, that the [prison’s] justification is adequate. And that finding here warrants summary judgment in the [prison’s] favor.”

In dissent, Justice Stevens argued that even the “worst of the worst” prisoners retain constitutional protection, specifically including their First Amendment rights - and he was dismayed by the blind acceptance given by the majority to many of the prison's canned phrases and assumptions. He then continued:

“What is perhaps most troubling about the prison regulation at issue in this case is that the rule comes perilously close to a state-sponsored effort at mind control. The State may not ‘invad[e] the sphere of intellect and spirit which it is the purpose of the First Amendment of our Constitution to reserve from all official control.’ In this case, the complete prohibition on secular, nonlegal newspapers, newsletters, and magazines prevents prisoners from ‘receiv[ing] suitable access to social, political, esthetic, moral, and other ideas,’ which are central to the development and preservation of individual identity, and are clearly protected by the First Amendment. Similarly, the ban on personal photographs, for at least some inmates, interferes with the capacity to remember loved ones, which is undoubtedly a core part of a person’s ‘sphere of intellect and spirit.’ . . . . The severity of the constitutional deprivations at issue in this case should give us serious pause before concluding, as a matter of law, that the challenged regulation is consistent with the sovereign’s duty to treat prisoners in accordance with ‘the ethical tradition that accords respect to the dignity and worth of every individual’.” (Internal citations omitted).

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