Blog
Justice
By David S. Udell – 04/22/08
It's unusual for any court to issue three versions of one
opinion, but in Arbor
Hill Concerned Citizens Neighborhood Ass'n, No. 06-0086 (2d Cir. Apr.
10, 2008), a civil rights case involving an award of attorneys fees, the U.S.
Court of Appeals for the Second Circuit is at three, and counting.
One might ask "why?"
The Court got into difficulty with its first decision in
July 2007. It took the discouraging step of declaring that a judge could
reduce an award of civil rights attorneys fees if a winning client's
lawyer originally took the case in order to advance a "reputational" or
"societal" goal. According to the Court of Appeals, a judge's task should
be to determine whether "a thrifty hypothetical client" would have been able to
get a lawyer to take a civil rights case for less than the usual rate. If the conclusion is yes, then the judge
could reduce the fee award.
But the court's reasoning was unpersuasive to many.
For one thing, a central premise of the laws that provide
for attorneys fees awards in civil rights cases is that there aren't enough
lawyers willing to take these cases without compensation at the market rate
payable to attorneys in conventional matters. Civil rights fees laws are designed
to create a financial incentive sufficient to ensure that laws will be enforced
and rights vindicated. A rationale that destroys this financial
incentive, on the theory that nonfinancial motivations are enough to enable an
imaginary client to secure a lawyer, destroys the guiding purpose of these fees
provisions, and eliminates their protection for civil rights.
Moreover, since lawyers outside of the civil rights
community take cases for all kinds of reasons—including for "the money," or
for the reputational value that accompanies the representation of certain high
profile commercial clients—it hardly makes sense to penalize civil rights
lawyers for pursuing the noble cause of enforcing the rule of law, or claiming
the prestige that comes with doing good.
And how could such a rule ever work? Will American
courts start quizzing lawyers about their inner thoughts? Hopefully not—our society generally still rejects big brother-ish mind probing that is this
blatant. Nor could such inquiries be easily carried out, if only because
lawyers and their firms commonly have multiple, and often contradictory,
reasons for taking cases.
And what about that concept of the "thrifty hypothetical
client" who can be deemed, in hindsight, able to obtain bargain rates from lawyers
motivated by reputational and societal goals.
Does that occur? Do these clients
see the altruism and ambition in their lawyers minds? That would be making a large assumption.
If this weren't enough of a mess, the Arbor Hill decision
was also notable for having omitted to mention and to distinguish certain key precedents—past decisions, presumably still good law, that had rejected the idea of discounting
fee awards for these reasons.
Since in recent years, the opportunities for people to vindicate
their civil rights have been limited by a Supreme Court that has made it ever more
difficult to claim attorneys fees, Arbor Hill was an alarming development.
With attorneys at Jenner and Block, and with Hofstra Law
Professor and civil rights attorney, Leon Friedman, the Brennan Center
urged the Circuit Court, in an
amicus brief, to fix the Circuit's civil rights fees jurisprudence by
granting a request for rehearing. We also supported a request for the
entire Second Circuit to re-decide the case en banc. And, we brought
together in the amicus brief a coalition of 29 public interest groups anxious
for the court to issue a new decision.
The Court acted, but in the most modest of ways. It
denied the request for rehearing, but amended its opinion with a new footnote,
explaining that it had never meant to change the law on civil rights attorneys
fees: "Our decision today in no way suggests that attorneys from
nonprofit organizations or attorneys with private law firms engaged in pro bono
are excluded from the usual approach to determining attorneys fees."
But the court left the rest of its opinion unchanged, and the civil rights
community was left to speculate about the opinion's import and effect.
Months passed, with the court's confusing second opinion unchanged,
and in place. But then, on April 11, 2008 the court issued a third version of its
opinion. This time, the court enlarged the same footnote, and quoted one
of its previously omitted precedents for the proposition that:
"[N]or is the award necessarily limited because the attorney has agreed to
undertake the case for a reduced fee compared to the customary market
rate."
Of course, this language, still tentative, hardly puts the
problem to rest, and the original petition for rehearing by the entire Circuit
Court, en banc, is still pending before the court—so perhaps yet another opinion,
a fourth, is on the way. But the newest footnote does take a significant
step toward normalizing the Circuit's civil rights fees jurisprudence.
Can we conclude that civil rights lawyers may avoid
discounts of fee awards based on inquiries into their inner motivations in
taking cases? In the wake of the three Arbor Hill decisions, that's
still anything but clear, but the court has given us reason to hope so.
Tags: Justice, Civil Justice, Attorneys' Fee Awards
By Mike Webb – 04/21/08
Welcome to the first-ever Brennan Center
pop quiz. Since each week brings more
depressing news of torture, executive privilege, government spying, etc., we
thought we'd share this test. If you've
read the Brennan Center's "12
Steps To Restore Checks and Balances"—which offers remedies for an
out-of-control executive—then you're virtually assured of an A+.
As most of you know, the first step toward ending an
out-of-control executive is public awareness. So give this quiz to a friend and see if they're doing their job. Are you?
Question 1
- Last week, ABC News reported on the
"Principals Committee" meetings in which White House officials decided
which intero..... (oh heck, let's just call it what it is)...torture techniques
could be used. Who were the members of
the committee?
- A) Dick
Cheney
- B) Donald
Rumsfeld
- C) John
Ashcroft
- D) Condoleeza
Rice
- E) All
of the above
For extra credit, tell us which step of the 12 Steps plan
would remedy this kind of situation?
Question 2
- According to the New York Times, the Office of Legal Counsel issued memos
that wrongly claim that the President's "wartime powers largely exempted
interrogators from laws banning harsh treatment"? Who wrote the memos?
- A) William
J. Brennan, Jr.
- B) Dahlia
Lithwick
- C) John
Yoo
- D) "Jack"
McCoy
- E) All
of the above
Question 3
- Earlier this month, the Associated Press noted, "President Bush's refusal to
let two confidants provide information to Congress about fired federal
prosecutors represents the
most expansive view of executive privilege since Watergate." Who are the two confidants claiming executive
privilege?
- A) Harriet
Miers
- B) John
Mitchell
- C) Joshua
Bolten
- D) Linda
Tripp
- E) All
of the above
Question 4
- A
recent op-ed in the Los Angeles Times
argues that we need to do more to protect Americans' right to habeas
corpus. However, the U.S. government
disagrees and would deny habeas protection to which group of people?
- A) American
citizens
- B) Americans
detained abroad and subject to death and torture
- C) Foreign
nationals who have not been charged with a crime
- D) An
MA candidate in computer science at Bradley
University in Peoria, IL
- E) All
of the above
Question 5
- The New York Times reported on the existence
of CIA
and D.O.D. "harsh" interrogation tapes that show detainees being tortured. Nonetheless, which current and former U.S. officials insisted "the US does not
torture?"
- A) George
W. Bush
- B) Dick
Cheney
- C) Condoleeza
Rice
- D) George
Tenet
- E) All
of the above
Question 6
- The Washington Post reported on an
analysis of President Bush's use of signing statements. Which laws has he bypassed with signing statements?
- A) Postal
regulations that require the government to get a warrant before opening a
citizen's mail
- B) Whistle-blower
laws that provide job protection for federal workers who alert Congress to
government wrongdoing
- C) Laws
that stop the military from using information that isn't "lawfully
collected."
- D) Laws
that require the President to tell Congress when the executive branch decides
not to follow U.S.
laws
- E) Congress'
authority to limit abusive interrogation techniques
- F) All
of the above
And the answers are:
1) E
- all of the above. Step
4 of our "12 Steps...." plan calls on Congress to "make it clear: no more
torture, no more torture lite."
2) C
- John Yoo. Step
11 would reform the Office of Legal Counsel by insulating it from improper
White House influence and requiring maximum transparency for OLC legal
opinions.
3) A
& C - Harriet Miers and Joshua Bolten.
Step
7 urges Congress to regulate the use of executive privilege, particularly
in situations that may involve wrong-doing
within the executive branch.
4) E
- all of the above. Sigh. Step
5 demands the restoration of habeas corpus and would restore the federal
courts traditional authority to hear challenges to unlawful detentions.
5) E
- all of the above. Oooops. In addition
to "no torture," Step
9 would have Congress strengthen and review the reporting requirements
concerning national security and intelligence activities. Somehow, Jon Stewart found a
way to make this funny.
6) G
- all of the above. Step
2 calls on the presidential candidates to renounce the use of signing
statements to circumvent the law.
How'd you score?
*Special thanks to Susan Lehman and Patrick Wyllie for their
assistance with this.
Tags: Justice, Liberty & National Security, Checks & Balances
By Jonathan Hafetz – 04/15/08
Cross-posted from Slate
Even as criticism of Guantánamo mounts, Guantánamo's underlying hypocrisy endures. That hypocrisy manifested itself again last week in a little-noticed decision by Washington, D.C. District Judge John D. Bates. The decision involves Abdul Hamid Abdul Salam al-Ghizzawi, a Libyan citizen transferred to the base in 2002 after, he alleges, Afghan warlords sold him for bounty. Like the hundreds of other Guantánamo detainees held as "enemy combatants" al-Ghizzawi has never received a hearing on his habeas corpus application. In a recent filing, he complained that the government was refusing to provide him with adequate medical care and had denied him treatment for a severe liver condition that was jeopardizing his health....
> Read entire post here
Tags: Justice, Liberty & National Security, Checks & Balances, Detention & Habeas Corpus, Domestic Counterterrorism
By Jonathan Hafetz – 04/07/08
Cross-posted from Slate
John Yoo's recently released March 14, 2003, OLC memo is a tour de force of legal analysis gone bad. The memo has been rightly vilified here and elsewhere for making the president a king and for contributing to a torture culture in America. But even though Yoo's memo has been repudiated, its discredited ideas live on in the detention system he helped create. Worse, Congress has now codified many of Yoo's ideas through the Military Commissions Act of 2006.
The prisoners condemned to legal limbo as "enemy combatants" are the first casualties of Yoo's War on Law. Hundreds of men (many completely innocent) have spent years imprisoned at Guantanamo without habeas corpus or due process because Yoo and others sought to create a prison beyond the law. Guantanamo, in turn, has given rise to a combined system of indefinite detention (through Combatant Status Review Tribunals) and trials by military commissions that depend upon evidence gained through the very coercive interrogation tactics that Yoo sought to legitimize. Indeed, Brig. Gen. Thomas W. Hartman, the commissions' legal adviser, maintains that military judges can even rely on evidence gained by water-boarding, a torture technique sanctioned by Yoo's earlier (and now repudiated) Aug. 1, 2002, legal opinion. In other words, no evidence is too tainted for the Guantanamo commissions to consider.
Meanwhile, my client Ali Saleh Kahlah Almarri, a legal resident alien, is approaching his fifth year in virtual isolation at a Navy brig near Charleston, S.C., based upon Yoo's discredited assertion that the Bill of Rights does not apply to the president's conduct of the "war on terror" inside the United States. Remarkably, the administration continues to defend the proposition that the president can seize terrorist suspects in the country and detain them indefinitely as "enemy combatants" even though its deliberate mooting of the Jose Padilla case in the Supreme Court shows it recognizes that proposition is legally bankrupt....
> Read entire Slate piece here.
Tags: Justice, Liberty & National Security, Checks & Balances, Detention & Habeas Corpus, Domestic Counterterrorism
By Aziz Huq – 03/26/08
Cross-posted from The Hill Blog
In February and March this year, two bills on an obscure federal-court rule of evidence were introduced in the House and the Senate. This arcane corner of federal procedural law-the "state secrets" privilege-has far-reaching consequences. It is a cornerstone on which the "legacy" of the Bush Administration is now being built.
The "state secrets" privilege is used by the government to ask courts to exclude evidence that might disclose sensitive information about national security matters, and it impinges on the heart of the Constitution's system of separated powers: the relationship between the executive branch and the courts. From the early Stuart era, the Founders of the Constitution drew inspiration from English judges who had stood up to arbitrary or tyrannical uses of executive power.
This core idea of the judiciary as a check on executive authority, however, has waned in the glare of late twentieth-century security panics. In signal cases during the 1970s on wiretapping and executive privilege, the Court has left open inchoate "national security" exceptions to constitutional protections. Entering the post-9/11 era, therefore, the solidity of constitutional protections against executive predations on national security grounds remained uncertain....
Read the rest of the article at The Hill Blog.
Tags: Justice, Liberty & National Security, Checks & Balances
By Andrew Stengel – 02/27/08
Last
night's Democratic debate covered health care and the war in Iraq and jobs and the economy. In
other words, the NBC News moderators asked mostly the same questions as, well,
the 19 previous debates.
As is
customary, talking heads and the print media
proclaimed who won and lost. Opinions varied, but nobody named last night's
real loser: James Madison, the father of our Constitution
and champion of checks and balances.
The issue of presidential power, which is an unlikely answer to pollsters' endless
queries as to what is the most important issue in this election is actually
quite ubiquitous. Warrantless
surveillance. The Foreign Intelligence Surveillance Act (currently stalled in
the House). Retroactive immunity for telecomm companies. Justice Department investigations into
torture. Destruction of evidence
of torture. Presidential signing statements that flout the intent of Congress.
Indefinite detention. Trials for terror suspects under the Detainee Treatment
Act. Extraordinary rendition.
Connecting these dots illustrates a remarkable expansion of power in the executive branch
over the past eight years that runs afoul of the Constitution and James
Madison's intent. Yet, the issue has not
arisen—even once—in any of the 40 debates. (The Boston Globe's Charlie Savage
suggested a series of topical questions on the New York Times op-ed page on the
eve of the debate.)
The administration's
theory of presidential power surfaced long before G.W. Bush took office: in a
1987 congressional minority report on the Iran-Contra scandal. As articulated
by then Congressman Dick Cheney, and highlighted by the Brennan Center's Aziz
Huq in 12 Steps to Restore Checks and Balances, the report provided the foundation for the
current administration's theory of monarchial executive power,
which claims that the president can act like a king and override—or ignore—Congress.
Since
none of the moderators in any of the Presidential debates have raised questions
about our system of checks and balances and how we might best restore
Constitutional order, we're writing to each of the campaigns and to ask them to
answer the question printed below. We'll post responses we receive.
In
recent years and months, we've learned about warrantless surveillance, signing
statements that circumvent Congressional intent, indefinite detention of US
citizens, expanded claims of executive privilege, secret memos from the Office
of Legal Counsel that justified torture, and much more. Many people—including former members of Republican and Democratic administrations—see
these actions as an attack by the executive branch on constitutional checks and
balances, Congress and the courts. Do you believe that the presidency has
gained too much power? If so, as president, what specific steps would you take
to correct the imbalance?
Brennan Center's Senior Fellow Eric Lane
notes that, upon swearing in, the president places his—or her— hand on the Bible and
recites the Oath of Office, committing to:
support and defend
the Constitution of the United
States.
We deserve to know which George
the next president will resemble—Washington, or the King III.
Tags: Justice, Liberty & National Security, Checks & Balances
By Emily Berman – 02/14/08
If you watch Congress closely, you might have noticed that
they've been buying a lot of beachfront property in New Mexico over the last few years.
America
doesn't torture, President Bush emphatically declared in 2005. Except
for those three people that we subjected to waterboarding.
The 9/11 Commission was given all the information about the
treatment of detainees that they requested.
Except
those hours and hours of tapes of the interrogation of Abu Zubaydah and Abd al-Rahim al-Nashiri that had been sitting in a safehouse in Thailand.
We're not eliding our constitutional obligations to the
detainees in Guantanamo. Except that we have been denying them the long-established
right to habeas corpus, the right to see evidence offered against them, the
right to present evidence of their own to exonerate themselves.
We're not monitoring domestic communications without a
warrant in violation of long-standing law.
Except for the five years between September 11th and the time the
program was exposed
by the New York Times.
In the past seven years, Congress has heard all of these proclamations by members of the Administration, each of them shown to be based on creative interpretations of the law or possible obstruction of justice. And yet it continues to take the bait-hook,
line, & sinker-either by taking no action at all or by enacting laws that
simply codify the Administration's flawed policies.
The latest in this long line of legislative travesties is
the recently-approved Senate version of a bill to amend the Foreign Intelligence
Surveillance Act (or FISA). The debate
over the measure was long, hard-fought, and characteristically full of outright
misinformation. Here are some examples:
- (1) "If
Congress doesn't pass a FISA bill by Saturday, FISA will expire". Incorrect. The Protect America Act, which eviscerated some
of FISA's civil liberties protections, expires Saturday. FISA, which has served America's
intelligence community well for over 30 years, remains on the books.
- (2) "If
telecommunications companies that cooperated with the administration's
warrantless wiretapping program are not extended retroactive immunity for any
violations of the law they committed, they will not cooperate with intelligence
operations in the future." False.
Without immunity, telecoms might not participate in illegal intelligence operations. Nor should they! It is good public policy to discourage
telecoms from cooperating with illegal surveillance.
- (3) "Requiring
the intelligence community to get authorization for surveillance activity from
the Foreign Intelligence Surveillance Court (FISC) will impede government
efforts to stop terrorists."
Unsubstantiated. From the time it was established in 1979
until 2006, the FISC rejected exactly 5 applications from the executive. There's no reason to think that it would not
continue to approve valid surveillance requests if it is permitted to retain a
role in the approval process.
Instead of recognizing these
arguments for what they are-the politics of fear enlisted to further an agenda
of unprecedented government secrecy and unaccountability-68 Senators have once
again placed their trust in the administration by voting in favor of the
bill. They are trusting that the
surveillance targets, which need not be approved by any independent judicial
voice, are appropriate and are not likely to be Americans. They are trusting that the information
gleaned from such sweeping surveillance power is used properly. They are trusting that the communications of
Americans "inadvertently" captured in the course of surveillance operations are
not retained or used improperly.
By trusting rather than verifying,
they are abdicating their responsibility to protect America from excessive executive
power. By not standing up to this
imperial presidency, they are saying that fearmongering works and that Congress
is becoming irrelevant.
Showing a bit
more savvy and resolve than the Senate, the House has thus far refused to fall
prey to these same tactics and will let the Protect America Act expire on
Saturday. One can only hope that the
House will continue to listen
to the voices of those Americans who have grown tired of having their rights
and the rights of their neighbors trampled by this administration.
Tags: Justice, Liberty & National Security, Checks & Balances, Detention & Habeas Corpus, Domestic Counterterrorism
By Maggie Barron – 02/13/08
"White House Victory." The words have a surprising ring these
day given how little capital the administration has left to spend. But these
are exactly the words used to describe yesterday's Senate vote to reauthorize
FISA. Rather than rein in the executive branch's expanding surveillance powers,
the Senate rejected measures that would have protected civil liberties, and
chose to grant immunity
to telecom companies that had provided the government with data, perhaps
illegally. More disturbing still, this vote was not even particularly
contentious; it passed by a wide, 68 to 29, margin. What happened?
Sen. Chris Dodd (D-CT), an opponent of broad surveillance
powers, said
"Unfortunately, those who are advocating this notion that you have to give up
liberties to be more secure are apparently prevailing."
Is it true that Senators are still too scared to stand up to the national security machine for
fear that they will be branded as soft-on-terror? Yes, there has been some
definite bullying going on. In his State of the Union address, President Bush
said that if Congress didn't act immediately to reauthorize FISA, "our ability to track terrorist threats
would be weakened and our citizens will be in greater danger. Congress must
ensure the flow of vital intelligence is not disrupted." The message is clear:
question the government's use of power and you put Americans in danger. We've been hearing it for six years. And the
message seems not to have lost its power over elected officials.
Still, I think there are other forces at play. This is a unique
moment in which the politics of security and the politics of special interests
intersect. Some political issues, like national security, are thought to be
immune from the reach of special interests. But the moment FISA became not just
an issue of domestic spying but also of telecom immunity, the legislation seemed
clouded, like the majority of other issues before Congress, under a shadow of special interest money.
Take Sen. Jay Rockefeller (D-WV), the chairman of the Senate
intelligence committee, whose support of the current FISA legislation was
critical to its passage. He said that the legislation was "the right way to go,
in terms of the security of the nation." But it seems it was also the "right
way to go" in terms of pleasing his contributors. According to the Center
for Responsive Politics, he is one of the top Congressional recipient of telecom
money. Other Senators who supported immunity were also on the list of top
recipients, such as Mary Landrieu (D-LA).
The telecoms have good reason to want immunity AT&T and
other telecoms face 40
lawsuits. And the government worries that without immunity, the telecoms,
having learned that the executive sometimes ask for cooperation with legally
questionable operations, won't cooperate with future spying efforts.
To be fair, Chris Dodd, who introduced the amendment rejecting immunity, also received money
from telecoms, about $10,000 last year. So there is no direct correlation
between a vote on FISA and the money received from telecoms. But wouldn't it be
better if we could be sure that legislative decisions were made on the merits
of the cases at hand, and not to please campaign contributors?
If we are going to restore
checks and balances, Congress must be able to challenge the assumption that
civil liberties and national security are in necessary tension. Unfortunately,
when special interest money comes in to play, it's hard to know for sure whose
interests these Senators are thinking about.
Tags: Justice, Liberty & National Security, Checks & Balances, Domestic Counterterrorism
Page 1 of 6 pages 1 2 3 > Last »
0 comments | Permalink