Vol. 12, Nos. 36 & 37	Covering Cases Published in the Advance Sheets through Sept. 12, 2005

The Growing Abuse of Executive Power

• Two cases this week augur the growing abuse of Executive Power by our Government - an issue that is certain to become one of the hot topics of debate before the Supreme Court in the coming years. In Elmaghraby, Judge Gleeson of the E.D.N.Y. rejected the contention of former Attorney General Ashcroft and other Government officials that constitutional and statutory rights may be suspended during times of crisis; and held that those Government officials must answer questions in a civil lawsuit that accuses them of personally conspiring to violate the rights of aliens who were held in a federal detention center after 9/11.
  
  
• In the latest phase of the A.C.L.U.’s long-simmering Freedom of Information Act lawsuit against the Government over prisoner abuse by the military, Judge Hellerstein of the S.D.N.Y. ordered the Department of Defense to release 74 photographs showing abuse of prisoners at the Abu Ghraib prison in Iraq, stating that our struggle to prevail in Iraq “must be without sacrificing transparency and accountability of government and military officials.”

Another Judicial Condemnation of Mandatory Minimum Sentences

• The Hildenbrandt case from the N.D.N.Y. is noted for Judge Kahn’s harsh criticism of the growing web of mandatory minimum laws which, in this case, required him to impose a 37-year sentence on a defendant who threw an incendiary device that caused extensive property damage but only minor physical injury. He openly complained about the irrationality of such mandatory minimum sentences, stating that “Congress has constructed a legal system in which a child rapist or a murderer is permitted to go free long before a defendant who caused absolutely no damage at all.”

Interception of E-mails

• In a decision that explores in depth the way in which e-mails are sent over the Internet, a divided en banc court from the First Circuit addressed, in Councilman, whether information contained on a computer system is data that can be “intercepted” within the meaning of the Federal Wiretap Act; and the diversity of opinions on this rapidly emerging topic show that the law is both complex and far from settled.

Capital Cases and the Problem of Underrepresentation of Minorities on Jury Panels

• In In Re: U.S., the First Circuit rejected Judge Gertner’s clarion call for a change in the “profoundly troubling” way that jurors are selected in the D.Mass. and declared unlawful her efforts to increase African-American representation in the jury pool in a capital case. Ducking the realities and the proven impact of the jury-selection process that exists, the panel simply concluded that “No one is entitled automatically to be tried by a jury of persons comprised of his or her own race, religion or gender.”

Elmaghraby v. Ashcroft, No. 04 CV 1409 (JG) (E.D.N.Y. 09/27/05) (Judge Gleeson)

This is another of the growing breed of cases that exposes the Government’s predilection to use its fight against terrorism as a means of taking away or suspending significant constitutional and statutory rights.

In this case, two Muslim immigrants, Ehab Elmaghraby, an Egyptian who ran a restaurant in Times Square, and Javaid Iqbal, a Pakistani who lived in Long Island, were arrested shortly after the 9/11 attacks and held for more than eight months in the maximum-security unit of the Metropolitan Detention Center in Brooklyn.

Ultimately, both men pled guilty to minor criminal charges unrelated to terrorism; and they were deported. However, the two plaintiffs then instituted this civil rights lawsuit against former Attorney General Ashcroft, FBI Director Robert Mueller, and other officials, charging a conspiracy to violate the rights of Muslim immigrants generally, and alleging that, while they were being detained, they had been systematically abused physically and deprived of due process solely because of their race, religion or national origin.

The two men alleged that they had been kicked and punched until they bled, cursed as “terrorists” and “Muslim bastards,” repeatedly slammed into walls and dragged across the floor while shackled and manacled, and (shades of Abu Ghraib!!), in one case, Mr. Elmaghraby claimed that a corrections officer had shoved a flashlight up his rectum during a body-cavity search, causing him to bleed.

The Government defendants collectively sought to have the lawsuit dismissed without any testimony, arguing in part that they had governmental immunity from the claims asserted, that the court lacked jurisdiction since the defendants lived outside the State of New York, and that the Sept. 11 attacks created “special factors” that outweighed the plaintiffs’ rights to sue for damages for constitutional violations.

In his 70-page decision, Judge Gleeson unequivocally refused to accede to the arguments of the Government officials. He not only declined to dismiss the lawsuit, he ruled that the defendants would have to give testimony in the case under oath. He said that “appropriate topics” for limited questioning would include whether the officials participated in the creation or implementation of policies under which the plaintiffs were detained.

Of particular significance, Judge Gleeson rejected as untenable the defendants’ assertion that certain constitutional and statutory rights must be suspended in times of crisis. That contention, wrote Judge Gleeson, “is supported neither by statute nor the Constitution.” The “qualified immunity” that shields government officials “will not allow the attorney general to carry out his national security functions wholly free from concern for his personal liability.”

Judge Gleeson emphasized: “Our nation’s unique and complex law enforcement and security challenges in the wake of the Sept. 11, 2001, attacks do not warrant the elimination of remedies for the constitutional violations alleged here. . . . I reject . . . the argument that the post-September 11 context wholly extinguished, as a matter of law, a pretrial detainee's due process rights for almost a year while subjected to highly restrictive confinement because he had been flagged as ‘of interest’ to the government's ongoing investigation.”

Throughout his decision, Judge Gleeson cited a scathing 239-page Special Report of the Office of Inspector General, entitled "The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks," that was published by the Department of Justice in April 2003.

In that report, the Inspector General found widespread abuses of the immigrant detainees held at the Brooklyn detention center; and concluded that it was the Government’s policy to hold detainees on any legal pretext until the F.B.I. cleared them, even though such clearances took many months. The Report concluded:

“[T]he [Justice] Department instituted a policy that these detainees would be held until cleared by the FBI. Although not communicated in writing, this ‘hold until cleared’ policy was clearly understood and applied throughout the Department. The policy was based on the belief – which turned out to be erroneous – that the FBI’s clearance process would proceed quickly. Instead of taking a few days as anticipated, the clearance process took an average of 80 days, primarily because it was understaffed and not given sufficient priority by the FBI. (Id., at 196).

A.C.L.U. v. Department of Defense, No. 04 Civ. 4151 (S.D.N.Y 09/29/05) (Judge Hellerstein)

On October 7, 2003, the American Civil Liberties Union (ACLU) filed a Freedom of Information Act (FOIA) lawsuit against the Government, seeking information regarding the mistreatment of detainees being held at various military prisons, including Guantanamo Bay, Cuba and the Abu Ghraib prison in Iraq. The ACLU has said that the information it was seeking was a critical component in its quest for public accountability.

From the beginning, Judge Hellerstein has warned the Government that: “Ours is a government of laws, laws duly promulgated and laws duly observed. No one is above the law: not the executive, not the Congress, and not the judiciary.” (ACLU v. Dept. of Defense, 339 F.Supp.2d 501, 502 (S.D.N.Y. Sept. 15, 2004) (P&J, 08/30/04)).

Despite those warnings, the Government has done little but stall, stonewall, and frustrate all of the efforts of the ACLU and Judge Hellerstein to bring about a speedy resolution of that lawsuit. (See, e.g., ACLU v. Dept. of Defense, 351 F.Supp.2d 265 (S.D.N.Y. Feb. 2, 2005) (P&J, 01/10/05); and 357 F.Supp.2d 708 (S.D.N.Y. Feb. 28, 2005)).

In the latest episode of this battle of wills, Judge Hellerstein ordered the release of some 74 photographs showing mistreatment of detainees at Abu Ghraib, after rejecting claims that (I) the photos were exempt from production under various provisions of FOIA, and (ii) the release of the photos would endanger American troops.

Judge Hellerstein concluded that publication of the photographs will help to answer questions not only about the unlawful conduct of American soldiers, but about the command structure that failed to exercise discipline over the troops, and the persons in that command structure whose failures in exercising supervision may make them culpable along with the soldiers who were court-martialed for perpetrating the wrongs. With powerful words, he wrote:

“The interest at stake arises from pictures of flagrantly improper conduct by American soldiers -- forcing prisoners under their charge to pose in a manner that compromised their humanity and dignity. . . . Publication of the photographs is central to the purposes of FOIA because they initiate debate, not only about the improper and unlawful conduct of American soldiers, ‘rogue’ soldiers, as they have been characterized, but also about other important questions as well -- for example, the command structure that failed to exercise discipline over the troops, and the persons in that command structure whose failures in exercising supervision may make them culpable along with the soldiers who were court-martialed for perpetrating the wrongs; the poor training that did not create patterns of proper behavior and that failed to teach or distinguish between conduct that was proper and improper; the regulations and orders that governed the conduct of military forces engaged in guarding prisoners; the treatment of prisoners in other areas and places of detention; and other related questions.

"Suppression of information is the surest way to cause its significance to grow and persist. Clarity and openness are the best antidotes, either to dispel criticism if not merited or, if merited, to correct such errors as may be found. The fight to extend freedom has never been easy, and we are once again challenged, in Iraq and Afghanistan, by terrorists who engage in violence to intimidate our will and to force us to retreat. Our struggle to prevail must be without sacrificing the transparency and accountability of government and military officials. These are the values FOIA was intended to advance, and they are at the very heart of the values for which we fight in Afghanistan and Iraq. There is a risk that the enemy will seize upon the publicity of the photographs and seek to use such publicity as a pretext for enlistments and violent acts. But the education and debate that such publicity will foster will strengthen our purpose and, by enabling such deficiencies as may be perceived to be debated and corrected, show our strength as a vibrant and functioning democracy to be emulated.”

Recognizing that many aspects of his order had enormous potential political ramifications, Judge Hellerstein stayed his order for 20 days to allow for appeals; and we are certain that this ruling will be appealed - if for no reason than to delay the release of information damaging to the Administration. For example, one of Judge Hellerstein’s specific rulings was a direction to the CIA to admit the existence of a memorandum from the Department of Justice to the CIA interpreting the Convention Against Torture and either produce it or explain its reasons for withholding the document. We suspect that it will be a cold day in hell before the CIA ever complies with that portion of Judge Hellerstein’s order.

In Re: U.S., No. 05-2358 (1st Cir. 10/07/05) (Judge Boudin)

In U.S. v. Green, Crim. No. 02-10301-NG, 2005 U.S. Dist. LEXIS 19037 (D.Mass. Sept. 2, 2005), a capital case involving two African-American defendants, Judge Nancy Gertner crafted a landmark ruling designed to alleviate her concerns that African-Americans were significantly underrepresented in the jury pool. In describing the “profoundly disturbing” system that prevailed, she wrote:

“All, or nearly all, white juries are made much more likely by a single decision of the Executive: The United States Attorney's office has opted to prosecute ‘street crime’ in federal court, rather than in the courts of the Commonwealth of Massachusetts. With that decision, the available pool of African-American jurors plummets from 20% in Suffolk County, where defendants' alleged crimes took place, to roughly 7% in the Eastern District of Massachusetts. And the punishment escalates from life imprisonment in the state courts to the death penalty in the federal courts. No matter how troubling the impact, the law gives the federal prosecutor the right to make this decision.

“Making matters even worse, however, the 7% African-American representation is diluted further before a single juror is sworn in federal court. African-American representation plummets to roughly 3% or less in the Eastern Division jury pool after jury summonses are returned, at least in part because of outdated and inaccurate resident lists. As a result, the vast majority of Eastern District juries will not have a single African-American member.”

Based on those findings, and citing the long-recognized inherent "supervisory" power of the court to manage its business, Judge Gertner ordered the implementation of a special set of jury selection procedures that required the jury administrator to follow up when a notice is returned as undeliverable from a predominately African-American neighborhood by randomly sending a new jury summons to another resident in the same ZIP code. If that summons also went unanswered, Judge Gertner directed court officials to send a second notice. If there was still no response, she directed that a new summons should be sent to another resident in the same ZIP code

In rendering her ruling, Judge Gertner vowed: “This Court cannot -- yet again -- return to business as usual and cast a blind eye to real problems with the representation of African-Americans on our juries, and the crisis of legitimacy it creates.”

Judge Gertner’s ruling immediately set off a maelstrom. Determined to maximize its chances for the death penalty, the Government quickly sought a writ of mandamus, arguing that Judge Gertner’s remedy violated the provisions of the Jury Selection and Service Act ("JSSA") (28 U.S.C. §§ 1861 et seq.). Tired of many years of inaction by the First Circuit on the jury selection issues outlined by Judge Gertner, Chief Judge William G. Young filed an unprecedented amicus curiae brief in support of Judge Gertner’s jury plan.

In a surprisingly short decision, replete with helpless piety, the First Circuit essentially said its hands were tied: Judge Gertner’s plan violated the JSSA. Thus, it granted the writ of mandamus requested by the Government and directed Judge Gertner not to carry out the critical portions of her remedial order.

While the Court voiced some sympathy for Judge Gertner’s goals (even though it ignored most of her data), it concluded that a district court’s supervisory power “does not license it to ignore an otherwise valid existing jury plan or to bypass the mechanism provided by statute to alter such plan.” Besides, reasoned the Court: “No one is entitled automatically to be tried by a jury of persons comprised of his or her own race, religion or gender.”

So, at least for now, the jury selection process in Massachusetts continues in its woefully discriminatory and “profoundly disturbing” status; and the African-American defendants in this case will soon be tried and sentenced by an all or mostly white jury - despite the “crisis of legitimacy” such a situation creates.

In Brief

CJA Fee Request Denied: U.S. v. Holtz, 379 F.Supp.2d 988 (C.D.Ill. 2005) - Here, Judge Mills denied the motion of defense counsel, who was appointed to represent the indigent defendant pursuant to the provisions of the Criminal Justice Act (“CJA”) (18 U.S.C. § 3006, et seq.), for legal fees in the amount of $18,000. Defense counsel argued that he had spent more than 192 hours on the case, which included more than 57 hours in interviews and conferences and 51 hours in obtaining and reviewing records in the fifteen months that he served as defense counsel; and that he had prepared and filed four unsuccessful substantive motions (a motion to sever trial; a motion for a bill of particulars; a motion to dismiss the indictment; and a motion to strike surplusage) and three successful motions to continue before reaching a plea agreement.

Emphasizing that a district court may enlarge the $5,200 statutory maximum fee allowed only when a case is “extended or complex,” Judge Mills ruled that the services performed by defense counsel in this case were neither sufficiently extended nor complex to justify exceeding the $5,200 allowed by statute. He also concluded that “the number of hours that counsel legitimately spent on a case or his usual hourly rate is not the point of reference for assessing a CJA fee petition.” (Id., at 991).

Four Year Delay in Incarcerating Defendant Did Not Violate Her Due Process Rights: Bonebrake v. Norris, 417 F.3d 938 (8th Cir. 08/09/05) - Reversing the district court, the Eighth Circuit held that the state’s four year delay in incarcerating the defendant after her conviction became final did not amount to a waiver of jurisdiction over her under the Due Process Clause, even though the Court acknowledged that “erroneous release (and delayed incarceration) of prisoners is a surprisingly widespread and recurring phenomenon in both state and federal systems.” (Id., at 943).

Quote of the Week - The Death Penalty is a Farce

“I have been a judge on this Court for more than twenty-five years. In that time I have seen many death penalty cases and I have applied the law as instructed by the Supreme Court and I will continue to do so for as long as I remain on this Court. This my oath requires. After all these years, however, only one conclusion is possible: the death penalty in this country is arbitrary, biased, and so fundamentally flawed at its very core that it is beyond repair. . . .

“[W]hile the system suffers from many flaws, much of the arbitrary imposition of the death penalty stems from the exceedingly distressing fact that during all my years on the bench, the quality of lawyering that capital defendants receive has not substantially improved. In many cases it has deteriorated. In fact, one of the most clear examples of the arbitrariness of the death penalty is the common knowledge that those defendants with decent lawyers rarely get sentenced to death. Death has more to do with extra-judicial factors like race and socio-economic status than with whether death is deserved. A system, whose basic justification is the interest in retribution and general deterrence, is not served when guided by such irrelevant factors. Nor should a system of life and death hinge on the proficiency of counsel.

“I have no delusions of grandeur and I know my place in the judiciary. My oath requires me to apply the law as interpreted by the Supreme Court of the United States. I will continue to do as I am told until the Supreme Court concludes that the death penalty cannot be administered in a constitutional manner or our legislatures abolish the penalty. But lest there be any doubt, the idea that the death penalty is fairly and rationally imposed in this country is a farce.” Judge Boyce F. Martin, Jr., dissenting in Moore v. Parker, No. 03-6105 (6th Cir. Oct. 4, 2005).

News From the Web

• Three groups, Justia.com, U.S. Court Forms and Oyez, have unveiled a new U.S. Supreme Court Center. This new site, still in beta format, promises to be one of the most comprehensive and useful Supreme Court resources available on the Internet. Among its features are an exceptionally fast search of past Supreme Court decisions, including a word and phrase search of all decisions through the 2004 term; links to numerous Supreme Court or Constitutional law-related weblogs; and even a link to a rather amusing Harriet Miers blog at http://harrietmiers.blogspot.com/
  
  
  
• The Reporters Committee for Freedom of the Press has posted "A Practical Guide to Taping Phone Calls and In-Person Conversations in the 50 States and D.C.," which includes a comprehensive and very useful state-by-state guide to the law on recording conversations.
  
  
  
• The GAO has prepared an interesting Special Report to Congress, entitled "Drug Offenders: Various Factors May Limit the Impacts of Federal Laws That Provide for Denial of Selected Benefits," September 2005 (93 pages).
  

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