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26 June 2009

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Scott Nance

Now why was this so hard? A court did what courts are supposed to do -- take evidence, hear arguments, apply the law, and make a decision. The court clearly considered a mass of confidential information, and there is no indication that it was in any way compromised. This is how the justice system is supposed to work. It makes you proud to be an American.

alnval

Col. Lang:

Thank you.

Judge Leon's decision is an easy and worthwhile read. His incredulity at the lack of government common sense should be memorialized in legal texts and made mandatory reading in law schools throughout the country.

Cold War Zoomie

I'll second alnval's point that Leon's decision is an easy read, and I too was especially surprised by the "common sense" reference! It made me proud, as well, although it was way overdue.

This affair highlights the fact that a small group of power players who are masters at media manipulation can establish a tyrannical oligarchy in short order while the system of checks and balances plods along at an 18th century pace.

The only remedy I know for this problem is an engaged, well informed citizenry. Unfortunately, the majority is neither engaged nor informed - and we have a long history of having neither.

If anyone thinks the election of Obama proves me wrong, then I argue that he was elected because the Republicans were in charge when the economy collapsed. The trampling of foreign prisoners' rights was way down the list. Sure it may have lead to a general malaise engulfing the country as a whole, but the economy was the primary game changer.

That's why we have a Bill of Rights. And am I glad some of our Founders recognized the need for one and demanded it.

DaveGood

PL

Sir,

Good work.

DaveGood

DaveGood

I am assuming that whatever your testimony was, it was in support of the Judges conclusion,

DaveGood

arbogast

Thanks for the opportunity to read Judge Leon's decision. Yes, it gives me hope.

confusedponderer

Remarkable enough to see a judge use exclamation marks in decisions.

That said, excellent decision.

Arun

Col Lang:

Many thanks!

Arun

The only remedy I know for this problem is an engaged, well informed citizenry. Unfortunately, the majority is neither engaged nor informed - and we have a long history of having neither.

Cold War Zoomie: a sufficiently engaged and sufficiently influential minority can be sufficient to keep our liberties alive.

confusedponderer

You will be interested in this decision here as well.

It is a bivens suit, Padilla vs. Yoo (Padilla requests damages in the amount of 1 dollar).

Nice to read what Judge White makes of Yoo's claim that he, as the author of the legal cover for the conduct directed against Padilla, enjoyed immunity.

Background is this: Government officials are protected "from liability for civil damages insofar as their conduct does not violate any clearly established statutory rights of which a reasonable person would have known." The "clearly established" requirement extends significant protection to government officials.

Yoo also advocates that this Court should abstain from adjudication because the Court should leave review of his legal memoranda and the conduct which followed to the coordinate branches of government based on substantive areas of law raised by the memoranda. The Court notes the irony of this position: essentially, the allegations of the complaint are that Yoo drafted legal cover to shield review of the conduct of federal officials who allegedly deprived Padilla of his constitutional rights. Now, Yoo argues that the very drafting itself should be shielded from judicial review. Padilla’s allegations here are that the creation of such legal cover was itself an unconstitutional exercise of power.
Finally Judge White rules:
The Court finds that the complaint alleges conduct that would be unconstitutional if directed at any detainee, and therefore finds that the rights allegedly violated were clearly established at the time of the alleged conduct.
...
The Court finds that Padilla alleges a violation of his constitutional rights which were clearly established at the time of the conduct....Therefore, Yoo is not entitled to qualified immunity.

Judge White obviously concludes that a reasonable lawyer in Yoo's position should have known that he was authorizing a violation of Padilla's constitutional rights.

Music to my ears as he is saying what I have said about Yoo's lawyering all along. It is not so that the matter of torture or 'harsh treatment' is an issue on which reasonable people can disagree. Yoo's lawyering to this end decidedly was not reasonable but frivolous.

(h/t to Balkinisation)

On a related matter, I have come to the conclusion that the enemy combatant status is simply the result of the administration seeking legal cover for actions they had already committed, namely torture. Art. 3 (1) (a) and (c) of Geneva III and Art. 31, 32 of Geneva IV include explicit prohibitions of torture. The only way around that is to divine up a fictitious third category of enemy combatants to which all that doesn't apply. Frivolous, of course, as the Geneva conventions are covering all categories of prisoners in war completely. There was no legal gap that had to be filled by the enemy combatant, except in the Bush administration's bold faced assertions.

Under Geneva conventions people captured in war (ignoring Geneva I and II) are POW, or civilians subject to the local law administered by occupation authorities, if necessary reduced to what would be allowed under US law (that is, Iraqi law allowing torture would not be allowed to be applied by a US military court in case against a captured Iraqi because torture is prohibited in the US.)

I had the privilege of listening to a Latvian Judge at the European Court and former justice secretary of Latvia yesterday, and in a byline he pointed out that East European administrative law in the East European states, and those West European states who had dictatorships (i.e. Greece and Spain) is heavily influenced by German administrative law, in many cases adopted 1:1. The reason for this popularity is that German administrative law is very thorough and systematic, establishes clear rights and establishes consequent legal review of government actions against individuals. The reason for that is that it was created as a reaction to and as a prevention against totalitarian rule (i.e. Nazi rule) where administrative law was routinely perverted to tyrannical ends. His assessment was that as a safeguard it is quite effective, much more so than anglo-saxon law.

Point in case are the secret no-fly lists in America that bar people from flying. I'll briefly sketch up the German view on such measures: Obviously being barred from flying is an infringement of personal freedom. If a person is subjected to such an infringement it is imperative that the person knows by whom and why. It is imperative because if that remains secret, it is extremely difficult to legally protect oneself against government action (who to sue, and to argue why the decision was wrong). Access to effective legal protection is a constitutional right. Arguing against an infringement of personal rights in ignorance of the reasons is not effective. Thus the criteria of an administrative act (i.e. Verwaltungsakt § 35 VwVfG) must be open to legal review. Iirc in America they are still secret. So is who put a person on the no fly list, and why. This practice is now iirc still continuing, after about eight years. Preposterous. No fly lists l'Americaine would have died a savage, quick and unceremonious death in German courts.

alnval

Col. Lang:

confusedponderer's comment re the popularity of German administrative law in Europe as a better vehicle for dealing with the government's potential for twisting the law to its own ends than a system driven by an Anglo-Saxon approach to jurisprudence is fascinating.

It reminds me of the difficulty US law schools had in coping with the issue of the failure of their graduates to approach lawyering in an ethical manner. If memory serves, things got so bad that state legislatures finally had to mandate including questions about ethics on bar exams which resulted in law schools having to teach the subject. (Some would argue that this did little to change the problem but, at least, ignorance was no longer a good excuse.)

In a similar way, data seem to be accumulating to make irrefutable the idea that even the US government will pervert the law to its own "tyrannical ends" and that this must be stopped.

What action will Arun's sufficiently engaged and influential minority take?

William R. Cumming

Great post by Confused Ponderer who very obviously is NOT confused at all. Yes the Civil Code approach does not always act in ways inferior to the Common Law.

Arun

alnval: Someone like our host has the heft and the credibility around which concerned people can rally, and the web should enable finding and organizing other such nuclei. One question I have is why is the lobby to protect the second amendment seemingly stronger than the lobby to protect the entire Bill of Rights combined?

alnval

Col. Lang:

The pot continues to bubble and it may even have been moved a little closer to the front of the stove.

Arun's question is relevant but, for me, the answer is all too obvious: money. Arms dealers are rarely motivated by lofty messages that begin; When in the oourse of human events . . .

confusedponderer

alnval and WRC,
thanks for the kind words.

As for the example with the no-fly lists, I kept it short and only sketched the procedural side of the matter. There is a lot that remains to be said about the material aspects here, in particular against the utility and adequacy of barring people from flying.

The more I think about law the more I see that proper procedure is what maintains effective enforcement of personal rights. You can write lofty rights in your constitution all you want, if you through secrecy, by inventing fictitious new categories or through not establishing proper process obstruct or prevent enforcement of those rights - they are for all practical purposes meaningless.

confusedponderer

Amusing side note:
When the DDR, the Communist East German state, was founded, about the first thing to be abolished were the administrative law courts.

As the new order incorporated the collective wisdom of the workers and farmers class, and thus always decided benevolently and for the common good, there was no need for legal protection. The working class doesn't fail. Per definition the state could do no harm. Thus, there was no need for administrative law courts.

Die Partei hat immer Recht ...

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