Access to Justice

  • April 30, 2013
    by Jeremy Leaming
     
    Recent reports about the Guantánamo Bay military prison have documented and confirmed the torture of detainees, and offered new insight into the wobbly legality of military commissions.

    Scores of prisoners remain there and according to a Seton Hall report an elaborate system has been installed to eavesdrop on attorneys meeting with the prisoners, thereby undermining the legitimacy of the military tribunals. The Constitution Project also released an exhaustive report confirming what has been known for years – that torture of prisoners did occur at Guantánamo. Many of the prisoners are on hunger strikes, they see no escape from a place where they are being indefinitely held. “The situation is desperate now,” prisoner Samir Najl al Hasan Moqbel wrote in a recent column for The New York Times.
     
    Today, President Obama, during a White House news briefing, said he still would like to see Gitmo shuttered. Obama promised to close the prison during his first term, but failed. Some reporting said the administration did not have much of a strategy in place for closing the prison.
     
    Obama said, “I continue to believe that we need to close Guantánamo. I think it is critical for us to understand that Guantánamo is not necessary to keep us safe. It is expensive, it is inefficient, it hurts us in terms of our international standing, it lessens cooperation with our allies on counterterrorism efforts, it is a recruitment tool for extremists. It needs to be closed,” The Huffington Post’s Ryan J. Reilly reports.
     
    He continued, “The notion that we’re going to continue to keep over 100 individuals in a no-man’s land in perpetuity – even at a time when we’ve wound down the war in Iraq, we’re winding down the war in Afghanistan, we’re having success defeating al Qaeda, we’ve kept pressure up on all these transnational terrorist networks, when we’ve transferred detention authority to Afghanistan – the idea that we would still maintain, forever, a group of individuals who have not been tried, that is contrary to who we are, it’s contrary to our interests, and it needs to stop.”
     
    The Center for Constitutional Rights, which has long represented some of the prisoners, lauded Obama’s comments, but noted the president should not place the entire onus on Congress to close the prison.
     
    For instance, CCR said that Obama “still has the power to transfer the men right now. He should use the certification/waiver process created by Congress to transfer detainees with the 86 men who have been cleared for release, including our client Djamel Ameziane.”
  • April 29, 2013

    by Jeremy Leaming

    A federal judge in Los Angeles took a step recently to bolster the nation’s indigent defense system for some undocumented immigrants. It was an all-too-rare legal action to help the most vulnerable among us, and unlikely to be celebrated by opponents of immigration reform.

    But poverty in this country is not exclusive to documented Americans, neither are basic human rights. U.S. District Judge Dolly M. Gee, as Bloomberg reports, moved to address the glaring inequality when she recently ruled that three states must pay for legal counsel for mentally disabled immigrants who are detained for potential deportation.

    Gee said that mentally disabled plaintiffs do not have meaningful access to the legal proceedings against them without counsel. “Plaintiffs’ ability to exercise these rights is hindered by their mental incompetency, and the provision of competent representation able to navigate the proceedings is the only means by which they may invoke these rights,” the judge ruled in José Antonio Franco-González v. Holder.

    As Bloomberg noted, federal agencies took action to ensure the measure would apply nationwide.

    In an April 22 statement, the Departments of Justice and Homeland Security announced “a new nationwide policy for underrepresented immigration detainees with serious mental disorders or conditions that may render them mentally incompetent to represent themselves in immigration proceedings.”  

    In its landmark Gideon v. Wainwright opinion, the Supreme Court ruled that criminal defendants have a constitutional right, secured by the Sixth and Fourteenth Amendments, to legal representation even if they cannot afford it. During a recent symposium sponsored by the Harvard Law & Policy Review and ACS, UNC Law School Professor Gene Nichol argued that one of the legal system’s greatest failures, which mirror the nation’s overall treatment of the poor, is its ongoing inability to provide the most vulnerable among us competent legal help even in civil matters.

  • April 26, 2013

    by E. Sebastian Arduengo

    Plenty of media attention has been justifiably focused on constitutional rights, such as due process and the individual right to bear arms. The Second Amendment has been discussed in the context of debate over compromise gun safety measures in the U.S. Senate and due process concerns were raised by some human rights groups over the federal government’s questioning of the Boston Marathon bombings suspect.

    But one needs to do some digging to find some discussion of the Seventh Amendment, which guarantees the right to jury trials in civil cases. And while it may not appear all that important, and some have even argued that juries needlessly increase the time and cost of taking cases to court, the Seventh Amendment actually ensures some democratic accountability in our courts by ensuring that citizens have a say in administering justice. So, over time, what started as a way to ensure that judges appointed by the King were not overly partial to the Crown, became a way for citizens to hold corporations accountable for wanton wrongdoing.

    So, it was heartening that U.S. Senator Sheldon Whitehouse (D-R.I.) recently brought some much-needed attention to the Amendment in a speech at the William & Mary Law School, because over the last quarter-century the Supreme Court and Congress have been working together to slowly chip away at our right to a jury trial in civil cases to the point where it’s almost meaningless through a mix of well-intentioned legislation and blatantly pro-business rulings.

  • April 17, 2013

    by Jeremy Leaming

    In another victory for corporate interests, the U.S. Supreme Court limited the scope of a 224-year-old law used by human rights groups and lawyers to sue corporations over human rights violations committed overseas.

    The case involved a lawsuit leveled against Royal Dutch Petroleum, which owns Shell Oil, alleging that the company was complicit in the murder and torture of Nigerians opposed to the company’s exploration of the Niger Delta and thereby in violation of the law of nations. The Nigerian government executed many of the activists -- and their families, represented by human rights lawyers, lodged a lawsuit in federal court pursuant to the Alien Tort Statute (ATS). The 1789 federal law states that federal courts can hear “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”

    In Kiobel v. Royal Dutch Petroleum, Chief Justice John Roberts Jr. asked the parties to address, “Whether and under what circumstances the [ATS] allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.”

    The question is not, Roberts wrote in the majority opinion, “whether petitioners have stated a proper claim under the ATS, but whether a claim may reach conduct occurring in the territory of a foreign sovereign.”

    Roberts, joined by the high court’s other conservatives, maintained that the ATS “covers actions by aliens for violations of the law of nations, but that does not imply extraterritorial reach – such violations affecting aliens can occur either within or outside the United States.”

    The Court’s conservatives concluded the ATS does not reach extraterritoriality claims, in this case.

    “On these facts, all the relevant conduct took place outside the United States,” Roberts wrote. “And even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application. Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices. If Congress were to determine otherwise, a statute more specific than the ATS would be required.”

    The high court’s left-of-center justices “believed that the statute could still be used in some cases,” Robert Barnes reported for The Washington Post.

    Justice Stephen G. Breyer, Barnes highlighted, wrote that the ATS should reach conduct by corporations overseas that “substantially and adversely affects an important American national interest, and that includes a distinct interest in preventing the United States from becoming a safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of mankind.”

  • April 15, 2013

    by Jeremy Leaming

    Despite the lofty rhetoric to the contrary, the Obama administration has failed to help the scores of Americans thrown out of their homes because of rampant foreclosure fraud. The administration instead chose to try to put a sheen of due diligence on a federal effort to get to the bottom of what David Dayen for Salon calls “the largest consumer fraud in the history of the United States.”

    With the nation’s economy still hobbled by high unemployment and a growing gap between the superwealthy and everyone else, the U.S. Treasury Department recently revealed a pathetic settlement with some of the shady bankers behind the criminal foreclosure schemes that fails to provide little if any help to the millions of victims of the tawdry financial machinations. Part of the problem, as Dayen reports, centers on the fact that the federal government allowed consultants hired by banks to conduct so-called independent reviews of millions of foreclosures. The consultants, Dayen continues, made millions and only completed a tiny portion of “independent reviews” requested by scores of aggrieved homeowners. When the Treasury settled with the bankers it announced the “vast majority" of borrowers  – 3.4 million -- will receive paltry sums, like $300 or less.

    But the Treasury Department’s Office of Comptroller of the Currency (OCC) likely didn’t expect U.S. Senators to dig much into the obviously overblown and flawed review of the millions of foreclosure victims. And they likely were not expecting Elizabeth Warren, one of the nation’s most recognizable and passionate spokespersons on behalf of the middle class, to be holding a U.S. Senate seat and a committee position to zero in on their woefully or intentionally inept handling of the foreclosure crisis. 

    But last week, Sen. Warren (D-Mass.), former Harvard Law School Professor, longtime consumer rights advocate and driving force behind the creation of the Consumer Financial Protection Bureau did just that. And it was not the first time the senator has used her platform to highlight the federal government’s bungling of the foreclosure crisis. Last week, as TPM’s Sahil Kapur reported Warren has in just a few months in the Senate “seized opportunities to highlight questionable banking practices an ostensibly lax regulatory response, a chamber frequently criticized for its coziness with Wall Street.”

    During a subcommittee hearing Warren, who as Dayen notes has “a grass-roots army of enthusiastic supporters” and “makes headlines crossing the street,” blasted the OCC regulators for “withholding information they said they possessed about improper foreclosures or other abusive financial practices from victims of those practices seeking recourse in court,” Kapur reported.

    The regulators told Warren they had not made a decision about what information they will make public about criminal foreclosures.

    “So you have made a decision to protect the banks but not a decision to tell the families who were illegally foreclosed against?” Warren asked the regulators.