Due Process

  • June 27, 2013
    Guest Post

    by Deirdre M. Bowen, Associate Professor of Law, Seattle University School of Law

    Without a doubt, the Supreme Court’s ruling in United States v.Windsor No. 12-307 (June 26, 2013) offers immense hope for same-sex couples, at least for those who reside in states that allow same-sex couples to marry.

    The Supreme Court affirmed a Second Circuit opinion that determined Section 3 of the Defense of Marriage Act (“DOMA”), which defines marriage as the union of a man and a woman, is unconstitutional as applied to New York resident Edith Windsor, the widow and executor of her wife’s estate. What is remarkable, however, is how the Supreme Court essentially ignored the Second Circuit’s rationale and developed its own.

    The Second Circuit laid out a clear Equal Protection analysis of DOMA. In doing so, it bumped up the tier of scrutiny from rational basis, which the Southern District of New York Court applied, in favor of intermediate analysis, based on its finding that lesbians and gay men were a quasi-suspect class. Specifically, the Second Circuit found, after engaging in a four-part factor analysis, that gay people have been the target of discrimination and mistreatment in public and private spheres in the United States, and this triggered an intermediate level of scrutiny. The Second Circuit then evaluated the reasons that the Bipartisan Legal Advisory Group (“BLAG”) offered to determine whether these reasons were substantially related to an important government interest. In this task, the Second Circuit determined that BLAG had failed to demonstrate persuasive set of rationales.

  • October 10, 2011
    Guest Post

    By Joanne Mariner, Director, Hunter College Human Rights Program


    Anwar al-Awlaki, recently killed by a drone strike in Yemen, was a talented terror propagandist. “Intelligent, sophisticated, Internet-savvy, and very charismatic” is how a Yemeni counterterrorism official described him last year.

    The real question, though, is whether his role was much more than that, as the U.S. government has claimed. Al-Awlaki, President Obama said on the day of the strike, “was the leader of external operations for al Qaeda in the Arabian Peninsula,” a man who had taken charge of “planning and directing efforts to murder innocent Americans.” It was al-Awlaki’s operational responsibilities, not simply his oratorical skills, which were said to have sealed his fate.

    But it’s worrying that no one without access to classified information can meaningfully respond to the president’s assertions. Whatever evidence supported the government’s decision to kill al-Awlaki is secret; indeed, even the process by which this evidence was assessed has not been officially explained.

    Unlike the verdict in a criminal case, where the evidence against the defendant has been subject to challenge in adversarial proceedings before a court, the decision to kill al-Awlaki rested on undisclosed and untested grounds. For the American public, with no access to the underlying intelligence, this essentially means taking the administration’s claims on faith.

    One doesn’t have to reflect long on recent history to conclude that this is a problem. It was untested and erroneous intelligence that purported to justify the 2003 invasion of Iraq. It was also, though somewhat less notoriously, faulty intelligence that led the CIA in 2004 to kidnap German-Lebanese citizen Khaled el-Masri and hold him for five months in a secret prison in Afghanistan. And according to several federal judges it was shaky and unreliable intelligence that underlied the Bush administration’s decision to hold innocent men like Turkish citizen Murat Kurnaz in military detention at Guantanamo for years.

  • May 23, 2011

    The U.S. Supreme Court in 2001 and 2005 issued opinions limiting the ability of the federal government to detain people indefinitely because it cannot find other countries to accept them. But House Judiciary Committee Chairman Lamar Smith is preparing to introduce legislation that would circumvent those high court decisions, allowing for prolonged detention. The proposed measure will be the focus of a hearing tomorrow before the House Judiciary’s Subcommittee on Immigration Policy and Enforcement.

    Although the hearing will be stacked with witnesses likely favoring Rep. Smith’s proposal, American Civil Liberties Union of Southern California’s Deputy Legal Director Ahilan T. Arulanantham, is scheduled to provide testimony. Arulanantham has successfully litigated cases involving the detention and deportation of non-citizens. The American Immigration Lawyers Association (AILA) honored Arulanantham with its 2010 Arthur C. Helton Human Rights Award for “his body of innovative litigation and its enormous benefits for countless vulnerable non-citizens for their rights and dignity.”

    Arulanantham, author of the ACS Issue Brief, “A Hungry Child Knows No Politics: A Proposal to Reform Laws Governing Humanitarian Relief and ‘Material Support’ of Terrorism,” will challenge the calls for new legislation that would greatly expand the federal government’s detention authority.

    Arulanantham could note that the Supreme Court in Zadvydas v. Davis and Clark v. Martinez concluded that the federal government does not have the authority to hold someone indefinitely simply because it cannot remove that person to another country. The high court emphasized in its decisions that there is a grave deprivation of liberty involved with potentially permanent detention and that such deprivation of liberty without stringent procedural protections raises “serious constitutional concerns.” 

    Arulanantham's written statement submitted to the panel is available here.

    In a May 23 letter submitted to Rep. Smith and Ranking Member Rep. John Conyers Jr., nearly 100 legal scholars urge Congress “to craft legislation that will promote, rather than undermine, constitutional guarantees of due process and judicial review in this context.”

    Their letter continues:

    Rather than exacerbate current problems in the system, to the extent that Congress contemplates reforms, it should enact legislation that would enhance due process and judicial review of civil immigration detention decisions. All noncitizens who are civilly detained should have access to a hearing where the federal government must establish that their continued detention is justified. Decisions to continue noncitizens’ civil immigration detention should be subject to robust judicial review.

  • May 14, 2010

    The Obama administration's inclusion of Anwar al-Awlaki, an American citizen and terrorism suspect, on a target list for killing by the CIA, is garnering attention from legal experts and media.

    The New York Times reports:

    The notion that the government can, in effect, execute one of its own citizens far from a combat zone, with no judicial process and based on secret intelligence, makes some legal authorities deeply uneasy.

    To eavesdrop on the terrorism suspect who was added to the target list, the American-born radical cleric Anwar al-Awlaki, who is hiding in Yemen, intelligence agencies would have to get a court warrant. But designating him for death, as C.I.A. officials did early this year with the National Security Council's approval, required no judicial review.

    "Congress has protected Awlaki's cellphone calls," said Vicki Divoll, a former C.I.A. lawyer who now teaches at the United States Naval Academy. "But it has not provided any protections for his life. That makes no sense." 

  • June 8, 2009
    Guest Post

    William D. Araiza, Professor of Law, Brooklyn Law School & former Clerk to Justice David Souter (1991-92)

    To many Americans, David Souter reflects the perfect image of a judge: ascetic, bookish, removed from explicitly political tumult, a wearer of three-piece suits. Many of those who have read and thought about his body of work on the Supreme Court reach the same conclusion, but based on deeper criteria. Justice Souter really is a judge, in the deepest Anglo-American sense of the word - that is, a judge in the common law tradition.

    This is perhaps best illustrated by his most important personal statement on the Due Process Clause, his concurrence in the 1997 "right to die" case, Washington v. Glucksberg. As a case implicating the substantive, but unenumerated, rights that clause guarantees, Glucksberg presents the type of issue that is most susceptible to a common law approach. Justice Souter's opinion reflects perhaps the finest application of that approach in any opinion issued by a justice in the modern era.