Habeas corpus

  • May 30, 2013
    Guest Post

    by Brandon L. Garrett and Lee Kovarsky. Garrett is a professor of law at the University of Virginia School of Law and Kovarsky is an assistant professor of law at the University of Maryland School of Law. They are co-authors of a habeas corpus casebook, Federal Habeas Corpus: Executive Detention and Post-conviction Litigation, which was just published by Foundation Press.

    This week, the Supreme Court handed down habeas decisions on two different gateways through procedural obstacles to federal habeas review. The first decision involved an “innocence” gateway. In McQuiggan v. Perkins, the Court held that, despite a constitutional claim’s untimeliness, a federal court could reach the claim’s merit if there exists a reasonable chance that the inmate was wrongfully convicted. The second gateway is a “bad lawyering” gateway. In Trevino v. Thaler, the Court held that inadequate state post-conviction representation can excuse the default of a trial-phase ineffective-assistance-of-counsel (IAC) claim if, as a practical matter, a state post-conviction proceeding was the only forum for a state inmate to raise it. In each case, the Court avoided mechanical readings of statutes or precedents in favor of interpretations that reflect the byzantine reality of modern habeas corpus review.

    In the “innocence gateway” case, Floyd Perkins was serving a life sentence in Michigan. Perkins argued that he had new evidence proving his innocence: witnesses would say that another man was the killer, that the other man had bragged he had done it, and that the other man was trying to wash blood-stained clothes the day after the killing. Perkins had been convicted largely based on testimony of the other man, as well as two others who said they overheard Perkins admit his guilt. Perkins argued that his new evidence of innocence entitled him to merits review of his IAC claim, which was untimely under the one-year federal limitations period. He could not, however, show that he had acted with “due diligence” in bringing this evidence to the attention of the judge. He argued that new evidence of innocence should excuse the untimely filing, notwithstanding the technical defects in the petition.

  • 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 16, 2013

    by Jeremy Leaming

    President Obama promised but failed to shutter the Guantánamo Bay military prison and has refused to launch an investigation into the use of torture at the prison and other unknown or “black sites.” But groups like Human Rights Watch and many others, including inmates at the prison, strive to highlight the injustices and atrocities of the prison, rendition and military commissions.

    It’s not an easy endeavor in a nation where polls suggest that many people are not terribly concerned about the rights of people who the American government has labeled terrorist suspects. In a piece for The New York Times op-ed page that garnered notice, Samir Najl al Hasan Moqbel, a prisoner at Guantánamo for more than 10 years, explained his reasons for going on a hunger strike. He’s never been charged with a crime, he has been left to languish in a dark hole, where prison officials brutally force-feed him. “The situation is desperate now,” he writes. “All of the detainees are suffering deeply. At least 40 people are on a hunger strike. People are fainting with exhaustion every day. I have vomited blood.”

    It has been widely documented that military detainees have been tortured at Guantánamo and other unknown or “black” sites overseas, with the knowledge of top administration officials in the administration of George W. Bush. In 2011, Human Rights Watch issued a report documenting evidence that top Bush administration officials, including the president, approved of torture. (Office of Legal Counsel memoranda were eventually made public reveling the lengths attorneys took to justify torture.) The Constitution Project, as reported by The New York Times’ Scott Shane, has released an exhaustive report, more like a book, that adds “considerable detail” to the treatment of military detainees. See the group’s Task Force on Detainee Treatment.

    Another report from Seton Hall School of Law provides more evidence that the Guantánamo military tribunals are a sham.

    In “Spying on Attorneys at Gitmo,” the Seton Hall School of Law’s Center for Policy & Research, details a system of “surveillance and recording” devices in “designated attorney-client meeting rooms at the military prison.”

    Law Professor Mark Denbeaux, director of the law school’s policy and research center, said government surveillance of conversations between attorneys and military detainees greatly undermines the already wobbly legitimacy of the military commissions.

  • March 25, 2013
    Guest Post

    by Peter Jan Honigsberg, professor of law at the University of San Francisco and Director of the Witness to Guantanamo project and author of Our Nation Unhinged, the Human Consequences of the War on Terror

    Damien Corsetti was an interrogator at the Bagram Air Force Base in Afghanistan in 2002, where, according to The New York Times, he was known as the “King of Torture.”  In 2006, he was prosecuted for alleged abusive treatment he committed while an interrogator, but was acquitted.  Nevertheless, he told our Witness to Guantanamo project that he had mistreated his prisoners.

    When he began working in summer 2002, Corsetti believed in what he was doing.  He thought they were all guilty and, like most Americans, he was angry.  He explained how he had obtained information regarding several alleged plots through his interrogations in time for the U.S. to intervene and prevent the incidents from occurring.  He saved American lives.

    In the months that followed, however, he and other interrogators began to have doubts about their work. They asked a Judge Advocate General, or JAG lawyer, for advice.  The JAG attorney assured them that their actions were legal because the Bush administration had decided not to adhere to the Geneva Conventions. After hearing the JAG assessment, Corsetti felt obligated to follow orders.

    Corsetti told us how he would hood prisoners, tighten the cord at the neck, and then pour water over the hood.  The process wasn’t quite the same as “waterboarding,” but the detainees did experience the sensation of drowning or suffocating.

    He forced prisoners into extremely uncomfortable and awkward “stress positions” for hours.  He noted how the military later renamed the term “stress positions” to “safety positions,” explaining that the safety positions were for the safety of the interrogators and the military personnel on the base, not the detainees.

  • November 1, 2012
    Guest Post

    By Rebecca Sharpless, Associate Clinical Professor, University of Miami School of Law


    Two years ago in Padilla v. Kentucky the U.S. Supreme Court ruled that the Sixth Amendment requires that defense attorneys advise their noncitizen clients about the immigration consequences of a plea. The Court recognized what, for decades, the defense and immigration bars have known: competent defense counsel must advise about immigration consequences of a plea. Today, in Chaidez v. USA, No. 11-820, the Court hears argument on the question of whether Padilla governs cases involving federal convictions that predate that decision.

    Chaidez’s defense attorney failed to advise her that pleading guilty to the federal crime of mail fraud would be deemed an aggravated felony, triggering mandatory deportation.  Before Padilla was decided, Chaidez petitioned for a writ of coram nobis under 28 U.S.C. § 1651(a) to set aside her conviction based on ineffective assistance of counsel. After Padilla, Chaidez relied upon the decision to lend support to her argument that her attorney had breached a duty to advise her about deportation.