Procedural barriers to court

  • July 21, 2010
    Guest Post

    David Mortlock is the author of a recent article on this topic in the Harvard Law & Policy Review.
    The United States has yet to settle on a definition of enemy combatant. The Supreme Court spent the past decade determining whether and how detainees could challenge their detention but explicitly avoided the question of whether they could be detained in the first place. The debate has divided not only political rivals, but also, as the New York Times recently detailed, seniors official in the current Administration.

    A handful of district and circuit courts have begun to examine the scope of the President's authority to subject enemy combatants to military detention without charges, a jury trial, or any of the other trappings of criminal detention. Some parties have taken the position that the President lacks detention authority in the fight against a terrorist group, while others argue that the President may detain even unwitting supporters of al Qaeda. The courts have reached a number of different conclusions.

    In my article, Definite Detention: The Scope of the President's Authority to Detain Enemy Combatants, I suggest that Congress has authorized the President to subject members of al Qaeda and the Taliban to military detention, whether or not they engage in combat. However, the President may not use military detention for mere supporters or sympathizers of those groups. This membership model could also be used to determine the appropriate time for release. Namely, detainees could be freed when they sever their membership in al Qaeda or the Taliban.

    Nonetheless, the debate is far from over. While a number of district courts have adopted this membership model, the D.C. Circuit recently suggested in dicta that an individual could be subjected to military detention merely for supporting the Taliban. The decision indicates that this debate could continue for many years.

  • July 19, 2010
    Guest Post

    By David Carroll, Director of Research, National Legal Aid & Defender Association (NLADA)

    The Michigan Supreme Court entered a stunning Order on July 16, 2010 reversing its unanimous decision of just two months ago in the American Civil Liberties class action lawsuit (read original complaint in Duncan v. State). By entering summary judgment in favor of the defendants in the case (the State of Michigan and Governor of Michigan), the court puts an end to any opportunity for the plaintiffs to prove they are being denied the effective right to counsel as a result of Michigan's inadequate and ineffective system of public defense. Three of Michigan's Supreme Court judges dissented from the ruling, saying: "Today's order slams the courthouse door in plaintiffs' face for no good reason." Instead, they are relegated to being represented in their pending cases by lawyers who lack the time, tools, training and resources to provide them with the assistance of counsel that our American system of justice promises to all.

    In Michigan, as in most states throughout the country, the state Supreme Court has final responsibility for overseeing the justice system and ensuring that the rights guaranteed to everyone are applied in that system. In other words, it is the courts that we go to when we believe we are being wronged in some way and it is the courts that provide us a remedy for that wrong. The Michigan court adopted, as its reasons for its Order today, the dissenting opinion from the Court of Appeals, which says, in effect, that the courts are washing their hands of any responsibility for overseeing the public defense system and that instead "the executive and legislative branches can and should address such matters." The ACLU has vowed to keep on fighting: "Our fight to fix the indigent defense system is far from over and we are currently weighing our legal options."

  • July 13, 2010

    The nation's indigent defense system is woefully inadequate and calls out for a strong federal response, writes Professor Cara H. Drinan in an Issue Brief released today by ACS. Drinan's Issue Brief, available here, proposes federal legislation to help overcome a "national crisis in indigent defense services." At the moment, Drinan asserts, many states are far from meeting their obligations under the Constitution's Sixth Amendment.

    During the 2010 ACS National Convention, Stephen B. Bright, president and senior counsel for the Southern Center for Human Rights, participated in a panel discussion that focused on increasing a federal role in improving indigent defense. Following the discussion, Bright talked with ACSblog about indigent defense services nationwide, calling the situation extremely lopsided in the favor of prosecutors. He compared the situation to "literally like the New York Yankees," playing a little-league softball team. "In many parts of the country we don't have a system," Bright said. In many states, there are no public defenders offices and instead judges appoint lawyers, often overworked, to represent poor defendants. In those cases, Bright continued, the lawyers loyalty is often to the judges who appoint them and not to defendants.

    Bright said greater independence, more structure and resources are needed to turn the situation around. Bright's interview is below. Video of the panel discussion, "The Federal Role in Improving Indigent Criminal Defense," is available here.

  • June 25, 2010
    Guest Post

    By Alan B. Morrison, Lerner Family Associate Dean for Public Interest & Public Service, George Washington University Law School
    Like a brakeless train careening down a mountain, the Supreme Court delivered another blow to those seeking to avoid having their claims shunted off into arbitration when it held in Rent-a Center v. Jackson (No. 09-497, June 21, 2010) that the company's contract with its employee gave the power to the arbitrator, instead of a court, to decide when the terms of the arbitration were unconscionable. The 5-4 decision is significant in its own right (and wrongly decided as well), but that outcome is hardly surprising given the single-mindedness with which a narrow majority of the Court has pushed the Federal Arbitration Act of 1925 (FAA) into places that its authors could never have foreseen.

    The FAA was passed by Congress to overcome decisions that made agreements to arbitrate unenforceable, even between two sophisticated businesses, the only ones that were seeking to use arbitration instead of the courts in those days. In recent years, the Court has embraced arbitration with a passion and upheld arbitration clauses that applied not only to contract claims, but to claims arising under federal laws of all kinds, including those barring discrimination in employment on grounds of race, gender, age, and other protected categories. Moreover, although the FAA contains an exception for contracts involving employees working "in commerce," the Court narrowly construed this exemption so that the employment agreements of workers who, under the prevailing interpretation of the Commerce Clause in 1925, could not constitutionally have been reached then, had their claims forced into arbitration so long as they, or as the Court ruled in a subsequent case, their union, "agreed" to have those claims arbitrated. The Court also rejected attempts by states to preclude arbitrations in certain situations, or impose conditions on their use, beyond those generally applicable all contracts, such as the defense of unconscionability.

  • June 23, 2010
    In an overlooked opinion this week the conservative wing of the Supreme Court raised the bar on the ability of workers' to seek justice from the federal courts, writes the Constitutional Accountability Center's (CAC) David H. Gans. The majority decision in Rent-a-Center, West v. Jackson, Gans writes, "is extremely important, and its holding will likely affect thousands of Americans, another ruling in a long campaign by corporations to supplant judicial review with arbitration."

    In Rent-a-Center, the conservative wing of the high court turned away an employee's challenge of an arbitration agreement that he was required to sign before gaining employment. The former employee, Antonio Jackson, lodged a federal lawsuit against Rent-a-Center West arguing that he had been subject to racial discrimination and that the arbitration agreement should not prevent his legal action from proceeding.

    Gans writes:

    In Rent-a-Center, in a sharply divided 5-4 ruling, the conservative majority of the Supreme Court reached out to create a new rule of pleading that makes it difficult for hard-working Americans to seek justice in the federal courts to enforce their federal rights, including the right to be free of racial discrimination in employment.

    In his speech before 2010 ACS National Convention, Sen. Al Franken (pictured) took a sharp look at the conservative wing of the Supreme Court and its increasing affinity for corporate interests.

    "The Roberts Court," Franken said, "has systematically dismantled the legal protections that help ordinary people find justice when wronged by the economically powerful."

    Franken then ticked off a number of high court decisions that he said have "stripped shareholders of their ability to" recover money from firms that have defrauded them, and that have "given employers more leeway to deny workers their pension benefits."

    In the recent Iqbal case, Franken noted, the conservative high court majority "made it harder for everybody to get their day in court."

    See video or download a transcript of Franken's speech here.