Most of the opposition to U.S. detention policy since 9/11 has focused on the detention camp at Guantánamo Bay. But for nearly as long, the United States has been operating a prison in Afghanistan that has been, in many ways, Guantánamo's uglier twin. Stories of abuse and mistreatment at the Bagram facility have been all too common. At least two detainees were killed by guards at Bagram, the consequence of repeated beatings and shackling in stress positions.

Unlike prisoners at Guantánamo, however, whose habeas rights were restored by the Supreme Court in 2008, Bagram prisoners have never had a meaningful and adequate process to challenge their detention. Yet many Bagram prisoners have been held for years, without charge, without access to courts, without access to lawyers, and without even being told why they are being held. And according to official government investigations, reports by nongovernmental organizations, and interviews with former Bagram detainees and their families, many of the detainees at Bagram have never engaged in or been a part of groups engaged in hostilities against the United States. Many were instead originally picked up in the course of night raids, neighborhood sweeps, and cordon-and-search operations. Others were picked up by military forces acting on the basis of flimsy intelligence like anonymous tips from local rivals or business competitors. The risk that people at Bagram are erroneously detained is very high. It is therefore crucial that the people detained there have prompt access to a court or, at the very least, a fair, independent and impartial tribunal that can order their release. Just as with people held at Guantánamo, those imprisoned at Bagram must not be falsely imprisoned for years without charge.

Last week the ACLU filed habeas petitions on behalf of four people detained at Bagram. One petition is on behalf of two brothers: a 24-year-old Afghan who, until his capture by U.S. forces nearly 20 months ago, served as a translator for the U.S. military for four years, and a 25-year-old customer service representative for an Afghan Internet service provider, who has been imprisoned for nearly two years. The second petition is on behalf of a 61-year-old Afghan government employee, and his 27-year-old nephew, who have been imprisoned at Bagram for more than one year after U.S. forces seized them from their homes. Even though they have already been locked up at Bagram for well over a year (and for some, almost two), the government has never informed our clients of the reasons why they are being detained. Neither do our clients' families have any idea why their relatives are in prison. In fact, it was months after our clients' arrest before their families learned what had become of them.

The ACLU joins other dedicated lawyers, coordinated by the International Justice Network, who have also filed habeas petitions on behalf of other Bagram detainees. Last year, the D.C. District Court confirmed that at least some Bagram detainees have the right to petition for habeas corpus. That decision is currently on appeal to the U.S. Court of Appeals for the D.C. Circuit.

The ACLU has filed this habeas petition because it believes that the government must release our clients -- and others like them -- or else prove why they can be held in military detention. If the government does not have the authority to detain them militarily, they must be released or charged criminally under Afghan or U.S. law. Because the military's internal process for reviewing the detention of people held at Bagram is inadequate under both the Constitution and applicable international law, we are asking a court to vindicate our clients' habeas corpus rights by stepping in to review their detention.

Up until recently, the review process at Bagram was little more than a rubber stamp: detainees were not told why they were held, let alone given an opportunity to challenge their detention. The current Detainee Review Board ("DRB") policy, instituted by the Obama administration toward the end of last year, is an improvement over the prior process that existed at Bagram, but remains inadequate and unlawful. Among other defects, the DRBs are not independent or impartial -- they are composed of military officers who are not insulated in any way from the command hierarchy or other improper influences. Instead of looking only at the evidence, they are liable to be looking over their shoulders, worried that ordering the release of detainees will land them in hot water with their superiors or hinder their career progress. The DRBs also fail to afford the detainee the right to access counsel. There is therefore nobody who can stand between the detainee and the military, in order to ensure that they are treated fairly. The "personal representatives" that are assigned to detainees under the DRB process are nonlawyer military personnel responsible to the chain of command. In fact, personal representatives are appointed and removed by the same person who chooses the members of the DRB panel itself. Unlike lawyers, the "personal representatives" owe no duty of confidentiality to their "clients," and are not bound to advocate zealously on their behalf. To make matters worse, detainees are not given access to all of the evidence against them and the DRBs are not obligated to provide the detainee with evidence in the government's possession that tends to show the detainee's innocence. Furthermore, nothing in the DRB policy prevents the military from relying on testimony procured using torture or other cruel, inhumane, and degrading forms of coercion.

This isn't good enough. The current system of detention at Bagram is contrary to the Constitution and international law, and offends bedrock American principles of freedom and due process. The Obama administration should do the right thing not only at Guantánamo -- which should long since have been a distant memory -- but also at Bagram, where the indefinite detention of people without habeas rights or charge offends American values and undermines the United States' moral standing in Afghanistan and beyond.

[Image via takomabibelot.]

Convicted murderer Lawrence Reynolds now has until next Tuesday to recover from an apparent suicide attempt before Ohio state officials carry out his death sentence.

When Reynolds was found unconscious in his cell over the weekend, the state faced a predicament: save the inmate scheduled to undergo lethal injection in a matter of days at taxpayer expense, or let him die. The state chose the former option, and has rescheduled his execution, which was previously planned for today.

"We have a constitutional duty to provide health care for this inmate until the execution commences," said a spokesperson for the Ohio Department of Rehabilitation and Correction. "And we are legally responsible to carry out executions under the law. We will meet both our legal obligations."

Reynolds' execution was initially scheduled for last October, following that of inmate Romell Broom. Officials badly botched Broom's execution, however, failing to find a functional vein in either of the former intravenous drug-user's arms. The attempts to execute Broom were terminated by Gov. Ted Strickland after two hours and as many as 18 insertions of a needle which reportedly struck muscle and bone. In response to a temporary reprieve on the execution of Reynolds and another inmate, granted by the U.S. Court of Appeals for the Sixth Circuit, the state then became the first to adopt a one-drug lethal injection protocol. Since then, Washington State has followed suit.

This is the first time an inmate on Ohio's death row has attempted suicide. A full investigation into how Reynolds obtained the drugs on which he attempted to overdose is underway. 

[Image via Wikimedia Commons.]

The four-judge federal trial court in Delaware has operated one judge short for almost four years and is on the verge of losing another. One Delaware attorney who frequently appears before the federal bench told the Wilmington News Journal, "Despite the heroic efforts of the remaining judges, plaintiffs and defendants are left languishing. It is a disaster here."

Only three judges have strived to manage the U.S. District Court for Delaware's docket since December 2006, when Judge Kent Jordan left to claim a spot at the U.S. Court of Appeals for the Third Circuit. And, earlier this year, Judge Joseph J. Farnan Jr. announced his resignation from the court, effective this July. No nominations have been announced yet to fill either position, though a White House official informed the Delaware paper that potential nominees currently are being vetted.

The situation has proven so dire that the district's Chief Judge Gregory M. Sleet reached out to district court's in New Jersey and Pennsylvania, which have taken on portions of the Delware court's civil docket. Even with the assistance, though, one judge's civil calendar for 2010 is already full. The Delaware court maintains exclusive control over its criminal docket.

According to U.S. Attorney for Delaware David Weiss, if there is not at least one nomination announced and confirmed by July, "there is no doubt that would be devastating."

There are currently 101 vacancies on federal courts: 19 on courts of appeal and 84 on district courts. Another 22 federal judges have informed the president of their intent to retire. Pending before the Senate are 31 nominations to the federal bench made by President Obama.  

[H/T: Main Justice. Image via University of Delaware Library.]

The Washington Post today reported: "Obama advisers are set to recommend military tribunals for alleged 9/11 plotters." The report indicates that the Obama administration now leans towards trying self-proclaimed 9/11 mastermind Khalid Sheikh Mohammed (KSM) and his co-conspirators in military tribunals. Reactions were swift and are offered below without comment.

"Obama said that the choice between our security and our ideals is a false choice. He was right," writes Adam Serwer at The American Prospect. "The real choice was always between our ideals and our politics, and if the above story is true, then Obama will have made the obvious, if profoundly disappointing, choice."

At Harper's, Scott Horton introduced "Barack Obama's new attorney general: Rahm Emanuel," apparently blaming Emanuel for the administration's shift in policy. Marcy Wheeler seemed to agree.

"Three is the number of people who have been convicted in the military commissions system. Two of the men convicted in the military commission system are free today," the ACLU offerred at their blog. "Compare that to the more than 300 who have been convicted on terrorism-related charges in our federal criminal courts and are incarcerated in federal prisons."

Sen. Russ Feingold notes this track record of military commissions and warns that "[t]he best way to bring these terrorists to justice swiftly is through our civilian courts."

Spencer Ackerman is tracking commentary from former military officers opposing military tribunals for KSM.

Steve Benen wonders if fault for any potential policy shift ultimately lies with Congress, who "spent the last year cowering whenever national security came up, and threatening to side with Republicans on cutting off funding for trials and Gitmo closure."

Folks at The Atlantic's politics blog conjectured that the Post's "story is merely a test balloon."

Less charitable commentary was provided by Jeralyn Merritt at TalkLeft and Glenn Greenwald at Salon, who both voiced grave disappointment with the admistration's reported shift in position.

A final notable quote is from Attorney General Eric Holder, a former ACS board member, in an exchange with a reporter from The New Yorker earlier this year. In an extensive report on his decision to try KSM in an Article III Court, Holder eagerly defended what was then the administration's position:

"I don't apologize for what I've done," [Holder told The New Yorker]. "History will show that the decisions we've made are the right ones." Holder said that he regarded trying Khalid Sheikh Mohammed in a courtroom as "the defining event of my time as Attorney General." But, he added, "between now and then I suspect we're in for some interesting times."

If the commentary above is any indication, interesting times may well be upon us.

[Image via The White House.]

Following in the footsteps of Ohio, Washington became the second state to adopt a one-drug protocol for lethal injections. The single-drug method replaces the three-drug combination widely used by states, and upheld by the U.S. Supreme Court in Baze v. Rees.

Washington's decision was made public in filings with the state's high court in the case of convicted murderer Darold Stenson. The state's Attorney General Rob McKenna filed the disclosure, requesting that the court dismiss Stenson's appeal of his death sentence. McKenna argued that Stenson's constitutional claims are rendered moot by the change in protocol.

Though the state seemingly submitted the one-drug method to circumvent Stenson's constitutional claims, the state maintains that the three-drug cocktail is constitutional. In fact, the three-drug method will remain available to death-row inmates in Washington who request it.

Ohio became the first state to adopt the one-drug method of lethal injection after the botched execution of Rommel Broom. In Broom's case, executioners tried for hours to find an accessible vein, prompting Gov. Ted Strickland to call off the execution. Ohio then made the switch to its one-drug injection, which has since been used in carrying out death sentences of three inmates. Ohio is currently on pace to challenge Texas as the state executing the most inmates in 2010.

[Image via Dirty Bunny.]

Since her nomination to the U.S. Court of Appeals for the Fourth Circuit 169 days ago, and 124 days after the Senate Judiciary Committee unanimously reported her nomination to the floor, Justice Barbara Keenan saw the Senate unanimously end the anonymous hold on her nomination. This afternoon, the Senate voted 99-0 for cloture on Keenan's nomination, then promptly confirmed her 99-0.

The vote on Keenan's nomination came after Judiciary Committee Chair Sen. Patrick Leahy issued a statement calling for up-or-down votes on noncontroversial judicial nominees. In his statement, Leahy lists the 13 nominations pending before the full Senate, including seven that were unimously reported out of committee, and nine that were initially nominated over three months ago. The vote also followed a joint-statement by Sens. Jim Webb and Mark Warner demanding a "prompt vote" on the nomination of Justice Keenan, their fellow Virginian.

Keenan served on the Supreme Court of Virginia since 1991. She was recommended for the Fourth Circuit by Sens. Warner and Webb on June 2, 2009, and nominated by President Barack Obama on September 14, 2009.

The Fourth Circuit, which The Washington Post calls "an influential court on national security cases," still has four vacancies. The president also nominated to the court Judge Andre Davis, who was confirmed in November, and jurists James Wynn and Albert Diaz, whose nominations have been pending in the Senate for almost three months.

[Image via Sen. Mark Warner.] 

Rising Road

A True Tale of Love, Race and Religion in America

By Sharon Davies

[Available Here]

Rising Road is one of those books that happened by accident; a chance occurrence on the way to somewhere else.

After the outcome of the election in 2004, when the country was abuzz with reports of how the question of gay marriage drove President George W. Bush's supporters from their homes to the voting booths, I began to think about law and marriage, and the way of constitutional change.

It was a topic of great personal importance to me, law and marriage. Had my parents been swayed by the marriage laws that were still in place in various states at the time of my birth, I would never have been born. Neither would any of my five brothers or sisters. It was the era of the anti-miscegenation laws. The simple act of having us was a crime, a number of states declared, and they backed the ban up with the criminal sanction. Defiant mixed race couples could be jailed.

I was nearly seven-years-old by the time the U.S. Supreme Court finally got around to striking those laws down. Seems my siblings and I weren't crimes after all. It was the law that was wrong, the Court announced in Loving v. Virginia in 1967. The decision was unanimous. Even Justice Hugo Black agreed, though a son of the South, the region of the country most steadfastly devoted to the anti-miscegenation regime.

After the election in 2004, I wondered how constitutional change like that came about-how acts of intimacy, and marriage, and the wee beings that can result from them, could one day be outlawed, and another day not. I will write an article about that, I thought to myself, and set to work.

When doing the researching for that intended article, however, the unexpected happened. I tripped over a reference to a 1921 trial in Birmingham, Alabama. A murder trial, where the marriage of the daughter of a Methodist minister to a Catholic migrant from Puerto Rico, led the minister to kill the Catholic priest who took their vows. How horrible, I thought. I'll use it as an example in my article.

But when I actually found the transcript of that trial, the awful, revealing story underlying the minister's crime subsumed me-just as the crime had subsumed the nation back in 1921-and my plans changed. This is no law journal article, I thought to myself. This is a book. After three years of research and two more of writing, I delivered the manuscript for Rising Road to my editor at Oxford University Press.

The nonfiction book, written as a narrative, begins with the decision of Ruth Stephenson, age 18, to marry Pedro Gussman, a wallpaper hanger, against the wishes of her parents, Rev. Edwin R. and Mary Stephenson. Alabama law permitted the union, even if Ruth's parents objected; only marriages between whites and blacks were banned. So Ruth and Pedro had no trouble obtaining the marriage license they needed to be wed. But as the tale in Rising Road reveals, "unwritten laws" have been known to shadow those printed in a state's criminal code, and sometimes even outstrip them.

When Rev. Stephenson learned about his daughter's marriage, he shot and killed the priest who married them, Father James E. Coyle, the presiding pastor of St. Paul's Catholic Church. There never was a dispute about the identity of Fr. Coyle's killer-a number of witnesses heard the shots and saw Stephenson step down from the rectory porch where his victim lay bleeding, and Stephenson immediately surrendered and confessed-the only question was whether the minister would be punished for it.

In 1921, the question was more complicated than it should have been. Rev. Stephenson was a member of the resurrected Ku Klux Klan, sometimes known as the "second Klan," an organization that had successfully rebranded itself as a "patriotic" fraternity dedicated to defending the nation against the forces that threatened to engulf it: Blacks, Catholics, Jews and waves of other immigrants flooding into the country with only the slimmest desire to assimilate, Klansmen raged. The rallying cries worked; the Klan packed its rosters during this period with "the best men in town"-doctors, lawyers, judges, law enforcement officers, and men of the Protestant clergy like Stephenson.

After the shooting, the Klan circled the wagons around the jailed minister, holding drives across the state to raise funds for Stephenson's defense, and hiring a talented young lawyer to lead it, Hugo Black. I will not spoil the story for those who care to read the book. Suffice it to say that the pursuit of justice would not be easy, and the lawyer who would one day play a part in striking down the anti-miscegenation laws in 1967, would not hesitate to exploit the impulses that animated them in 1921 while defending the killer of an unarmed priest. It would take some time for Hugo Black, and the nation, to travel along that road to somewhere else.

Does a Texas prosecutor's affair with the trial judge in a capital case violate the defendant's right to a fair trial? That question could face the U.S. Supreme Court if it grants certiorari in the case of Charles Dean Hood, who was sentenced to death in 1990. He only obtained depositions of Judge Verla Sue Holland, who presided over Hood's case and the prosecutor, Thomas S. O'Connell Jr., in 2008. The Texas Court of Criminal Appeals considered Hood's case, but still ruled 6-3 to uphold his execution. 

Hood's appeal to the Supreme Court immediately drew the support of 21 prosecutors and 30 legal ethics experts.

"A judge who has engaged in an intimate, extramarital, sexual relationship with the prosecutor trying a capital murder case before her has a conflict of interest and must recuse herself," the ethics experts wrote to the high court in their amicus brief. "Of all the courts to have considered the issue, only the Texas Court of Criminal Appeals in this case failed to recognize this imperative."

Attorney and ACSblog contributor Scott Horton agreed, writing this morning that "Texas is in the process of declaring itself a judicial ethics-free zone."

Writing in The New York Times, Adam Liptak notes that the Supreme Court has demonstrated a willingness to dabble in judicial ethics:

Last year, [the Court] ruled that millions of dollars in campaign spending on behalf of a West Virginia judge was reason enough to require his disqualification from a case involving his supporter.

"The probability of actual bias on the part of the judge," Justice Anthony M. Kennedy wrote for the majority, was "too high to be constitutionally tolerable."

And last month, the Supreme Court ordered the federal appeals court in Atlanta to have another look at a case in which jurors in a capital trial gave a trial judge an odd gift - a penis made of chocolate.

Concerns for judicial integrity have haunted Texas of late, as suggested by Horton. Just released today is "Hire a Lawyer, Escape the Death Penalty?," an ACS Issue Brief by Professor Scott Phillips. Phillips researched the death penalty's application in Houston and surrounding Harris County, which is the county with the largest number of executions in the United States and the largest jurisdiction that uses court-appointed lawyers instead of a public defender to represent defendants who cannot afford an attorney. Phillips study reveals that "[h]iring counsel for the entire case not only eliminates the chance of death, but also dramatically increases the chance of an acquittal."

The tale of Todd Cameron Willingham also raised concerns, drawing widespread attention to a case in which many say Texas executed an innocent man. Writing in The New Yorker last fall, David Grann detailed the case against Willingham, who was convicted of killing his young daughters. Prosecutors in Willingham's case relied heavily on what one expert has since called "junk science" considered by either modern evidentiary standards, or those in place at the time of Willingham's prosecution. That case is being considered by a state commission established to investigate allegations of error or misconduct by forensic scientists. 

And questions about judicial ethics have dogged Judge Sharon Keller of the Texas Court of Criminal Appeals. Keller refused attorneys for death row inmate Michael Wayne Richard extra time to file papers on the night of Richard's execution. Keller promptly closed the courthouse doors at 5 p.m., and Richard, prevented from timely filing his papers due to technical difficulties, was executed later that evening. Keller remains the subject of a special prosecution, in which opening arguments recently took place. The court on which Keller sits is Texas' top criminal court, which also reviewed Hood's case and reinstated his death sentence.

[Image via AnEyeForTexas.]

The widely anticipated Second Amendment case pending before the Supreme Court is creating strange bedfellows, reports Jess Bravin in The Wall Street Journal. Bravin writes that, "as gun-rights groups battle each other over how to argue the case, ... some left- and right-leaning legal theorists unite over how to interpret the Constitution."

As noted at ACS's Supreme Court Preview for the Court's current term, some progressive advocates support incorporation of the Second Amendment to the states in McDonald v. Chicago. They see McDonald as an opportunity to revive the Fourteenth Amendment's Privileges or Immunities Clause, which was neutered by the Supreme Court in the 1873 Slaughterhouse Cases. Since then, incorporting rights to bar infringement by state action has been a burden carried by the Fourteenth Amendment's Due Process Clause, which speaks merely to deprivations of rights, as opposed to the broader language of the Privileges or Immunities Clause.

As to the Second Amendment, the Supreme Court left the question of incorporation for another day in the 2008 D.C. v. Heller decision, which -- for the first time -- recognized the right to bear arms as an individual right, rather than a right bestowed upon members of a militia collectively. And that day will be before the Court soon in McDonald.  

Representing the perspective of gun rights advocates in oral argument will be Alan Gura, counsel for the petitioners. Gura, like the Constitutional Accountability Center's Doug Kendall, would have the Court consider incorporating the Second Amendment through the Privileges or Immunities Clause. The National Rifle Association, however, disagrees with this approach, creating a rift among the conservative community as to how the right to bear arms should be incorporated against the states.

In a related case, the Washington State Supreme Court resolved similar issues this week. In State v. Sieyes, the court ruled recognized the Second Amendment as applicable to the states. Following a July decision by the U.S. Court of Appeals for the Ninth Circuit -- which is currently pending en banc review -- the 7-2 majority relied solely on the Due Process Clause in addressing the question of incorporation, leaving it to the U.S. Supreme Court to broach frontiers untouched for over a century of American jurisprudence.

[Image via Jocko B.]

One of New York Governor David A. Paterson's "most enduring accomplishments in shaping policy," could be his appointment of Judge Jonathan Lippman to the state's highest court, The New York Times reported.

Gov. Paterson nominated Judge Lippman (pictured) to serve as the chief judge of the New York Court of Appeals in early 2009 and after a year of service, the newspaper maintains that he "has helped turn the Court of Appeals into a scrappier, more divided and more liberal panel, its rulings and court statistics show." 

According to The Times:

In the past year, the court has issued a series of sharply divided decisions that have been surprising from a judicial body with a clear 4-to-3 conservative majority. They have included decisions favoring criminal defendants and injured workers, expanding environmental challenges and extolling individual rights against the police.

Vincent M. Bonventre, a professor at Albany Law School, told the newspaper, "The message he is sending is he doesn't mind fighting for a much more progressive direction at the court." 

[image via courts.state.ny.us]