Center for Constitutional Rights

  • June 24, 2013

    by Jeremy Leaming

    Republican obstructionists in the Senate have strived to hobble or make wholly inoperative the National Labor Relations Board, which is charged with protecting the rights of workers, including the right to form unions and engage in collective bargaining. That effort got a boost by the rightward leaning U.S. Court of Appeals for the District of Columbia Circuit, which ruled earlier this year that President Obama’s recess appointments to the five-member board were unconstitutional.

    Today, the U.S. Supreme Court, an increasingly pro-business Court itself, decided to wade into the issue and determine whether the D.C. Circuit got it right in the case, National Labor Relations Board v. Noel Canning. “The specific issue is the scope of the Constitution’s grant of presidential power to put an official temporarily into office without Senate approval – a power that arises when the Senate is not on hand to review that appointment,” writes SCOTUSblog’s Lyle Denniston. “Answering that question could require the Court to define when the Senate, in a legal sense, goes into recess.”

    The D.C. Circuit’s opinion in January found that the president ran afoul of Article II, Section 2, which grants the executive the “power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.” For more than a hundred years presidents have made recess appointments to fill executive branch and judicial vacancies that Congress has refused to provide advice and consent on. But the D.C. Circuit panel, made up of Republican appointees, narrowly defined when Congress was in recess, thereby invalidating Obama's recess appointments.

    The president, however, argued that the Senate was bent on blocking his nominations to the NLRB and that it was long past time to make the agency operational. Not surprisingly a group of Republicans lodged a brief with the high court calling on it to let the D.C. Circuit opinion stand.

    The Constitutional Accountability Center, however, lodged a brief urging the justices to take the case and reverse. The CAC’s brief says the D.C. Circuit opinion greatly weakened the recess appointments power by claiming it can only be used “during recesses that occur between enumerated sessions of Congress, and not during any intra-session break.”

    Denniston notes that while the justices may focus on the constitutional questions raised in the case, “the outcome has real potential for giving either the Senate of the White House real tactical advantages in the ongoing confirmation wars. It could give a resistant Senate a chance to nearly take away the president’s recess appointment authority, or it could give the White House a way to get around filibuster-driven obstruction of nominees.”

    As Sen. Elizabeth Warren (D-Mass.) noted at the 2013 ACS National Convention, the Supreme Court has grown increasingly friendly to big business concerns, with the Chamber of Commerce continuing to rack up wins before the high court. The Chamber and other business interests will surely be pushing for a Supreme Court opinion that would narrow the scope of the president’s recess appointments power, especially since the case involves a Board it views as a hurdle to their interests.

  • 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 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.”

  • July 27, 2012

    by Jeremy Leaming

    The New York City Police Department’s numbers on its stop-and-frisk policy tell a damning story of city authorities unconcerned about civil liberties or racial profiling, and how its policy adversely affects numerous communities.

    But a new report adds to the bleakness of the story. That report from the Center for Constitutional Rights (CCR) fills out the already tawdry tale with the “human stories behind the staggering statistics and sheds new light on the breadth of impact this policy is having on individuals and groups, in neighborhoods, and citywide.”

    The statistics, which CCR helped disclose, reveal that in 2011, NYPD officers stopped more than 680,000 people, 84 percent of them were black or Latino. Moreover, 88 percent of the stops produced no arrests.

    A Pace University law professor told The New York Times that people “are starting to wonder: ‘What’s really going on here? Is this a racial policy?”  

    The numbers say it most certainly is. Yet the city’s long-serving mayor is adamant that the policy saves lives, prevents crimes. But Michael Bloomberg’s rhetoric remains just that, especially when the vast majority of stop-and-frisks produce no arrests.

    And in May, U.S. District Court Judge Shira A. Scheindlin permitted a class-action lawsuit against the city’s frisking policy, saying she was seriously concerned about officials’ “troubling apathy towards New Yorkers’ most fundamental rights.”

    Scheindlin also noted that the Constitution’s Fourth Amendment bars government, including the NYPD, from conducting unreasonable “searches and seizures.” Moreover, she pointed to the Constitution’s 14th Amendment barring government officials from depriving individuals of liberty, including their equal protection rights.

    The NYPD seems to have trouble understanding or working within constitutional parameters. The judge noted that between 2004 and 2009 the NYPD stopped and frisked a lot of people, 50 percent of them black, 30 percent Latino.

    From a series of interviews of people who have been stopped and frisked in the city, the CCR report reveals a policy targeting communities of color, the homeless, low-income people, among others.

  • March 8, 2012

    by Jeremy Leaming

    As is being widely noted by media, right-wing pundits, or blowhards, such as Fox News’ Sean Hannity, are feverishly working to create uproar over President Obama’s association with the late Harvard Law School Professor Derrick Bell.

    TPM’s Ryan J. Reilly reports on Hannity’s airing of a video edited by associates of the late Andrew Breitbart that shows a young Barack Obama, then a Harvard law student, hugging Bell at an event calling for the law school to hire more African American women for its tenured faculty. “This was supposedly secret video that the late Andrew Breitbart had promised from Obama’s college days, showing … Obama supporting Harvard Law Professor Derrick Bell’s campaign for more diversity at the institution,’ Reilly writes.

    The video, as TPM and Media Matters’ Simon Maloy note, has been aired and written about before. But, Breitbart’s team hasn’t given up on trying to sully Bell’s legacy.

    As Maloy writes, Breitbart, who died last week, has painted Bell as “a dangerous radical who, in the act of pressing his body to the young Obama’s, imparted to him all the insane radicalism that now animates the moderate liberal currently residing at 1600 Pennsylvania Ave.”

    The late professor, however, was no radical. Remember, this charge is coming from the late Breitbart, who Matt Taibbi of Rolling Stone points out, should be celebrated largely for his shamelessness.

    Obama, and many others for that matter, should be proud of Bell (pictured) and his work.

    As noted by Inimai Chettiar, a civil rights attorney, for ACSblog, Bell “was a racial justice pioneer and teacher who enlightened many.” She continued, “He was the first black law professor at Harvard Law School, yet in 1990 he vowed to take an unpaid leave of absence until the school hired a black woman for its tenured faculty.”