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by: Victor Hansen
The Special Court for Sierra Leone announced earlier today that Charles Taylor, the former President of Liberia, was convicted on all counts of an 11-count indictment, which alleged that he was responsible for crimes committed by rebel forces during Sierra Leone’s decade-long civil war. The Special Court’s Trial Chamber found unanimously that Mr. Taylor aided and abetted RUF and AFRC rebels in the commission of war crimes and crimes against humanity in Sierra Leone. This conviction is significant and historic for many reasons, not the least of which is that Charles Taylor is the first head of state to be indicted, tried, and convicted by an international tribunal.
The Trial Chamber also released a judgment summary and stated that the full judgment will be released at a later date. An item of particular interest in the judgment summary is how the trial chamber dealt with Taylor’s liability even though the evidence did not show that he personally committed the crimes charged in the indictment. The trial chamber first considered Taylor’s liability under the well recognized doctrine of command responsibility. Under Article 6(3) of the applicable statute a superior is criminally responsible if the superior knew or had reason to know that his or her subordinate was about to commit crimes prohibited by the Statute or had done so, and the superior failed to take the necessary and reasonable measures to prevent or punish the perpetrators.
At this writing, the New Hampshire legislature has rejected an effort to repeal the state’s law allowing same-sex marriage. It’s unlikely that the repeal, should it have been enacted, would have withstood constitutional challenge in any event given the recent decision of the United States Court of Appeals for the Ninth Circuit, which held that California’s voter-initiated repeal of same-sex marriage, known as Proposition 8, failed even the most deferential form of judicial review.
This is because discriminatory laws must be examined in the context of their passage, and the Ninth Circuit found that California had no legitimate basis for taking away the right of same-sex couples to marry when that right had existed without a problem for years and when same-sex couples would continue to enjoy all the same benefits and responsibilities of marriage as opposite-sex couples. Supporters of Proposition 8 argued that the state’s interests in childrearing, responsible procreation, religious freedom, and the content of public school education regarding marriage all provided legitimate bases for eliminating the right of same-sex couples to marry, but they could not demonstrate that the availability of same-sex marriage had actually impaired any of these interests. Continue reading
This week, in United States v. Jones, all the justices of the Supreme Court agreed that the U.S. Constitution precludes the government from monitoring our movements using installed GPS technology absent a warrant supported by probable cause.
But the justices did not agree on the reasoning underlying this decision. The majority, in an opinion written by Justice Antonin Scalia, viewed the vehicle to which the government had surreptitiously attached the GPS device as an “effect.” Accordingly, the use of the device constituted a search within the literal meaning of the Fourth Amendment—that is, it constituted a physical occupation of property by the government for the purpose of obtaining information, which the Fourth Amendment prohibits absent a warrant.
At a time when many academics are winding down, my colleague George Dargo, who passed away last week, became enviably prolific.
Before joining the New England Law faculty, back when he was a professor of history, George wrote a number of important books about legal history, including Roots of the Republic: A New Perspective on Early American Constitutionalism (1974), Law in the New Republic: Private Law and the Public Estate (1983), and, in between, Jefferson’s Louisiana: Politics and the Clash of Legal Traditions (1975). Jefferson’s Louisiana has been called “undoubtedly one of the most important studies ever of the Louisiana Purchase and its impact on the politics and legal culture of Louisiana.” Continue reading
In more than 200 years, the United States Constitution has been amended just twenty-seven times. The primary reason for this is not hard to fathom: it is almost fantastically difficult to amend the Constitution. A proposal must secure the approval of two-thirds of both houses of Congress and three-quarters of the states before we can say the Constitution has been amended. To have a chance, then, any serious proposal must have a great deal of sustained popular support.
One proposal that appears to have that kind of support is an amendment that would overturn the U.S. Supreme Court’s decision in Citizens United v. Federal Election Commission, in which a majority of the Court lifted certain restrictions on corporate political speech. As Jeff Clements details in his new book, Corporations Are Not People: Why They Have More Rights Than You Do and What You Can Do About It, the proposed amendment would make clear that the terms “people,” “person” and “citizen” in the Constitution do not include corporations or limited liability companies established here or abroad—thus eliminating the premise underlying Citizens United, that the speech of corporate entities is as valuable under the First Amendment as that of flesh-and-blood human beings.
by: Victor Hansen
In a new book, Top Secret America, Washington Post reporters Dana Priest and William Arkin tell the story of the rise of the American security state following the terrorist attacks on 9/11. The authors detail the vast security apparatus developed by an alphabet soup of federal agencies. The thesis of the book is twofold. First, the authors explain, with numerous examples, how this security apparatus developed with little if any oversight, coordination or attempt to assess whether the new security state would better protect us from terrorist attacks. A second theme is that much of this security apparatus is being used not to fight terrorism, but to combat ordinary crime. The extremely sophisticated technologies that state and local law enforcement agencies now routinely use, make the thermal imaging device at issue in Kyllo v. United States seem like ancient technology.
In this era of endless budget battles and a competition between the major political parties as to which can show better fiscal restraint and responsibility, it is striking how little either party, particularly in Congress, is willing to question the need for such a vast and expensive security apparatus. The hesitancy of politicians of either stripe to question these programs is obvious: no politician wants to be seen as soft on terror or unwilling to do everything necessary to protect citizens. Hence, there has been virtually no effort in Congress to assert meaningful oversight of these programs or even to become educated as to what programs actually exist. In one interview, the authors quote a senior Department of Defense official who says that only God knows the extent of the government’s security programs.
Last month, the Massachusetts Appeals Court decided Amato v. District Attorney, a case involving privacy and DNA. The plaintiff was one of many men who voluntarily submitted a DNA sample to prosecutors in connection with a murder investigation. Following the completion of that investigation, the indictment and conviction of another individual, and the exhaustion of the appellate process, the plaintiff sought confirmation that, as prosecutors had promised him, his DNA sample had been destroyed. He received no such confirmation; in fact, a representative of the state crime lab stated that the lab continued to hold all the voluntarily-submitted DNA samples associated with that case.
In his class action suit, the plaintiff claimed the defendant had violated two Massachusetts laws, the Fair Information Practices Act (FIPA) and the statutory protection against privacy invasions. In addition, he argued that the defendants had breached a promise made by investigating detectives and the district attorney that his DNA sample would not be retained.
by: Victor Hansen
The Sixth Circuit Court of Appeals recently affirmed the conviction of a former Army Private, Steven D. Green, for sexual assault and the murder of four Iraqi civilians in 2006. What makes this case unique is that Green was tried in federal district court rather than in a military court-martial. By the time Army officials became aware of the allegations against Green, the military had discharged him from the service. Court-martial jurisdiction is based on the status of the soldier at the time of the offense and at the time of trial. Because Green was no longer a member of the military at the time the Army discovered the allegations, court-martial jurisdiction no longer existed.
Prior to 2000, this situation created a jurisdictional gap whereby former service members could avoid criminal prosecution for acts they committed but were not discovered before they were discharged. In 2000, Congress passed the Military Extraterritorial Jurisdiction Act (MEJA) to close that gap. Under MEJA, the U.S. Government may prosecute former soldiers for crimes they committed outside the special territorial and maritime jurisdiction of the United States while they were members of the military. Prosecutions under MEJA have been rare, and the case against Steven Green represents one of the few times federal authorities have used the statute.
by: Victor Hansen
In a recent post, my colleague George Dargo suggested that the Obama administration has no reason not to comply with the terms of the War Powers Act regarding our support of NATO forces in Libya. One of the members of the Obama administration who has argued that the War Powers Act does not apply is Harold Koh, the Legal Advisor to the State Department. He recently addressed an audience of international law and law of war experts at the annual International Law Conference, hosted by the U.S. Naval War College.
Mr. Koh sought to highlight ways in which the Obama administration’s approach to many of these issues fundamentally differed from his predecessor. Among the topics discussed was congressional authorization for U.S. military involvement and support for rebels in Libya who are seeking to topple the Gaddafi regime. The War Powers Act requires the President to seek congressional authorization for U.S. forces engaged in hostilities for more than 60 days. The Obama administration has been under pressure from some members of Congress to seek this authorization for continued military action. The administration’s position is that the War Powers Act does not apply because the nature of our military involvement does not rise to the level of “hostilities” as defined by the War Powers Act.
by: Russell Engler
From an Access to Justice and Civil Right to Counsel perspective, the Supreme Court’s decision in Turner v. Rogers provides a basis for cautious optimism despite the opinion’s flaws. It is unsurprising that the Court would decline to find a categorical right to counsel in a fact pattern it viewed as an extension of settled law. Yet, the Court’s actual holding found that Mr. Turner’s due process rights were violated because he “received neither counsel nor the benefit of alternative procedures like those we have described.” Any notion of a civil right to counsel invariably will require some difficult line-drawing. No proponent of such a right claims that all indigent litigants in all civil proceedings are entitled to counsel at the state’s expense.
Many of us recognize that the right to counsel should be viewed as a component of an overarching access to justice strategy. I find it helpful to think of a three-pronged strategy. Prong 1 requires the courts to re-envision their procedures, and the roles of the judges, court-connected mediators to maximize the provision of meaningful access to justice. Prong 2 urges the support of a variety of forms of assistance short of full representation by counsel, paired with careful evaluation of case outcomes to help determine which forms of assistance are sufficient to provide the help needed, and which are not. Prong 3 supports the expansion of a civil right to counsel, where basic human needs are at stake and nothing short of full representation with provide the needed assistance.