Blog Cross-Pollination

I had a lively debate with Professor Vladeck today about a key case I'm using in my comment.  In the middle of the conversation, he started to write a blog post about our conversation - I'm glad to see that other people do this too.  Anyway, I had class immediately thereafter, and by the time I got out, the article was finished and eight other people had already responded.  My response is in there, but it is rather far down the list.

Link:
"When is a Majority Opinion Really a Plurality Opinion?" by Professor Stephen Vladeck

Miranda Overseas - Introduction

One of the arguments justifying indefinate detention of detainees without charge in Guanatamo Bay was the constitutional right to habeas corpus did not apply to non-citizens overseas.  In June 2008, the Supreme Court repudiated this reasoning in Boumediene v. Bush, holding that non-citizens in American custody in Guantanamo Bay are indeed entitled to the constitutional right of habeas corpus.  But the question remains as to whether Boumediene was a narrow or a wide decision; the question of other constitutional rights overseas remains ambiguous.  In particular,  the Supreme Court has not ruled on the overseas application of other constitutional rights including the Fifth Amendment right against self-incrimination, as interpreted in Miranda v. Arizona.

Miranda is more than just a forty-six year old Supreme court case on legal and social policy; it has become part of American culture.  Unlike the much of the minutia of law and legal procedure that only lawyers deal with, even the average layperson has heard of Miranda.  But this widespread knowledge of Miranda makes it ripe for political posturing, especially on whether Miranda should apply to non-citizens overseas.  One Democratic congressman proclaimed "[t]here's not a single member of this Congress that believes that Miranda warnings should be given to terrorists."  Similarly, one law professor noted that after September 11, "the notion that terror suspects would be given Miranda warnings seems almost quaint."  The political edge of this issue seems to be citizenship status: the former presidential candidate John McCain was criticized from right and left alike when he suggested the accused Times Square bomber, an American citizen, should not have been given Miranda warnings.  [For an analysis of the merits of this argument, see a forthcoming article Miranda Overseas - Defining Miranda.]

But these are political questions for the politicians and pundits to debate; a debate which will have little, if any, effect on the law.  Miranda is a constitutional right, and the constitution applies to everyone within the borders of the United States.  Without a doubt, American citizens arrested in the United States are entitled to the same rights regardless of the crime of which they are accused.  As the law currently stands, documented and undocumented non-citizens arrested in the United States are also entitled to the same right Miranda rights as citizens.

Those who are frequent readers of this blog will know that the answers to the questions posed in Miranda Overseas will not be based on a political analysis.  Indeed, while a definitive answer on this issue would upset one side of the aisle, it could also shift the winds to help that side of the aisle on the related issue of military tribunals.  [Because of the significant lack of history on which to base my analysis, I do not take an opinion on whether Miranda could apply in the military tribunals.]

Rather, the question of Miranda Overseas is a metaphor for how far the the constitution, and the domestic case-law analyzing those constitutional rights like Miranda, follow us when we travel abroad, or when our government decides to charge a non-citizen captured overseas with a crime in American civilian courts.  While  the analysis of these issues will focus primarily on terrorism and drug cases, these issues are far from limited to these two issues.  As Supreme Court Justice Felix Frankfurter noted, "the safeguards of liberty have frequently been forged in controversies involving not very nice people."

Habeas and [the tort of] False Imprisonment

I was a little alarmed when a friend showed me an article which explained how in the aftermath of Hurricane Katrina, prisoners charged with misdemeanor offenses were incarcerated for over a year "doing 'Katrina time'" because "Governor Blanco effectively suspended habeas corpus ... for six months." [link to article]. The US Constitution of course reads: "[t]he privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."

Without going into the specifics of whether the Governor actually tried to suspend habeas, it is first worth noting that no state actor [state supreme court, governor, legislator, police officer, etc] can violate your federal rights like habeas corpus, due process, speedy trial, etc.  They may try, but you are always free to file a habeas petition in federal court; the federal constitution trumps pretty much everything.

Again, without investigating the veracity of the allegation, let's say you were arrested and it took six months before you were released without charge, or you were held for a year for a charge that had a maximum penalty of one month.  This sounds like unquestionable unjust imprisonment, which could have been challenged with a habeas petition.  But let's say you didn't challenge it while you were imprisoned - you didn't have a lawyer, your lawyer was overworked and didn't think of habeas, or your lawyer mistakenly believed habeas could be overruled by a governor.  You are not out of luck - you are still entitled to sue for damages under the tort of "False Imprisonment."

As I continue to research habeas corpus issues, I am struck by the similarity of a habeas petition [trying to get out of jail because of unjust imprisonment] and the tort of False Imprisonment [suing for damages because of your unjust imprisonment].  But the beauty of the False Imprisonment tort is that, unlike with habeas, you can sue months and possibly years later, depending upon the statute of limitations.  I doubt there have been many class action suits alleging false imprisonment in the past, but if the allegations are true, there could be a big one coming in Louisiana.

_________________________
Disclaimer - I would like to remind anyone reading this that presently I am law student and not a lawyer.  While I may write about issues I find interesting, I cannot dispense legal advise.  That said, in addition to the tort of false imprisonment, your attorney would be wise to also consider 42 U.S.C. § 1983 - Civil Action for Deprivation of Rights [link].

What is History?

As I begin to read Paul Halliday's Habeas Corpus - From England to Empire, whose premise is that conventional knowledge of Habeas Corpus is based on an incorrect perspective on history, I can't help but admit that he's right, at least so far about the analysis of the historical record.

I have never liked the phrase "history is written by the victor," because the victor isn't writing history - he's writing his perspective on history, which is no more valid than that of the looser.  In the past, I had thought that merely reading two opposing interpretations of history was adequate to get a full perspective on a topic  ... but when you think about it, what if both sides got it wrong?  Or what if you never had an adversarial relationship to begin with, but over hundreds of years the original meaning eroded over time?

Back to the issue of Habeas Corpus, it wasn't in the Magna Carta in the 13th century, but definitely existed by the 17th century.  Halliday writes that:

Despite the force of this belief, connecting the thirteenth century to the seventeenth along a single story line has always proved difficult. So much awkward silence separates them that some authors have thrown up their hands [saying the writ's origin "is lost in obscurity"].  Others have filled the silence with inferred lineages sprinkled with words of praise, borrowing heavily from nineteenth century historians. . . who in turn accepted [another historian's claims in the] 1620s as gospel truth. . . . Accounts of habeas corpus written in the nineteenth and twentieth centuries thus serve as durable examples of what Herbert Butterfield long ago called "whig" history. As Butterfield remarked, "the whig historian can draw lines through certain events ... to modern liberty." In doing so, the historian "begins to forget that this line is merely a mental trick." A linear approach to the writ's past that starts in 1215 fit nicely with a high Victorian impulse to write histories drawn in bold story lines with clear points of origin and arrival. But for all the power of such narratives, they do not amount to a history.  (Halliday 16).  

This paragraph blew my mind.  Never before - even when getting a Masters degree in International Affairs [which is just a History degree with a cooler name], and taking all of those history courses had anyone laid out how it's all wrong.  We're not basing our opinions by looking at original sources, your average history book is looking at tertiary sources who cited tertiary sources, who try to construct a false narrative to make it simpler than it actually is.  Comparing two opposing perspectives of this kind of history does not lead to the truth, because both sides are equally wrong.  You can't find the truth by averaging two or more incorrect statements.

So, what is history?  I have always seen it as the study and search for the truth of the events that have happened in the past.  When available, as it was with Halliday in his study of Habeas Corpus, History is Primary Sources.  Then again, Halliday spent five years combing through thousands of medieval documents, something the average individual - or even scholar - just can't do.  So in a case like that, history is a collection of secondary sources like Halliday's book, which heavily cites primary sources.

But in the end, I'm still not happy putting that much trust in one man, because even unconscious agenda's can color one's research and writing.  In an ideal world, I would like to see these ancient documents scanned and made freely available online for anyone to read through, and come to their own conclusions, and maybe write their own book which also heavily cites primary sources.

IRWatch - Back doing what it does best

Well, I've survived the gauntlet of my first year at American University Washington College of Law, and now that I can choose my own courses, and I'm back to what I do best - writing about topics that interest me. I am actually writing two articles this semester - "Do Miranda Rights Apply Overseas?" and another (currently untitled) work on Habeas Corpus rights. Now that I have interesting things to discuss,  I will be making many more posts on these subjects in the weeks ahead. I look forward to hearing your thoughts as well!

Dial M for Moderate

A bit of inspiration, an excerpt from the humor blog "Clients From Hell" - entitled The Forbidden Fruit.

Client: Hey, just one final question before I send the deposit. Do you use a PC or a MAC?

Me: I use a MAC.

Client: That is a problem. Do you have access to a PC? I am not a supporter of Apple products.

Me: No, I don’t have access to a PC, but this will have little to no effect on the work itself.

Client: I am a Christian and Apple products are sinful, I do not want our website to be created by a product made by this corrupt group. You need only look at their logo, an apple with a bite taken from it. Do you not know the story of Adam and Eve in the Garden of Eden? If I allowed you to create my website on a MAC I would be just like Adam, taking a bite of the forbidden fruit.

[Silence]

“Take my advise, destroy your mac and repent for when judgement day comes. It shall be you who is cast to hell for your sins.”

Me: [Block Contact]

I was having a conversation recently about a similar issue, and when I read this article I felt that I had to share it.  This is a great example of my biggest problem with modern American politics - generally speaking if you know a person's person's view on one issue (like abortion), you know with relative certainty their view on any number of other unrelated issues (like hybrid cars).  For a good list of these issues, see Geoff Nunberg's book "Talking Right: How Conservatives Turned Liberalism into a Tax-Raising, Latte-Drinking, Sushi-Eating, Volvo-Driving, New York Times-Reading, Body-Piercing, Hollywood-Loving, Left-Wing Freak Show."  (See also the actual campaign ad on which the title was based - http://nyti.ms/aRLW8K).  Apparently you can add "Apple Computer Products-Using" to that list.  I swear I didn't know this when I bought my Mac, I guess I should destroy it and repent . . .

. . . Moving on, let's be honest. These issues have nothing to do with each other.  A rational mind can be pro-choice and for SUVs, or for both nuclear power and gay marriage, or for both guns and Apple products, or love sushi and detest Hollywood.  But these days, people on either side buy into the propaganda that if you're a good conservative/liberal republican/democrat (delete as appropriate) you need to hold all of these beliefs, otherwise you're a "Republican in Name Only"/"Blue dog Democrat" and therefore worthy of scorn.  Democrats scorn Joe Lieberman (in 2006) and Barack Obama (present), because they don't match up with their beliefs enough; and the same can be said for Republicans and John McCain (2008), Arlen Specter (2009), and Charlie Crist (present).

I've said in the past that we need more moderates in Washington, more RINOs and Blue Dogs... and I admit my old point is oversimplification.  In truth, it's not just our representatives that need to change, it's ourselves.  We are the ones doing the scorning.  We are the ones demanding ideological rigidity. People from both parties complain that Congress doesn't work; that's why in recent years it has such low poll numbers in comparison with the executive - both under the Bush and Obama presidencies, and with both Republican and Democratic majorities in Congress.   But so few recognize, or are willing to admit, it's as much our fault as it is theirs.  We are the ones electing members of Congress who are unwilling to work with each other.

And this brings me back to the Apple Computer hating client from the humor website.  I know what you thought when you first read it - she's crazy, ignorant, and offensive.  Whether we like to admit it or not, many of us are more like her than we would like to admit.  It's natural, everyone has strong beliefs on political topics like nuclear-power, wind power, health care, hybrid cars, off shore oil drilling, taxes and abortion.  And that's fine; frankly I don't care what you believe. I just want you to be able to respectfully articulate their thoughts using reason and facts, and be willing to listen to alternative perspectives, and be able to look at things from another's point of view.

That's what it means to be a moderate.  I take pride in the fact that my close friends are moderates - I hope you are one too.

Legal Citations Become [Slightly] Easier

If you are a law student or a lawyer, it is very likely you find legal citation as annoying as I do. Ever since I laid eyes on the Bluebook - the 300+ page legal citation nightmare - I've wanted a more friendly accessible and searchable version. Today I found a way; it's free and perfectly legal to boot.

The Columbia Law Review Association, the organization who publishes the Bluebook, put old versions online for free as PDFs, from version 1 (1926) to version 15 (1991).  To get a searchable version, all you have to do is download version 15, go to a public computer with a copy of Adobe Acrobat Professional (or buy a copy), open the file, document -> ocr text recognition -> recognize text using ocr -> all pages, (wait 20 minutes),  and you're done.

Extra steps you might want to consider include:

• Document -> Reduce File Size (my final version was 7mb)
• Make your PDF into a true "blue" book by adding this PDF custom cover as the first page.  http://bit.ly/cdW5iG.  (Document -> Insert pages)
• Adding bookmarks (click the bookmark icon on each page you want, and type a name)
• Extract the commonly used tables into their own PDFs.  (Document -> Extract Pages)

I know what you're thinking, and you're right.  It's not the most recent version.  But the only significant thing that should have changed in the last 19 years is how to cite online materials, and from what I've heard lawyers don't go out and buy a new Bluebook ones each time they come out with a new one.

Here's the link to Bluebook version 15 (first published in 1991):
www.legalbluebook.com/img/PastVersions/USC15.pdf

--
Post Script:
If you're interested in seeing the other versions, just change the two numbers in the link above. (e.g. USC01).  Not counting the cover, the first version was only 26 pages long!  Oh, how things have changed.