"His silent presence on the bench has evolved into a weirdly compelling example of performance art," writes ACS board member Linda Greenhouse of Justice Clarence Thomas' persistent silence during oral argument. The fourth anniversary of Thomas' silence from the bench passed quietly last month, but not without being noticed.

Writing in The National Law Journal, Tony Mauro recently gave new life to a Florida Law Review article entitled "Why Justice Thomas Should Speak at Oral Argument." There, freshly minted law school graduate David A. Karp argued that Thomas' silence permits him to shield anachronistic or even bizarre legal perspectives from criticism. Rather than debuting his opinions during oral argument, the piece notes, where they could be challenged by counsel and his colleagues on the bench, Thomas saves his outlook from public scrutiny until it is proferred in an official opinion.

One such opinion, released last month, went overlooked until this week. In Wilkins v. Officer Gaddy, North Carolina inmate Jamey Wilkins alleged that he was "maliciously and sadistically" assaulted "[w]ithout any provocation" by a prison guard. The district court judge who initially reviewed Wilkins' allegations dismissed them, and the U.S. Court of Appeals for the Fourth Circuit affirmed this ruling in an unpublished one-paragraph opinion. 

Without even inviting briefs on the matter, the U.S. Supreme Court summarily reversed the Fourth Circuit, determining that Wilkins presented a prima facie case under Hudson v. McMillan. In that 1992 decision, the Court determined that a "significant injury" is not required for excessive force claims under the Eighth Amendment. Rather, under Hudson, a prisoner's excessive force claim may only be dismissed where "force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically cause harm."

Concurring in the judgment as a matter of stare decisis, Justice Thomas went out of his way to make his opposition to Hudson known once again. Thomas invited litigants to request reversal of Hudson based on his understanding that "the word ‘punishment' referred to the penalty imposed for the commission of a crime," in the late 18th century when the Eighth Amendment was ratified. Thus, under Thomas' analysis, the Eighth Amendment permits a prison guard to savagely beat a prisoner so long as they did not do so to penalize them for committing a crime.

This opinion was first highlighted by David Savage, who, writing in the Los Angeles Times, compared it to something that might be produced by Thomas' now-infamous former clerk John C. Yoo. During his time in the Bush administration, Yoo contributed significantly to the Torture Memos, which redefined torture as requiring bodily pain akin to major organ failure.

"Thomas' consistent record of dismissing claims of prison brutality ... shows that Yoo's view of torture was not that of a rogue lawyer," reports Savage. "Instead, it represents a strain of conservative thinking that looks back in history to define cruelty and torture, rather than toward what the court has called the 'evolving standards of decency.'"

[Image via Wikimedia Commons.] 

Pushback continues over conservatives' attacks on Department of Justice attorneys who represented military detainees accused of terrorism before entering government service. The New York Times "Room for Debate Blog" includes comment from across the political spectrum supportive and critical of the attacks. In a post dubbed "Aiding the Enemy," National Review Legal Affairs Editor Andrew C. McCarthy took aim at lawyers who represented detainees accused of terrorism, writing, "Members of any other profession or institution would be indicted for coming to the enemy's aid during wartime. Lawyers not only demand immunity from the ordinary duties of citizenship, but they insist that you admire them, or, at the very least, regard them as above criticism for volunteering their services to those trying to kill Americans."

McCarthy's post triggered a sharp rebuke from George Washington University law school professor Orin Kerr, a former recipient of a prestigious Federalist Society award. On the conservative legal theory blog, The Volokh Conspiracy, Kerr blasted McCarthy's arguments as "ridiculous."

Taking on McCarthy's "basic argument that lawyers who represented detainees ‘aided the enemy in wartime,' and should normally be guilty of treason," Kerr wrote:

If that's true, isn't the federal judiciary, and aren't the Justices of the Supreme Court, also guilty of treason? In fact, aren't the judges the kingpins of this treasonous plot to "hurt the war effort"? After all, lawyers only make arguments to judges. It doesn't actually help detainees to make argument courts reject. It's up to the judges to rule one way or the other. If the lawyers are aiding the enemy, they're only minor players: It's the judges, and especially the Justices, who are the real guilty parties, as they're the ones that actually help the detainees by ruling in their favor. Does McCarthy think the Justices of the Supreme Court are guilty of aiding the enemy, and that (if we treat them like everybody else) they should be "indicted for coming to the enemy's aid during wartime"?

As noted by The New York Times, the controversy, which has been fueled by Sen. Charles Grassley's demands that Attorney General Eric Holder (above, left) release names and information of DOJ attorneys who have represented detained terrorism suspects, and Liz Cheney's group Keep American Safe, which produced an inflammatory YouTube video referring to the DOJ attorneys as the "Al Qaeda Seven," has revealed a split among conservatives. 

Richard A. Epstein, a University of Chicago law school professor and as The Times described him, "a revered figure among many members" of the Federalist Society, told the newspaper, "There's something truly bizarre about this. Liz Cheney is a former student of mine - I don't know what moves her on this thing."

Epstein and Kerr aren't the only conservatives questioning the tactics. As noted earlier this week, another prominent conservative, former Independent Counsel Kenneth Starr signed a letter calling the attacks on the DOJ attorneys "shameful." The Times also reported that Peter Keisler, former Acting Attorney General during the George W. Bush administration, also signed that letter. And as reported by Main Justice, Holder's predecessor, former Attorney General Michael Mukasey, in an op-ed for The Wall Street Journal slammed the attacks on the DOJ attorneys as "shoddy and dangerous."

See previous posts on the matter here and here. 

The Senate Judiciary Committee unanimously endorsed a compromise to decrease the federal sentencing disparity for possession of crack versus powder cocaine today. Considering Sen. Dick Durbin's bill to eliminate the 100-to-1 sentencing ratio, Democrats acquiesced to an amendment proposed by ranking Republican Sen. Jeff Sessions (right), which would reduce the disparity to a 20-to-1 ratio. By a vote of 19-0, the committee reported a bill bearing the reduced disparity to the Senate floor.

The virtues of ending the sentencing disparity were laid out by Adam Serwer, in The American Prospect this morning: 

More than 20 years since the passage of the law [responsible for the sentencing disparity], the arbitrarily draconian penalties for crack cocaine have contributed to the increasing racial disparities in the U.S. prison system and helped swell the number of those behind bars to fully more than 1 percent of the entire U.S. population.

The sheer number of people behind bars isn't just busting state budgets; it's helped destroy families and neighborhoods with not much discernible effect on the drug trade.

In "The New Jim Crow," Professor Michelle Alexander, of Ohio State University's law school, cites the drug war as a key cause for America's relatively high rate of incarceration. Writing for ACS Book Talk, Alexander argued that "mass incarceration has emerged as a stunningly comprehensive and well-disguised system of racial control that functions in a manner strikingly similar to Jim Crow." As reported by Serwer, reflecting on today's Judiciary Committee activity, "practically everyone in the committee acknowledged [that the sentencing disparity] disproportionately affects black Americans." 

Reactions to the committee's compromise were mixed. 

"I am not yet prepared to count any sentencing reform chickens," writes Ohio State University law Professor Doug Berman at his Sentencing Law and Policy blog. "But [a] unanimous vote suggests that lots of important folks have already bought into this particular solution. Thus, I think there is now a real chance that 2010 will finally be the year we get some change to the notorious 100:1 ratio in crack/powder mandatory minimums."

At TalkLeft, criminal defense attorney Jeralyn Merritt struck a less cheerful tone, noting that maintaining the disparity maintains its inherent inequality. "[W]hile the reduction [in the crack/powder disparity] is an improvement, the bill is a big disappointment," Merritt says.

Opportunity remains for the bill to further reduce or eliminate the sentencing disparity. A bill proposed in the House by Rep. Bobby Scott would remove the phrase "crack cocaine" from the federal criminal code, effectively eliminating the disparity. That bill, which passed the House Judiciary Committee last summer, was discussed by Congressman Scott at an ACS panel on criminal justice reform late last year. Scott discusses the current state of criminal justice in the United States in this YouTube clip, calling the status quo "an overwhelming international embarassment."

[Image via talkradionews.]

The practice of sentencing juvenile offenders of serious crimes to life in prison with no chance of parole is not effective and a different approach should be used, write the authors of a recent ACS Issue Brief. In "A Just Alternative to Sentencing Youth to Life in Prison Without the Possibility of Parole," Jody Kent, of the Campaign for the Fair Sentencing of Youth, and Beth Colgan, of the Institutions Project at Columbia Legal Services, write that no other country except America sentences juvenile offenders to life without the possibility of parole, a practice banned by the United Nations Convention for the Rights of the Child.

The authors cite the significance of research showing that juvenile offenders should be treated differently than adults:

Youth do not have adult levels of judgment, impulse control, or ability to assess risks. There is widespread agreement among child development researchers that young people who commit crimes are more likely to reform their behavior and have a better chance of rehabilitation than adults.

The U.S. Supreme Court is currently considering two cases involving the constitutionality of sentencing youth to life in prison without parole. Oral argument in Graham v. Florida and Sullivan v. Florida were heard in November and decisions in the cases are expected soon. For more on the constitutional issue in those cases, see a guest post from constitutional law expert Charles Ogletree here. 

[image via lawanddisorder.org]

In an indictment recently unsealed, Justice Department officials accused Colleen R. LaRose of using the Internet to link up with overseas militants and plotting to commit murder. The case of LaRose, a resident of suburban Philadelphia, presents what The Christian Science Monitor reports as, "a rare example of a white American woman becoming involved in global jihad over the Internet."

The New York Times reports: 

Ms. LaRose, 46, was arrested in Philadelphia in October, but her case was kept under seal. Although the indictment does not identify the target, a law enforcement official said her case was linked to the arrests Tuesday of seven Muslims in Ireland in connection with a scheme to kill the cartoonist, Lars Vilks. A group linked to Al Qaeda had put a $100,000 bounty on his head for the cartoon, which the group perceived as an insult to Islam.

LaRose, who also went by the aliases "Fatima La Rose" and "Jihad Jane," had prior run-ins with the law in Texas, where she lived before moving to Pennsylvania in 2004. LaRose's prior arrests, both of which took place in 1997 according to CNN, seemingly bore no relation to any terrorist activity.

Neighbors thought LaRose peculiar, but are reacting with surprise to her alleged involvement in a terrorist assasination plot. LaRose "was mostly notorious for getting drunk and getting into fights," according to a neighbor, Eric Newell.

[Image via Wikimedia Commons.]

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.]

A backlash continues to build over attacks launched by Sen. Grassley and a conservative organization on Department of Justice attorneys who represented Guantanamo Bay detainees. Politico, Slate and The Blog of Legal Times all have stories on the dust-up over the YouTube video produced by a group affiliated with Liz Cheney (pictured) and Bill Kristol, Keep America Safe, which questions the loyalty of the DOJ attorneys, dubbing them "The Al Qaeda Seven." As noted last week on ACSblog, a growing chorus of conservatives is questioning the organization's tactics. Now "leading conservative lawyers and policy experts, [and] former Independent Counsel Kenneth Starr," have issued a statement blasting the attacks on the DOJ lawyers as "shameful." Politico has the entire statement here. (Also signing the letter was Charles "Cully" Stimson, a senior Pentagon official who resigned his post in 2007 after he sharply criticized U.S. law firms that had represented military detainees.)

In an article for Slate, Dahlia Lithwick says the methods used by Cheney and Kristol are beyond being over-the-top. Their attacks, especially Liz Cheney's, are part of the "ever-expanding war on the Bill of Rights." Lithwick maintains that the DOJ attorneys who represented the Guantanamo Bay detainees were doing so on justified grounds.

She writes:

They were defending the U.S. Constitution - the great whomping chunks of the Bill of Rights that Cheney and her friends are so eager to write out of existence. They did it because - as Spencer Ackerman points out - the Military Commissions Act of 2006 expressly provided that detainees get defense lawyers. And they did it, as Jay Bookman notes, for the same reason John Adams agreed to represent British soldiers charged with killing civilians during the Boston Massacre in 1770. Because long before Liz Cheney was born and long after she's gone, the Bill of Rights requires serious people to take it seriously.

Attorneys at leading national law firms are also joining the fray, as the Legal Times blog reports. Brian Brooks, managing partner of O'Melveny & Myers' Washington Office tells the Legal Times, "From the perspective of our firm, providing representation for unpopular causes is a long and noble tradition in the law, and that kind of criticism is not going to affect our firm's commitment to that cause. If the private bar doesn't step up and show that kind of courage, then I think our whole system of justice is in question." 

[image via swamppolitics.com]

Conservatives, including Sen. Charles Grassley and a group affiliated with Liz Cheney, Keep America Safe, have attracted plenty of media attention for sharply criticizing Department of Justice lawyers who represented military detainees earlier in their careers. A hyperbolic video by Keep America Safe called "DOJ: Department of Jihad?" has been blasted as "beyond a cheap shot" by former Bush White House attorney Reginald Brown.

But what's gone largely missing in the story is comparison with a similar situation that occurred during the George W. Bush administration. A top Pentagon official, Charles "Cully" Stimson, commented in a radio interview that he found it "shocking" that a number of U.S. law firms had represented Guantanamo Bay detainees. Stimson also suggested that some of the firms were not forthcoming about who was paying for the representation, telling Federal News Radio the firms should be pressed on the matter. "Some will maintain they are doing it out of the goodness of their heart, that they're doing it pro bono, and I suspect they are; others are receiving monies from who knows where, and I'd be curious to have them explain that."

Just as the current attacks by Keep America Safe have sparked bipartisan criticism, Stimson's January 2007 comments drew sharp critiques across the political spectrum. As noted by The Huffington Post's Sam Stein, Ted Olson, former solicitor general during the Bush administration and a member of the Federalist Society's Board of Visitors, co-authored with then-Georgetown law school professor Neal Katyal an article for Legal Times blasting Stimson's comments. (About a month after his attacks on the law firms, Stimson resigned his Pentagon post.)

Olson (pictured) and Katyal wrote: 

The ethos of the bar is built on the idea that lawyers will represent both the popular and the unpopular, so that everyone has access to justice. Despite the horrible Sept. 11, 2001, attacks, this is still proudly held as a basic tenet of our profession.

When government officials are called 'war criminals' and when public-interest lawyers are called 'terrorist huggers,' it not only cheapens the discourse, it scrambles the dialogue. The best solutions to these difficult problems will emerge only when the best advocates, backed by weighty resources, bring their talents to bear. And the heavy work of creating solutions for these complicated issues can only move forward when the name-calling ceases.

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.]

The Supreme Court's recent per curiam decision vacating the D.C. Circuit's opinion in Kiyemba v. Obama, concerning the scope of a federal court's habeas authority to order the release of Guantanamo prisoners, comes as no surprise. Once the Supreme Court granted review - which was something of a surprise - it was clear that the Obama administration would make every effort to moot the case before a decision on the merits. Although those efforts were largely successful, the result is good news, at least in the short term, for Guantanamo prisoners who win their habeas cases.

Kiyemba involves the Chinese Uighur prisoners at Guantanamo. After the Supreme Court's June 2008 decision in Boumediene v. Bush confirmed that the writ of habeas corpus extended to Guantanamo, the government conceded what had long been known: the Uighurs were not "enemy combatants" and had not supported the Taliban or Al Qaeda in fighting against the United States in Afghanistan. Judge Ricardo Urbina of the U.S. District Court for the District of Columbia granted their habeas petition. But they could not be released to China, where they would suffer government persecution or worse. Nor would any other country accept them because of Chinese threats of reprisal. Accordingly, Judge Urbina ordered them released into the United States. The government appealed, and a panel of the D.C. Circuit reversed, holding that the federal courts have no authority to order the Executive Branch to admit an alien into the country.

Although the factual issues in Kiyemba were unique, the breadth of the D.C. Circuit's reasoning significantly weakened the habeas remedy for all Guantanamo detainees. judges of the district court read Kiyemba as precluding them from granting the normal habeas remedy of immediate release for prisoners whose petitions had been granted; rather, the court in such cases ordered the government to take "all necessary and appropriate diplomatic steps to facilitate" release. These "pretty please" orders gave the government substantial wiggle room, and it took full advantage. Even in cases in which successful petitioners wanted to return to their home countries, and their home countries wanted them back, the government demanded that the home countries impose restrictions (such as withholding passports) as a condition of the prisoners' release.

Thus, when the Supreme Court granted certiorari in Kiyemba, it appeared that at least some of the justices were concerned that the D.C. Circuit's decision had emasculated Boumediene. The government immediately stepped up its efforts to resettle the Uighurs elsewhere in order to avoid a potential reversal. By early this year, all but five Uighurs had been resettled (or had agreed to be resettled) in other countries, and the remaining five had been offered resettlement. In these circumstances, the Supreme Court logically remanded the case so that the lower courts could determine the legal impact, if any, of the new facts.

By vacating the D.C. Circuit's decision, the Supreme Court has for the time being lifted the perceived constraints on release orders for Guantanamo prisoners who win their habeas cases (as have 32 of 40 to date). Whether any of the district court judges will now issue direct release orders remains to be seen. It also is unclear what will happen on remand. The appellate panel could promptly reinstate its decision, finding that the changed facts do not affect its prior ruling. This seems unlikely, given that the appellate court is no more institutionally qualified to consider new facts than is the Supreme Court. More likely, the case will be remanded to Judge Urbina, who will hear evidence on the current status of the remaining Uighurs, then decide whether a new release order is needed, and, if so, what the order should be, or whether the case is moot. How that will play out is anybody's guess.

One thing is certain, however: Guantanamo, and the legal and political controversies it has spawned, will be with us for a long time to come.