Inder Comar

(This post is cross-posted with COMAR LAW)

Last week, the United States Court of Appeal for the Fourth Circuit (which hears appeals from Maryland, the Carolinas and Virginia) dismissed a civil case brought by Jose Padilla against Donald Rumsfeld and other Bush-era officials for alleged violations of law taking place after 9/11.  Lebron v. Rumsfeld, No. 11-6480 (4th Cir. Jan. 23, 2012).

Padilla, an American citizen, was labelled an “enemy combatant” by President George W. Bush and indefinitely detained for close to four years without trial until he was transferred into civilian custody in early 2006.

Padilla sued Rumsfeld and other officials for violating his constitutional rights, specifically:

• Denying Padilla his right to counsel under the First, Fifth and Sixth Amendments;
• Denying Padilla his right to access a court under Article III of the Constitution, the First and Fifth Amendments, and the Habeas Corpus Suspension Clause;
• Subjecting Padilla to cruel conditions of confinement in violation of the Fifth and Eighth Amendments;
• Subjecting Padilla to coercive interrogations (torture) in violation of the Fifth and Eighth Amendments;
• Denying Padilla his freedom of religion under the First Amendment and the Religious Freedom Restoration Act;
• Denying Padilla access to information protected by the First Amendment;
• Denying Padilla his freedom of association under the First Amendment; and
• Denying Padilla due process protected by the Fifth Amendment.

In a surprisingly broad decision, the Fourth Circuit dismissed Padilla’s claims because of concerns of interfering with “military affairs,” which the court stated were the purview of Congress and the President as Commander in Chief.  (Slip op., at 14-15.)

In the court’s view, Congress gave the President the ability to label American citizens “enemy combatants” in 2001, when it passed the Authorization of Use of Military Force after the 9/11 attacks.

Allowing Padilla to seek money damages for past constitutional wrongs would bring judicial review into “sensitive military decisions” made by the executive branch, which might burden future executives with the prospect of “civil litigation and potential personal liability.” (Slip. op, at 20.)

The court also expressed hesitation about interrupting the “established chains of military command” and “military intelligence” by permitting the suit to proceed. (Slip. op., at 22-23.)

The court surmised that people who wish to fight their enemy combatant status can do so through a habeas corpus proceeding. The fact that it took the Government almost four years to charge Padilla — an American citizen — with any type of crime did not affect the court’s calculus. (Slip op., at 17-18.)

The court also dismissed two related causes of action made by Padilla under the Religious Freedom Restoration Act and for declaratory relief.  ”Claims implicating national security and war powers flash caution signals all their own. Courts have long been reluctant to interpret statutes in ways that allow litigants to interfere with the mission of our nation’s military, preferring that Congress explicitly authorize suits that implicate the command decisions of those charged with our national defense.”

The effect of Lebron is that American citizens who may be innocently caught up in the paranoia of contemporary terrorism policy may be prevented from seeking monetary damages against the people who deprive them of their rights.

This “military affairs” exception to civil rights law is highly suspect, particularly in light of the fact that Padilla was seeking redress against the chief architects of his detention — people such as Donald Rumsfeld — and not the soldier at the bottom of the chain-of-command just following orders.

Shielding so-called “military decisions” from civil liability creates a perverse incentive for policymakers to claim a military logic to any decision that implicates constitutional rights in order to avoid future judicial inquiry.

If there’s any question that a policy is unconstitutional, just call it a “military decision” and the courts will stay out.

The Fourth Circuit has effectively said: “We will not review decisions made by Congress or the President that relate to military affairs.”

In an era when the line between military and civil domains continues to weaken and blur, the Fourth Circuit risks losing oversight of these political branches in chief areas of government activity.

By attempting to respect “checks-and-balances,” the Fourth Circuit may have done the exact opposite.

(This post is cross-posted with COMAR LAW)

The United States Supreme Court has unanimously held that police officers need a warrant before they can monitor an individual with a GPS tracking device.  United States v. Jones, No. 10-1259, 565 U. S. ____ (2012).

The decision provides cautious optimism of renewed concern by the Supreme Court for 4th Amendment protections in the digital age.

In Jones, federal agents placed a GPS tracker under the Jeep of a DC nightclub operator who had suspected involvement in narcotics trafficking. The agents tracked the jeep for 28 days and generated over 2,000 pages of geo-location data.

Eventually the federal government indicted Jones. He moved to throw out the GPS data as the fruit of an unconstitutional search.

All nine justices agreed the use of a GPS tracker without a warrant was unconstitutional, but they disagreed why it was unconstitutional.

Writing for five of his colleagues, Justice Scalia argued the search was unconstitutional because “the Government physically occupied private property for the purpose of obtaining information.”  Such a “trespass” on property, combined with the search for information, would have been a search at the time the Fourth Amendment was adopted in the 18th century. Accordingly, the placing of a GPS tracker under a private vehicle for the purposes of gathering investigative data similarly required a warrant.

Justice Scalia acknowledged that his “property-based” analysis was an older approach to the Fourth Amendment, predating the modern test formulated in the 1967 case United States v. Katz.

Under Katz, a court ignores issues of property rights and instead examines an individual’s “reasonable expectations of privacy” in determining the appropriateness of Fourth Amendment guarantees. Justice Scalia argued that Katz augmented, but did not fully replace, the older property-rights based approach.

Four other justices agreed that the GPS tracking at issue was unconstitutional but disagreed with Justice Scalia’s reliance on a property-based approach to 4th Amendment protection. Writing for the concurrence, Justice Alito wrote that the Katz test remained the exclusive method of determining 4th Amendment protection.

Under Katz, Justice Alito concluded that “society’s expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual’s car for a very long period.”  The 4 weeks of monitoring was long enough to require a warrant.

In a third concurrence, Justice Sotomayor wondered out loud whether current Fourth Amendment jurisprudence can make sense of future technological developments.

This is an excellent question.

Neither test employed by the Court is well prepared for intricate technological fact patterns that are sure to emerge in the coming years.

In an age when people will be able to integrate communications technologies seamlessly into their lives — or even into their bodies — it is clear that modern societies may rest on fundamentally different assumptions than those that existed in 1789.

At some point, law will need to change to reflect this new reality.  The real issues will be:  (1) who will make those changes — nine justices? Congress? the states? — and (2) whether privacy is buttressed or sacrificed as a result.

Comar Law is proud to present its 2011 retrospective, and goals for 2012. Click below for the PDF file.

Comar Law 2011 Restrospective