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 right to participate in the public political process is the essence of democracy.

It is what gives people control over the direction of their society.  It makes people citizens instead of subjects.

In the Anglo-American tradition, the right to participate has a long history.

Clause 61 of Magna Carta gave the barons the right to petition the king for redress for any breach of that Charter.

The English Bill of Rights of 1689 similarly provided, “[I]t is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal.”

In the Declaration of Independence, the Framers highlighted the infringement of their right to participate as a reason for the Revolution:  ”In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury.  A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.”

In the United States, the right to participate finds life in the First Amendment.

The First Amendment protects the rights of (i) free speech, (ii) assembly, and (iii) the right to petition.

And in California, these rights are afforded a separate guarantee by the California Constitution, which protects the rights of Californians to “freely speak . . . on all subjects,” “petition government for redress of grievances, and assemble freely to consult for the common good.”

A significant threat to public participation comes about through so-called “SLAPP” suits — “SLAPP” standing for “strategic lawsuit against public participation.”

For example:  someone who publishes an article in a newspaper and then is sued over that article confronts a SLAPP suit, as expressing an opinion in public — free speech — is a constitutionally protected right.

Someone who mounts a vigorous defense in a court proceeding and then is sued over that conduct confronts a SLAPP suit, as the petitioning of a court — the right of redress — is a constitutionally protected right.

SLAPP suits are concerning for a variety of reasons, but one of the most troubling aspects is that it is usually the stronger and more financially capable party that brings the SLAPP suit.  The defendant facing a SLAPP suit may be compelled to settle to make the headache go away and avoid the burden of trial.

Fortunately, California law provides an important mechanism for dealing with SLAPP suits:  the “anti-SLAPP” law, codified at Cal. Civ. Proc. Code § 425.16.

The anti-SLAPP law permits a defendant to strike a lawsuit at the very beginning of the lawsuit — within 60 days of service of the complaint — by forcing a plaintiff to show to the court that the lawsuit is meritorious.

These are classic SLAPP fact patterns:

• In 1996, after several rounds of appeals, the Church of Scientology sought to set aside a $2.5 million judgment that had been awarded to Lawrence Wollersheim, a former member of the Church who was awarded general and punitive damages for intentional infliction of emotional distress.  In response to the Church’s new lawsuit, Wollersheim filed an anti-SLAPP motion, arguing that the Church was seeking to punish him because of his right to petition the courts for redress.  The Court of Appeals for the Second District agreed, writing that the Church had employed “every means, regardless of merit, to frustrate or undermine Wollersheim’s petition activity. When a party to a lawsuit engages in a course of oppressive litigation conduct designed to discourage the opponents’ right to utilize the courts to seek legal redress, the trial court may properly apply [the anti-SLAPP statute].”  The court then struck the Church’s lawsuit.  Church of Scientology v. Wollersheim, 42 Cal.App.4th 628 (1996).

• Jay Leno and NBC were sued in 2006 for defamation and intentional infliction of emotional distress by an egg donor who was the subject of joke by Leno on his “Headlines” routine.  In response, Leno and NBC filed an anti-SLAPP motion, arguing that no reasonable person would have taken the joke to be factual or defamatory.  The court agreed and struck the plaintiff’s lawsuit.  Drake v. Leno, 34 Med.L.Rptr. 2510 (2006).

If you are a defendant facing a lawsuit based on activity that is protected by the California or federal Constitutions — in particular, speaking freely or accessing the courts — you may be entitled to end the lawsuit under the anti-SLAPP law.

Ed. note: this post is cross-posted with COMAR LAW.

Are Americans entitled to internet access as a matter of constitutional right?

What was once a highly theoretical question becomes increasingly relevant in a world where the internet is a daily part of life.

With courts already grappling with how the Fourth Amendment applies to internet activity, it may not be too long before someone argues that internet access itself is a fundamental right guaranteed by America’s political system.

Already, courts have ruled that internet access is a right that cannot be arbitrarily denied by the government.

Much of this analysis has come from appellate courts reviewing internet bans imposed on sexual predators.  For example, in United States v. Heckman, 592 F.3d 400 (3d Cir. 2010) the Third Circuit overturned a lifetime internet ban on a defendant with an “extensive criminal history,” which included a “strong thread of sexual offenses to minors and child pornography” in his criminal record.  Id. at 404.

Noting that a lifetime ban would be “unprecedented,” the Third Circuit further observed that internet bans are “draconian” because they hamper a “defendant’s employment opportunities upon release,” and limit “freedoms of speech and association.”  Id. at 408

While internet access may not be arbitrarily revoked, is access itself guaranteed?

One argument would be a simple “no”.  After all, the internet is nowhere mentioned in the Constitution.   And since the 1970s, federal courts have resisted recognizing new constitutional rights that are not explicitly spelled out by the text.

On the other hand, a reasonable argument could be made that the internet furthers key rights such as freedom of speech and expression, freedom of assembly, freedom of the press, and the right to petition the government — all protected freedoms under the First Amendment.

More so than television technology, the internet strikes at the heart of Americans’ everyday social interactions and the way they live their lives.

And as recent events in the Middle East appear to indicate, the internet has become a powerful tool in promoting democratic accountability.

State constitutions, as well may confer greater protections related to internet access than the federal Constitution.

In California, for example, people have free speech rights at private malls under the California Constitution that are not recognized under the federal First Amendment.  Fashion Valley Mall, LLC v. NLRB, 42 Cal. 4th 850 (2007).   It is conceivable that California, or another state, could recognize a broad right to internet access under its own state constitution.

Internationally, Finland has already declared internet access — specifically broadband access — a guaranteed legal right.

Estonia, France, Greece, Spain and Costa Rica appear to be other countries that have guaranteed internet access in some shape or form.

Indeed, future American administrations could make a global internet treaty a centerpiece of a human rights agenda founded on internet access, government accountability and transparency, and broad-based protections related to freedom of expression and conscience.

Religions are so varied around the world.  They are all quite beautiful in their own way, and in the way they describe God.

It is a lucky thing to be exposed to so many conceptions of God.

In light of such diversity, maybe it is best to remain open-minded about the nature of human consciousness and the real beauty that pervades this universe.

In fact, spirituality is so unique — and individuals are so unique — that every person probably has his or her own special ideas about God, about experience, about life and death.

It is totally fine to have a connection with the larger universe and to have a sense of spirituality without subscribing to any particular church or doctrine.

And it is totally fine for people to disagree about their ideas about spirit and about God.

Not only is it totally fine, but in America it is legally expected that people will have different ideas about religion — which is why the First Amendment protects all forms of religious worship.

The only important thing is that people should decide for themselves what it is they believe.

People should never blindly follow something or someone.  That is not genuine investigation into the nature of reality; that is simply acting like a sheep.

And human consciousness is too precious to behave like a sheep.

Here is one example of a unique perspective of God: God as the bridge that connects a person’s intentions, desires, hopes, and prayers to their material manifestation.

A person sits, and quiets her mind, and then opens that mind to all of creation and feels a comfort that all will be well, all can be healed, everything will be OK.

No need to worry.

In this state, it is possible to formulate an intention and ask that it come true, so long as it is in the best interests of all involved.  And if it is, then it happens — that moment is God.

Here is another conception of God: God as the connection to all of consciousness.

When you sit by yourself, and you feel the presence of a loved one who may be thousands of miles away, or even someone who has passed on — that moment is God.

Or when you sit in a garden and can delight in beauty, happy to be alive — that moment is God.

One great purpose of life is to seek freedom.  Freedom means the defeat of fear, and values promulgated on such fear.

When you confront a fear, and you knock it down, and you obtain greater spiritual and psychological freedom — that moment is also God.

And because the mind is God, when the mind grows, then God grows in tandem, maturing with a person as he or she explores this Creation of which so little is known.  God as our twin, as our teacher, as our child, all at the same time.

How pleasant to think of God like that.