Category Archives: Legal Issues

Litmus Tests

As many of you may know, I am currently knee-deep in the law school application progress. At this point, I’ve received some acceptances, some wait-lists (the most maddening of all,) and of course some rejections. Although a rejection is disappointing, I did aim high, so when Harvard wrote back replying that it would not be reserving a seat for me, I was not terribly shocked. This is not to knock the schools which have accepted me, (indeed I should have a definitive announcement soon,) but just a reflection of fact. There are simply more highly trained applicatants than there is space for them. To get into one of the top three law schools (Harvard, Yale, Stanford – or HYS in the jargon,) you not only need a perfect LSAT score and undergraduate GPA, but also have interned at the UN, started your own business and successfully managed the subsequent IPO. So, while I’m not Harvard material (sorry Mom,) I am confident in my abilities to do well wherever I attend and create a distinguished career.

One of my interests is environmental law, and I sometimes think about working for the EPA or other governmental agencies. This said, I realize that the competition for such important jobs will be fierce and that I will have to contend with the likes of those who graduated from HYS. Or at least I did before reading this article in the Boston Globe. The article discusses Monica Goodling (the former top aid to Alberto Gonzales who has resigned and pled the 5th) and the law school from which she graduated, Regent University School of Law.

This little known law school was founded by Pat Robertson, the Christian Dominionist who wishes to turn the United States into a theocracy. In the law school’s about us page, it claims: “The mission of Regent Law School is to bring to bear the will of our Creator, Almighty God, upon legal education and the legal profession.” Digging further, the student handbook (PDF) turns up some interesting details:

1. The Equal Opportunity Policy professes not to discriminate in regards to: disability, veteran status, age, geneder, race, color, national or ethnic origin. From this list, we can assume against whom they do reserve the right to discriminate.

2. In addition to the usual exhortations against drugs, alcohol and tobacco is prohibited. The motivation for this is stated as thus: “The Apostle Paul exhorts the body of Christ that, if they truly loved their fellow man, they would set aside their personal freedom by refraining from behavior that might be a stumbling block to their weaker brother.”

3. Sexual Misconduct. Disorderly conduct or lewd, indedent or obscene conduct or expression, involvement with pornography, premarital sex, adultry, homosexual conduct or any other conduct, which violates Biblical standards, is prohibited.

Not to belabor the obvious, but I also found out that John Ashcroft often teaches courses at the law school, although he is listed as a faculty member for Regent University’s Robertson School of Government. He taught a class titled “Human Rights, Civil Liberties, and National Security.” Regent is a Tier 4 school with a median LSAT score of 153.

The Boston Globe article outlines the history of the school and why over 150 Regent University alumni have been hired to Federal Government positions since the beginning of the Bush administration. One of the most blatant reasons for this alarmingly high number is the fact that Bush nominated the Dean of Regent’s School of Government as director of the Office of Personnel Management; the OPM is responsible for hiring civilians for Federal jobs. Regent Law boasts that 1 out of 6 of its alumni work for for the Government. Since those with law degrees tend to end up in the Department of Justice, it should come as no surprise the Goodling ended up in a senior position there. The article further describes that Ashcroft, while AG, changed the hiring rules for the DOJ: “Conservative credentials rose, while prior experience in civil rights law and the average ranking of the law school attended by the applicant dropped.” As Paul Krugman notes, this is but one example of the, “infiltration of the federal government by large numbers of people seeking to impose a religious agenda.”

The United States has never been perfect, but an important ideal it embodies is meritocracy, rule based on demonstrated ability. As a 162 LSAT recipient, I realize that Harvard isn’t interested in me. But in my rejection, I rest assured that those who were accepted did better than me on the test, and thus, supposedly, are more prepared for certain endeavors. I accept this without bitterness and understand that there is a class of people smarter than I am; I hope that these people put their skills to good use in the form of public service.

If an unexperienced graduate of a 4th tier law school established only to further a narrow-minded and undemocratic agenda is promoted to great heights in the DOJ, I can only wonder how many more such individuals are crafting policy within our Federal Government. Although it seems that the Bush house of cards is starting to tumble (see banner, top right) the damage that has been done will take years if not decades to reverse. When qualified candidates are passed over for at best partisan hacks, or at worst fascists bearing flag draped crosses, the peril to our democracy can not be over-stated. This, and Iraq, and Katrina, and Walter Reed, this is the face of compassionate conservatism, this is the revolution started by Regan and re-awakened by Bush post-9/11. This is what our country has become under Bush and these are the “values” to which roughly 1/4 of our own citizens apparently adhere. If we do not all do our part to stop this, the world will have lost a beacon for enlightened government.

Fundamentals

Audio Version of the Post:

[audio:MCA.mp3]

I spent the bulk of last night taking a close look at the court case that was just released regarding the detainees at Guantanamo Bay. Below, I’ll do my best to share with you an in-depth summary of the issues which were before the court, along with the ruling and dissent.

Before I begin, I would like to define a term which is central to this case, The Writ of Habeas Corpus. The Writ (as it will be hereafter referred to, ) concerns the right of a prisoner to challenge his incarceration in the courts. This has been a central component of Anglo-American law, enacted mainly to prevent arbitrary detention.

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The question before the court, according Justice Randolph who delivered the majority opinion, was whether the federal courts had jurisdiction over petitions for the Writ by alien detainees being held as enemy combatants at Guantanamo. When the court first heard this case back in 2004, it ruled that the federal courts do not have jurisdiction over such matters. This conclusion was based on the fact that the base at Guantanamo Bay is not located on sovereign territory of the United States, rather land leased from Cuba. Therefore, US courts had no jurisdiction over this land.

However, the Supreme Court (USSC) overruled this conclusion, citing a clear subject-matter relationship between US operatives at Guantanamo and the detainees.

Following this, Congress stepped in to draft legislation to clarify the matter. What they came up with was something called the Detainee Treatment Act (DTA.) This act had two specific clauses regarding the Guantanamo detainees:

No court/justice/judge may exercise jurisdiction over:

– applications for the Writ filed by or on behalf of an alien detained by the Department of Defense (DOD) at Guantanamo Bay.

– any action against the United States relating to any aspect of the detention by the DOD of an alien at Guantanamo Bay.

Although Congress believed that this legislation would resolve any further issues confronting the courts, there was a snag as the next case regarding a detainee reached the USSC shortly after the enactment of the DTA. The USSC ruled that it was unclear whether the DTA applied to the case, as it had begun before the passage of the DTA. The issue again was returned to Congress which passed a new law.

The Military Commissions Act (MCA) clarified ambiguities in the DTA and expanded its scope greatly:

No court/justice/judge may exercise jurisdiction over:

– applications for the Writ filed by or on behalf of an alien detained by the United States determined by the US to have been properly detained as an Enemy Combatant or is awaiting such determination.

– any aspect of the detention, transfer, treatment, trial or conditions of confinement of aliens detained by the US determined by the US to have been properly detained as an Enemy Combatant or is awaiting such determination

Furthermore the MCA stated that this new law applied to all cases, including those currently pending.

Thus, based on the language of the MCA, Justice Randolph concludes that the MCA applies, and that the federal courts do not have jurisdiction over the Writs filed by the detainees at Guantanamo.

Having concluded thus, the next step in the analysis regards the constitutionality of the MCA. In the Constitution there is a provision under which the Writ may be suspended, called the Suspension Clause. It states, “the privilege of the Writ of Habeas Corpus shall not be suspended unless when in cases of Rebellion or Invasion public safety may require it.” As this is found in the US Constitution, the court asks whether this applies to aliens (foreigners) located outside of US territory.

Although the defendants cite three very old (mid 18th, early 19th century) British cases regarding aliens being tried in the courts, Justice Randolph finds that none of the cases involve an alien outside of the sovereign territory of the Crown. That is, in each of the cases, the detainees had either been living in or were imprisoned within British territory. As precedent, Justice Randolph points to a Supreme Court case from 1950 in which the Court concluded that nothing in the Constitution extends the right of the Writ to alien enemies outside of US jurisdiction. Guantanamo does not fall within US jurisdiction, and thus the foreign detainees located there can claim no right to the Writ.

Following the ruling, Justice Rogers offers a dissent.

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