Category Archives: Fifth Amendment

The Supreme Court of Pennsylvania recently overturned Bill Cosbys 2018 conviction for crimes of sexual assault. Most have focused on the justness of this outcome. But the courts 79-page opinion also has implications for how witnesses in civil cases navigate the potential risk of self-incriminationincluding witnesses testifying on behalf of a corporation as a corporate designee under Federal Rule of Civil Procedure 30(b)(6).

As we discussed in our blog on invoking the Fifth Amendment in a civil deposition, the privilege can only be claimed if the deponents answer to the question may render them vulnerable to prosecution for a crime. The question must require the witness to confront a substantial and real, and not merely trifling or imaginary, hazardof incrimination.[1] Whether the risk of incrimination is substantial and real is the very issue that has resulted in why Cosby is free today.

Cosbys legal issues started with a criminal investigation in 2005 by then Montgomery County District Attorney Bruce Castor after an alleged victim reported she was sexually assaulted by Cosby in 2004. For a variety of reasons, District Attorney Castor determined that he did not have enough evidence at the time to prosecute Cosby. Prosecutors weigh similar decisions every day, and typically, a prosecutors decision to not proceed with charges is not binding and is subject to reconsideration at a later date. But District Attorney Castor wanted to help the victim seek some justice in a civil case, so he made a promise he could not keephe publicly promised not to prosecute Cosby for that particular crime. Cosbys attorneys then determined that, because he had no reasonable fear of prosecution, he could not invoke his Fifth Amendment right against self-incrimination at a deposition in his civil case. Cosby made multiple admissions of guilt in the depositionin reliance on the promise that he would not be criminally prosecuted.

Whether this promise was enforceable and valid was a hotly litigated issue in the casebut the Supreme Court of Pennsylvania held that whether the promise was properly executed and / or enforceable was irrelevant since Cosby detrimentally relied on it. There was no way to un-ring the bell of his testimony and restore him to a position where he would not have incriminated himself had he utilized his Fifth Amendment protections. So, when District Attorney Castors successor later decided to charge Cosby and used his admissions in the civil deposition against him in the criminal trial, the court held that Cosbys rights to due process and protection from self-incrimination were violated. When an unconditional charging decision is made publicly and with the intent to induce action and reliance by the defendant, and when the defendant does so to his detriment (and in some instances upon the advice of counsel), denying the defendant the benefit of that decision is an affront to fundamental fairness.[2]

The civil and criminal justice systems interweave and collide in many circumstances, and some conduct, even negligent omissions, can raise both criminal and civil consequences. The complex circumstances of Cosbys conviction and subsequent release serve as an ominous reminder that your attorney needs to understand all aspects of potential incrimination and liability.

[1] Marchetti v. United States, 390 U.S. 39, 453 (1968).

[2] Pennsylvania v. Cosby, Supreme Court of Pennsylvania Case No. 39 MAP 2020 (June 30, 2021).

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What Does Bill Cosbys Overturned Conviction Mean for Your Fifth Amendment Rights Against Self-Incrimination? - JD Supra

MOUNTAIN VIEW, Calif., July 15, 2021 /PRNewswire/ -- Wisk Aero LLC ("Wisk"), the Urban Air Mobility (UAM) company behind the first all-electric, self-flying air taxi in the U.S., has submitted a brief in support of its preliminary injunction motion to the San Francisco federal court [FOUND HERE]. The filing details newly-obtained documents and testimony from Archer demonstrating misappropriation of Wisk's trade secrets "on a massive scale," and that an Archer engineer pleaded the Fifth Amendment. The brief states:

Archer's SPAC sponsor, Atlas Crest Investment Corp., disclosed in its July 1 amended S-4 that Archer and three of its employees received grand jury subpoenas from the United States Attorney's Office for the Northern District of California. According to the S-4, the "grand jury subpoenas seek documents and information about Archer's business, including its hiring practices and intellectual property, as well as documents and information relating to the employment of such employees at Wisk, including Wisk's intellectual property, business plans, and information relating to Wisk's aircraft design."

Additional context for Wisk's legal action and latest filing can be found on our website.

ABOUT WISK

Wisk is an urban air mobility company dedicated to delivering safe, everyday flight for everyone. Wisk's self-flying, eVTOL (electric vertical takeoff and landing) air taxi, will make it possible for passengers to skip the traffic and get to their destination faster. Based in the San Francisco Bay Area and New Zealand, Wisk is an independent company backed by The Boeing Company and Kitty Hawk Corporation. With over a decade of experience and over 1500 test flights, Wisk is shaping the future of daily commutes and urban travel, safely and sustainably.

For more information, follow us onLinkedIn,Twitter,InstagramorFacebook, or visitwisk.aero

SOURCE Wisk Aero

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Wisk Submits Evidence Claiming Massive Theft and Archer's Use of Wisk Trade Secrets, as Archer Engineer Pleads the Fifth - PRNewswire

Rhode Island is a small state favored with many natural attractions, not the least of which are its 400 miles of shoreline and more than 8,200 acres of public parks and recreation areas. Such lands frequently abut private property, and their borders have increasingly become sparring rings for individuals declaring rival rights of access and ownership.

As lawmakers continue to look for means of balancing these competing interests, the U.S. Supreme Court issued its ruling in Cedar Point Nursery v. Hassid, refining the terms according to which a state may prohibit private landowners from denying access to their land by third parties. Rhode Island landowners with property adjoining public lands should take note: a state generally cannot compel a private landowner to provide public access without just compensation.

Cedar Point Nursery may be summarized as follows: when the government gives with one hand, it may also take with the other, and the Constitution compels it to pay for what it takes. The Takings Clause of the Fifth Amendment, applicable to the states through the Fourteenth Amendment, provides that private property shall not be taken for public use without just compensation. A physical takingthe clearest sort of takingoccurs when the government physically appropriates private property for public use.

The law before the Court in Cedar Point Nursery was a California regulation that granted union organizers access to agricultural employers property for three hours per day, 120 days per year to solicit support for unionization. The agricultural employers argued that the regulation effected an unconstitutional per se physical taking by appropriating without compensation a right to enter their property. In other words, the regulation granted an easement over the agricultural employers property. On the other hand, the Agricultural Labor Relations Board, the entity that promulgated the regulation at issue, argued that the regulation did not constitute a per se physical taking because it authorized only limited and intermittent access for a narrow purpose. The Board further argued that the regulation should be evaluated as regulatory rather than per se physical taking.

A regulatory taking occurs when the government imposes a regulation that restricts a private landowners ability to use his or her own property, as opposed to appropriating property for itself or a third party. While property may be regulated to a certain extent, if a regulation goes too far in restricting the use of property, it will be recognized as a regulatory taking. According to the Board, the appropriation of a three hour per day, 120 day per year right to invade the agricultural employers property did not constitute a taking of a property interest but rather a mere restriction on its use.

In a 6 to 3 ruling, a majority of the Court held that the regulation constituted a clear, per se taking because it resulted in a physical appropriation of private property. Rather than restraining the agricultural employers use of their property, the regulation appropriated for the enjoyment of third parties the agricultural employers right to exclude. A common way of describing the rights of a property owner is that they constitute a bundle of sticks: each stick is a separate right related to the land, such as the right of possession or enjoyment. The Court emphasized that the right to exclude is universally held to be a fundamental element of property ownershipa principal stick in the bundle, to extend the metaphor. The right to exclude, the Court explained, is not an empty formality that can be modified at the governments pleasure. When the government creates a right to invade private propertywhether by statute, regulation, ordinance, or miscellaneous decreea per se taking has occurred, regardless of the scope, duration, and frequency of the physical invasion. The terms of the permitted invasion bear the amount of compensation due, but not its fundamental effect.

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Give And Take: How The U.S. Supreme Courts Ruling In Cedar Point Nursery v. Hassid May Impact Rhode Islanders Who Own Property Abutting Public Lands -...

The U.S. Supreme Court recently concluded its 2020-21 term. The Court decided several major cases, with many of the more significant decisions released earlier this summer.

Mahanoy Area School District v. B.L. was one of the Courts most anticipated First Amendment cases this year. It involved a high school cheerleader who was suspended from her cheer team for a profanity-laden social media post. By a vote of 8-1, the Court overturned the cheerleaders suspension in Mahanoy. Although the Court interpreted the First Amendment to provide public schools with the power to regulate some off-campus student speech, the justices found that this cheerleaders speech was protected. Justice Stephen Breyer wrote for the majority how a public school has an interest in protecting a students unpopular expression, especially when the expression takes place off campus. Americas public schools are the nurseries of democracy. Our representative democracy only works if we protect the marketplace of ideas.

Americans for Prosperity Foundation v. Bonta was another First Amendment case decided this summer. The justices voted 6-3 that a California requirement that non-profit organizations disclose their donors identities violates the First Amendment. Chief Justice John Roberts explained for the Court that when it comes to the freedom of association, the protections of the First Amendment are triggered not only by actual restrictions on an individuals ability to join with others to further shared goals. The risk of a chilling effect on association is enough.

The Court decided multiple cases interpreting the First Amendments freedom of religion over the last few months. In Fulton v. City of Philadelphia, the Court unanimously struck down Philadelphias refusal to contract with a Catholic foster care agency unless the agency agreed to certify same-sex couples as foster parents. Chief Justice Roberts wrote for the Court, holding the law in question violated the Free Exercise Clause by burdening religion: so long as the government can achieve its interests in a manner that does not burden religion, it must do so.

In another freedom of religion case, Roman Catholic Diocese of Brooklyn v. Cuomo, the Court ruled by a vote of 5-4 that New York State could not ban in-person attendance at religious worship services. A per curiam opinion declared the following: even in a pandemic, the Constitution cannot be put away and forgotten. The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendments guarantee of religious liberty.

The Court issued several noteworthy constitutional law decisions outside of the First Amendment. One was Cedar Point Nursery v. Hassid, where a 6-3 majority found that a California law granting labor unions a right of access to farmworkers at their worksites violated the property rights of agricultural employers under the Takings Clause of the Fifth Amendment. Chief Justice Roberts again wrote for the Court, explaining for the majority that the access regulation grants labor organizations a right to invade the growers property. It therefore constitutes a per se physical taking.

Jones v. Mississippi saw the Court rule 6-3 that the Eighth Amendment prohibition on cruel and unusual punishment does not require a finding that a juvenile is permanently incorrigible before imposing a sentence of life without parole. Justice Brett Kavanaugh clarified for the Court that while a finding of incorrigibility is not required, there remains a requirement that a sentencer consider youth as a mitigating factor when deciding whether to impose a life-without-parole sentence.

Finally, in California v. Texas the justices by a vote of 7-2 held that plaintiffs challenging the constitutionality of the Affordable Care Acts minimum essential coverage provision lacked standing to sue under Article III of the Constitution. Writing for the Court, Justice Breyer emphasized that since Congress repealed the penalty for not carrying that health insurance coverage, the plaintiffs in this suit failed to show a concrete, particularized injury fairly traceable to the defendants conduct in enforcing the specific statutory provision they attack as unconstitutional.

Next year, the Court is again expected to rule on important constitutional questions, including reviewing laws on abortion and affirmative action. As is typical, next years most anticipated decisions are expected in June.

Eric T. Kasper is a professor of political science and the director of the Menard Center for Constitutional Studies at UW-Eau Claire. He also serves as the municipal judge for the city of Rice Lake and is a member of the Wisconsin Bar Association.

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Ink Blog: The Supreme Court & the Constitution in 2021 - Ashland Daily Press

A man prosecuted for assault in theUte Mountain Ute's judicial system is turning to the U.S. Supreme Court, arguing his subsequent conviction in federal court violated his constitutional right against double jeopardy.

Merle Denezpi is asking the justices to determine whether the "CFR Court" for the Ute Mountain Reservation named for the Code of Federal Regulations provision that established it is an arm of the federal government rather than a sovereign entity. The answer could illuminate whether he deserved to have his second case dismissed entirely.

"CFR courts differ from tribal courts and whether federal or tribal sovereignty is the source of their prosecutorial powers is an important question this Court has not yet answered," Santa Fe attorney Theresa M. Duncan wrote to the Supreme Court in Denezpi's petition.

According to court records, Denezpi, of Shiprock, N.M., traveled into the reservation in July 2017 to his girlfriend's house near the town ofTowaoc. Denzpi, a Navajo tribal member, traveled there with his victim, also Navajo, and at the house he threatened and sexually assaulted her.

The victim was able to escape in the early morning and after being picked up by police, she reported the assault to tribal authorities and underwent a forensic examination that documented numerous injuries to her body and genitals.

Tribal police arrested Denezpi afterward, and he faced an assault charge in theCourt of Indian Offenses of the Ute Mountain Ute Agency. He ultimately served a sentence of less than five months in custody.

However, a federal grand jury subsequently indicted Denezpi for aggravated sexual abuse in Indian Country. The crime is subject to both federal and tribal jurisdiction when the victim and perpetrator are Indian. A jury found him guilty and Denezpi received a sentence of 30 years in prison.

Denezpi appealed, arguingthe Fifth Amendment prohibited his re-prosecution for the same offense.

A federal district court judge decided it did not, given that tribes derive their prosecutorialpower separately from any delegation by the federal government. The U.S. Court of Appeals for the 10th Circuit upheld Denezpi's conviction last year, also rejecting his claim that the tribal court gained its jurisdiction from the federal government, rather than its status as a sovereignentity.

Congress established CFR courts to give tribes jurisdiction over American Indians where tribal courts have not been established. Tribes have both created and stepped back fromtheir tribal courts over the years.

In writing for the three-member appeals panel, Senior Judge Stephanie Kulp Seymour referenced the Supreme Court's 1978 finding that Indian nations' power to punish tribal members who violate tribal law has never been taken away, and always stemmed from their sovereignty.

"Congresss creation of CFR courts, then, did not divest the tribes of their self-governing power," she wrote in the panel's opinion.

The case raises the issue of "dual sovereignty," a doctrine that allows for two sovereign entities to both prosecute a crime that is against their laws, regardless of double jeopardy protections. Denezpi claimed that CFR courts are hybrids, operating as tribal courts in areas where there are none, but are also arms of the federal government.

"Because the CFR courts function, at least in part, as a 'federal agency,' the the Double Jeopardy clause prohibits a second prosecution by another federal agency, in this case the Department of Justice," his petition argued.

The government waived its right to respond to Denezpi's petition, but the Supreme Court subsequently requested that the U.S. Departmentof Justice weigh in.

The case is Denezpi v. United States.

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Man convicted of sex crime on Colo. tribal reservation appeals to SCOTUS - coloradopolitics.com

On July 13, 2021, the U.S. Court of Appeals for the Federal Circuit (CAFC) released its opinion reversing the U.S. Court of International Trades (CIT) decision that President Trump had unlawfully doubled tariffs on imports of steel from Turkey under Section 232 of the Trade Expansion Act of 1962 (Section 232). The CIT had initially found that such action was beyond the Presidents authority as it was taken outside the timeframe set forth in Section 232. Our prior blog post discussing Section 232 cases at the CIT, including that decision, can be found here.

In Transpacific Steel LLC v. U.S., the CAFC found that the increase in Section 232 tariffs on Turkish steel was permissible because the initial proclamation imposing tariffs on steel imports had allowed for future adjustments. According to the CAFC, under the statute, the President can take a continuing course of action which allows later modification, including the increase of import restrictions. The CAFC concluded that the CITs narrow reading of the statute obstructs the statutory purpose of Section 232, and would impede the Presidents ability to effectively address the national security issues raised by the Department of Commerce. The CAFC also reversed the CITs finding that the tariff increase had violated equal protection rights under the Fifth Amendment. One member of the CAFC panel, Judge Reyna, dissented, arguing that the CIT correctly found that the President exceeded his authority under Section 232.

While this decision concerned a temporary increase in 232 tariffs with respect to imports of steel from Turkey, its impact could be much broader, in that the Biden Administration may rely on this decision to adjust any of the Section 232 duties on steel and aluminum imports more freely. Currently, it is unclear what President Bidens next steps with regard to these Section 232 tariffs will be, and now, he may have a freer hand in modifying these tariff levels to effectuate broader trade and industrial policies.

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Federal Circuit Reverses CIT's Decision on the President's Ability to Modify Section 232 Tariffs - Lexology

John Quincy Adams, sixth President of the United States, said that property has divine rights and the moment the idea is admitted into society that property is not as sacred as the laws of God, anarchy and tyranny begin.

People today would not be ready to equate property rights with the laws of God, yet it is still true that the founding fathers held no doubt as to the supreme importance of private property rights.

The Fifth Amendment to the United States Constitution expresses that right quite simply and directly by providing that no person shall be deprived of life, liberty or property without due process of law, nor shall private property be taken for public use without just compensation. This means that private property is not to be subjected to the whims and caprices of the majority, or of the government.

Today, supposedly educated leaders speak only in favor of human rights not property rights as if the two are in some way inconsistent or mutually exclusive. But the right to own property is a valuable human right. Private property rights are the soil in which our concept of human rights grows and matures.

Of all the precious freedoms enumerated in the Bill of Rights, none has become so weakened as the right of private ownership of property. Layer upon layer of governmental bureaucracy has been enacted to take this right away. Chief Justice John Marshall wrote in McCullough v. Maryland: The power to tax involves the power to destroy.

Hence, so does the power to regulate involve the power to take away the right to own private property?

We the People must help to retain the fabric of our capitalistic republican form of government by electing only those politicians who believe in retaining private property rights as human rights.

Excerpt from:
Letter to the editor: Property rights should be considered human rights - The Bozeman Daily Chronicle

James Harper v. Charles P. Rettig, in His Official Capacity as IRS Commr, IRS, and 10 John Doe IRS Agents

Washington, D.C., July 15, 2021 (GLOBE NEWSWIRE) -- In August 2019, James Harper received a letter from the Internal Revenue Service (IRS) accusing him of not having properly reported his transactions involving virtual currency. A press release followed shortly thereafter stating, Taxpayers should take these letters very seriously and correct past errors. Mr. Harper, one of more than 10,000 cryptocurrency holders who received such a letter, filed a lawsuit challenging IRSs questionable information-gathering practices.

The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, has filed an opening brief in James Harper v. Charles P. Rettig, et al. in the U.S. Court of Appeals for the First Circuit, arguing that IRS took Mr. Harpers data without reasonable suspicion and without a judicial warrant. NCLA contends IRS violated his Fourth and Fifth Amendment constitutional rights by obtaining his private financial information from virtual-currency exchanges without following statutory limitations on its power to issue subpoenas.

NCLA argues the U.S. District Court for the District of New Hampshire erred in its March 2021 decision granting IRSs motion to dismiss. It was mistaken that a waiver of sovereign immunity is necessary; sovereign immunity does not divest federal courts of their subject-matter jurisdiction in suits for specific nonmonetary relief against IRS alleging that the government actors acted unconstitutionally or without statutory authority.

The district court ruled without benefit of the Supreme Courts May 2021 decision in CIC Services, LLC v. IRS, which concluded that the Anti-Injunction Act (AIA) does not prohibit a suit seeking to set aside an information-reporting requirement that is backed by both civil tax penalties and criminal penalties. Mr. Harpers suit, brought to set aside IRSs illegal information gathering, is not a suit brought to enjoin a taxs assessment or collection.

Story continues

Mr. Harper requests declaratory and injunctive relief, including an order expunging his private financial information from IRSs records if it was obtained in violation of the Constitution or the statute. The First Circuit should conclude that the district court has subject-matter jurisdiction, decide that Mr. Harper has stated a claim upon which relief can be granted, and either rule in his favor or else remand the case to the trial court for a decision on the merits.

NCLA released the following statements:

After CIC, it is not sufficient for IRS to claim that the information it possesses may culminate in the assessment or collection of taxes. By that logic, nearly all information that comes into IRSs possessionwhether obtained by following proper procedures or otherwisecould culminate in the assessment or collection of taxes. But the Fourth and Fifth Amendments to the Constitution do not contain an IRS exception. Adi Dynar, Litigation Counsel, NCLA

Earlier this year, the Supreme Court held that IRS cannot block lawsuits challenging the constitutionality of its behavior by hiding behind the Anti-Injunction Act. Unfortunately, that decision came out after the district court allowed IRS to abuse the law in just that way. According to the Supreme Court, though, this case is a cinch, and the First Circuit should swiftly reinstate this lawsuit. Caleb Kruckenberg, Litigation Counsel, NCLA

For more information visit the case page here or watch Mr. Harpers story here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLAs public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans fundamental rights.

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NCLA Appeals to First Circuit Over IRSs Unlawfully Seizing Cryptocurrency Data of Thousands - Yahoo Finance

EDITOR'S NOTE: Gary Pearce was a reporter and editor at The News & Observer, a political consultant and an adviser to former Gov. Jim Hunt. He blogs about politics and public policy at New Day for NC.

We Americans have a contradictory history when it comes to tolerating, or not tolerating, dissent. The latest chapter is the Nikole Hannah-Jones controversy at UNC-Chapel Hill.

The fight, fittingly, played out around July 4th, the most American of holidays. We take off work, grill hot dogs and set off fireworks to celebrate our Declaration of Independence and, supposedly, our dedication to independence of speech and thought.

That dedication has been tested from the nations beginning.

In 1798, Congress and President John Adams passed the Alien and Sedition Acts. The sedition law outlawed any false, scandalous and malicious writing against Congress or the president and made it illegal to conspire to oppose any measure or measures of the government. A congressman and a journalist were convicted and sent to jail. The laws were repealed or expired after Thomas Jefferson was elected president in 1800.

Race and dissent have long been intertwined. Before the Civil War, Southern states banned abolitionist writing and speaking. The U.S. House passed a Gag Resolution in 1836 to squelch discussion of abolishing slavery. For 100 years after the Civil War, advocating for Black Americans civil rights could be dangerous.

In the 1960s, racist demagogues like North Carolinas Jesse Helms, a television editorialist then, conflated communism and civil rights. In 1983, Sen. Helms filibustered against a national holiday for Dr. Martin Luther King, Jr. Helms said King followed a philosophy of ''action-oriented Marxism'' that ''is not compatible with the concepts of this country.''

Helms was a father of the Speaker Ban Law that thrust UNC-Chapel Hill into a battle over free speech almost 60 years ago. On the last day of the 1963 session, after just an hour of debate, the legislature enacted the law, which prohibited speeches on North Carolina public college campuses by known members of the Communist Party, persons known to advocate the overthrow of the Constitutions of North Carolina or the United States, or individuals who had pleaded the Fifth Amendment in order to decline answering questions concerning communist subversion.

For years, the ban embroiled the university in controversy. Its accreditation was threatened. In 1969, a three-judge federal court ruled that the law was an unconstitutional violation of the First Amendment.

Now the university is embattled over Hannah-Jones, who won a Pulitzer Prize for The New York Times The 1619 Project. The project tells how slavery has shaped America since slaves were first brought here over 400 years ago.

Conservatives claim the 1619 viewpoint somehow threatens our 1776 national narrative. But both stories shaped our nations history. Both should be studied.

When Hannah-Jones announced last week that she wouldnt be coming to UNC, the state Republican Party exulted that she will no longer be spreading her divisive agenda at UNC-Chapel Hill.

Is that cancel culture?

Explaining her decision, Hannah-Jones criticized the universitys leadership. She called out Walter Hussman, the Arkansas publisher and big donor for whom the journalism school is now named and who opposed her hiring:

I cannot imagine working at and advancing a school named for a man who lobbied against me, who used his wealth to influence the hires and ideology of the journalism school, who ignored my 20 years of journalism experience, all of my credentials, all of my work, because he believed that a project that centered on Black Americans equaled the denigration of white Americans.

Her decision is understandable. But many people at UNC stuck out their necks for her and may get their heads cut off in retaliation. The fight for freedom of speech and thought will go on without her voice at Chapel Hill.

Capitol Broadcasting Company's Opinion Section seeks a broad range of comments and letters to the editor. Our Comments beside each opinion column offer the opportunity to engage in a dialogue about this article.

In addition, we invite you to write a letter to the editor about this or any other opinion articles. Here are some tips on submissions >> SUBMIT A LETTER TO THE EDITOR

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GARY PEARCE: UNC and the debate over dissent - WRAL.com

In an important brief filed in court on Friday, had the Justice Department wanted to recognize that the Constitutions due process clause applies to detainees held at Guantanamo, the brief would have essentially written itself. The Supreme Court already decided in 2008, in the case of Boumediene v. Bush, that the Constitutions Suspension Clause applies to the wartime detainees at Guantanamo, guaranteeing them habeas corpus rights. As the American Bar Association has noted, Under a straightfoward application of Boumediene, Guantanamo detainees are entitled to claim the protections of the Due Process Clause.

Admittedly the ability of non-citizens outside the United States to claim any constitutional right is an uphill climb. But as the Supreme Court reasoned in Boumediene, In every practical sense Guantanamo is not abroad; it is within the constant jurisdiction of the United States.

That is likely why the Department of Defense and Department of State reportedly wanted Fridays brief to recognize the due process clause applies to the prisoners at Guantanamo, and why the intelligence agencies accepted that legal position as well.

The brief was submitted in classified form, but the New York Times reported that the Biden administration punted on the key legal question. The brief was silent on whether the due process clause applies at all at Guantanamo.

According to Charlie Savages reporting, the reason for this ambiguous result rests with officials at the Justice Department, where lawyers who served during the Trump administration (and the W. Bush and Obama administrations before that) are reluctant to acknowledge this straightforward application of the law. Some of these lawyers wrote a brief in December 2020 claiming that the due process clause does not apply to Guantanamo detainees.

The remainder of this article focuses on the legal doctrine at issue, but there are policy implications worth highlighting up front. Failure to recognize that due process rights apply at Guantanamo not only undercuts President Biden and Secretary Austins stated goal of closing the prison (read Chair of the Senate Judiciary Committee Dick Durbins (D-IL) powerful letter to the Justice Department along those lines). Whats perhaps even worse is the legacy effect of the Justice Departments position: it risks having Guantanamo remain a legal black hole for future presidents to transfer and indefinitely detain individuals in wartime or other situations.

The Justice Department may wish to preserve flexibility for the executive branch with its legal stance. However, there are countless situations in which flexibility undermines political leaders policy objectives, and this is surely one of them.

Regardless, one can anticipate that the judges hearing the case will press government lawyers to answer the constitutional question, either in subsequent briefing or at oral argument. Counselor, does the government dispute the petitioners claim that the Due Process Clause applies at Guantanamo? is one version of the question. Theres one right answer.

The Supreme Court Has Spoken

Unlike some murky areas of constitutional law, there is Supreme Court case law on point for the purposes here. In Boumediene, the Court held that a functional approach determines whether a constitutional provision, such as the right to habeas corpus, extends to territory outside the United States. The functional approach would clearly support the due process clause, like the Suspension Clause, applying at Guantanamo.

At first blush, there appears to be contrary case law, but not on closer inspection. The Trump Justice Departments brief stated that the Supreme Court in Johnson v. Eisentrager [1950], rejected the notion that enemy combatants detained by American military forces in Germany could invoke the Due Process Clause due to such extraterritorial application. But that reference to judicial authority is its own undoing. Rather than involving such an extraterritorial application, Boumediene turned on the fact that in every practical sense Guantanamo is not abroad.

In Boumediene, the Supreme Court explicitly concluded that, as a functional matter, the circumstances in Eisenstrager a time-limited and collective occupation of Germany in which U.S. control of the prison was neither absolute nor indefinite was substantively very different from Guantanamo and the United States indefinite, exclusive, and total control over the detention facility there.

This understanding of the Courts doctrine is well recognized. In Boumediene, the Court determined that Guantanamo was de facto U.S. territory, then-Judge Brett Kavanuagh wrote when serving on the D.C. Circuit, in which he directly contrasted the decision with Eisenstrager. Writing for the Supreme Court majority in a 2020 decision, Justice Kavanaugh quoted Boumediene for the proposition that under some circumstances, foreign citizens in the U. S. Territoriesor in a territory under the indefinite and complete and total control and within the constant jurisdiction of the United Statesmay possess certain constitutional rights. Indeed, the Boumediene Court explained that the functional approach to territory applied across a range of cases concerning different constitutional provisions from the Insular Cases to Reid v. Covert and others.

But what about a slippery slope? Wouldnt the governments recognition that the due process clause applies at Guantanamo mean that federal judges may erroneously say in future that constitutional rights apply in other locations under U.S. control and the like? First, take a moment to reflect on the ethical implications of that line of reasoning. It would mean the administration knows but should not recognize that these detainees have due process rights on the speculation that courts in future may afford some constitutional protections to other people where the executive branch believes they shouldnt. What an unsound reason to deny these detainees have constitutional rights.

Regardless, the slippery slope idea is unfounded for other reasons too. The degree of U.S. control over Guantanamo making it de facto U.S. territory is an extremely high bar for any other situation to reach or even approximate. And if that threshold were somehow met, the government could still demonstrate practical barriers to implementing the right to preclude its recognition, as provided by Boumedienes functional approach. Whats more, the courts have been directly tested on whether they would go down any slope following Boumediene, and they didnt. In Al Maqaleh v. Gates, a three-judge panel (including two liberal judges) on the Court of Appeals for the District of Columbia unanimously held that the Suspension Clause did not apply to detainees held at Bagram Airfield Base. While it is certainly realistic to assert that the United States has de facto sovereignty over Guantanamo, the same simply is not true with respect to Bagram, the court explained. Further applying Boumedienes framework, the court also found a host of practical obstacles worked against extending the right of habeas to Bagram, including that the military facility was (unlike Guantanamo) located in a theater of war.

It would be beyond anomalous to suggest that the due process clause does not apply to Guantanamo using the Boumediene framework. To put it more strongly, no good argument can be made that there are practical barriers to applying the due process clause along with the suspension clause to the Guantanamo detainees, which is the only theoretical hope for claiming the functional approach should produce a different result. Moreover, as the ABAs amicus brief explains, the rights to habeas corpus and due process generally work hand-in-hand and run together (citing Blackstone and Justice Antonin Scalias writing).

In terms of practical capacity to afford due process rights, it is no surprise the Defense Departments lawyers reportedly accept the due process clause applies to the military facility at Guantanamo. Also, the governments brief filed on Friday reportedly tells the court that existing policies already afford Guantanamo detainees the same level of protection that the Fifth Amendment requires. That surely robs the government of claiming that it is impractical or anomalous to afford the Guantanamo detainees the protections of the due process clause.

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The Justice Department would have served President Biden and US national security interests best by acknowledging the due process clause of course applies at Guantanamo, and arguing instead on the more solid ground of what exactly the scope of due process rights should be in that context. When asked in future briefing or at oral argument about the United States legal position, the government will have another opportunity to do the right thing as a matter of law and policy.

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What the US Government Brief Should Have Said in Al-Hela: On Guantanamo and Due Process - Just Security