What is the standard for opposing bond for immigration cases?
Immigration judges may deny bond for a detained immigrant if the government provides evidence of flight risk or dangerousness.
How were INS lawyers put in an ethical bind on this?
Nevertheless, INS lawyers were apparently ordered to argue the ‘‘no bond’’ position in court without any evidence, using ‘‘boilerplate’’ language.
Consular Rights
What right does the Vienna Convention on Consular Relations give a foreign arrestee?
Was this complied with?
Since this is a reciprocal agreement, why should the US care about whether foreign countries abide by it?
What did Sanchez-Llamas v. Oregon, 126 S. Ct. 2669 (2006)
Court held that (1) suppression of evidence in a criminal proceeding is never an appropriate remedy for an Article 36 violation; and (2) federal and state procedural default rules prevent the raising of Article 36 claims that were not made on a timely basis. Although the Court considered the ICJ’s interpretation of Article 36 as deserving respectful consideration, it did not deem it to be legally binding or necessarily persuasive. The Court did not determine whether Article 36 creates an individually-enforceable right. Nor did the Court assess the legal implications of the President’s 2005 memorandum instructing state courts to give effect to the ICJ’s decision in Avena with respect to the 51 Mexican nationals at issue in that case.
The Military Order on Detention
Directs the Secretary of Defense to detain without time limit any noncitizen whom the President has ‘‘reason to believe’’ is a member of Al Qaeda, is involved in international terrorism, or has knowingly harbored such members or terrorists.
Is the Military Order’s detention provision constitutional?
How would you analyze whether this overrides the detention provisions in the Patriot Act?
Iqbal v. Hasty United States Court of Appeals, 490 F.3d 143 (Cir2 2007)
He alleged that he was arrested in the PENTTBOM investigation and detained as a person “of high interest” solely because of his race, religion, and national origin, and not because of any involvement in terrorism.
He brought this suit against his jailers, the Director of the FBI, and the Attorney General for damages based on violations of his constitutional and statutory rights as a result of the conditions of his confinement. Defendants moved to dismiss on grounds of qualified immunity.
Conditions of Confinement
The Plaintiff was not provided with adequate food and lost 40 pounds while in custody. MDC staff called him, among other things, a “terrorist” and a “Muslim killer.” The complaint further alleges that the Plaintiff was brutally beaten by MDC guards on two occasions: upon his transfer to the ADMAX SHU in January 2002 and again in March. Following the March beating, the Plaintiff was denied medical care for two weeks even though he was in excruciating pain. He was also subjected to daily strip and body-cavity searches.
A defendant will be entitled to qualified immunity if either (1) his actions did not violate clearly established law or (2) it was objectively reasonable for him to believe that his actions did not violate clearly established law.
The Effect of 9/11
Defendants contend that the Government was entitled to take certain actions that might not have been lawful before 9/11 because the Government’s interests assumed special weight in the post-9/11 context.
Some Defendants contend that, even if the law was clearly established as to the existence of a right claimed to have been violated, it was not clearly established in the extraordinary circumstances of the 9/11 attack and its aftermath.
Some Defendants contend that the post-9/11 context renders their actions objectively reasonable, an argument we do not reach in view of our disposition of their second contention.
Forget 9/11 - What Would the Standard Be?
What if this was a pure prison case?
Would this treatment violate the usual standards for cruel and unusual punishment?
Conscious indifference to the prisoner's welfare?
Why doesn't this 8th Amendment test apply?
What is this a 5th Amendment due process case?
Pretrial detainees have not been convicted of a crime and thus “may not be punished in any manner – neither cruelly and unusually nor otherwise.”
Does 9/11 Categorically Change the Game?
the exigent circumstances of the post-9/11 context do not diminish the Plaintiff’s right not to be needlessly harassed and mistreated in the confines of a prison cell by repeated strip and body-cavity searches. This and other rights, such as the right to be free from use of excessive force and not to be subjected to ethnic or religious discrimination, were all clearly established prior to 9/11, and they remained clearly established even in the aftermath of that horrific event.
Where does Matthews Fit In?
We recognize that in the post-9/11 context the third Mathews factor – the gravity of the Government’s interest – is appropriately accorded more weight than would otherwise be warranted. It might be that the combination of
(1) the Plaintiff’s interest in avoiding confinement under harsh conditions,
(2) the risk of an erroneous determination of the need for such confinement, and
(3) the Government’s interest, accorded added weight in the post-9/11 context, would, on balance, lead to the conclusion that the Government need not have given the Plaintiff notice and a chance for rebuttal before placing him in the ADMAX SHU.
