Chapter 1 Introduction What are the issues of the day?

The Due Process Claim

Although we conclude that the Plaintiff has adequately pleaded a violation of a procedural due process right, we also conclude that in this case “officers of reasonable competence could [have] disagree[d],” Malley v. Briggs, 475 U.S. 335, 341 (1986), whether their conduct violated a clearly established procedural due process right. Accordingly, the Plaintiff’s right to additional procedures was not clearly established with the level of specificity that is required to defeat a qualified immunity defense.

How this was Driven by the National Security Issue

Prior to the instant case, neither the Supreme Court nor our Court had considered whether the Due Process Clause requires officials to provide ordinary administrative segregation hearings to persons detained under special conditions of confinement until cleared of connection with activities threatening national security.

[The] BOP regulation contains potentially relevant exceptions that undermine certainty as to established requirements of law.

“Administrative detention is to be used only for short periods of time except . . . where there are exceptional circumstances, ordinarily tied to security or complex investigative concerns,”

...inmates are entitled to “an administrative detention order detailing the reasons for placing an inmate in administrative detention . . . provided institutional security is not compromised thereby”

Conditions of Confinement

The court found that plaintiff stated a case that his conditions of confinement constituted punishment, in violation of the standards of Bell v. Wolfish

Since plaintiff has not been convicted of a crime, he can only be detained, not punished

Interference with Religious Practices

Why is it good to make a 1st Amendment Claim when possible?

...Plaintiff alleges that he was not allowed to attend Friday prayers, that prison guards banged on his door when he tried to pray, and that his Koran was routinely confiscated. These allegations suffice to preclude a qualified immunity defense at this stage of the litigation. . . .

Racial and Religious Discrimination

...Plaintiff is alleging is that he was deemed to be “of high interest,” and accordingly was kept in the ADMAX SHU under harsh conditions, solely because of his race, ethnicity, and religion.

The Plaintiff also alleges that “Defendants specifically targeted [him] for mistreatment because of [his] race, religion, and national origin.”

These allegations are sufficient to state a claim of animus-based discrimination that any “reasonably competent officer” would understand to have been illegal under prior case law.

Stay Tuned, the United States Supreme Court has accepted cert.

Chapter 25 - Suspending the Great Writ

Habeas Corpus

What does the Latin "habeas corpus" mean?

Where did the right of habeas corpus originate?

Is it provided for in the US constitution?

Does this also make it available for state arrests and detentions?

Habeas Corpus for Administrative Detentions

Quarantine/Isolation

Mental health commitment

Material witnesses

Any other administrative, i.e., not criminal arrest, detention

The Habeas Corpus Petition

What are the basic requirements for habeas corpus?

What is the legal authority to hold the person?

What is the factual basis for falling under the law?

Contesting factual information

If there are issues other than legal issues, the detained person must be allowed to be present.

Suspension of the Writ

Does the constitution provide that the writ can be suspended?

Does it clearly specify who can suspend it?

Why was suspending habeas corpus such an issue in the Civil War?

Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861)

What had Lincoln done?

Chief Justice Taney:

‘‘I had supposed it to be one of those points in constitutional law upon which there was no difference of Opinion . . . that the privilege of the writ could not be suspended, except by act of congress.’’

What did Lincoln do after this opinion?

Ex Parte Milligan, 71 US 2 (1866)

During the late wicked Rebellion, the temper of the times did not allow that calmness in deliberation and discussion so necessary to a correct conclusion of a purely judicial question. Then, considerations of safety were mingled with the exercise of power; and feelings and interests prevailed which are happily terminated. Now that the public safety is assured, this question, as well as all others, can be discussed and decided without passion or the admixture of any element not required to form a legal judgment.

Are we there yet with 9/11?

The Facts

Where did this happen?

Was Milligan a rebel soldier?

Was he a soldier in the Union Army?

How was he arrested and tried?

Were the civilian courts open?

What is the Real Issue?

Does abolishing the writ do away with the 5th amendment?

‘‘that no person shall be held to answer for a capital or otherwise infamous crime unless on presentment by a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger, nor be deprived of life, liberty, or property, without due process of law."

What does Lincoln accomplish by abolishing the writ?

Why was the Bush administration so opposed to allowing the writ at Guantanamo?