Constitutional
Law Class Notes
All
this week, we’ll talk about Padilla in some sense. We’ll dance around, but won’t read, the Youngstown Sheet case. Chemerinsky will talk about it. The concurring opinion of Justice Jackson is
considered even more important than the majority opinion of Justice Hugo Black.
We
also saw references to two old cases from WWII and the Civil War: Ex Parte Quirin and Ex Parte Milligan.
We’ll read both of those later this week. Don’t read the account of the oral arguments
for the latter. They go on forever.
Next
week is also on the Separation of Powers Doctrine.
Shape
up or ship out! Don’t play games!
Foley
thinks that the organization of this case is all backwards.
There
is no bigger case than this one. This is
the case of the century! The Supreme
Court has granted cert. They will decide
the case by July 4th this year.
Does the president have the power to detain citizens? Or does the Constitution guarantee citizens
certain inalienable rights? Does the Constitution
forbid the government from engaging in unlimited detention?
The
Supreme Court has also granted cert in the Hamdi case and the
Hamdi is also an American citizen. He
was captured in
Hamdi raised many of the same issues as Padilla. It is claimed that the president doesn’t have
the authority to detain citizens indefinitely and that Congress hasn’t given
the president this authority.
What
are the circumstances under which Padilla was captured? Padilla was coming back from overseas. He was arrested by the FBI pursuant to a
material witness warrant that had been issued by a judge. Padilla had been in
We
haven’t taken Evidence, but we have taken Criminal Law. If this were a criminal trial, has the government
presented any evidence against Padilla?
There is a declaration by Michael Mobbs. He isn’t a witness before the court. He didn’t sign an affidavit. What about the hearsay rule? You’re not allowed to testify to what someone else said. You can only testify to what you know. From a legal standpoint, there’s nothing here
that counts as evidence that Padilla has ties to al Qaeda
or was involved in a plot to detonate a dirty bomb. The court can’t make any findings of fact
because no facts have been presented.
The government asserts that they need not provide any such evidence, but
need only assert that the president has made this determination.
There
are sealed and unsealed declarations.
The sealed declaration asserts that there is evidence, but that evidence
hasn’t been presented judicially. Even
the sealed version just says that people in the Justice Department have
evidence. That evidence has not been
presented in court. That doesn’t
necessarily mean anything, but it’s just a fact about how the litigation is
proceeding. This is a lot different from
an ordinary criminal trial context. In
that context, you couldn’t lock Padilla up indefinitely until he is convicted. Everything Padilla is accused of doing is a
crime and he could have been prosecuted in an ordinary criminal proceeding.
The
government doesn’t want a criminal trial in this context. They don’t want to have to expose who their
secret witnesses are. So: Can the government
lock someone up who they think is a bad guy without a criminal trial if they
don’t want to have one?
Consider
the
Padilla’s
lawyer said that Padilla can’t be moved from the criminal system to the
military justice system because Padilla is a
There
wasn’t really a trial here. Maybe we
want to prevent overseas agents from having their cover blown. But also, there are lots of evidentiary
problems. The “evidence” in the military
papers has nothing to do with “evidence as advocacy”, but only with “evidence
as fact”.
The
District Court and dissenting judge in this case believe that although the
president has some inherent authority to detain Padilla indefinitely, there is some judicial oversight over this. The District Court and dissent don’t believe
that this is a probably criminal trial.
There may be a small fact-finding role to take place: a “some evidence” standard.
President
Bush asserts that there is no judicial fact finding role at all. The extent to which
the Mobbs declaration gets tested in court is
important, but also rests on some basic legal questions that will soon be
decided.
Has
Congress given the president the authority to detain Padilla indefinitely? We will apply the Justice Jackson analysis to
this set of facts.