Former Guantanamo Prosecutor to Testify for Defense

The former chief military prosecutor for the Guantanamo Bay tribunals, Colonel Morris Davis, will testify on behalf of detainee Salim Hamdan. Last year, Davis resigned alleging that politics were driving the prosecutions at Guantanamo. In an interview Morris claimed that DOD general William Hayes told him that none of the Guantanamo detainees could be acquitted, suggesting that the tribunal system had predetermined outcomes. (Jurist story; AP story; UPI story).

In earlier reports in the New York Times and Wall Street Journal Davis claimed that he was under political pressure to try cases in violation of commission rules and international law.

Supreme Court Refuses to Hear Challenge to Wiretapping Program

The Supreme Court refused to hear the ACLU's challenge to the Bush Administration's warrantless surveillance program (WP story). ACLU lawyers represented lawyers, journalists and others in challenging the legality of the administration's warrantless wiretapping program. The 6th Circuit Court of Appeals ruled that none of the plaintiffs had standing because they couldn't prove they had been monitored. The Sixth Circuit's opinion in ACLU v. NSA is available here. The decision creates an ironic legal absurdity. By violating federal law and refusing to seek warrants the Bush Administration keeps the targets of its surveillance secret. And by keeping the targets secret they effectively prevent anyone from having standing to challenge the program in court. In other areas of law courts have ruled that when a defendant hides its illegal behavior it cannot avail itself to equitable doctrines preventing suit - like the statute of limitations for example.

Media Confuses Court Action

The Washington Post published a story last week titled "Court Rejects ACLU Challenge to Wiretaps." In the first sentence it claimed, "The Supreme Court rejected a challenge Tuesday to the Bush administration's domestic spying program." This simply is not the case. The Supreme Court merely refused to hear the case - expressing no opinion on its merits. Later the Post changed the first line of the story to read: "The Supreme Court yesterday declined without comment to hear the American Civil Liberties Union's challenge of the Bush administration's domestic spying program."

Quiz Review

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Attorney General Refuses to Say Whether Waterboarding is Torture

In a response to questions from the Senate Judiciary Committee, Attorney General Mukasey refused to give an official opinion on whether waterboarding is torture. The attorney general stated that the practice is not currently being used, and therefore it would be "irresponsible" for him to judge its legality (AP Story). The U.S. Army Field Manual has prohibited waterboarding for decades. Human rights groups such as Amnesty International consider waterboarding to be torture. Amnesty responded to Mukasey's earlier statements on the issue here.

POLI 438 Syllabus Now Posted

The syllabus for the Legal Internship course is now posted. You can access it, and on the online readings by clicking the syllabus link.

Study Questions for Judiciary Section

Here are some questions to think about when reading the cases on the judiciary in constitutional law:

1. What power do the courts have?
2. What is judicial review?
3. What is the constitutional basis of judicial review?
4. What are the limits or checks on the power of the judiciary?
5. Where do these limits come from - what is their legal basis?