Emily Bazelon recently chatted online with readers about this article. Read the transcript.
Obama's inauguration shifted the gears of the Department of Justice. In Week 1, the administration announced plans to change positions on Guantanamo. In Week 2, Obama signed the Lilly Ledbetter bill, helping plaintiffs suing for pay discrimination, which Bush had threatened to veto. Around the country, judges are asking what else will change and sometimes giving the government extra time to figure out what it wants to say in pending cases.
Which Bush legal positions should the new administration reject? With thousands of cases left over from the Bush era still pending, the question is a daunting one for the Obama team. But we've taken a first crack at it and made a list of the top 10 positions that really should go. (Your additional suggestions are welcome, in "The Fray" or via e-mail.)
Given that the Bush administration has been defending torture and preventive detention and trying to block our knowledge of its practices through a host of procedural maneuvers, we could have filled the entire list with national security cases. But we don't want to give the skewed sense that the legal problems created by Bush's Justice Department are only in that area. The overarching Bush effort that Obama's lawyers should reject is the pervasive, insistent attempt to keep people out of the courts. We picked cases that are vehicles for pushing back against that. The first three are before the Supreme Court:
1. Al-Marri v. Pucciarelli
Ali Al-Marri, a national of Qatar, is in an unlucky category of one: He was arrested while legally in the United States in 2001, and then the government dropped criminal charges against him a month before his trial, declared him an enemy combatant, and threw him into a military brig. Marri has been in isolation since 2003, held uncharged and untried. The 4th Circuit fractured over what the Bush administration had to show to keep Marri locked up. The government has argued that Congress' 2001 authorization of the use of military force permits indefinite domestic detention.
In December, the Supreme Court agreed to hear Marri's challenge to his detention; on March 23, we'll hear from the Obama DoJ. The Obama DoJ brief should embrace the courts' authority to review the grounds for holding Marri and acknowledge that Congress did not authorize domestic military internment.
2. AT&T v. Hulteen
In December, AT&T argued to the Supreme Court that the company's failure to credit Noreen Hulteen and three other female employees for pregnancy leaves they took two decades earlier when calculating their retirement benefits in the 1990s was not discrimination on the basis of gender or pregnancy. And even if there was an act of discrimination, AT&T continued, the women had run out of time to sue. In part, the company relied on the 2007 case of Lilly Ledbetter, who was told by the Supreme Court that she was too late to get to court in her pay discrimination case. (The majority read federal law to say that Ledbetter had 180 days to sue from when she was first paid less than men at her workplace for doing the same job, not when—years later—she discovered that she'd been shortchanged because she was a woman.)
At the Supreme Court, AT&T had the support of the Bush Justice Department (though not, tellingly, of the Equal Employment Opportunity Commission). One of the first acts of the new Congress, however, was to pass a bill, which Obama supported as a senator and ceremoniously signed as president, that reversed the Ledbetter ruling so that women like her could get their day in court. The Ledbetter Fair Pay Act gives Obama's DoJ a graceful entry to go back to the Supreme Court about Hulteen. The government should ask the justices to return the case to the 9th Circuit for reconsideration in light of the new Ledbetter statute and its flexibility about the timing for pay-discrimination lawsuits.
3.Denedo v. United States
Jacob Denedo, a specialist 2nd class in the Navy, was told by his lawyer that he should plead guilty in 1998 to a minor offense. What his lawyer did not tell him was that, as a "collateral consequence," he was at risk of being deported. (Born in Nigeria, he'd immigrated to the United States in 1984 and became a legal resident in 1990.) Several years later, when Denedo's deportation process began, his new lawyers asked the Court of Military Appeals for a hearing about whether his original lawyer had been constitutionally deficient because he had failed to tell his client that a guilty plea entailed the possibility of deportation.
After the Court of Military Appeals agreed and granted the hearing, the Bush administration stepped in and persuaded the Supreme Court to hear the case. To head off the hearing, the government has argued that, because life-tenured judges in the civilian federal courts could conceivably hear Denedo's claim of ineffective assistance of counsel, the military courts could not. This case seems small, but it's another one that raises the important question of access—which the Court of Military Appeals got right. The new DoJ should ask the Supreme Court not to hear the case after all, so that a hearing into the facts surrounding Denedo's guilty plea can proceed in the place it should—the military courts.