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.
4. United States v. Jawad and United States v. Khadr
Moving to the appeals courts, a stream of petitions has been brought by the Guantanamo detainees whom the Bush administration deemed enemy combatants. It's time for the administration to sort through the remaining 248 detainees. (More here from Dahlia Lithwick on that.) The president has halted the planned military commission trials at Guantanamo, and now the Obama lawyers should decide whom to charge. Most importantly, the new DoJ should stand up for the principle that the government can't detain people outside the fabric of constitutional law.
Mohammed Jawad was 16 or 17 when he was captured by the Afghan police in 2002 for allegedly throwing a grenade that severely injured American soldiers and an Afghan translator. While in Guantanamo, he says, he has been subjected to sleep deprivation and coerced into making a false confession. The former lead prosecutor in his case before the military tribunal now has switched sides and supports his appeal; he says that Jawad poses no current danger and should be sent home.
Omar Khadr is accused of killing a U.S. soldier in Afghanistan in 2002. The Canadian was 15 when he was taken into American custody. He says he was tortured and mistreated by the United States at Bagram Air Force Base and Guantanamo. Last summer, his lawyers released a video showing him crying and begging to be released. In November, a federal judge sent Khadr back to Bush's military commission system, which Obama halted at the beginning of his presidency. The Obama DoJ should either try Khadr in federal court or send him back to Canada.
5. Arar v. Ashcroft and Mohamed v. Jeppesen Dataplan
We know what happened to Maher Arar because the Canadian government has thoroughly investigated his experience of extraordinary rendition. In 2002, agents of the United States, whom the Canadians did not stop, shipped off Arar to Syria, where he was tortured while being interrogated for a year for his suspected links to al-Qaida. The Canadian government cleared Arar in 2006, apologized, and awarded him $10 million. Condoleezza Rice's State Department admitted that it mishandled his case. Arar wants redress in U.S. courts, under American law, to hold U.S. officials responsible.
Unlike the Canadians, the Bush administration refused to apologize and settle. Instead, its DoJ argued that neither the Constitution nor any federal statute (including the Torture Victim Protection Act) protects Arar, and further that the inquiry he wanted would require revealing "state secrets." A three-judge panel of the 2nd Circuit found additional reasons to cut off Arar from being heard in U.S. courts, but the full court, which heard argument in December, is reconsidering the case. Obama's DoJ should tell the court it need not rule, because the government is dropping the Bush position that Arar has no access to U.S. courts, and ask for time to reach a fair settlement with him.
In another case about extraordinary rendition and state secrets, five men who say the United States tortured them abroad are suing private contractor Jeppesen Dataplan for setting up the flights that took them to secret American prisons in Afghanistan, Pakistan, and elsewhere. The Bush administration intervened in the case to shield itself and private contractors, and said that the subject matter of the suit is a state secret. The district court dismissed the case without independent inquiry into whether the information was really secret. The 9th Circuit hears arguments in this case today; the Obama DoJ should live up to the administration's commitment to transparency and drop the blanket state-secrets defense so that these men can present relevant evidence.
6. Rasul v. Myers, Ashcroft v. Iqbal, Padilla v. Rumsfeld,and Padilla v. Yoo
Several other cases also raise questions about how to redress the wrongs of torture and detention: In Rasul v. Myers, four British detainees held for two years at Guantanamo are suing for damages based on their allegations that they were tortured (beaten and shackled) and suffered religious discrimination (desecration of the Quran). Last year, the D.C. Circuit dismissed their claims by accepting the Bush administration's argument that the men could not sue under the Geneva Conventions, the U.S. Constitution, or a federal anti-discrimination law. (For that last one, the court had to rule that the detainees did not qualify as "persons" under the relevant statute.) The D.C. Circuit also said that even assuming the suit could proceed, the officials being sued had qualified immunity, meaning they shouldn't be held responsible because they couldn't have reasonably been expected to know that what they did was illegal.
We know that the new DoJ is under a great deal of pressure to protect government officials from liability. But that's not what its pronounced commitments to accountability and responsibility permit. In Ashcroft v. Iqbal, argued before the Supreme Court in December before Obama took office, Bush lawyers tried to stop another lawsuit dead in its tracks with the claim that high-level officials should not even have to answer complaints brought against them.
The new government should take the bold step of retracting that position and accepting the obligation of government to account for its actions. In all of these cases, Obama's lawyers don't have to abandon the defense of "qualified immunity." But the DoJ should stop using it as an absolute shield. The rule should be that the government accedes to hearings on whether, given the relevant facts, government officials can convince judges that what they did at the time was based on their reasonable "good faith" belief that their actions were constitutional. This would open up another question: Can government officials use the torture memos as alibis? That is exactly the question that lawyers and judges should face.
The torture memos loom large in Padilla v. Rumsfeld and Padilla v. Yoo, which are also about redressing the wrong of mistreatment and alleged torture and whether high-level officials are immune to suit. Jose Padilla, an American citizen arrested in the Chicago airport and thrown into a military brig on never-proven "dirty bomber" charges, sued the officials whom his lawyers think are responsible for his detention and the mistreatment he endured in prison. (The stories of his deterioration are deeply disturbing.) These suits request vindication, not money—asking only $1 in damages. The Obama administration should respond by admitting wrongdoing and apologizing as well as by releasing still-secret DoJ memos (which the next case on our list also seeks).
7. ACLU v. DoD
In 2003, the American Civil Liberties Union began filing lawsuits to enforce its requests, under the Freedom of Information Act, for the release of memos by the Office of Legal Counsel that gave a green light to the Bush administration's policies of detention, interrogation, surveillance, and extraordinary rendition. (The government even argued that it was protecting prisoners' privacy by refusing to release pictures.) The ACLU has won some of its battles, including a judgment in the 2nd Circuit in September of 2008 requiring it to produce some of the memos. Yet the ACLU says that "most of the key OLC memos are still being withheld." This chart from ProPublica tracks which OLC documents are being kept secret. The Obama administration should comply with FOIA by dropping Bush's broad claims of executive privilege, review all of the OLC documents to determine which, if any, need to remain classified—as Dawn Johnsen, Obama's choice to head the OLC, has argued—and make the rest public.
8. United States v. New York City Board of Education
In 1996, the Clinton Justice Department sued the New York City Board of Education over discriminatory recruitment for school custodian jobs. The New York schools had been relying for hiring on word of mouth among male custodians and leaving out women and minorities, the lawsuit alleged. In a 1999 settlement, the DoJ and the city schools agreed that 50 women and minority custodians who'd been doing their jobs provisionally would get permanent employment and retroactive seniority. Then a group of white male custodians who didn't like the settlement entered the case, arguing that they were victims of reverse discrimination. By then, President Bush was in office. His DoJ refused to defend the settlement agreement for all of the white women and some of the minorities, and instead used the case to attack affirmative action. That was a switch by the DoJ in the wrong direction.
The women and minority custodians succeeded in defending most of the settlement before a district court judge last year. Now that ruling is on appeal to the 2nd Circuit, and the DoJ should go back to the original Clinton stance. The Obama lawyers should reject the Bush position and return to defending the 1999 settlement as well as the principle of breaking down old patterns of job segregation in public employment.
9. In re Polar Bear Litigation
Moving to the district courts, environmental groups sued the Bush administration in 2005 to protect the polar bear under the Endangered Species Act, because its habitat is disappearing as warming Arctic temperatures shrink the sea ice. Last May, a district court judge ruled that the Interior Department had to follow the ESA and make a decision about whether to protect the bear. Interior Secretary Dirk Kempthorne gave in and listed the polar bear as threatened—at significant risk of becoming endangered by midcentury. But Kempthorne took a swipe at the ESA, calling it "perhaps the least flexible law Congress has ever enacted," and issued a rule providing that greenhouse gases could not be regulated in order to protect the bear. The administration also ruled out any limits on oil or gas exploration. "So this leaves everything as it was, in a way," Andrew Revkin wrote in the New York Times.
The Obama administration has already broken with the Bush administration by accepting a judge's order to regulate the mercury from power plants and issuing a promising memo about standards for the energy efficiency of appliances. It should also bump up the polar bear's listing from threatened to endangered and withdraw the rule that exempts greenhouse gases from regulation that would help protect the bear.
10. Thompson v. HUD
We close by highlighting the struggles of district Judge Marvin Garbis, who tried to rectify the Bush administration's violations of anti-discrimination law. In 2005, Garbis held that the Department of Housing and Urban Development violated the Fair Housing Act by unfairly concentrating African-American public-housing residents in the most impoverished, segregated areas of Baltimore. The judge faulted HUD for treating Baltimore as "an island reservation for use as a container for all of the poor of a contiguous region." Faced with the judge's ruling, the Bush administration argued that he had no authority to order a remedy and then did not address the severe segregation it has spawned—despite Judge Garbis' admonition that "it is high time that HUD live up to its statutory mandate."
The plaintiffs in this case are proposing an innovative plan that takes a regional approach to desegregation and helps public-housing residents move out of Baltimore to parts of Maryland with more job opportunities. The new government should stop stonewalling and start figuring out how to desegregate.
DoJ, we appreciate that there's a lot of work to do.