Congress Investigates CIA Toruture Policy by Seizure of Justice Department Documents

Congress seized Justice Department documents in order to discover whether the President has authorized torture techniques banned by the Detainee Treatment Act of 2005. Since memorandums exposed by the New York Times first alerted Congress to this issue, the Democratically-controlled legislature has pressured the Justice Department to more readily disclose documents. The situation begs the question as to whether the executive branch has taken the opportunity to disrupt the balance of power with the unique situation the War on Terror has presented to the government.

For more information about the issue, the New York Times article can be found here.

On the Docket to See Case Dealing with Scope of Presidential Power

On Wednesday, October 10th On the Docket will be taking Georgetown undergraduates down to see Medellin v. Texas. Details of the case are as follows:

In the Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), I.C.J. No. 128 (judgment of Mar. 31, 2004), the International Court of Justice determined that 51 named Mexican nationals, including petitioner, were entitled to receive review and reconsideration of their convictions and sentences through the judicial process in the United States. On February 28, 2005, President George W. Bush determined that the United States would comply with its international obligation to give effect to the judgment by giving those 51 individuals review and reconsideration in the state courts. However, the Texas Court of Criminal Appeals held that the President’s determination exceeded his powers, and it refused to give effect to the Avena judgment or the President’s determination. This case presents the following questions:

1. Did the President of the United States act within his constitutional and statutory foreign affairs authority when he determined that the states must comply with the United States’ treaty obligation to give effect to the Avena judgment in the cases of the 51 Mexican nationals named in the judgment?

2. Are state courts bound by the Constitution to honor the undisputed international obligation of the United States, under treaties duly ratified by the President with the advice and consent of the Senate, to give effect to the Avena judgment in the cases that the judgment addressed?

We will meet at the GUTS bus stop in front of Leo's at 6am and be back on campus by 12 noon. Breakfast will be provided for those who come to the case. Sign up now by emailing onthedocket@georgetown.edu!

Some Upcoming Cases of Note

The media have been very talkative lately about a 1) death penalty case 2) voter ID and 3) several cases dealing with detainees in the upcoming term. The NY Times' Linda Greenhouse predicts that that this upcoming term will be marked by severe disagreement among the justices and lots of dissent.

Take a look at what Greenhouse has to say here.

Circuit Court Ruling Affirms FAIR Decision

A valiant effort by Yale Law School to challenge the Solomon Amendment once again fails in the federal courts. The 2nd Circuit of the Court of Appeals affirmed the jurisprudence laid out in the Rumsfeld v. FAIR decision handed down by the USSC in 2006. Circuit Judge Pooler wrote the opinion for the case which can be found here.

The court rejected the law school's argument saying that its academic freedom was violated by a government policy which would rescind federal funding of the law school if it did not give military recruiters the same access as other job recruiters.

Read more about the case here.

Government Collection of Traveler Data a Violation of the 4th Amendment?

An article published in the Washington Post today reveals that the Department of Homeland Security has been collecting more data on travelers than previously thought. Through the use of something called the Automated Targeting System, the data on travelers has been collected since the mid 1990s to "assess the security threat posed by all passengers entering the U.S."

However, recent dossiers obtained from the Department of Homeland Security's ATS suggest that the information gathered goes above and beyond what is required to check for a "security risk" as the government has data on "the travel habits of millions of Americans who fly, drive or take cruises abroad, retaining data on the persons with whom they travel or plan to stay, the personal items they carry during their journeys, and even the books that travelers have carried."

Apparently, those critical of the system say that information could be used to make correlations and create relationships that may not actually be valid. The Washington Post reports:

"Edward Hasbrouck, a civil liberties activist who was a travel agent for more than 15 years, said that his file contained coding that reflected his plan to fly with another individual. In fact, Hasbrouck wound up not flying with that person, but the record, which can be linked to the other passenger's name, remained in the system. "The Automated Targeting System," Hasbrouck alleged, "is the largest system of government dossiers of individual Americans' personal activities that the government has ever created."

He said that travel records are among the most potentially invasive of records because they can suggest links: They show who a traveler sat next to, where they stayed, when they left. "It's that lifetime log of everywhere you go that can be correlated with other people's movements that's most dangerous," he said. "If you sat next to someone once, that's a coincidence. If you sat next to them twice, that's a relationship.'"

If the ATS does ever reach a court dispute over whether or not it violates the Privacy Act of 1974, which prohibits, among other things "gathering of data related to Americans' exercise of their First Amendment rights, such as their choice of reading material or persons with whom to associate," the question could ultimately come down to whether these searches and seizures are reasonable under the 4th Amendment's prohibition of unreasonable searches and seizures.