National Defense Auth. Act - What the Hell?

From the ACLU - 

As Congress considers the National Defense Authorization Act (NDAA) for the 2012 fiscal year, a handful of senators have turned the bill into a vehicle for dangerous provisions that would authorize the president — and all future presidents — to order the military to pick up and imprison people, including U.S. citizens, without charging them or putting them on trial.

Earlier this year, the House passed its own version of the bill, with an even smaller group of members pushing for inclusion of a provision that would authorize worldwide war, and worldwide imprisonment, in virtually any country where a terrorism suspect lives, even here in America itself.

Now, both houses of Congress are now rushing to come up with a joint version and rush it through Congress within the next week or two. 

The "Big Four" leaders of the Senate and House Armed Services Committee are huddling behind closed doors and may very well spring a new bill on Congress, once again without so much as a hearing.

The president isn't the one asking for this legislation – in fact, the White House has repeatedly threatened to veto the bill over its concern for indefinite detention provisions. And, the Secretary of Defense, the Director of National Intelligence, the Director of the FBI and the head of theJustice Department’s National Security Division have all said that the indefinite detention provisions in the NDAA are harmful and counterproductive.

The provisions – which were negotiated by a small group of members of Congress, in secret, and without proper congressional review – are inconsistent with fundamental American values embodied in the Constitution. Fundamental American values and fundamental freedoms are on the line.

Supreme Court Watch: Oral Argument heard last week in Immigration misadvice case

For those of you out there handling cases in which people might get deported or illegal reentry cases, keep your eyes on Padilla v. Commonwealth of Kentucky. The United States Supreme Court heard oral argument last week on this important case that has the potential to have significant ramifications. The issue presented is whether the Sixth Amendment’s guarantee of effective assistance of counsel require a criminal defense attorney to advise a non-citizen client that pleading guilty to an aggravated felony will trigger mandatory, automatic deportation, and if that misadvice about deportation induces a guilty plea, can that misadvice amount to ineffective assistance of counsel and warrant setting aside the guilty plea? If the Court were to decide that affirmative misadvice by an attorney regarding immigration consequences would entitled a person to challenge a prior conviction, that will raise significant issues for many people who pled guilty only to find themselves deported by surprise. For full briefing and links to oral argument, check Scotuswiki.

Of course, ideally the criminal defense attorneys out there dealing with cases with immigration consequences are careful not to misadvice to begin with. Good investigation plays a role in this as well by obtaining the proper records and being advised of a client's immigration status as early as possible in the case. Depending on the ruling, there could be a few habeas corpus petitions coming to a courtroom near you.

Should Jawad Be Free?

This video explains the habeas corpus case of Mohammed Jawad, a teenager when first captured, detained by the United States government for the past six years in Guantanamo. Credit must be given to the United States Army Prosecutor, Lt. Col. Darrel Vandeveld, who resigned rather than continue to participate in the trial. He has written a declaration in support of Mr. Jawad's habeas petition urging that Mr. Jawad be released.

New Life for Habeas

For those investigators blessed (or cursed) with doing habeas work, here is some hope for new life on retroactivity based upon the US Supreme Court's ruling in Danforth v. Minnesota. The standard for retroactivity analysis has been Teague v. Lane; however, Danforth explicitly permits state courts to fashion their own rules governing the retroactive application of new federal constitutional rules in postconviction proceedings, and leaves open the question whether lower federal courts are bound by Teague in postconviction review of federal criminal convictions. This is a long way of saying that habeas proceedings might be a bit more wide open if the lower federal courts can widen the lens of retroactive application of a new rule. This could be particularly important with the upcoming ruling of Arizona v. Gant-the case involving whether the police may search a car incident to arrest after the occupant is already out of the car.

For more analysis courtesy of Professor Berman, click here.