Federal Judiciary

It?s War on Terror Day in the D.C. Circuit

By Robert Loblaw

Rasul v. Rumsfeld, 06-5209 (D.C. Cir., Jan. 11, 2008)

National Institute of Military Justice, 06-5242 (D.C. Cir., Jan. 11, 2008)

U.S. v. Sheehan, 07-3002 (D.C. Cir., Jan. 11, 2008)

Things might not be looking so hot in Iraq, but today, the Bush administration won two significant victories in the War on Terror, courtesy of the D.C. Circuit.

In Rasul, the Court throws out claims by Guantanamo detainees that the conditions of their confinement and interrogation violate the Constitution and the Religious Freedom Restoration Act. The district court had dismissed the plaintiffs? constitutional claims but had allowed them to proceed under RFRA. The D.C. Circuit reverses this portion of the lower court?s decision, with the majority holding that aliens are not “persons” within the meaning of RFRA. Judge Brown disagrees with this aspect of the majority?s decision but would reach the same result on different grounds.

The Administration?s second victory comes in National Institute of Military Justice, a Freedom of Information Act case. At issue is whether the Department of Defense must disclose the recommendations made by private lawyers on how to conduct military trials for terrorism suspects held at Guantanamo Bay. By a 2-1 vote, the panel concludes that these records are protected by the FOIA exemption for intra-agency memos and letters. The majority of Judges Henderson and Williams explains that the authors of the memos are akin to agency consultants, because the Department of Defense specifically solicited the advice of these private lawyers and professors. Judge Tatel disagrees, arguing that the majority has stretched the term “intra-agency” far beyond its logical limits.

But the news is not all rosy for the government. In a third decision, the D.C. Circuit reverses the conviction of prominent anti-war protestor Cindy Sheehan. Sheehan was convicted of violating a National Park Service ordinance that requires protestors to obtain a permit in order to demonstrate on the sidewalk in front of the White House. The D.C. panel upholds the ordinance but concludes that Sheehan?s conviction cannot stand because the district court treated the ordinance as a strict liability offense and did not allow Sheehan to present evidence that she lacked the necessary mens rea. So Cindy Sheehan is entitled to a second trial over whether she needs to pay $75 in fees and fines. Perhaps a little prosecutorial discretion is in order at this point.

Full post as published by Decision of the Day on January 11, 2008 (boomark / email).