by Ana Avendano, Associate General Counsel, Director Immigrant Worker Program, AFL-CIO

Last week, the Bush Administration announced that it was changing its approach to “No-Match” letters in an attempt to meet concerns raised by a federal judge.

“No-match” letters are notices that the Social Security Administration (SSA) sends annually to employers who report a certain number of discrepancies between their employment records and SSA’s database. According to the SSA's website, the purpose of a letter is “to obtain corrected information to help SSA identify the individual to whom the earnings belong so that the earnings can be posted to the individual's earnings record.” This makes sense, given that the SSA was created as a safety net for working people, and allows an individual to keep an accurate record of one’s earnings and taxes. According to government records, 70 percent of discrepancies belong to native-born U.S. citizens.

“No-match” letters have long been used by employers to defeat worker organizing. Time after time, employers have used the letters as a pretext to fire workers when they try to organize, file a wage claim or otherwise exercise their workers’ rights.

On December 5, Jobs with Justice, along with partnered organizations, held a National Workers’ Rights Board Hearing concerning the SSA “No-Match” letters.

Writing at the Northwestern University Law Review's website, Victor B. Flatt of the University of Houston Law Center (who holds the A.L. O’Quinn Chair in Environmental Law, and also serves as director of the University's Environment, Energy, and Natural Resources Center, the University of Houston Law Center) recently posted an article analyzing the goals of proposed federal policies addressing climate change.  Particular questions he addresses include: " What Climate Change Effects are we Trying to Avoid?" and " Whom Are We Trying to Protect?"  Professor Flatt also considers the viability of compensation as a legislative goal.

Earlier today, the Supreme Court heard oral argument in one of the Term's most widely-watched cases, Boumediene v. Bush (consolidated with Al Odah v. United States), concerning whether Guantanamo Bay detainees have a right to bring habeas challenges to their detention.

In the past several weeks, ACS has made available a range of materials to inform and educate observers of the cases:

A new report released yesterday by the Justice Policy Institute found that although African Americans and whites use and sell drugs at similar rates, African Americans are ten times more likely than whites to be imprisoned for drug offenses. In nearly all of the nation's large-population counties, African Americans were imprisoned for drug offenses at a higher rate than whites regardless of whether there was a higher crime rate, according to “The Vortex: The Concentrated Racial Impact of Drug Imprisonment and the Characteristics of Punitive Counties.”

The report concludes that drug laws are selectively enforced primarily on minorities and the poor. Researchers attributed disparate policing practices, disparate treatment before the courts, mandatory minimum drug sentencing laws, and differences in the availability of drug treatment for African Americans compared with whites as reasons for the significant racial disparities seen in drug imprisonment rates.

Yesterday, two American activists were arrested in Lahore, Pakistan, after a rally calling for the restoration of democracy in the wake of emergency rule declared by President Parvez Musharraf on November 3.  Medea Benjamin, co-founder of the women's peace group CODE PINK, was abducted by authorities at gunpoint before later being released and expelled from the country.  Upon her release, she said, "If they do this to us . . . imagine what they do to their own citizens." 

by Cecillia Wang, senior staff attorney with the ACLU Immigrant's Rights Project

Visitors to the U.S. Naval Base at Guantanamo Bay always seem to be deeply affected by the journey. Many have mentioned the dissonance of American fast food joints on the island of Cuba and the palpable despair of the prisoners kept there by the United States government. For those of us who have not seen Guantanamo first-hand, the images in the media are equally searing.  In recent years, we’ve been seen photos of men in orange jumpsuits and blacked-out goggles, kneeling in cages, heads bowed, stripped of all identifying features and made to look other than human.

Before that, in the 1990s, there were the photos of small Haitian children huddled behind the barbed wire at Guantanamo, where they and other refugees were incarcerated after being plucked out of the sea by the U.S. Coast Guard. The United States government has long turned to Guantanamo when it wants to avoid compliance with the Constitution and other laws.

Tomorrow, Guantanamo will once again be in the spotlight, when the Supreme Court hears argument in the consolidated cases of Boumediene v. Bush and Al Odah v. United States. Judging from the three sets of petitioners’ briefs, the government’s brief, and about 26 amicus briefs, the world will be watching.

One side believes that the Executive Branch must be able to detain -- without judicial interference -- to save America from terrorism. The other side believes that the Administration’s detention policies will destroy the America's constitutional fabric. Everyone seems to agree on one thing: The future of the nation is at stake.

A three-judge panel on the U.S. Court of Appeals for the Eighth Circuit, including Associate Justice Sandra Day O'Connor, sitting by designation, upheld the substance of an opinion by Chief District Judge Robert W. Pratt of the Southern District of Iowa that concluded that a faith-based inmate rehabilitation program funded through government payments violated the Establishment Clauses the U.S. and Iowa Constitutions.

The Supreme Court released two unanimous opinions today and granted three petitions for certiorari yesterday.

In a unanimous opinion written by Associate Justice Ruth Bader Ginsburg, the Court in Logan v. U.S. held that a carve-out to a sentencing enhancement provision of the Armed Career Criminal Act of 1984 that encompassed persons who had their "civil rights restored" did not embrace persons whose convictions did not result in the deprivation of their civil rights in the first place. More is available at SCOTUSBlog.

In a unanimous opinion written by Chief Justice John Roberts, the Court in CSX Transportation v. Georgia State Board of Equalization held that "railroads may challenge the accounting formulas used by states to measure the value of rail property" under a federal law that protects railroads from tax discrimination, according to SCOTUSBlog.  

The Court granted certiorari in Rothgery v. Gillespie County regarding the point at which a suspect in police custody has the right to a legal counsel. According to the question presented, "In this case, petitioner was arrested and brought before a magistrate judge who informed petitioner of the accusation against him, found probable cause that he had committed the offense based on a police officer’s sworn affidavit, and committed him to jail pending trial or the posting of bail. The question presented is whether the Fifth Circuit correctly held . . . that adversary judicial proceedings nevertheless had not commenced, and petitioner’s Sixth Amendment rights had not attached, because no prosecutor was involved in petitioner’s arrest or appearance before the magistrate."

According to SCOTUSBlog, the Court also granted certiorari in Republic of the Philippines, et al. v. Pimentel, et al., "an appeal by the Philippine government in a dispute over control of the assets of the late president, Ferdinand E. Marcos," and in United States v. Clintwood Elkhorn Mining Company, "an appeal by the federal government over the right to sue the government for a tax refund in a constitutional lawsuit, if the taxpayer has failed to first pursue a tax refund claim with the Internal Revenue Service and then filed a refund claim in federal court."

The Boston Globe's Charlie Savage reported that "President Bush issued his first signing statement since [the 2006 elections], reserving the right to bypass 11 provisions in a military appropriations bill under his executive powers," in an article on Saturday. In the statements, President Bush "challenged several requirements to provide information to congress," as well as limits on the administration's ability to transfer congressionally approved funds to start a different program.

Although the article described the statements as taking "a less aggressive tone" by only referring to objections made in past documents, White House spokesman Tony Fratto says issuing the shorter signing statements are "just easier," and the administration's position "hasn't changed."

ACS released an issue brief by Neil Kinkopf entitled "Signing Statements and the President's Authority to Refuse to Enforce the Law," an "Index of Presidential Signing Statements: 2001-2007" compiled by Neil Kinkopf and Peter Shane, and held a plenary discussion at its 2006 National Convention on "Separation of Powers: Restoring the Balance Among the Branches" that includes a discussion of signing statements.

by Sahr MuhammedAlly, Senior Counsel with the Law & Security Program at Human Rights First, who is blogging from Guantanamo Bay (written on December 3)

December 3, 2007: The usual reporters and non-governmental organizations are traveling from Andrews Air Force Base to Guantánamo Bay, Cuba to observe the military commission hearing of Yemeni national Salim Ahmed Hamdan. Hamdan has been charged with providing military support to terrorists in Afghanistan and conspiring to aid terrorism.  He is accused of serving as a bodyguard and personal driver for Osama bin Ladin.

This is round two for Hamdan. Back in June, Judge Navy Captain Keith J. Allred dismissed the charges against Hamdan on jurisdictional grounds, concluding that the military had not found him to be an “unlawful enemy combatant.” A Combatant Status Review Tribunal (CSRT) had found him to be only an “enemy combatant.”

The government asked the judge to reconsider. Judge Allred obliged, noting that “the interests of justice are served by reopening the hearing” to determine whether the commission trial may get underway. The judge relied on a September 24 ruling by the Court of Military Commission Review (CMCR), created shortly after the June ruling, which held that a military judge is authorized to decide the jurisdictional issue by deciding whether the individual’s status should be deemed “unlawful.”

For an analysis of Riegel v. Medtronic, argued before the U.S. Supreme Court today, go here.

• Senator Gary Hart, former Co-Chair, U.S. Commission on National Security/21st century, delivered opening remarks at a conference entitled “Building Freedom, Building Security: America’s Challenge for the Next Five Years," on September 7, 2007.On Friday, September 7, 2007, ACS and the Brennan Center for Justice at New York University School of Law co-sponsored a conference entitled "Building Freedom, Building Security: America's Challenge for the Next Five Years."
  

Experts from a variety of backgrounds discussed issues of national security, counterterrorism and goals for the future. An audio recording of the speakers and panels is available in ACS' multimedia library.

ACS recently hosted a panel discussion on the upcoming Supreme Court case, Riegel v. Medtronic, which deals with whether state tort claims are preempted by approval of a medical device by the Food and Drug Administration. Experts from a variety of perspectives presented their views on the case and previewed some of the points likely to be raised when the Supreme Court hears oral argument on December 4th. In addition, panelists discussed preemption doctrine and its application in the health and safety arena. More coverage of the 2007-2008 Supreme Court Term is available here.

Moderated by Paul T. Kim, Partner, Foley Hoag L.L.P., the panel included David C. Vladeck, professor, Georgetown University Law Center, Catherine M. Sharkey, professor, New York University School of Law, David C. Frederick, partner, Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C. and Richard A. Samp, Chief Counsel, Washington Legal Foundation. Streaming video is available here.

Paul Kim sets forth the facts and procedural history of Riegel v. Medtronic.

Follow the links for a complete list of House and Senate hearings. Here is the calendar for the House  and Senate. Below the fold is a selected list of Congressional hearings.

Of note: on Thursday, the Senate Judiciary Committee will consider the Sunshine in the Courtroom Act of 2007 - a bill to permit the televising of Supreme Court proceedings, the Federal Judicial Salary Restoration Act of 2007, the Protect Our Children First Act and two Internet safety-related Acts, and the nomination of Ronald Jay Tenpas to Assistant Attorney General for the Environment and Natural Resources Division at the Department of Justice.

In Brief:

• Preview of Congressional and administrative priorities
• A closer look at military commissions
• 405 Texas death penalty executions

by Woodley Osborne, Of Counsel, Mehri & Skalet, PLLC, Washington, D.C.

The Supreme Court will hear argument today in a case presenting important questions regarding the kind of evidence available to plaintiffs alleging employment discrimination. In Sprint/United Management Co. v. Mendelsohn, the Court will be asked to resolve divergent views regarding the admissibility of two categories of evidence: “other supervisor” evidence—evidence that an employer’s supervisors, other than the one who supervised the plaintiff, may also have engaged in acts of discrimination; and "culture evidence"—evidence of a pattern and practice of discrimination.

Ellen Mendelsohn was laid off by Sprint as part of a company wide reduction in force. She sued Sprint claiming that her selection for termination was the product of age bias. At Sprint’s behest the District Court barred Ms. Mendlesohn from introducing any evidence that Sprint “has a pattern and practice, culture or history of age discrimination,” and any evidence regarding discrimination against other employees unless the decision-maker was her supervisor and there was “temporal proximity,” i.e., the decision was close in time to the decision affecting Ms. Mendelsohn.  With this evidence out, the jury returned a verdict for Sprint.

A divided court of appeals reversed, holding that the evidence proffered by Ms. Mendelsohn was “relevant to Sprint’s [alleged] discriminatory animus toward older workers,” and that evidence of a pattern of discrimination is at least circumstantial evidence that the selection of Ms. Mendelsohn for termination was also discriminatory.

The U.S. Supreme Court will hear argument in five cases this week. Video of ACS' Preview of the 2007-2008 Supreme Court Term is available in ACS' Multimedia Library. More information on the Term, including briefings, analysis, and videos, may be found here.

Monday, December 3

• Sprint/United Management v. Mendelsohn (admission of "me, too" evidence in a single worker's age discrimination cases)

Tuesday, December 4 

• Riegel v. Medtronic (whether the Food, Drug, and Cosmetic Act preempts state tort claims for devices that received premarket approval)

• Snyder v. Louisiana (peremptory challenges based on race)

Wednesday, December 5

• Boumediene v. Bush (Guantanamo Bay detainees right to bring habeas challenge) (consolidated with Al Odah v. United States)

Questions Presented are below the fold.

The Los Angeles Times reported that the federal clemency system has the largest backlog of cases in recent history. More than 3,000 petitions for clemency filed by federal prisoners are pending. After acting on several hundred petitions a year, President Bush has acted on only 18 cases this year, most recently to commute the prison sentence of former White House aid I. Lewis Libby in July.

"The number of cases that are not being acted on is skyrocketing," said P.S. Ruckman Jr., a clemency expert and professor at Rock Valley College. Since World War II, on average 500 to 1,000 requests are pending at any given time, with approximately 1,000 petitions per year.

ACS released an issue brief by Margaret Colgate Love last month that examined the president's pardon powers.

On Wednesday, the Georgia Supreme Court struck down part of a state law that prohibited registered sex offenders from living with 1,000 feet of schools, day care centers, and other establishments serving children, such as churches.  The court limited its ruling to the law's residency prohibitions, which they deemed an "illegal taking" on the ground that it effectively requires sex offenders who own homes to abandon them if such a new such establishment is built in their area.

This week, New York Times journalist Adam Liptak wrote in the International Herald Tribune about Chicago labor lawyer Thomas Geoghegan's new book "See You in Court." Responding to and reconceptualizing calls for tort reform, Geoghegan argues that "[w]e have to bring back predictability in the law," and, in Liptak's words, "bemoans the rise of tort claims, lawsuits over injuries that can give rise to enormous jury verdicts."

But . . . Geoghegan blames conservative legal theorists and big business, not plaintiffs' lawyers and the rise of the regulatory state.

The reason there is so much tort litigation, Geoghegan says, is that workers and others no longer have contracts they can enforce. Lacking contracts, they are reduced to making wild allegations and asking for extravagant damages in suits that mostly fail but that sometimes pay off like a lottery ticket. . . .

The move from labor law to employment litigation — from contract to tort, in the legal jargon — injected all sorts of expense and unpredictability into a process that used to be straightforward and relatively humane.

On Monday, the U.S. Court of Appeals for the Eighth Circuit denied a motion to rehear a lawsuit by the Major League Baseball Players Association against a fantasy baseball company that uses players' statistics and names without paying a licensing fee, the St. Louis Dispatch reported. The three-judge panel had previously found that the company's use of the statistics is not the same as "faking an endorsement from a player and not paying him."

Stories:

• "Businesses have been seeking, and increasingly courts have been granting, preemption of state regulatory and common-law safeguards, regardless of whether Congress anticipated or intended any such results," writes Simon Lazarus and Harper Jean Tobin in a guest blog post discussing Rowe v. New Hampshire Motor Transport Association. 
• How should the Supreme Court decide hard cases? In a series of six articles, Geoffrey R. Stone, a professor of law at the University of Chicago Law School and member of ACS' Board of Directors, explores his vision "constitutionalism."
• Simon Lazarus asks whether the Supreme Court is “repealing the 20th century” in his latest article published in The American Prospect.
• The Economist eulogizes Lieutenant Milo Radulovich, a victim of the Red Scare, and draws comparisons to today.
• The difficulties encountered by individuals convicted of crimes and later exonerated by DNA evidence.
• Judges are issuing sealed orders in response to secret government requests that ask cell phone providers to provide real-time tracking data on customers absent a showing of probable cause and in violation of internal Department of Justice guidelines.
• Stephanie Coontz asks "why do people – gay or straight – need the state's permission to marry?"
• An attorney who revealed that his deceased client committed a murder – so as to exonerate another man who has served 21 years in prison – may lose his law license.

Resources:

• An issue brief entitled "Guantanamo is Here: The Military Commissions Act and Noncitizen Vulnerability," by Muneer I. Ahmad, professor of law at American University Washington College of Law.
• Video from a panel discussion entitled "Voter ID Laws: Preventing Fraud or Suppressing the Vote?"

News reports emerged this week that some judges are issuing sealed orders in response to secret government requests that ask cell phone providers to provide real-time tracking information about their customers absent a showing of probable cause that a crime is taking place or that the inquiry will reveal evidence of a crime.

Even when not in use, cell phones can be tracked, and the federally mandated "enhanced 911" location tracking system can locate a phone to within 30 feet. Privacy advocates caution tracking data will be even easier to obtain if the FCC adopts a DOJ proposal to make yet more detailed GPS data automatically available.

ACS recently released an issue brief entitled "Guantanamo is Here: The Military Commissions Act and Noncitizen Vulnerability," by Muneer I. Ahmad, professor of law at American University Washington College of Law.

Professor Ahmad examines how the Military Commissions Act of 2006 allocates rights premised on a distinction between citizens and noncitizens, which, he argues, creates a rights differential supported by neither law nor reason.

Next week, the U.S. Supreme Court will hear argument in Boumediene v. Bush and Al Odah v. U.S., at the core of which is the question of whether the MCA constitutionally removes the right of habeas corpus for Guantanamo Bay detainees. Professor Ahmad argues the ramifications of the Court's decision may extend well beyond Guantanamo to encompass the rights of all noncitizens.

This week, the Economist eulogized Lieutenant Milo Radulovich, who was expelled from the air force reserve at the height of the Red Scare because of "his close and continuing association with his father and sister." His father had subscribed to a newspaper the government did not like and his sister was photographed picketing a Detroit hotel that had refused admittance to a black singer.

News reporter Edward R. Morrow interviewed Radulovich on "See It Now," despite concerns by CBS that the program would alienate its sponsor and government contractor Alcoa. The broadcast paved the way for the unraveling, censure, and downfall of Senator Eugene McCarthy two years later.

Fifty-two years after his TV appearance with Murrow, Radulovich was hired to advise the makers of a movie about McCarthyism, which led to public demand for him to speak out on civil liberties. The Economist writes:

Though McCarthy's campaign was long dead, a new enemy, terrorism, was stalking the public imagination, and terms like racial profiling and sneak-and-peek searches had entered the language to describe practices that the red-scare demagogue might well have approved of.

The 2001 Patriot Act had given government agencies the right to examine citizens' library and bookshop records, bringing back memories of old Radulovich's supposedly incriminating reading habits. And President George Bush's plans to try “enemy combatants” in military tribunals, with their lower standards than civilian courts, were bringing back memories of the air-force hearing that had condemned the young Mr Radulovich. In that proceeding the air force's lawyer had brandished a sealed envelope supposedly containing evidence, though its contents were never to be seen by the accused or his defenders.