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Streamlining Habeas Corpus While Undermining Judicial Review: How 28 U.S.C. Sec. 2254(d)(1) Violates the Constitution
No full textAlthough this article focuses on the writ of habeas corpus as filed by prisoners in state custody and as regulated by 28 U.S.C. § 2254, the recent developments involving the writ as filed by prisoners in federal custody and as regulated by 28 U.S.C. § 2241 are worth noting. Section II of Justice Steven\u27s majority opinion in Rasul v. Bush2 deserves reading and re-reading because it recognizes the importance of the writ of habeas corpus in American jurisprudence. Section IV of the opinion holds that even [a]liens held at the [Guantanamo Bay] base, no less than American citizens, are entitled to invoke the federal courts\u27 authority [to grant writs of habeas corpus] under § 2241 of title 28 of the United States Code. The federal court\u27s authority to grant the writ of habeas corpus to prisoners in federal custody has its foundation in Article 1, Section 9, Clause 2 of the U.S. Constitution which provides that [t]he privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. Accordingly, the Supreme Court has noted that the statutory grant of habeas jurisdiction to federal courts is constitutionally compelled by the Suspension Clause. Section 7 of the Military Commissions Act of 2006 ( MCA ), passed by Congress on September 29, 2006, and signed by the President on October 17, 2006, strips federal courts of habeas jurisdiction over an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination. Section 3 amends subtitle A of title 10 of the United States Code by defining unlawful enemy combatant as a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents ... or a person who, before, on, or after the date of the enactment of [ ] [this Act], has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal . . . . Consequently, individuals falling under this definition cannot seek relief by filing a writ of habeas corpus whether they are aliens or citizens.\u27 For these people, the writ of habeas corpus has been suspended. Passed in response to the Supreme Court\u27s decision in Hamdan v. Rumsfeld, the MCA-according to Senator Patrick Leahy-is flagrantly unconstitutional. Limiting the discussion only to the habeas jurisdiction-stripping provision of the MCA, Section 7 can be challenged on the basis that its suspension of the writ is unconstitutional because there is no rebellion or invasion. The abrogation of the writ of habeas corpus by the MCA is not a new phenomenon brought forth by the terrorist attacks of September 11, 2001, and the War on Terror. In fact, the unconstitutional abrogation of protections and rights occurs after every domestic act of terror. Just as the MCA cuts back on habeas rights of prisoners in federal custody, the Antiterrorism and Effective Death Penalty Act of 1996 ( AEDPA ) similarly cuts back on habeas rights of prisoners in state custody. Just as the MCA was passed to cut back rights of the international terrorists being held at Guantanamo Bay, AEDPA was passed to deal with homegrown terrorists such as Timothy McVeigh. AEDPA was passed as an effort to streamline federal habeas corpus petitions brought forth by prisoners in state custody. The statute added subsection (d)(1) to 28 U.S.C. § 2254, and changed, inter alia, the federal habeas corpus standard of review from de novo to an unusual one: the state court\u27s decision must now be contrary to, or . . . an unreasonable application of, clearly established Federal law as determined by the Supreme Court. This article makes the argument that this new standard of review is unconstitutional because it infringes upon a federal court\u27s province to exercise judicial review. Section II of the article provides a brief history of federal habeas corpus, while section III provides a brief background of AEDPA, the legislative history of § 2254(d)(1), and identifies the various ways that the statute implicates the Constitution. This section also discusses the Supreme Court\u27s interpretation of the statute in Williams v. Taylor and Penry v. Johnson. Section IV discusses the four Supreme Court cases of Marbury v. Madison, Martin v. Hunter\u27s Lessee, Cohens v. Virginia, and United States v. Klein which establish the Court\u27s power to exercise judicial review, while Section V argues that § 2254(d)(1) is unconstitutional under these precedents
The Eye in the Sky & Our Digital Dog Tags: An Exploratory Review of Global Positioning Systems (GPS) & Potential Privacy Implications
No full textGlobal positioning systems ( GPS ) are becoming more ubiquitous in this digital age where consumer devices, such as personal digital assistants, computers, cellular phones and other wireless devices are being marketed with GPS-integrated platforms. While consumer benefits are numerous for such location-based tools, there are those who see such global location data dissemination as a threat to one\u27s privacy. This note gives an exploratory review of what GPS is, how it came to be, and what are the possible privacy implications. Moreover, delineating how the Court has grappled with other data-gathering devices may illuminate the path to be taken, while similarly providing examples of other GPS-based technologies gives one a sense of the complexity of the issues presented herein
The Call for a 21st Century Abolitionist Movement
No full textRemarks by John R. Miller, Director of the U.S. State Department\u27s Office to Monitor and Combat Trafficking in Persons and Senior Advisor to Secretary of State Condoleezza Rice, entitled The Call for a 21st Century Abolitionist Movement
The Trafficking Victims Protection Act: A Work in Progress
No full textFrom the time when Congress passed and the President enacted the Trafficking Victims Protection Act of 2000 ( TVPA ), this innovative law has changed the contours of the U.S. legal landscape.I Given even more teeth by the subsequent passage of the Trafficking Victims Protection Reauthorization Act of 2003 ( TVPRA ), the law provides unprecedented tools for U.S. governmental agencies and non-governmental organizations ( NGOs ) to combat trafficking in persons, both within the U.S. and abroad. While neither the law\u27s format nor its implementation has been without problems, significant progress has been made since its enactment in countering trafficking and prosecuting traffickers. Such progress is noteworthy, given the proliferation of human trafficking throughout the U.S. and the diverse nature of the governmental and non-governmental partners brought together to combat it under the aegis of the TVPA. This article offers an assessment of both the law\u27s conceptual framework and of its implementation in the field to date. It furthermore identifies challenges that remain on both the theoretical and practical levels, and also seeks to dispel a number of the misconceptions and stereotypes that continue to detract from America\u27s vital efforts to abolish the modern-day slave trade
Prosecuting Peacekeepers in the ICC for Human Trafficking
No full textThis article hopes to examine the issue of whether a crime committed by a peacekeeper satisfies the elements required under Article 5 of the Rome Statute for valid subject-matter jurisdiction, which would lead to the possibility of prosecuting peacekeepers in the ICC, pending satisfaction of the requirements of Article 12 of the Rome Statute. Would the crimes of trafficking, enforced prostitution, sexual slavery, or rape fall within the definitions of crimes against humanity or war crimes? To determine these issues, the elements of the individual crimes enumerated in the Rome Statute must first be analyzed
Trafficking into Prostitution in India and the Indian Judiciary
No full textIndia, one of the largest democracies in the world, has constitutionally prohibited traffic in human beings and has enshrined the right to be free from exploitation as a fundamental right of every person. India also was one of the earliest parties to the Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others of 1949, and it claims to have implemented this treaty within its domestic legal system through the Suppression of Immoral Traffic in Women and Girls Act (hereinafter SITA ) of 1956, subsequently amended and renamed the Immoral Traffic (Prevention) Act (hereinafter ITPA ) of 1986. Still, it is widely reported that in India thousands of girls and women are trafficked every year for the purpose of commercial sexual exploitation, and they are forced to work and live in conditions of slavery. Most of these victims, some as young as 10 to 14 years old, are from segments of society that are highly marginalized by caste and tribal discrimination, as well as socio-economic deprivation. Other victims are trafficked from neighboring countries, including Nepal and Bangladesh. The rapidly growing number of these victims living in brothels in India reflects rampant violations of domestic laws as well as India\u27s commitments to international human rights treaties. The Indian Supreme Court, known throughout the world for its judicial activism, could address this problem more effectively by adopting a less biased attitude than it has shown to date. It could play a pivotal role in preventing this large-scale atrocity, as it could develop helpful solutions to the problem by interpreting international and domestic laws objectively and applying them accordingly. This paper argues that the legally untenable and insensitive approach of the Indian Supreme Court has contributed to the marginalization of the problem of trafficking in women and girls. The Court\u27s prejudicial attitude toward the victims of prostitution, and the discriminatory interpretation and application of existing laws needs to be changed. More objectivity in the Supreme Court\u27s approach will likely bring us closer to the ideal of justice and the protection of the basic human rights of the victims
Front Matter
No full textFront Matter includes Masthead and Table of Contents for St. Thomas Law Review Volume 18, Issue 3, Spring 2006
