STU Scholarly Works (St. Thomas University)
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Jose Padilla and Due Process of Law
No full textOn May 8, 2002, Jose Padilla, an American citizen, was arrested under a material witness warrant by federal authorities in Chicago as he disembarked a flight from Pakistan.\u27 Padilla\u27s arrest was subsequently announced on June 10 by no less a personage than the Attorney General of the United States, who happened to be in Russia at the time. Attorney General Ashcroft charged that Padilla was an al Qaeda operative, planning to set off a radioactive dirty bomb somewhere in the United States. President Bush quickly signed an order designating him an enemy combatant. Padilla was imprisoned in New York. When, on April 3, 2006, the Supreme Court of the United States denied certiorari in the case of Padilla v. Hanft (Padilla X), it effectively held that an American citizen can be incarcerated for three years, ten months and twenty-five days without a hearing or trial. It left unanswered the question of the right of the executive branch to declare an American citizen an enemy combatant and hold him without administrative or judicial review of any kind, but it acceded to the power. By this action, the Court capitulated to the administration\u27s position that questions of status, when national security is involved, is outside the effective power of the courts. No person outside the executive branch has yet officially been made privy to the evidence incriminating Padilla, other than the selected morsels doled out by the executive branch. And now it appears almost certain that there will never be a definitive judicial decision on the legality of his incarceration and that there will never be a hearing of any kind to determine whether the facts justified his designation as an enemy combatant. To this day, the government remains committed to preventing either of these determinations from being made. Padilla\u27s recent criminal indictment rests on assertions of offenses other than those announced as the justification for holding him. This article reviews the several court opinions to date in Jose Padilla\u27s case and analyzes the laws and regulations which have been cited in response to his habeas corpus applications. The case has generated twelve federal court decisions (and non-decisions) which have implicated a plethora of issues. At the heart of the controversy is the power of the executive branch to act free of judicial oversight when it asserts the power to combat terrorism, set against a citizen\u27s right to due process. The constitutional issues include separation of powers and due process of law. Subsidiary considerations include the Non-Detention Act, the government\u27s efforts to delay the case and to deny Padilla counsel, suppress the evidence against him, and circumvent the rules of evidence. The ultimate question is whether Jose Padilla has received due process of law under the United States Constitution. At all times it must be kept in mind that the merits of the charges against him were not at issue, but solely his right to a hearing with respect to those assertions
Crimes against Nature
No full textThis speech was presented on February 2, 2006, at St. Thomas University School of Law, as part of the Distinguished Speaker Series program
Zoot Suit (1981): Realism, Romance and the Anti-Musical– Film as Social Justice
No full textBook: Screening Justice-The Cinema of Law: Significant Films of Law, Order And Social Justice
Screening Justice is designed to tell the complex story of law through an exploration of forty films focusing upon courtroom dramas, social issues and questions of justice. These motion pictures are evaluated by distinguished scholars who, using a range of narrative styles, compare the law on the screen and the law in action. The work serves as a guide to understanding law, the rhetoric of law and images of justice. The book will introduce readers to new films as well as help create new perspectives on familiar classic movies.https://scholarship.stu.edu/faculty_book_chapters/1014/thumbnail.jp
Dedication
No full textDedication by Siegfried Wiessner, Professor of Law, Director of the Graduate Program in Intercultural Human Rights at St. Thomas University School of Law, and Faculty Advisor of the Intercultural Human Rights Law Review
The Next Step in the Fight against Human Trafficking: Outlawing the Trade in Slave-Made Goods
No full textHistorian Sir Lewis Namier once remarked that people tend to imagine the past and remember the future when conceptualizing historical periods and events.\u27 Author William M. Wiecek applied this Namierism to the fierce debate over slavery in America in the late 1800s when he wrote, [w]hen they thought and wrote about some historical problem, such as the framers\u27 actual intentions, abolitionists (and defenders of slavery, too) imagined the past in terms of their wishful thinking. When they tried to decry and influence the future, they \u27remembered\u27 it along synthetic lines sketched by their historical imagining. Today, the philosophical debate over the socio-political constructs of slavery is over, as the U.S. Constitution\u27s Thirteenth Amendment, numerous federal and state statutes, and international law all serve the purpose of providing unequivocal legal foundations for outlawing slavery in America and in the whole world in all forms. However, when viewed within the contextual confines of 21st century international commerce, the fortuitous words of Namier still ring hauntingly true as the discussion turns to the applied effectiveness of these legal instruments
Untangling the Legal Paradigm of Indefinite Detention: Security, Liberty and False Dichotomy in the Aftermath of 9/11
No full textWhile exploring the full scope of the governmental abuse of power since 9/11 in the first thread, I restrict my examination to a narrow scope of indefinite detention and explore whether the heightened need for security necessarily gives rise to abuses of power. This is especially important, as the fundamental rights to liberty of some individuals could be subject to a much stricter interpretation of the governing legal principles. This inquiry runs parallel to my analysis as to whether the heightened security need post-9/11 created new constitutional grounds to mask the fundamental right to liberty. The second thread of this article explores the tension between security and liberty and examines the drawback of legitimacy due to the unmistakable shifting of the locus to the executive branch. This has allowed the development of a legal regime, in which innovative instruments of law have been created like the Surveillance Courts, Spy Courts, and Military Tribunals, whose overreaching tentacles are crossing the frontiers of privacy, liberty and due process in the lives of countless Americans. Also, the expanded provisions of the Patriot Act have encroached into the sacred domain of the constitutional due process. This encroachment has subjected ordinary citizens to new criminal prosecutions brought against them by agents of the executive branch. The final thread of this article examines the series of Supreme Court cases involving the scope, constitutionality, and jurisdiction of military tribunals. In the cases of Rasul v. Bush, Hamdi v. Rumsfeld and the most recent, Hamdan v. Rumsfeld, we are constantly reminded of the lofty ideals and expanded conception of liberty that has been the bedrock of American constitutionalism. I will argue in this section that the circumstances of these cases demonstrate that while it is important to focus on protecting the Nation through vigorous prosecution of terrorists, it is as important to ensure that the liberty of the innocent is not trifled away. Finally, the significance of this work can be seen through a multidimensional looking glass. First, the tension between the right to liberty and the need for security has never been examined through the recognition of a false dichotomy between the two. Second, I establish in this article that a full evaluation of the security-liberty duality is not complete without evaluating several legal constructs. Most notably, the legal paradigm that supports a differential and hierarchical threshold of fundamental rights is inconsistent with my reading of the constitutional due process clause. I attempt to examine some of the factors that are instrumental in shaping such a legal paradigm post-9/11 by exploring whether we are actually more secure now than before the events of 9/11. My article will allow us to better understand the full implications of this security-liberty duality in the post-9/1 I era
What is Johnny Doing in the Library - Libraries, the U.S.A. Patriot Act, and Its Amendments
No full textA cornerstone of democracy in the United States is the freedom to think whatever we wish to think. Actions, of course, are a different matter, but any thought that can be thought is just fine: under the First Amendment we may not be prosecuted for what we are thinking. The First Amendment guarantees several other freedoms, among them the freedoms of speech and association. To enjoy the freedom of thought to which we are constitutionally entitled we must be able freely to explore the world of ideas to cultivate thoughts and other, possibly new, ideas. Reading and communicating with others helps this process. A necessary corollary to the freedoms guaranteed by the First Amendment, then, is the right to privacy -we cannot exercise these freedoms unless we are entitled to privacy in reading, conversing, and thinking, without the intrusion of government. Another freedom enjoyed in the United States, guaranteed under the Fourth Amendment, is that of freedom from unreasonable searches and seizures-that our material possessions are not subject to the whim and caprice of government intrusion, absent a good reason. Such a freedom protects the privacy needed for the learning and thought processes. Libraries, and the librarians who work in them, have an unusual relationship with those who use libraries. Because libraries typically operate for the public good (public libraries for the public at large and college and university libraries for their students and faculty) and because they share precious public resources such as books, magazines and, lately, computers, with the public, they must have some method of keeping track of what they own and who, at the time, has it. With books and magazines this method generates something generally called a circulation record. The same concept applies to the general use of computers housed within the library, though this recordkeeping is more generally a simple signup sheet allocating a specific computer to a specific person for a certain period of time. The use of a library, thus, generates a record which could indicate to another party what the person reading the book was thinking about or a line of study. While such a record and its release to a third party sounds fairly innocuous, it certainly has the potential to be highly invasive of a person\u27s privacy. Take, for example, the individual researching a contagious social disease such as mononucleosis or a sexually transmitted disease such as genital herpes. The research could be for a report, for a school project, or it could be research about a personal problem. In either case, the person doing the research may not wish to explain why or what they are researching to anyone else. Because libraries retain these circulation records for the purposes of collection management, and their disclosure to third parties could result in a violation of this right to privacy, libraries become inadvertent guarantors of their users First and Fourth amendment rights. Librarians have recognized this need for privacy and consider these sorts of records to be relatively inviolate to those outside the library\u27s need for collection control, though they will divulge them in the proper circumstances pursuant to a proper judicial order
I am My Own Worst Enemy: Problems and Possibilities of European Foreign Policy Vis-a-Vis the United States
No full textThe European Union ( EU ) implements a Common Foreign and Security Policy. This paper argues EU Foreign policy is incohesive, but growing more cohesive. The EU poses no threat to U.S. interests; however, poses only limited opportunities for U.S. foreign policy because the U.S. has relentlessly pursued a short-sighted and self-destructive foreign policy since 2002. The paper elaborates this thesis by considering institutional actors and historical experiences. Thus, it provides an overview of the institutional structure of the EU Common Foreign and Security Policy, as well as an overview of historic experiences of EC foreign policy
Introduction
No full textAttorneys as collaborators and counselors. Judges who promote resolution of conflict. Law as a healing agent and court proceedings that minimize rather than exacerbate harm. Problem-solving courts. Restorative justice. Collaborative law
George\u27s Story: Voice and Transformation through the Teaching and Practice of Therapeutic Jurisprudence in a Law School Child Advocacy Clinic
No full textIn recent years, the Therapeutic Jurisprudence and preventive law model has begun to penetrate legal education. As this article attempts to show, this model has much to offer clinical legal education and child advocacy clinics, in particular. This article describes how Therapeutic Jurisprudence and the Therapeutic Jurisprudence/preventive law model are used in the Children & Youth Law Clinic, and demonstrates their value in the context of representing one foster care client of the Clinic. Specific examples of our activity are rewound to analyze the strategies or techniques the Clinic used or, in retrospect, should have used, to address or prevent some of the legal problems that occurred at different junctures in the case. In particular, the article considers how we sought to identify our client\u27s psycholegal soft spots, how we identified or developed strategies to address those psycholegal soft spots, how we used preventive law techniques such as legal checkups, and how we evaluated the therapeutic or antitherapeutic effects of the available strategies. This article also examines how the attorney-client relationship with George evolved from that first meeting. Viewing the Clinic\u27s relationship with George-from the different and sometimes conflicting perspectives of the client, student, and teacher-lawyer-as he made the uncertain, difficult and painful transition from foster care to adulthood, this article considers how the use of Therapeutic Jurisprudence and preventive law enriched the students\u27 educational experience in the Clinic, and how, in the end, this experience had a transformative effect on the client. This article evaluates how teaching and practicing Therapeutic Jurisprudence in a law school child advocacy clinic can accomplish the goal articulated by Therapeutic Jurisprudence scholarship, to broaden the counseling mission, and... convert the practice of law into a helping and healing profession in ways that make it a much more humanitarian tool. By in-depth appraisal of the work done by the Clinic in one case for a single client, with a focus on the role of the child\u27s Therapeutic Jurisprudence/ preventive lawyer in doing legal checkups with the child to avoid psycholegal soft spots, this article is a descriptive case-study, similar to a medical school grand round, of the practice of Therapeutic Jurisprudence and preventive law in a child advocacy clinic, with its many frustrations and satisfactions for the teacher, clinic student, and client. Lastly, this article gives general recommendations on how law school child advocacy clinics can teach students to apply the principles of Therapeutic Jurisprudence and preventive law in their practice and how the practice of Therapeutic Jurisprudence in the experiential setting of a clinic gives them opportunities to reflect upon and critique their role as lawyers for children. It also suggests ways of broadening the reach of Therapeutic Jurisprudence into both clinical legal education and child advocacy