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FAMU Lawyer and 2004-2005 Annual Report Volume 3, Issue 1
Get PDFhttps://commons.law.famu.edu/newsletters-pubs/1001/thumbnail.jp
Return of the Great Writ: Judicial Review, Due Process, and the Detention of Alleged Terrorists as Enemy Combatants
Get PDFThe federal government\u27s reaction to the terrorist attacks of September 11, 2001, included a wide range of statutes, policies, and strategies for aggressively pursuing, capturing, detaining, and punishing not only the individuals directly responsible for the attacks, but also those who seek to carry out future attacks. The objective was no less ambitious than the elimination of the entire terrorist organization known as Al Qaeda, from its leaders like Osama bin Laden to its agents in the field. To accomplish this aim the government invoked the full range of its powers in foreign and domestic affairs: military force abroad, foreign intelligence gathering, cooperation with international allies, immigration laws, military tribunals, civilian arrests and prosecutions, grand jury investigations, and more. This massive effort provoked praise and outrage about nearly every facet of its scope and particulars from a wide variety of perspectives. This Article examines a single piece of the vast antiterrorism mosaic: the proper role of judicial review, through the procedure of a petition for the writ of habeas corpus, of the detention of a United States citizen as an enemy combatant under the laws of war based on the government\u27s allegation that the individual is a terrorist. These prisoners are held outside the rubric of the ordinary criminal justice process in the custody of the United States Armed Forces. As such, they are denied the constitutional rights usually taken for granted when the government deprives a person of liberty. Therefore, the President\u27s classification of a citizen as an enemy combatant, rather than an ordinary criminal, has consequences of tremendous significance, and determining the role of the courts in reviewing those classifications is of paramount importance. Despite the fundamental nature of the issue, however, the role of judicial review in this context is surprisingly unclear, and the courts have yet to reach--much less resolve--many of the most basic questions. Even the June 2004 trio of United States Supreme Court opinions in Hamdi v. Rumsfeld, Rumsfeld v. Padilla, and Rasul v. Bush left most of these matters unresolved. This Article confronts those questions and proposes answers to them. The Article begins in Part II by reviewing the framework of constitutional and statutory law that governs the detention of persons. It first considers detention under provisions of civilian law, including arrests of alleged criminals and incapacitation of dangerous persons in non-punitive proceedings. It then describes the power to detain enemy combatants under the laws of war and to try them before military tribunals, as well as discusses the manner in which that power has actually been exercised and the precedent and contemporary rulings the courts have made concerning it. Finally, it explains the questions left open by these doctrines and practice that the Article will answer. In Part III the Article briefly examines the jurisdictional thresholds for habeas petitions challenging an enemy combatant detention. First are the requirements that the petitioner have standing to assert the prisoner\u27s interests in contesting the detention and that the claim be brought against the appropriate respondent in the appropriate forum. Second is the requirement that the petitioner\u27s claims be within the court\u27s subject-matter jurisdiction; even the right of citizens to file habeas petitions is not definitively settled in all instances. Part IV of the Article analyzes the fundamental questions--so far left unanswered by the courts---concerning judicial review of the detention of alleged terrorists as enemy combatants. To adjudicate the constitutionality of such prisoners\u27 detentions requires determination of the requirements of the Due Process Clause, including the government\u27s burden of proof, the appropriate methods for establishing that proof, the prisoners\u27 access to counsel, and the concession or stipulation of undisputed facts. The due process analysis also depends, in part, upon an evaluation of how the doctrine of enemy combatant detentions should be adapted to account for the elusive nature of the battlefields on which the conflict is waged, particularly with respect to citizens seized within the United States before carrying out a terrorist attack. The Article concludes that due process principles mandate that the government surpass substantial procedural requirements before imposing the significant deprivations of liberty inflicted by an enemy combatant detention. Although citizens may be detained in military custody as enemy combatants, the government possesses this authority only if it can prove that the individual is in fact a belligerent engaged in armed conflict against the United States under the laws of war. This requires proof not only of active present membership in a terrorist organization, but also specific intent to carry out imminent acts of terrorism. Furthermore, the Due Process Clause requires that the government prove that the citizen is an enemy combatant by clear and convincing evidence to the court hearing the habeas petition. Due process also requires that the petitioner be given a number of important procedural protections in the hearing, including the right to counsel and the right to challenge the government\u27s evidence. Only if the government can carry its burden under these rigorous procedures may it detain a citizen as an enemy combatant
FAMU Lawyer and Annual Report Volume 3, Issue 1
Get PDFhttps://commons.law.famu.edu/lawyernewsletter/1003/thumbnail.jp
Every Shut Eye, Ain\u27t Sleep : Exploring the Impact of Crack Cocaine Sentencing and the Illusion of Reproductive Rights for Black Women from a Critical Race Feminist Perspective
Get PDFFor purposes of this paper, I will address societal regulations imposed upon the Black wombman\u27s ability to control her reproductive rights. As we - Critical Race Feminist ( CRF ) theorists who are becoming more empowered Critical Race Feminist activists - engage in necessary dialogue, there must be an appropriate point of departure. Once CRF theorists open our eyes, we will see what I refer to as her-story. We will also see that it is time to move into action mode in order to address the illusion of reproductive rights for Black women
2005 Hooding Ceremony Program
Get PDFhttps://commons.law.famu.edu/hooding-ceremony-programs/1000/thumbnail.jp
Special Allocations and Preferential Distributions in Joint Ventures Involving Taxable and Tax Exempt Entities
Get PDFJoint ventures involving taxable and tax-exempt organizations, referred to in this article as taxable-tax exempt joint ventures, engender conflict between the doctrinal requirements pertaining to tax exemption and the flexibility afforded joint ventures in Subchapter K.\u27 The nonprofit partner must exercise ultimate governing control over the joint venture so that charitable goals take precedence over profit-seeking goals if the nonprofit\u27s share of income is to remain tax exempt. On the other hand, a for-profit partner is entitled and indeed expected to pursue profit but its lack of control over the joint venture exposes the for-profit partner to greater risk of loss than it would confront in other investments. In essence, a for-profit partner in a taxable-tax exempt partnership must assume the role of a limited partner. The nonprofit partner must act as exclusive general partner. In normal partnerships, a limited partner would demand certain risk avoidance or compensation concessions-special allocations, guaranteed payments, and preferred returns -in recognition of the higher risk arising from its lack of control. Those risk avoidance and compensation methods usually have two primary effects. First, they elevate one partner\u27s return potential over those of another. Second, they indemnify one partner, to a certain extent, at the expense of another. These effects seem inherently inconsistent with the control mandate, and yet it is unreasonable to think that for-profit partners will participate in taxable-tax exempt joint ventures without insisting on risk avoidance and compensation. This article analyzes the degree to which a taxable-tax exempt partnership or limited liability company can make use of risk avoidance and compensation methods available in Subchapter K without running afoul of doctrinal requirements for tax exemption. The article concludes that the policies underlying tax exemption should prevail over the policies embodied in Subchapter K, but that the Subchapter K policies should nevertheless apply to the extent they are not inconsistent with tax exemption
Can the Farmers Sue Uncle Sam When the Bureau of Reclamation Reduces Deliveries to the Water District?
Get PDFAre farmers who have received water from an irrigation district intended third-party beneficiaries of that water district\u27s service and repayment contracts with the United States Bureau of Reclamation and, therefore, within the scope of a waiver of sovereign immunity that would otherwise bar a suit by the farmers against the Bureau of Reclamation
Two Wrongs Do/Can Make a Right: Remembering Mathematics, Physics, & Various Legal Analogies (Two Negatives Make a Positive; Are Remedies Wrong?) The Law Has Made Him Equal, But Man Has Not
Get PDFThis article demonstrates the incomplete logic and inconsistent legal reasoning used in the argument against affirmative action. The phrase two wrongs don\u27t make a right is often heard in addressing various attempts to equalize, to balance, and to correct the acknowledged wrongs of slavery and segregation and their derivative effects. Yet, two wrongs do/can make a right has a positive connotation. This article reviews the history of societal and judicial wrongs against Blacks, as well as the evolution of the narrowing in legal reasoning concerning discrimination against minorities, including Blacks. Next, the legal reasoning behind legacy programs will be reviewed to show the inconsistency with the rationale against affirmative action in the area of discrimination against Blacks. The article then takes a brief look at the philosophy behind slavery and suppression, the first wrong, and the possible remedy of affirmative action, the alleged second wrong. Finally, it concludes with a review of legal analysis in areas where two wrongs do make a right
Evolution of Deadly Conflict in Liberia: From Paternaltarianism to State Collapse
No full textThis book represents the first attempt to holistically document and analyze the causes of deadly conflict in Liberia from its founding to the present. It reconstructs and examines the root, operational, and catalytic causes of eighteen internal deadly conflicts that transpired in Liberia between 1822 and 2003, including the 1980 coup d’e\u27tat against the Tolbert regime and the Great War (1989–2003). Levitt examines a continuum of circular causation among the state of affairs that led to the founding of the Liberian State, the evolution of settler authoritarianism and nationalism, and internal conflict. The book has three major objectives: 1.) to determine the historical causes of deadly conflict in Liberia, in particular, the underlining historical phenomena responsible for birthing the Great War; 2.) to present an alternative framework to comprehend and examine the aged conflict dynamic between settler and indigenous Liberians, and within Liberian society itself; and 3.) to produce the first comprehensive study of deadly conflict in Liberia.
This interdisciplinary book spans the fields of political science, history, international law, and peace and conflict studies.https://commons.law.famu.edu/faculty-books/1007/thumbnail.jp
Unacceptable Collateral Damage: The Danger of Probation Conditions Restricting the Right to Have Children
Get PDFYou have the right to have as many children as you desire. You can have seven like the Waltons, six like the Brady Bunch, or none at all like Oprah. It is all left to your discretion-unless you fail to pay child support, and as a result end up facing criminal charges. The United States Constitution protects the right to freedom in procreation decisions. Generally, this means that the government cannot interfere with such decisions unless it has a compelling reason to do so. Even then, such interference must be narrowly tailored to meet government interests.
This article explores the use of probation conditions that restrict the right to freedom in procreation decisions