I am currently in Guantánamo as the National Institute of Military Justice (NIMJ) observer at the scheduled May 5 arraignment of the five alleged 9/11 co-conspirators. Tonight I had the opportunity to attend back-to-back press conferences by James Connell, the civilian "learned counsel" representing one of the five defendants, Ammar al Baluchi, also known as Ali Abdul Aziz Ali, and the second by Chief Prosecutor Mark Martins, whose prepared statement is already posted at the Lawfare Blog.

Connell addressed the long delay in the prosecution and previous false starts, suggesting that Saturday's arraignment marked only the beginning of a multi-year process that could still be in progress in ten years time should the Supreme Court strike down the new military commissions as they did once before. But most of his discussion focused on the secrecy of the proceedings, and how he was legally prohibited from saying anything at all about his client's intention because of the government's insistence that anything a detainee formerly held in CIA custody said was presumptively classified at the Special Compartmented Intelligence (SCI) level. The ACLU has filed a motion that I think does an excellent job of addressing the impact of this approach on the public's right to know (full disclosure -- I authored a supporting declaration on historic military commission practice but played no role in drafting the actual motion). But the major adverse impact this secrecy has on Guantánamo defense teams' ability to represent their clients is a topic significantly underreported to date, and Connell's remarks only scratched the surface of the issue.

Connell was followed by Chief Prosecutor Martins who gave a polished defense of the commissions' fairness. I think it odd that the individual charged with prosecuting the defendants has taken upon himself the role of head cheerleader for the commission process. One might remember that Morris Davis did this several years ago in his tenure in that job, resulting in significant complaints about his extrajudicial commentary that would have been a subject of some judicial discussion had David Hicks not cut it off by pleading guilty. And Martins should have his focus on fulfilling his ethical responsibilities to do justice in the prosecutions -- the Convening Authority certainly can call on other resources such as his own public affairs staff to defend the commissions.

In any event, as a scholar of the military commission process since their announcement in 2001, I found many of Martins' comments to be less than fully candid. Here just a couple of examples:

(1) He cited the detainees right to represent themselves but neglected to mention that prosecutors previously successfully insisted that al Bahlul be denied that right at trial (before Martins took over), and then unsuccessfully sought to have the D.C. Circuit Court of Appeals reject his appeal because the prosecution believed that he no longer wanted an attorney to represent him. (This was on Martin's watch).

(2) He suggested that the press should be skeptical of defense claims they are under-resourced and read the government's filing on the issues. And he noted in Q&A that Congress had called for the defense to have comparable access to witnesses and evidence as provided in Article III courts. But what he did not tell the media was that military commission defense teams must go to the Convening Authority or the judge to seek resources, and unlike Article III courts must submit witness requests to the prosecution, and that the Guantánamo prosecutors contest almost every request made by every defendant. When the defense in a federal trial requires assistance from a court, they are typically allowed to make such requests on an ex parte basis with no opportunity for the government to object. And international criminal law -- which should supply minimum due process standards for a trial supposedly based on the law of war -- now calls for "equality of arms" between prosecution and defense, a standard clearly not met by the commissions.

(3) His assurance that no statement obtained through coercion will be used rings hollow based on the prosecutions observed track to date, in which virtually every case to date was based largely on statements from detainees who had been subjected to varying degrees of coercive interrogation, and several prosecutors have cited pressure to use tainted statements as at least part of their reasons for resigning.

I can't help but find myself comparing Martins' approach with that of Justice Robert Jackson before Nuremberg. Jackson cautioned that the Nuremberg tribunal must be fair to merit international credibility, and dedicated himself to achieving that result. Martins insists that the Guantánamo tribunals are fair in the face of international doubts about their credibility, and has seemingly dedicated himself to persuading us of that belief.

Yesterday, people across America pleaded guilty to crimes they didn't commit. This isn't something new or extraordinary. Every year, the American criminal system punishes thousands of people who are not guilty. These routine wrongful convictions never make it into headlines because they are misdemeanors, petty offenses like trespassing, disorderly conduct, or loitering. Minor offenses are largely ignored because we are usually focused on the felonies--the rapes, murders, drug crimes, and robberies. But felonies are actually exceptional. Approximately 1 million felony convictions are entered every year; more than 10 million misdemeanor cases are filed in the same time. In most states, misdemeanor dockets are four or five times the size of felony dockets. If you ever enter the American criminal justice system, odds are it will be for a misdemeanor. They may be seen as small-time offenses, but collectively how we process misdemeanors represents an immense and influential public institution. Something so powerful deserves far deeper scrutiny.

Read the full piece on Slate.

Under California law, homeowners who borrow money to buy a house are protected from "deficiency liability" under Cal. Code Civ. Proc. §580b. Unfortunately, that protection is lost when the mortgage is refinanced, since the debt is no longer a "purchase money" obligation. Several years ago, the Insolvency Law Committee of the California State Bar began to work on a legislative proposal to extend purchase money protection to refinancing transactions; as a member of that committee, I have been closely involved in drafting the proposal and in attempting to shepherd it through the legislative process.

Following a long series of discussions among the State Bar, the lending industry and other relevant players, Sen. Ellen Corbett (D-San Leandro) offered to sponsor the bill (now labeled SB 1069). It has been amended during its journey through the Legislature and, as of mid-March, 2012, it is now before the Senate Committee on the Judiciary; although some peripheral issues have been cut from the current draft of the bill, the essence of our original proposal is still intact. Further hearings are expected before the bill comes before the full Senate later this year. If this bill passes in its present form and is signed by the governor, it will apply to transactions occurring after January 1, 2013.

Here is the latest version of SB 1069:

SUMMARY: An act to amend Section 580b of the Code of Civil Procedure, relating to deficiency judgments.

BILL NUMBER: SB 1069 AMENDED

AMENDED IN SENATE MARCH 15, 2012

INTRODUCED BY: Senator Corbett

FEBRUARY 13, 2012

An act to amend Section 580b of the Code of Civil Procedure, relating to deficiency judgments.

LEGISLATIVE COUNSEL'S DIGEST

SB 1069, as amended, Corbett. Deficiency judgments.

Existing law provides that no deficiency judgment shall lie following a judicial foreclosure with respect to, among other things, a deed of trust or mortgage given to the vendor to secure payment of the balance of the purchase price of real property, or under a deed of trust or mortgage on a dwelling to secure repayment of a purchase money loan which was in fact used to pay all or part of the purchase price of that dwelling.

This bill would additionally provide that no deficiency judgment shall lie in any event on any loan, refinance, or other credit transaction that is used to refinance a purchase money loan, as defined, or subsequent refinances of a purchase money loan, except to the extent that the lender or creditor advances new principal which is not applied to any obligation owed or to be owed under the purchase money loan, or to fees, costs, or related expenses of the refinance. The bill would provide, for purposes of these provisions, that any payment of principal for a refinanced purchase money loan would be deemed to be applied first to the principal balance of the purchase money loan, and then to the remaining principal balance, as specified. The bill's provisions would apply to a loan, refinance, or other credit transaction used to refinance a purchase money loan which is executed on or after January 1, 2013.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1. Section 580b of the Code of Civil Procedure is amended to read:

580b. (a) No deficiency judgment shall lie in any event for the following:

(1) After a sale of real property or an estate for years therein for failure of the purchaser to complete his or her contract of sale.

(2) Under a deed of trust or mortgage given to the vendor to secure payment of the balance of the purchase price of that real property or estate for years therein.

(3) Under a deed of trust or mortgage on a dwelling for not more than four families given to a lender to secure repayment of a loan which was in fact used to pay all or part of the purchase price of that dwelling, occupied entirely or in part by the purchaser.

(b) For purposes of subdivision (c), a loan described in paragraph (3) of subdivision (a) is a "purchase money loan."

(c) No deficiency judgment shall lie in any event on any loan, refinance, or other credit transaction (collectively, a "credit transaction") which is used to refinance a purchase money loan, or subsequent refinances of a purchase money loan, except to the extent that in a credit transaction, the lender or creditor advances new principal (hereafter "new advance") which is not applied to any obligation owed or to be owed under the purchase money loan, or to fees, costs, or related expenses of the credit transaction. Any new credit transaction shall be deemed to be a purchase money loan except as to the principal amount of any new advance. For purposes of this section, any payment of principal shall be deemed to be applied first to the principal balance of the purchase money loan, and then to the principal balance of any new advance, and interest payments shall be applied to any interest due and owing. The provisions of this subdivision shall only apply to credit transactions that are executed on or after January 1, 2013.

(d) Where both a chattel mortgage and a deed of trust or mortgage have been given to secure payment of the balance of the combined purchase price of both real and personal property, no deficiency judgment shall lie at any time under any one thereof if no deficiency judgment would lie under the deed of trust or mortgage on the real property or estate for years therein.

2011 CA S.B. 1069 (NS)
END OF DOCUMENT

The U.S. government's decision to move Staff Sergeant Robert Bales, accused of killing 17 Afghan civilians during an unauthorized nighttime foray, out of Afghanistan raises questions about criminal jurisdiction over American military personnel abroad. While popular Afghan demands for his local trial are understandable, the U.S. military's actions seem consistent with its legal obligations.

Historically military forces abroad enjoyed complete sovereign immunity and were subject to local criminal or civil liability only with the consent of their government. Traditional concepts of sovereign immunity started to break down in the twentieth century, however, and during a time of expansion of permanent overseas bases, nations began negotiating "status of forces agreements" (SOFAs) to clarify legal jurisdiction over their military personnel in foreign territory.

The North Atlantic Treaty Organization (NATO) SOFA, negotiated between the alliance states in 1951, is representative of typical modern treaty provisions. It recognizes exclusive jurisdiction on the part of the parent nation (sending state) for offenses which are service-unique, such as desertion or disobedience of orders, as well as for conduct which is only a crime under the law of the sending state. Conversely, it recognizes exclusive jurisdiction of the host nation (receiving state) over offenses which violate its laws, but not the law of the sending state. There is concurrent jurisdiction over all other offences. The SOFA addresses this overlapping authority by assigning primary jurisdiction to the sending state in cases involving offences against its security, property, or its own nationals; as well as offences arising out of acts "done in the performance of official duty." The receiving state is given the primary right to exercise jurisdiction in all other cases, although it is not uncommon for foreign countries to agree to U.S. military trials even where the SOFA gives them primary jurisdiction.

The Afghan people may perceive this as offensively reminiscent of the unequal treaties imposed on Asian states in the nineteenth century which granted western nationals "extraterritorial" status -- complete immunity from local laws. In part, the Afghan SOFA likely recognizes U.S. concerns about the less than fully developed state of Afghan legal institutions and their failure to meet recognized international legal standards. But it also reflects the reality of an ongoing armed conflict as well. International law grants military personnel the "combatant's privilege;" legal immunity from prosecution under domestic law for their conflict-related acts of violence which are judged for compliance with the law of armed conflict rather than ordinary criminal law. Giving the U.S. military full jurisdiction over its personnel immensely simplifies the challenges of making case-by-case decisions about which conduct is official and which is not, and whether a particular act is subject to foreign domestic law or may be judged only against the law of armed conflict. The U.S. military has historically prosecuted its own personnel for any war-time crimes in foreign nations, so the Afghan SOFA is hardly unique in a conflict setting.

Moreover, standing U.S. policy is to request jurisdiction from local nations even when dealing with traditional allies in situations where a SOFA would give them primary jurisdiction. So the exercise of foreign jurisdiction over U.S. personnel is actually a much more infrequent occurrence than might otherwise be expected. The U.S. exercise of jurisdiction over Staff Sergeant Bales is thus consistent both with U.S. legal obligations and historical practice.

Waterstone is guest blogging this month at PrawfsBlawg, on which this piece first appeared.

The Supreme Court announced its decision today in Coleman v. Court of Appeals of Maryland. For reasons I will explain below, I disagree with the plurality decision and think it is one of a growing trend of harmful and indefensible "new federalism" decisions. Spoiler alert: I think Justice Scalia makes a fine point about this jurisprudence in his concurring opinion.

First, the facts: Plaintiff had sued his state employer for damages, alleging that it violated the "self-care" part of the Family Medical Leave Act (FMLA), which entitles an employee to take up to 12 weeks unpaid leave per year for the employee's own serious health condition. In Nevada v. Hibbs, the Court had upheld the constitutionality of suits for damages against states for FMLA's "family care" provisions, which guarantee unpaid leave for the care of a newborn child, adoption or foster care placement of a child, or care of a spouse, son, daughter, or parent with a serious medical condition. But in Coleman, the Court held that Congress had exceeded its constitutional authority with the "self-care" provision. Accordingly, the state is entitled to Eleventh Amendment immunity and the plaintiff's suit for damages is dismissed on sovereign immunity grounds.

In Coleman, the Court held that unlike the family care provision, the self-care provision failed the apparently now sacrosanct City of Boerne congruence and proportionality standard. Under this standard, the Court will assess the evil or wrong Congress attempted to remedy and the means Congress adopted to address that evil. Legislation enacted under Section 5 of the Fourteenth Amendment must be targeted at conduct transgressing the Fourteenth Amendment's substantive provisions and the Court must find that there is congruence and proportionality between the injury to be prevented or remedied and the means adopted to achieve that end.

Both applied the same standard (Boerne), but came to very different views of the legislative record and the appropriateness of the remedy. I am no fan of congruence and proportionality - I have explained here why I think that even in Tennessee v. Lane (a case in which I agreed with the outcome) the Court's insistence that it was being consistent with earlier precedent was just wrong. Boerne's emphasis on combing the Congressional record and gauging how prophylactic the remedy really is just opens the door for the Justices to decide which rights - and under what context - are worthy of protection. It turns out Justice Scalia and I agree on this: he opens his concurrence by stating: "The plurality's opinion seems to me a faithful application of our 'congruence and proportionality' jurisprudence. So does the opinion of the dissent. That is because the varying outcomes we have arrived at under the congruence and proportionality test make no sense."

But to Justice Scalia, this means that (except for race discrimination, which he views as different for stare decisis reasons), he would limit Congress's Section 5 power to conduct that itself violates the Fourteenth Amendment. I find this flat out wrong. As a textual matter, Section 5 gives Congress the power to enforce the Fourteenth Amendment by appropriate legislation. If all Congress can do is outlaw that which is already unconstitutional, what is the point? And, as a co-equal branch of government, it is just misguided, and seems like a power grab, for the Court to treat Congress like an administrative agency. These are neither novel nor unique points regarding the problems with judicial supremacy, but Coleman puts in sharp focus just how much the Court is "dissing Congress." Congress needs more deference to be able to do its constitutional job, whether that means allowing Congress latitude when the Court applies the Boerne standard, or, preferably, abandoning congruence and proportionality altogether. Coleman indicates we will be litigating not just right by right (as in the Americans with Disabilities Act context), but statutory subsection by statutory subsection, whether Congress amassed enough evidence to satisfy its jurisprudential superiors. At least to me, sovereign immunity should not and does not compel this result.