Gavel Grab

Wisconsin’s Assembly passed and sent to the state Senate a bill that would restrict the ability of circuit court judges to block state laws.

Last month, two critics of the measure said it has the effect of “putting citizens at risk of irreparable harm from constitutional violations” (see Gavel Grab). The critics are Matthew Menendez, counsel at the Brennan Center for Justice, and Andrea Kaminski, executive director of the League of Women Voters of Wisconsin Education Network. The Brennan Center and the League of Women Voters are JAS partner groups.

If the measure became law, an order by a circuit court could be appealed immediately, and if that were done inside 10 days, the lower court’s order would be stayed. This would apply when a circuit judge, ruling on a state law, restrained its enforcement or suspended the statute. Read more

Oklahoma has adopted a new ban on use of foreign or international law in state courts, after federal courts had invalidated earlier Oklahoma restrictions that specifically identified Sharia, or Islamic law.

Earlier this week Gavel Grab discussed a growing movement to restrict Islamic law in our courts, and Oklahoma’s invalidated law was mentioned. Thanks to Gavel to Gavel, a publication of the National Center for State Courts, there is fresh news about recent efforts in Oklahoma and other states. The new Oklahoma ban does not specifically mention Sharia.

The Gavel to Gavel headline goes a long way in updating the news: “Bans on court use of sharia/international law: OK approves new ban; WA approves modified version; AL approves sweeping constitutional amendment; MO governor may sign or veto.”

The National Center for State Courts is a Justice at Stake partner organization.

In a key speech on counterterrorism policies and drone strikes, President Obama invited Congress on Thursday to consider ways for “increased oversight” of lethal action outside warzones, including creation of a secret court or an executive branch panel. He said each option “poses difficulties in practice.”

Here are Obama’s specific remarks on the topic, taken from a text of his speech as prepared for delivery:

“Going forward, I have asked my Administration to review proposals to extend oversight of lethal actions outside of warzones that go beyond our reporting to Congress. Each option has virtues in theory, but poses difficulties in practice. For example, the establishment of a special court to evaluate and authorize lethal action has the benefit of bringing a third branch of government into the process, but raises serious constitutional issues about presidential and judicial Read more

In at least 32 states, legislators sponsored measures to restrict consideration of foreign or religious laws in state court decisions between 2010 and 2012, and six states passed such laws.

One of the six states, Oklahoma, specifically identified Sharia, or Islamic law, as banned from consideration. Voters approved the measure, but the statute later was struck down by a federal court, and an appeals court upheld that ruling.

Supporters of the Oklahoma statute, the appeals court said, “do not identify any actual problem the challenged amendment sought to solve. Indeed, they admitted at the preliminary injunction hearing they did not know of even a single instance where an Oklahoma court had applied Sharia law or used the legal precepts of other nations or cultures, let alone that such applications or uses had resulted in concrete problems in Oklahoma.”

These milestones are reported in an intriguing UPI article headlined, “Islamic law in U.S. courts: Does Islamic law, Sharia, have a place in American courts? A lot of state legislatures don’t think so and there is a large movement to ban its application.” It is the most comprehensive news report on the topic that Gavel Grab has seen in recent months. Read more

A Republican-sponsored bill that would restrict the ability of Wisconsin circuit court judges to block state laws has the effect of “putting citizens at risk of irreparable harm from constitutional violations,” according to two critics of the measure.

“Wisconsin lawmakers should not attack judiciary,” declared the headline for a Wisconsin Journal Sentinel op-ed by Matthew Menendez, counsel at the Brennan Center for Justice, and Andrea Kaminski, executive director of the League of Women Voters of WI Education Network.

If the measure became law, an order by a circuit court could be appealed immediately, and if that were done inside 10 days, the lower court’s order would be stayed. This would apply when a circuit judge, ruling on a state law, restrained its enforcement or suspended the statute.

According to the authors, the bill would weaken the judiciary and undermine “the very purpose that injunctions serve, in preventing the irreparable harm that is likely if the government is allowed to violate citizens’ constitutional rights until all litigation and appeals have concluded.”

The measure was expected to receive a vote this week, but minority Democrats in the Wisconsin State Assembly delayed a vote until legislators return to work in June, the Associated Press reported.

The Brennan Center and the League of Women Voters are JAS partner groups.

In a letter to Senate Judiciary Committee leaders, Justice at Stake opposed on Thursday a proposed amendment to limit judicial review of immigration legislation and supported another, to create new federal judgeships.

The first amendment, by Republican Sen. Charles Grassley of Iowa, would allow judicial review of the underlying immigration measure only in the U.S. District Court for the District of Columbia, and would only permit review regarding constitutional challenges to the law or its implementing regulations, Bert Brandenburg, JAS executive director, said in the letter.

“JAS has long opposed political interference with the judiciary and thus, we oppose this attempt to constrain the venue and scope of judicial review,” Brandenburg wrote.

Read more

Tennessee state Sen. Mae Beavers, a former Senate Judiciary Committee chairman, recently called the U.S. Supreme Court a “dictatorship” as she pushed for a nullification bill she had introduced.

Her remark was highlighted in an article by ProPublica about some states considering making it a crime to enforce federal gun laws, and invoking a doctrine from before the Civil War called nullification. Some state bills contend the Supreme Court does not have final authority to determine a law’s constitutionality, and that states have that authority.

Beavers is a Republican. Here is an excerpt from her full remarks in February, as reported in The Tennesseean:

“I know many of you are lawyers. You’ve been to law school. You think that the Supreme Court is the ultimate arbiter of any of these laws. I don’t believe that. I don’t believe it was ever granted the authority under the Constitution. In Marbury v. Madison, they simply gave themselves that power. They declared themselves to be the ultimate arbiter of what is and what is not constitutional, and essentially setting themselves up as a dictatorship within the federal government, and I think generation after generation we have just accepted that. Read more

BULLETIN: The surviving Boston bombing suspect was charged Monday with “using a weapon of mass destruction,” the New York Times reported. The White House said the suspect would be prosecuted in the civilian justice system, and the charging documents were filed in federal court.

The capture of Boston bombing suspect Dzhokhar Tsarnaev ignited a debate over selecting the best venue to prosecute him, in federal civilian court or before a military tribunal.

“[T]here is no reason civilian prosecutors, defense lawyers and courts cannot continue to do their work — especially since they have proved themselves far better at it than the military,” a New York Times editorialdeclared. It also said that the military commission system is specifically for defendants who are not U.S. citizens, and Tsarnaev is a naturalized citizen.

Several Republican members of Congress called for the holding of Tsarnaev as an enemy combatant, according to the Washington Post, which said that process could lead to his prosecution before a military tribunal under the laws of war. If treated as an enemy combatant, he could be questioned at length with no legal representation.

Some leading Democrats disagreed, saying he should not be classified an enemy combatant and indeed should be prosecuted in a federal court. Read more

Wall Street Journal reporter Jess Bravin’s book, “The Terror Courts: Rough Justice at Guantanamo Bay,” details the  military tribunal system that was established after 9/11 to prosecute and convict those accused of terrorism. Now a New York Times review prominently highlights the disturbing questions the book raises about the tribunal system:

“Supporters portray them as the tough-minded way to handle terrorism cases and civilian courts as weak. Yet in those civilian courts federal prosecutors have repeatedly demonstrated an almost ruthless effectiveness, winning severe sentences without grounds for successful appeal. Meanwhile the military tribunals experiment started by the Bush administration and now continued, after some reforms, by the Obama administration, has floundered; to date the only two guilty verdicts won at trial were vacated by an appeals court, leaving a handful of plea deals in which defendants gave up their right to appeal in exchange for brief sentences.”

The decisions made in 2011 by Obama administration officials in connection with interrogating a Somali national terror suspect aboard a Navy ship overseas, and then prosecuting him in federal court, come under the microscope in a lengthy Washington Post article.

Handling of the case of Ahmed Abdulkadir Warsame (see Gavel Grab), coming at a time of debate about federal courts vs. military commissions as the best venue for prosecuting terror suspects,has become something of a template for other terrorism suspects captured overseas,” the Post reported.

Warsame provided information to his interrogators about Muslim cleric Anwar al-Awlaki, who became an important target for the United States. Only a few weeks after Warsame was brought to the United States from the Navy ship, an armed drone kill al-Awlaki in Yemen.