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June 30, 2010

Miranda Takes Another Pounding

With Berghuis v. Thompkins, the U.S. Supreme Court decided its third Miranda case of the 2009-2010 term. This case follows a consistent trend by the Court to further limit the protections provided by Miranda warnings. It leaves us wondering what protections remain from the Court’s initial Miranda opinion, and raises the question of what the best way is to protect the interests the Court originally identified in Miranda.

In Berghuis, the defendant, Thompkins, was given his complete Miranda warnings and said virtually nothing for the next three hours. After this almost three hours of silence, where Thompkins neither expressly invoked or expressly waived his Miranda rights, the police asked him if he believed in God and if he prayed to God to forgive him for shooting the victim. To this question the defendant answered “yes” and this statement was admitted against him at trial.

The issue for the Court was whether by saying nothing at all, Thompkins had invoked his right to remain silent. Relying and expanding on its precedents in Davis v. United States and North Carolina v. Butler, the Court held that under these facts, Thompkins had not invoked his right to silence by saying nothing at all. What is most interesting and perhaps most telling about the Court’s current view of Miranda protections was the Court’s willingness to apply their holdings in Davis and Butler to these facts without any attempt to distinguish those cases.

In Davis, after the defendant had been advised of his Miranda rights and expressly waived those rights, during the course of the interrogation he made an equivocal request for counsel. The Court held that such an equivocal request for counsel made during the course of the interrogation is not an invocation of that right and the police are under no obligation to stop questioning or to clarify the accused’s intent. In Berghuis the Court saw no reason to craft a different rule with respect to the defendant’s right to silence.

It certainly makes sense and provides useful symmetry to apply the same standard to an invocation for the right to counsel and the right to remain silent. What the Court ignored in Berghuis, however, is what really distinguishes this case from Davis. In Davis, at the beginning of the interrogation, the defendant expressly waived both his right to silence and the right to counsel. Because of that express waiver, there was no real question that he understood his rights and that he intended to waive them. Berghuis presented the Court with a critical difference. At no time did Thompkins indicate that he understood his rights and there was never an express waiver. This difference certainly raises a question as to the knowing and voluntariness of the defendant’s waiver that did not exist in Davis. Other than Thompkins’ three-hour silence in the face of persistent questioning followed by a “yes,” there is nothing in the record to indicate that Thompkins either understood his rights or that he intended to waive them.

While this is not the first time the Court has held that a waiver can be implied from the facts and circumstances of the case (see North Carolina v. Butler), this is certainly the first case where the Court has held that a three-hour silence in the face of persistent questioning is evidence of an implied voluntary waiver.

Moreover, the Court’s opinion in Berghuis undermines one of the core rationales for Miranda warnings. One of the primary reasons the Miranda Court required warnings in a custodial interrogation setting was to empower the suspect with the knowledge that he does not have to submit to the interrogation and he can stop the interrogation at any point. If we now say that the suspect’s silence in the face of police questioning will earn him hours of persistent questioning until he says something, it is difficult to see how Miranda warnings really level the playing field.

Nevertheless, Berghuis has the value of consistency in that it is the latest reflection of the Court’s disdain for Miranda. In light of this hostility, maybe it is time for advocates of Miranda type protections to focus their efforts on statutory reforms that codify Miranda’s most important protections. These advocates would do well to look at how the military treats these issues. Interestingly, Article 31 of the Uniform Code of Military Justice codified Miranda type warnings years before Miranda was decided. Because these requirements are not court-created rules but requirements imposed by Congress, they are not so easily avoided or narrowed by the courts. Certainly getting legislators and policymakers to support statutes, rules, and procedures that at first blush might be seen to benefit criminal defendants is no easy task, but it seems a better option than being continually pounded by the Court.

Victor Hansen

June 22, 2010

Expectations of Privacy, Revisited

In City of Ontario v. Quon, the U.S. Supreme Court concluded that, in the particular circumstances of the case, a government employer had a right “to read text messages sent and received on a pager the employer owned and issued to an employee.” Deciding the case in carefully narrow fashion, Justice Anthony Kennedy’s opinion for the Court assumed that the police officer, Jeff Quon, had a reasonable expectation of privacy in his text messages and concluded that the search of those messages was reasonable, because it was conducted for a legitimate, work-related purpose.

Before reaching this conclusion, Kennedy spends some time toying with the question whether Quon had a reasonable expectation of privacy sufficient to trigger Fourth Amendment protections. The Court assumes, for the purposes of this case, that he did, rather than resolving the issue because, as Kennedy puts it, “[t]he Court must proceed with care when considering the whole concept of privacy expectations in communications owned by a government employer. The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear.”

When it decided Katz v. United States in 1967, the Court had no such reluctance. In that case, the Court determined that individuals have a reasonable expectation of privacy in a telephone booth. Kennedy suggests that “[i]t is not so clear that courts at present are on so sure a ground,” thus suggesting that, unlike text messaging, the technological issues in Katz could be viewed as within the realm of judicial competence to evaluate. Kennedy goes on to observe that what society regards as private is changing, and that “employer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated.”

The problem here is that technology has obscured the central issue regarding the privacy the framers designed the Fourth Amendment to protect. One does not have to have an engineering degree to see why Katz had a reasonable expectation of privacy in a phone booth: because the whole point of entering a phone booth and shutting the door was to create a private space in which to have a conversation. Whether Katz’s side of that conversation was actually private was essentially irrelevant; obviously, someone could have read his lips through the glass or perhaps been standing close enough to hear his part of the conversation. Those possibilities did not matter because the conception of reasonable privacy embraced in Katz was normative—the Court assumed some retreat from the world should be sanctioned, even if it could not be perfected; otherwise, we could reach a point at which technology makes nearly every expectation of privacy unreasonable.

For its part, the Quon Court is suggesting that privacy should be judged by such measures as societal standards and employer guidelines. This means that, even if no one save Quon and the person with whom he was texting could see the content of their communications, still there might be no privacy if an employer declared that employees, on employer-owned equipment, had no expectation of privacy. This understanding of privacy, unlike that adopted in Katz, is descriptive: it is defined by what content a person can actually keep from prying eyes, rather than by what a court should regard as necessarily private. Consider that, as in the cases involving information revealed to a bank or a doctor, a court could conclude that, simply because the provider of the text messaging service has access to the content of the user’s texts, there can be no reasonable expectation of privacy.

Because perfect privacy is not possible, this kind of thinking will ultimately forestall arguments about expectations of privacy in respect to new modes of communication. So let’s read Quon in a more positive light. Perhaps the Court’s fussing about the various possibilities for a reasonable expectation of privacy in text messaging and like communications services signals that arguments for the normative conception of privacy articulated in Katz will have some weight in litigation about the privacy of communicative modes that would not exist without third-party intermediaries.

Lawrence Friedman

June 4, 2010

Inherent Executive Authority and National Security

Professor John Yoo, one of the architects of the Bush administration’s terrorism policies, recently wrote in the New York Times that, “[i]n foreign affairs …the chief executive should enjoy flexible powers to grapple with challenges abroad for which Congress is ill suited.” He made this statement in the context of a critical evaluation of Elena Kagan’s position on executive power, suggesting that, on Kagan’s view, Presidents “do not have the power to detain or interrogate enemy terrorists without criminal trial, monitor their communications or fire missiles at their leaders.”

Obviously, the President has the power to undertake each of these actions—but not because, as Yoo assumes, the President has the inherent constitutional authority to do so.

Let’s take a step back to January 2009, the first month of the Obama administration. Early on, the administration sought to distinguish itself from its predecessor in respect to the war on terror by publicly disclaiming reliance upon notions of inherent authority to validate executive decision-making in respect to the war on terror. Instead, the Obama administration has relied upon Congress’s September 18, 2001, authorization to use military force against those responsible for the September 11 attacks. While the Bush administration relied upon that Congressional authorization, it also claimed inherent authority under the Constitution to launch the war in Afghanistan, detain enemy suspected terrorists, and even establish a domestic electronic surveillance program.

Of course, the Obama administration’s position does not mean it has disclaimed any future reliance upon the President’s inherent constitutional authority. It means only that, for the moment, the administration believes that it does not need to rely upon such constitutional authority for any of the anti-terrorism actions it is pursuing (many of which are identical to the actions of the Bush administration).

The decision to rely exclusively upon Congressional authority was a wise one. First, the validity of Presidential action is least questionable when authorized by Congress; as Justice Robert Jackson wrote in Youngstown Sheet & Tube v. Sawyer, “[w]hen the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.”

Second, it is far from clear that the Constitution actually supplies the President the expansive inherent authority claimed by the Bush administration, even in matters of national security. As David Barron and Martin Lederman concluded in their magisterial study of Presidential authority, published in the Harvard Law Review, the President as commander-in-chief wields not a vast executive power over national security and foreign affairs, but rather a “prerogative of superintendence”—that is, a presumption of exclusive control over “the vast reservoirs of military discretion that exist in every armed conflict.”

This is nothing more—or less—than the authority of the President to make tactical and strategic decisions in the midst of combat operations or their equivalent. And the President cannot exercise this power absent a precipitating action—like a Congressional declaration of war, or in modern times, the kind of authorization for armed conflict issued on September 18, 2001. In other words, other than the power of superintendence, what power the President enjoys in the realm of national security and foreign affairs does not become his unless and until it is triggered by Congress. This realm simply is not one in which the President enjoys plenary authority, except in extraordinary circumstances. This understanding makes sense in light of other textual limitations on executive authority—indeed, given that the President cannot appoint ambassadors without the consent of the Senate, it would be odd if he could unilaterally control the nation’s security efforts without Congressional involvement or approval.

Further, this understanding of the relationship between Congress and the President in respect to national security and foreign affairs is consonant with the scheme of separation of powers established by the Constitution. In no area of law- or policy-making does the Constitution favor one branch exercising unchecked authority—though it does suggest a preference for representative democratic decision-making. And this makes sense if the framers were concerned that the federal government be kept accountable for its actions.

Nor does this understanding of the relationship between Congress and the President undermine the ability of the federal government to keep the nation safe, to act appropriately and expeditiously in respect to the many serious threats we face. It simply means that, to the extent the President has any inherent authority in matters of national security and foreign affairs, that authority has limits. Absent an attack on the United States or similar exigency, the President must turn to Congress and convince its members that the circumstances warrant a grant of authority.

In its September 18 authorization, Congress gave the President substantial authority to conduct the war on terror. If the President needs still more expansive authority to fight this war, he can ask for it. The fact that he has to ask for this authority serves to prevent the aggregation of untoward power in one branch of government—power that inevitably will be exercised within our borders as well as without, given the nature of the terrorist threat. This check on tyranny has a value that transcends the war on terror, and its lasting importance should cause us to hesitate before uncritically accepting arguments about inherent executive authority, like the one proposed by Professor Yoo.

June 2, 2010

Louisiana: Why Does it Matter?

Why should we who visit New Orleans from time to time – to listen to jazz in Preservation Hall, to watch people carry on during Mardi Gras, to eat Cajun food, drink coffee in CafĂ© Du Monde in the French Quarter, to enjoy the beauty of Audubon Park, or to ride the ancient trolley cars on St. Charles Avenue – why should we care that British Petroleum’s devastating oil spill is spoiling the delicate coastline of Louisiana and the estuary of the Mississippi River? Why does Louisiana matter at all?

The Spanish called it Baja Luisiana (Lower Louisiana), but the Americans changed it to the “Orleans Territory” in a vain effort to erase the memory of three quarters of a century of European rule. That effort failed when the French inhabitants insisted on the name Louisiana. So it was called when the state entered the Union in 1812. Naming rights aside, Louisiana was a very strange and unknown region two hundred years ago when, through clever diplomacy and lucky chance, the whole of the empire of what the French called La Louisiane was purchased from Napoleon in 1803.

Travelers coming to New Orleans usually came by sea since there were no roads to speak of connecting America’s newest and greatest possession to the rest of the country. First impressions may well have been of overwhelming desolation at the point of entry at the mouth of the Mississippi over one hundred miles southeast of the Crescent City. As one voyager reported, “we entered the river in the afternoon. As long as daylight would permit us a view nothing appeared but a dull uniform marsh covered with reeds, no cheering prospect to refresh the eye. All around is one dead level.” Another observed “a low and swampy shore, in many parts drowned by the river, uninhabited and uninhabitable, where only wild and misshapen vegetation subsists.”

We now know how precious the barren landscape of the deep delta truly was. For these were the cane fields, marshes, cypress swamps, inlets, bayous, and wetlands that protected what we now call “the Big Easy” from the destructive forces of nature. It was fire – probably caused by human negligence – that nearly destroyed the entire city in 1788 – not hurricanes or some other natural calamity. At the time, the Spanish who governed Louisiana rebuilt the town using the architecture characteristic of Spanish and Caribbean forms that we now recognize and treasure. They reconstructed everything using iron and brick rather than wood wherever possible according to fire and building codes that made New Orleans the very first city to have any such regulations.

The physical features that surrounded New Orleans, then the most important city on the Mississippi River, even protected it from a British invasion at the very end of the War of 1812. England sent an armada to invest the city and thereby seize control of all of Louisiana, but the crack troops who tried it – Wellington’s veterans from the Peninsular Campaign in Europe – were unable to negotiate the cypress swamps, marshes, and bayous surrounding New Orleans. They were defeated by a ragtag assemblage of local militia, black slaves, free people of color, pirates, and a motley assortment of fighters from as far away as Kentucky who finally defeated a British army many times its size on January 8, 1815 in the Battle of New Orleans, one of the most decisive and consequential military engagements ever fought on the North American continent.

We think of New Orleans as a Southern city and of Louisiana as one of the states of the Deep South. After all, it was part of the Confederate States of America, and New Orleans was the very first major city of the Confederacy that fell to the Union when Fleet Officer David Farragut led a naval force up the Mississippi River in the spring of 1862 to capture New Orleans. The city remained in Union hands for the duration of the Civil War. And, as a slaveholding state with a very large African American slave population, Louisiana had been an integral part all of the oppressions that we associate with black enslavement and with the so-called emancipation that followed. During the earliest years, black slaves were governed by something called the Code Noir which was one of the worst slave codes in the American South. And then the regime of Jim Crowism which followed the Civil War and Reconstruction – the enforced separation of the races which did not begin to end for nearly another hundred years – was given the official imprimatur of legality by the Supreme Court of the United States in the case of Plessy v. Ferguson in 1896, a case that emanated from Louisiana.

So Louisiana is very much a part of the story of American racism. That we know. But it is also true that New Orleans had the largest population of “Free People of Color” of any antebellum southern city. Even in the days of slavery, free Africans and former slaves living in New Orleans had many of the same rights and privileges as whites – they could and did own property, establish businesses, have a normal family life, and live freely – something which was unheard of in the rest of the American South. In that respect, the Louisiana experience would anticipate America today as the country works through stubborn issues of racial inequality and the continuing struggle for racial equalization.

Even with respect to the unique Louisiana legal system, America has had much to learn. In the field of family law, for example, the property rights of married women in early Louisiana were way ahead of the law in the American common law states while the community property systems well-known in the former colonies of France and Spain would be highly influential in many of those states in years to come. In addition, in an increasingly globalized world where law is often borrowed or duplicated outright, Louisiana enjoys distinguished membership in a family of nations that have “mixed legal systems.” Despite the protestations of tea partyers from below and some federal jurists from above, America must necessarily learn to copy from the legal experience of other equally developed legal regimes just as Louisiana has been doing from the very beginning.

Why, then, does Louisiana matter? It matters because, despite its uniqueness, its difference, its special history, and its Creole/Caribbean culture, Louisiana is a microcosm of America. The Louisiana experience mirrors the American experience. Nowhere else in the country was there a population as mixed and diverse as that of New Orleans right up until our own time. Even New York, with its large influx of immigrants from Southern and Eastern Europe at the beginning of the 20th century, did not equal New Orleans in the complexity of its population which consisted, in 1800, of French speakers from Santo Domingo (refugees from the Haitian Revolution), natives of France, native-born Louisianians, as well as Germans, Spanish, Americans, Irish, African slaves, Free People of Color, and others. Consequently, Louisiana became a hybrid culture long before America would become a hybrid product of the many different peoples that would settle this country particularly in the period before restrictive federal immigration laws were enacted early in the 20th century.

So as we watch with helpless horror as oil fouls the Gulf of Mexico – a direct result of corporate malfeasance and regulatory failure – with irreparable harm already inflicted upon endangered wildlife and fragile ecosystems, we should all care very deeply about what happens to Louisiana. Because Louisiana is us. Louisiana’s history is our history, its future our future, and we are all in this together.

George Dargo