Wrong Court, Wrong Charges: Major Flaws in USS Cole Bomber Prosecution

By Professor David Glazier

The Department of Defense announced the approval of military commission charges against Abd Al Rahim Hussayn Muhammad Al Nashiri, who it alleges to have masterminded the USS Cole bombing, on September 28, 2011, clearing the way for his arraignment and subsequent trial in a Guantánamo courtroom. Al Nashiri will face nine separate charges and a possible death sentence. Having been in command of a U.S. Navy guided missile frigate the day the Cole was struck, I am particularly eager to see justice done for this act of terrorism. But having spent most of the decade since 9/11 studying the law of war in general and military commissions in particular, I firmly believe that these are the wrong charges before the wrong court.

A military conviction will both require a strained application of the law of war and establish dangerous legal precedent that could put American military personnel at greater future risk. The Supreme Court has determined that military commission jurisdiction is strictly limited to conduct taking place during the period of an armed conflict. This is easily satisfied by acts on and after September 11, 2001 thanks to the congressionally enacted Authorization for the Use of Military Force (AUMF). But to hold that the October 2000 Cole bombing, as well as the earlier failed attack on the USS The Sullivans, took place during an armed conflict requires conceding to al Qaeda the nation-state's prerogative to declare hostilities. Since a warship is a lawful object of attack, we can then object only to the means used, not to the attack itself. Ruses, including the use of false flags, are permitted in naval warfare, allowing al-Nashiri to raise defenses wholly irrelevant in a federal terrorism prosecution, which would fairly hold that any pre-9/11act of violence against Americans, military or civilian, was a serious crime regardless of how conducted. Moreover, such a precedent would logically allow future terrorist groups to announce they were at war with the United States and lawfully kill our service personnel if they adopted means compliant with the law of armed conflict.

There are also very serious issues with the charges themselves that could well result in any convictions being overturned on appeal. The core justification for the multiple charges based on the Cole attack is that they involved perfidy by using a civilian boat, dressing in civilian clothing, and "waving at the crewmembers onboard." Nothing in the law of war requires naval forces, as distinct from land and air forces, to wear uniforms, while the prosecution's assertion that waving to a U.S. Navy ship now constitutes a war crime threatens to make a justifiably proud military force into the butt of jokes around the world. But the biggest problem with the charge is that the crime of perfidy requires inducing the adversary to falsely believe that the attacker is entitled to special protection under the law of war. It is logically impossible to do this to persons who do not know they are at war, as was true of the Cole and The Sullivans crews, who understood that they were making peacetime refueling stops and who were operated under U.S. peacetime rules of engagement and antiterrorism instructions, not the law of armed conflict. The United States has consistently treated the Cole as a peacetime matter, launching only FBI agents in response, denying the crew awards for combat valor, and assessing the performance of captain and crew against peacetime standards, all of which the defense will fairly argue should bar ex post facto reclassification of the bombing as part of an armed conflict.

Just Do It: The importance of training law students in public advocacy

By Professor Laurie Levenson

This op-ed was originally published by the Los Angeles Daily Journal.

Last month, The New York Times published an editorial calling on law schools to help fill the "justice gap" by training all law students in public advocacy. See N.Y. Times, "Addressing the Justice Gap" (Aug. 23). The "justice gap" represents America's failure to provide meaningful access to justice for low-income litigants. According to a report by the Carnegie Foundation, four-fifths of low-income people in the United States have little way to obtain the representation they need in order to succeed in our justice system. These litigants cannot afford a lawyer; without a lawyer, they stand little chance to win their cases.

While the Sixth Amendment provides indigent defendants in criminal cases with the right to appointed counsel (Gideon v. Wainright, 372 U.S. 335 (1963); Johnson v. Zerbst, 304 U.S. 58 (1938)), there is no such right in civil cases. Just this term, the U.S. Supreme Court held in Turner v. Rogers, 131 S.Ct. 2507 (2011), that even when a civil litigant faces incarceration for civil contempt, there is still no automatic right to counsel. So long as there are adequate procedures to govern the proceedings, civil litigants must provide for themselves.

The net result is that many people in society, often the most vulnerable among us, are unrepresented in the civil justice system. Among these individuals are immigrants, prisoners and those whose civil rights have been violated.

At the same time, there is a desperate need to provide practical education to law students to prepare them for the "real world" experiences they will face after graduating. See William M. Sullivan, "Educating Lawyers: Preparation for the Profession of Law" (Jossey-Bass 2007). After more than 25 years of teaching, it has become abundantly clear to me that there is only so much that a student can learn from a book. To become a "real" lawyer - a lawyer who is prepared to interact with and fight for a client's interests - a student must be given the practical experience in law school of working on real cases. We need to teach our students to be "lawyers," not just students of the law.

Faculty workshop series presents Hari M. Osofsky

Hari M. Osofsky, Associate Professor of Law & Lampert Fesler Research Fellow at the University of Minnesota Law School, will present her paper, "Scales of Law: Rethinking Climate Change, Terrorism, and the Financial Crisis," as part of the Faculty workshop series today, Thursday, September 22, 2011 at 11:45am in the Courtroom of the '90s on the 2nd floor of the Girardi Advcocacy Center.

Associate Clinical Prof. Jessica Levinson's commentary, "What Will Become of California's Newly Drawn State Senate Districts" published on KCET's "Socal Focus" blog

Associate Clinical Professor Jessica Levinson, wrote a commentary entitled, "What Will Become of California's Newly Drawn State Senate Districts?" that was published on KCET's "Socal Focus" blog on Sept. 19, 2011.

Here's an excerpt:

"For the first time in the state's history, an independent redistricting group drew state legislative and federal congressional district lines. Thanks to two successful ballot measures, those who stand to benefit the most from drawing district lines - sitting lawmakers - were extricated from the process. The independent redistricting commission's charge was, among other things, to create legislative districts which fairly reflected communities of interest, and to pay no heed to whether districts would benefit or harm incumbent lawmakers.

The full piece can be read here.

Three Loyola professors on SSRN top 25 list

Loyola Law School Professors Ted Seto, Katie Pratt and Jen Kowal are among the top 25 U.S. tax professors as ranked by downloads on the Social Science Research Network.

Should we limit how often we can vote on ballot initiatives?

By Associate Clinical Professor Jessica Levinson

This op-ed was originally published by KCET.

As the legislative sessions came to a close on Friday, our lawmakers passed a flurry of new bills. Among the proposed laws is SB 202, which removes ballot initiatives and referendum from next year's June ballot, and provides those measures will only appear on November ballots.

The question for the day is whether this initiative consolidation is a good idea. I'm all for less initiatives, but this just means we will vote on initiatives less often, not that there will be fewer of them.

Read the complete post at KCET.org.

Prof. David Horton asks and answers "Does the Federal Arbitration Act apply to wills and trusts" on SCOTUSblog

Associate Professor of Law, David Horton, wrote a post for SCOTUSblog entitled, "Does the Federal Arbitration Act apply to wills and trusts?" The post was part of an Arbitration Symposium organized by the Supreme Court blog.

Here's an excerpt:

"Over the last two decades, arbitration has transformed the way that consumer and employment disputes are resolved. Recently, arbitration clauses have become increasingly common in a different context: wills and trusts. The roots of this movement are easy to understand. Even with the economic downturn, Americans bequeath hundreds of billions of dollars each year. This massive intergenerational wealth transfer - the largest in history - is expected to make probate litigation more common. Incapacity and undue influence claims are notorious not just for depleting estates, but for exposing a testator or settlor's intimate life in open court. Arbitration's purported benefits - its low cost, speed, and privacy - make it attractive to estate planners and their clients."

Read the full post here.

Faculty Workshop Series Presented Deborah L. Rhode

Deborah L. Rhode, Ernest W. McFarland Professor of Law, and Founding Director, Center on Ethics at Stanford University Law School, presented her paper, "Lawyers as Leaders," today, Thursday, September 8, from 11:45 to 1:00pm, in the Courtroom of the '90s, on the 2nd floor of the Girardi Advocacy Center.

Professor Justin Levitt Testifies Before Senate Judiciary Committee on New State Voting Laws

Justin Levitt, Associate Professor of Law, testified in Washington, D.C. before the Senate Judiciary Committee's Subcommittee on the Constitution, Civil Rights and Human Rights.

The hearing examined new state voting laws that threaten to suppress turnout nationwide.

Professor Levitt is an expert on election law, and author of A Citizen's Guide to Redistricting. He also launched the website, All About Redistricting.

Prof. Yxta Murray on Anglo-American Radical Feminism's Constitutionalism in the Streets

By Professor Yxta Maya Murray

From "You're Creating New Categories:" Anglo-American Radical Feminism's Constitutionalism in the Streets, to be published Spring 2012 by the Hastings Race and Poverty Law Journal

On September 7, 1968, a battalion of the feminist group New York Radical Women bombed up the Garden State Parkway in their VW buses to make a ruckus at the Miss America pageant in Atlantic City, New Jersey. At a "consciousness raising" session (essentially a rap group session) several weeks previous, they had discovered that patriarchal beauty standards -- and their expressions in the meat markets that were beauty contests -- had damaged their own self-images and liberations. Thus enraged, they leapt off the buses, crowding around the boardwalk in front of the Atlantic City Convention Center, hoisting picket signs and papier mache puppets. They crowned a sheep -- a proxy, of course, for Miss America herself - and sang out bawdy songs that poked fun at the pageant organizers and the contestants. A dark ops group within N.Y.R.W., having "dressed up" to look like "normal women," purchased tickets to the Center. Once inside, these rebels unfurled a banner that read Women's Liberation, and some of them set off stink bombs. They were promptly nabbed by the police and shoved outside. The radical feminists did not resist arrest -- but, as they mostly hadn't seemed to really break any laws, only one stink-bomb thrower would be charged with "releasing a noxious substance." Jubilant at the success of their action, the rest of the feminists jumped back in their love buses and went back home.

It was pretty heady stuff, and seen by many as ushering in the new era of second wave feminism - but as it turned out, it was nothing compared to the riot that occurred two years later in London.

On November 20, 1970, an assorted group of radical British feminists arrived at the Royal Albert Hall in London with plans to sabotage the Miss World pageant. Though a radical anti-capitalist group called The Situationists had set off a bomb outside of the Hall earlier that morning, the feminists were not deterred from executing their raid on this fleshly fiasco. Having come armed with flour bombs (small sacks of flour that would detonate in a fluffy cloud upon impact), ink bombs, plastic mice, rotten produce, whistles, and rattles, the London rads' first acts of anti-beauty-pageant resistance was to camp outside the Hall, crown a stuffed cow, hoist placards, and scream "You poor cows!" and "They're exploiting you!" when the contestants arrived to London by bus and skittered inside the amphitheater. Once the Miss World pageant began, the Londoners (taking a cue from their U.S. sisters) snuck inside using the same transgender tactic of dressing like middle class, feminine women. Now in the Hall, they let it rip. The host for Miss World was Bob Hope, the famous comic of the "Road" movies fame, and the feminists rushed up to the stage, flinging flour and ink at him and shrieking. Old Bob ran away. The feminists turned to the audience, throwing the plastic mice, squirting tuxes, and bapping gents with grotty tomatoes. One protester, Sally Alexander (now a history professor at the University of London), stubbed out a cigarette on a policeman. There might have also been some biting. The women hollered profanities with glee. Five of them were arrested, while the others escaped. The jailbirds wound up doing star turns at their media-frenzied trials several months later. Ultimately, the charges against them were dropped.

The battle between our lawmakers and Amazon rages on

By Associate Clinical Professor Jessica Levinson

This op-ed was originally published in the Los Angeles Daily Journal.

One hundred years ago California voters approved a sweeping set of governmental reforms, which included the introduction of the initiative, referendum and recall. Those reforms were aimed, at least in large part, at giving power to citizens. The initiative, referendum and recall were instituted to allow citizens to check government power, particularly in the case of legislators too cozy with special interest groups.

So one has to ask, when progressives pushed their reform package through the Legislature, could they have predicted that those reforms would be high jacked by special interests groups that were seen to pose a threat to the integrity of the electoral and political processes? While the names of those attempting to influence the government have changed - the 1911 reform package was enacted in large part as a response to the growing power of the Southern Pacific Railroad over the state government - the concerns about their power remain the same. Instead of worrying about the power of a railroad company over our elected officials, we can now ponder the influence of brick-and-mortar and online retailers, like Wal-Mart, Barnes & Noble, eBay and Amazon.

The process meant to empower citizens to check the power of their public servants also allows any group with the ability to raise $2 million to counter legislative decisions, both good and bad (rare as they may be, it is still possible that our lawmakers make good public policy decisions every now and again) by threatening to overturn those decisions at the ballot box.

One of the latest ballot box battles centers on the so-called "Amazon Tax." When California lawmakers enacted a budget for the current fiscal year back in June, that budget included a tax on online retail sales. The tax would raise an estimated $200 million in revenue. Quite understandably, Amazon is none too happy.

Amazon immediately promised to endeavor to qualify a ballot measure, a referendum, which would overturn that tax. Amazon has laid the groundwork for a measure appearing on the June 2012 ballot.