The United States Supreme Court had a comparatively undramatic week. Yet even the unpublicized events in the Court's week give us some useful information on the continuing struggle between the government's power over foreign detainees and the rights held by those detainees, and on Justice Scalia's ongoing defense of the Confrontation Clause, as well as the scope of liability organizations and companies may have under RICO law.
This is what happened in the Supreme Court from January 25 to January 29.
Opinions:
Hemi Group, LLC v. City of New York:
New York City levies a tax of $1.50 on each pack of cigarettes sold in the city. Hemi Group is a company based in New Mexico that sells cigarettes online. Under Federal law, companies that sell cigarettes to people out-of-state must report to that state the identity of everyone who made tobacco purchases from them and the amount of cigarettes the purchasers bought. Thus, Hemi was not required to collect New York City's taxes. However, if John Jones of New York City bought a carton of cigarettes from Hemi Group, Hemi was supposed to report that sale to New York State. New York State would then convey the information to New York City, which could then contact Mr. Jones and ask for its tax money. Hemi Group failed to make the requisite reports, so New York sued it, alleging that it violated the Racketeer Influenced and Corrupt Organizations Act (RICO) by engaging in mail and wire fraud. Normally, such a violation is a criminal offense, but RICO also allows private lawsuits for parties injured in their businesses or property by this prohibited conduct. The issue for the Court was, assuming that Hemi's behavior constituted mail and wire fraud, was that fraud the cause of loss to New York's business or property?
The Court held that Hemi's misconduct did not directly cause harm to New York City, and hence could not be redressed in a RICO suit. The duty Hemi owed was to New York State and not New York City, and the harm done to New York City was done by miscreant cigarette buyers who did not pay their taxes, not by Hemi. Therefore, reasoned the majority, Hemi's behavior was not linked closely enough to New York City's failure to collect taxes to make Hemi liable under this statute. Justices Breyer, Stevens, and Kennedy dissented, arguing that Hemi knew that the result of its actions would be to deprive New York of its ability to collect taxes, and that, in fact, Hemi advertised and profited from the fact that it was able to sell its cigarettes tax-free. (Justice Sotomayor did not take part in this decision).
Why you should care: RICO is an incredibly powerful law. It was originally written to give law enforcement an additional tool against organized crime, but its sections permitting triple damages for civil litigants who successfully assert that an organization or company's illegal behavior caused them loss has caused it to be invoked in cases involving issues as disparate as the safety of artificial sweeteners, Scientology, and pedophile priests. Although this case involved a city's efforts to avail itself of RICO relief, the decision will narrow the ability of private citizens to use RICO to punish entities such as corporations for illegal conduct.
Briscoe v. Virginia:
This case, discussed in more detail in a prior diary was the result of Virginia's attempt to make an end-run around the Court's earlier decision in Melendez-Diaz v. Massachusetts. Melendez-Diaz held that the Confrontation Clause of the Sixth Amendment means that if the prosecution in a criminal case wants to prove a fact, it (generally) must bring in a witness to testify to that fact so that the defense will have someone to, well, confront. There was hope on the part of a majority of the attorneys general in this country that Briscoe would be the vehicle with which the Supreme Court, with Justice Sotomayor now replacing Justice Souter, would reverse Melendez-Diaz. Alas, barely two weeks after oral argument, the Court issued a per curiam decision in Briscoe (meaning an unsigned opinion issued by the Court) sending the case back to Virginia for further proceedings that are not inconsistent with Melendez-Diaz. Translated into English, the Court said: (1) we are not reversing Melendez-Diaz; (2) Virginia, you know perfectly well that this law, which is not even on the books any more, violates Melendez-Diaz; and (3) we are not going to waste any more time by actually writing an opinion in this stupid case. Just reverse these convictions and get it over with.
Why you should care: One of the strongest protections someone accused of a crime has against a wrongful conviction is the right to confront and cross-examine witnesses, which is why the prosecution is always looking for creative ways to undermine that right. The Court, with this opinion, is certainly signalling that it has no interest in walking back its support of the Confrontation Clause against claims of prosecutorial inconvenience.
Opinions related to orders
These are cases which are resolved by simple orders (usually to deny review) but on which one or more Justices wish to write an opinion anyway. There was only one this week but it was an extremely interesting one.
Noriega v. Pastrana:
Yes, this case involves that Noriega, prior military dictator of Panama and head of the Panamanian Defense Forces, who was detained as a prisoner of war in the 1989 U.S. invasion of Panama. He was then transported to Florida, where he was convicted of drug trafficking and money laundering, and has been in prison ever since. When his term of imprisonment was up in 2007, France requested the pleasure of General Noriega's company to face criminal charges there. Noriega filed a petition for writ of habeas corpus arguing that as a prisoner of war he was entitled to the protections of the Geneva Conventions, and that extraditing him to France would violate those protections. The Federal government argued that U.S. law specifically provides that the Geneva Conventions are not enforceable through habeas corpus litigation. The Eleventh Circuit Court of Appeals agreed with the government, and General Noriega sought relief from the Supreme Court.
The case thus involves two legal hot potatoes. The first is the length of the reach of habeas corpus. The writ of habeas corpus is an instrument enshrined in the Constitution. It is essentially a complaint to the court that the petitioner is being unlawfully imprisoned. The applicability of that writ to people who are imprisoned in violation of U.S. treaties rather than U.S. statutes or the U.S. Constitution has been an active, but problematic, issue in the courts. For example, in Medellin v. Dretke, the Supreme Court ducked the issue of whether violation of the right that the Vienna Convention gives foreign nationals to be advised upon arrest of their right to see a representative from their consular office can be the subject of a habeas corpus petition. Treaties, of course, are theoretically the equivalent of Federal law. However, courts dislike enforcing them, particularly if enforcing them means preventing a state or the national government from doing what it wants to do with a particular detainee (in Medellin's case, the state of Texas was anxious to execute him - which it ultimately did). In this case, allowing Noriega to enforce his Geneva Conventions' rights would result in the U.S. government having to release him It is thus no surprise that the Federal courts were not eager to assist him in achieving that result, especially by relying on a treaty rather than on domestic law.
The second issue that Noriega's case involves is the right of an foreign national detained by American military forces to habeas corpus relief. In Boumediene v. Bush, the Court dealt with a Federal statute that denied access to the writ of habeas corpus to foreigners captured by the U.S. military and held at Guantanamo Bay as enemy combatants. The Court held in that case that the statute was unconstitutional, and that the Guantanamo detainees were entitled to contest the conditions of and rationale for their confinement in habeas litigation. However, it left open the questions of what law controlled the detainees' confinement and of what law controlled their procedural rights (such as right to jury trial, right to subpoena witnesses, etc.) Noriega argued that denying him the right to contest his extradiction in a habeas petition based on his rights under the Geneva Conventions essentially denied him access to the writ of habeas corpus, and thus was illegal under Boumediene. Therefore, his case would provide the Court an opportunity to further clarify the habeas rights of those held on American soil after being captured in battle.
Probably because the case involves these two problematic issues, and because Noriega is not exactly a sympathetic figure, the Supreme Court denied his petition for writ of certiorari, thus allowing the Eleventh Circuit Court of Appeals decision to stand. However, Justice Thomas, joined by Justice Scalia, filed an opinion dissenting from the denial. That opinion expressly stated that a case like Noriega's, free of the emotional pressures involved in cases arising from terrorism-related (or at least terrorism-justified) detentions, and free of the complicating factors of detention in a foreign country (Cuba) and the use of classified information, is the ideal one in which to resolve the outstanding issues of what rights a foreign national detainee can enforce in habeas corpus litigation. Although I doubt that Justices Scalia and Thomas want to hear Noriega's case in order to reach decisions that most of us would agree with, they do make a compelling argument that the Court should not have avoided this opportunity to wrestle with the ongoing question of the extent of rights the Constitution affords foreign detainees.