The views expressed in this blog are not necessarily those of TCP, its committees, or boards. 

The last week of June the Supreme Court made headlines when it published its final decisions for the 2012 term. The Voting Rights Act case (Shelby County v. Holder) and the DOMA case (United States v. Windsor) in particular are sure to face much popular and scholarly analysis this summer. But before the term grows cold and Supreme Court watchers start speculating about the next term, it’s worth taking a moment to reflect on the Court’s major criminal justice decisions since October.

The Court addressed a number of questions important to criminal defendants this term, including whether police must normally get a warrant before forcibly drawing blood from an individual suspected of drunk driving (in Missouri v. McNeely the Court said they must), as well as the appropriate guidelines for the use of drug sniffing dogs (in Florida v. Jardines, the Court ruled that a warrant is required in order to bring a drug sniffing dog onto the porch of a home, but in Florida v. Harris it found that a drug sniffing dog’s “alert” can constitute probable cause authorizing a police search of a vehicle). Six cases from this term are particularly notable as they address TCP policy on the right to counsel and due process. These cases deserve a more extended review. Over the next few days we will summarize these decisions, and explain their likely consequences for those accused of committing crimes.... Read More

The New York Times recently endorsed a bipartisan bill introduced by Senators Rand Paul (R-KY) and Patrick Leahy (D-VT) that would give federal judges more discretion in departing from rigid mandatory minimums when sentencing. The Paul-Leahy Justice Safety Valve Act of 2013 gives judges the freedom to impose a sentence below the minimum set by statute when a sentence would otherwise fail to serve the goals of punishment as defined by the federal criminal code. Those goals include promoting respect for the rule of law, adequately deterring criminal conduct, and ensuring public safety.

Federal mandatory minimums take sentencing out of the hands of judges, who have the opportunity to evaluate offenders on an individual basis and learn of their personal circumstances, and require judges to impose lengthy and inflexible sentences based on rigid, standardized factors that fail to tell the whole story of the individual offender. As a method of calibrating punishment, this is myopic, and invites injustice. ... Read More

Last Wednesday marked the 25th anniversary of the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (CAT) entering into force. The Convention has been memorialized as the International Day in Support of Victims of Torture, observed every year on June 26.

In years past, the Obama administration has issued a statement honoring the day and recommitting America to the elimination of torture and other forms of cruel, inhuman, or degrading treatment or punishment. This year, however, the administration remained silent, at least officially.... Read More

In early June, details on two National Security Agency (NSA) spying programs were leaked to the press. Since then, it seems that every day the public is learning more details about the scope and extent of NSA surveillance of Americans, the man who has leaked this classified information, and the reactions of various government officials. The last time this happened, back in 2005 and 2006 when we learned about warrantless wiretapping by the NSA, the eventual result was that Congress passed legislation – the FISA Amendments Act of 2008 – to legalize the NSA wiretapping program. Despite the initial public outrage over NSA spying, the result was that Congress changed the law to provide even fewer safeguards for Americans’ individual rights. Will the current controversy have the same result? Or can we instead secure enactment of more robust safeguards for privacy and civil liberties?... Read More

On Wednesday, June 19, Senator Dianne Feinstein wrote to Secretary Defense of Chuck Hagel in opposition to the practice of force-feeding Guantanamo detainees on hunger strike. Her letter cites The Constitution Project Task Force on Detainee Treatment’s finding that force feeding practices at Guantanamo are “contrary to established medical and professional ethical standards,” and its recommendation that the United States follow the World Medical Association’s guidelines on hunger strikes.

The Department of Defense has been force feeding Guantánamo inmates on hunger strike since at least 2005. In December 2005/January 2006, it began carrying out the force feeding in restraint chairs, with straps around the detainees’ hands, feet, shoulders, and torso. Detainees and their lawyers have described the procedure as painful and degrading, and contrary to medical ethics. The Department of Defense has claimed over and over that it is simply trying to preserve the detainees’ lives, and that it follows the same procedures that the Federal Bureau of Prisons does and that U.S. courts have upheld.... Read More

A redacted transcript of the closed hearing in the Nashiri military commission that I posted about last week has been released. Much of the transcript is blacked out, but enough detail has been released to confirm that it was about the scope of the government’s discovery obligations about torture, and the relevance of evidence of Nashiri’s torture in the mitigation phase of his trial. It is still impossible to determine precisely what relief the government is requesting, though.

Below are some of excerpts from of the transcript. They dramatically illustrate the legitimacy problems for the military commissions caused by ongoing secrecy about the defendants’ torture at CIA black sites.... Read More

The Guantánamo military commission for accused USS Cole bombing mastermind Abd al Rahim al-Nashiri had its first, but certainly not its last, secret session last Friday, June 14. According to Carol Rosenberg of the Miami Herald and Ben Fox of the Associated Press, the hearing was 78 minutes long, and was closed both to the public and to the defendant. The subject of the hearing, and the title of the government motion being argued, were also classified. Defense counsel were permitted to attend but Nashiri’s attorney Rick Kammen told Rosenberg, “There was a secret session. That’s all I can say.”... Read More

On Friday June 14, the House passed its version of the 2014 National Defense Authorization Act (NDAA), a bill that Congress takes up annually. For the first time in a long time – sparked no doubt by the President’s counterterrorism speech last month – members engaged in a serious debate over closing the Guantanamo Bay prison. Congressman Adam Smith (D-WA) led the charge, offering an amendment that set forth a comprehensive framework for closure and mandated significant steps toward that end. The amendment didn't pass, and the House bill foolishly would add a layer of restrictions – in practice duplicative of the yet-to-be-met, at least to date, certification requirements – on transfers to Yemen, but simply having the debate was a step in the right direction.... Read More

President Obama’s expected nomination of James Comey for FBI director has generated some controversy in the human rights / civil liberties community. Comey has at once been credited for preventing the reauthorization of a secret National Security Agency program, and criticized for signing off on “enhanced interrogation techniques,” including waterboarding, that were used to torture detainees.

Although TCP doesn’t take a position for or against the confirmation of a particular nominee, Comey’s appointment raises important questions. The report of TCP’s Task Force on Detainee Treatment discusses Comey’s role in authorizing torture briefly in chapter 4, starting on page 164. But that was not our focus, and it’s worth looking back at the original documents & the chronology.... Read More

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