Amici Curiae: The Roberts Retirement, Karadzic Defence, and $98-Billion Human Rights Claim Edition

SCOTUS Chief to (Not) Retire

Breaking news: John Roberts, the Chief Justice of the United States, is retiring “for personal reasons,” Radar online reported yesterday. Actually, just kidding! Radar, known more for following Hollywood celebrities than Supreme Court justices, retracted the story less than an hour later, but not before it had ricocheted across the Web: The Huffington Post put up a story which noted that “[w]hile RadarOnline doesn’t give a reason for the possible retirement, Roberts, 55, has suffered two seizures, in 2007 and 1993. Time magazine speculated in 2007 that Roberts may have epilepsy.” The “news” was also picked up by The Drudge Report, which ran the “shock report” but also quoted a SCOTUS source saying “this is not happening … news to me.” (HT: Gawker.) As it turns out, it was probably news to Roberts as well.

As Above The Law explains, the rumour started in a first-year criminal law class at Georgetown University Law Center, when Professor Peter Tague walked into his morning class and announced that, as relayed by one of his students, “we might find it interesting that tomorrow, Roberts would be announcing his retirement for health concerns.” Tague shared the shocking news at 9 a.m. and Radar had a story up 10 minutes later (talk about speedy reporting).

Their first retraction came at 9:36 a.m., six minutes after Tague told his class that his comments were a joke meant to make a point “on the credibility and reliability of informants.” ATL, who to their credit sought to do some independent reporting before running the story, noted that the news never really passed the smell test to begin with: “One of [ATL’s] SCOTUS experts actually laughed out loud after we (sheepishly) asked, ‘Have you heard anything about a possible Roberts retirement?’ This source noted that [Roberts] would sooner die — literally — than give Obama the chance to appoint his successor.”

At $98 Billion, The World’s Largest Human Rights Claim?

Former executives, shareholders and creditors of Yukos Oil, the erstwhile giant Russian oil company, have filed a complaint before the European Court of Human Rights, claiming that the company was unfairly “targeted” by the Russian government and illegally driven out of business, the BBC reported. The plaintiffs’ claim of $98 billion in damages represents an estimate of what Yukos would have been worth had its most valuable properties not been stripped away in 2007, when the company was struck from the register of Russian companies and effectively ceased to exist. (By way of comparison, the Russian government’s revenues in 2009 were $205 billion.) “The rights court is an unusual, though not unprecedented, venue for civil disputes,” the New York Times reports. “The size of the damage claim, however, is unprecedented.”

Yukos, beginning in 2002, was accused by Russian authorities of having illegally skirted its tax obligations. The highly politicized dispute ended with the company’s controlling shareholder, Mikhail Khodorkovsky, a billionaire investor and frequent critic of then-Russian president Vladimir Putin, in prison and the company in bankruptcy. The Times also noted that though the ECHR is very selective about the cases it accepts, once it does so, most cases are decided in favor of claimants. Of the 219 cases the court took up last year involving Russia, judges ruled against the government 210 times. That said, “the Yukos claims are bigger and more complicated than most, clouding comparisons with previous cases,” The Times observes.

Dmitry Gololobov, a former Yukos lawyer writing for the Eurasia Review, agrees that skepticism about a victory for the plaintiffs is prudent: “[T]he Yukos case must overcome some quite serious legal hurdles. And the overcoming of each of them will either create a new precedent or fundamentally alter an existing one. And if the plaintiff hits just one of these hurdles, it could mean the complete collapse of the case ….”

After Loss in Court, Alberta Hutterites Consider Leaving Province

Members of a remote religious community in Alberta, who in Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, argued that the Alberta government was infringing their Charter rights, told the Edmonton Journal this week that they may leave the province after the Supreme Court ruled that they must have their photographs taken if they want driver’s licences. “It’s a sad day for Canada, for Alberta,” said Sam Wurz, manager of the Three Hills Hutterite colony, one of the two communities that sued the province. “We are law-abiding people, we are honest.”

The case (discussed on TheCourt.ca here, here, and here) involved a claim by the Hutterites that the provincial requirement that all recipients of drivers licenses have their photo taken violated their freedom of religion. The Hutterites believe that the the Second Commandment’s ban on “graven images” prohibits having their photos taken willingly. The Supreme Court ruled 4-3 that though the Alberta requirement infringed the Hutterites s. 2(a) rights, it could be saved under s. 1.

Wurz’s comments notwithstanding, Greg Senda, the Hutterites’ lawyer, left the door open to the possibility that the colony members may remain in Alberta. He told the Journal that the Hutterite elders will meet to discuss whether there is room to compromise on the photos, given that they are now mandatory. “It’s the voluntary (nature) of taking the picture that is their concern,” Senda said. “They acknowledge that there are circumstances in today’s modern society where photographs are taken, and you can’t do anything about it.”

Karadzic: One Terrific ICTY Defence

Dr. Radovan Karadzic, the ex-President of Republika Srpska, should be rethinking his desire not to retain a lawyer at his trial before the International Criminal Tribunal for the former Yugoslavia (ICTY). Given his testimony this week, though, one suspects not. Dr. Karadzic, representing himself in his fight against 11 charges that include participation in genocide and crimes against humanity, mounted a defence that must go down in the annals of terrible self-advocacy. As David Charter reports in The Times, Karadzic testified that Bosnian Serbs “fought a ‘just and holy’ war to block the creation of an Islamic state” in his country.

In a diatribe distantly reminiscent of a famous dead Austrian’s claim to be threatened by his country’s tiny, Kafka-producing neighbour, Karadzic presented a “four-hour, gabbled history” of a “modest” and “perservering” Serbian Bosnia, saying that the aim of his Bosnian Muslim victims “was 100 per cent power, as it was in the Ottoman Empire,” and that he had little choice but to “‘defend the greatness of a small nation’ against a Muslim plot” to revive the aforesaid Empire. Between harangues, however, the accused struck a weird and pseudo-conciliatory posture. Despite commanding Bosnian Serb armies fighting a desperate holy war against revanchist Ottoman hordes, Dr. Karadzic testified that “it was never an intention, never any idea let alone a plan, to expel Muslims and Croats.” There is a chance, though, that the ICTY charges point to Dr. Karadzic’s making plans more sweeping than “expulsion.”

German Constitutional Court Reins in Anti-Terror Law over Privacy Concerns

Germany’s highest court ruled this week that a German law implementing a central plank of a European Union anti-terrorism directive, requiring the storage of at least six months’ worth of telephone and internet data, was contrary to the country’s fundamental law, the Financial Times reported. The decision, which “was greeted with shock and alarm by police and security experts, and with delight by civil liberties campaigners,” mandates the immediate destruction of all data  currently held on telephone calls, emails and text messages in Germany and voided the legal basis for police and intelligence agencies to request such information.

The court in granting relief to the 35,000 plaintiffs, relied on a constitutional guarantee of privacy, which ensures the “security and integrity” of communications by post and telephone, in reining in the anti-terrorism law. As Mathias Vermeulen, who blogs about legal issues related to terrorism, explains, the law was passed in response to a 2006 European Union directive requiring the retention of telephone and e-mail records for use in terrorism investigations. The court, however, stated that the German law exceeded the EU requirements. But Content And Carrier, a blog that tracks European electronic communications law, warns that some media reports are blowing what the court did out of proportion: “[T]he directive requiring storage of data was not the problem, rather the rules for access to and use of the data,” the blog notes. Curious readers should probably go straight to the source, provided they speak German: The court’s decision can be found here.

Habeas Corpus and its Arbitrary Use by the State

Remember the U.S. Military Commissions Act, 2006 and former U.S. Attorney Alberto Gonzales’ idiosyncratic constitutional musings before the Senate? The right to habeas corpus has taken a real beating in the United States over the last decade so, according to The New Republic‘s Adrian Vermeule, the publication of Paul D. Halliday‘s Habeas Corpus: From England to Empire couldn’t be more timely. In his book, Halliday charts the habeas right’s curious evolution in England between 1615 and 1815. As opposed to, say, the Lincoln and Bush governments’ use of the writ’s suspension as a tool to empower federal government, 17th century England saw judges enforcing it as a “centralizing device” against “competing” local courts, councils, as well as a Privy Council that the monarchy preferred defanged.

Halliday notes that the “libertarian mythology” that later accreted around the habeas right was not historically warranted, and that “the predominant justification for the writ was not so much the liberty of the subject as the prerogative of the King.” The justification for the writ’s use changed radically, though, upon imperial expansion, with its attendant multiplication of national enemies and perceived threats to state security. While Halliday, says Vermeule, is loathe to draw the obvious modern parallels, Vermeule does not share the author’s scholarly scruples. Halliday describes imperial Britain’s transportation of prisoners to various remote sites “in order to avoid judicial control through habeas.”

Vermeule sees the obvious analogy with “the islands, literal and metaphorical, of America’s military empire” – including, obviously, Guantanamo Bay. Furthermore, Vermeule implies that habeas corpus, far from being a given, now-institutionalized legal protection against arbitrary imprisonment by the state, is still, post-Bush, still used to support arbitrary state actions. Where, say, the Bush administration used the right’s suspension as a sword in order to indefinitely detain designated enemies, the Obama administration has used the right’s reinstatement as a shield, or a fig leaf, and failed to allow follow through on its exercise. “As of today,” writes Vermeule, “no detainees have actually been released by final judicial order, from Guantanamo,” and that “the vast majority of detainees have received merely another round of legal process.”

Facebook Now Too Nice

Leaving aside the question of whether anyone wants it to, will Facebook ever win? The company, after all, must be history’s greatest de trop corporation. In addition to its relentless legal/media disparagement for being, inter alia, too invasive, unresponsive, censorial, negligent, etc., the Wall Street Journal law blog’s Ashby Jones reports that the corporation must now endure attacks for being — in a legally controversial manner — “too charitable.” Lane v. Facebook, a 2008 class-action lawsuit against the company for having violated account-holders’ privacy in improperly sharing their online information, was recently settled, the resulting agreement requiring Facebook to shell out USD 9.5 million.

The thing is, the money was not awarded to the victimized Facebook users themselves. The greatest part of that amount would go to a privacy-rights foundation — one that does not yet exist. The problem, writes Jones, is some scholars’ concern that “judges shouldn’t sign off on settlements that extinguish class members’ legal claims unless the plaintiffs get something in return.” That is, the cy pres doctrine is at play in the Facebook case, wherein a successful litigant’s award is dispensed to a third party (usually a charity) unconnected with the litigation; the award to such a third party produces a result in which litigation’s remedial purpose (notwithstanding laudable, but perhaps peripheral good intention) is effectively replaced by a punitive purpose.