The VLW Blog

This morning, the en banc 4th Circuit heard reargument in al-Marri v. Pucciarelli, the much-watched case that could set limits on presidential power to seize and hold civilians in the name of prosecuting the war on terrorism.

On June 11, a 4th Circuit panel granted a writ of habeas corpus to Ali al-Marri, a citizen of Qatar and legal resident of the U.S. who was seized in 2001 in Illinois by civilian authorities. The military took custody of al-Marri, who was initially detained for credit card fraud, after learning about his al-Qaida ties, which included training in a military camp in Afghanistan. Al-Marri filed his habeas petition from a Navy brig in South Carolina.

In the vacated panel decision, Judge Diana Motz and Judge Roger Gregory voted to issue the writ, while U.S. District Judge Henry Hudson dissented. Hudson was on the panel as a visiting district judge, and has no vote in the en banc case. The court’s remaining active judges, except Judge Dennis Shedd, joined Motz and Gregory today to rehear the case.

At regular intervals, the 4th Circuit judges described “what if” scenarios that went straight back to 9/11, questioning the lawyers about the legal framework now in place to stop another attack.

“If 25 or 30 terrorists sneak into this country,” couldn’t they be picked up under this authority, asked Judge Paul Niemeyer.

Jonathan Hafetz, al-Marri’s lawyer, said the president has the authority to repel sudden attacks, but that authority does not allow the indefinite detention of a legal resident alien such as al-Marri. Hafetz maintained that presidential police powers and authority as commander in chief support detention to halt an imminent attack, and that legislation passed since 9/11 – the Authorization for Use of Military Force and the Patriot Act – do not implicitly authorize indefinite detention.

Judge J. Harvie Wilkinson III acknowledged widespread concern that the AUMF “may have authorized some sweeping detention problem. …But people are not being swept off the streets of Omaha.”

“No, it was Peoria,” Motz noted.

Wilkinson continued. “The AUMF has been in force six years, and we’re talking about two individuals, Padilla and al-Marri. Both seem to have indisputable ties to al-Qaida. … We’re not talking about a dragnet, a sweep, or an indiscriminate round-up. … Why does that kind of carefully targeted response by the government generate all this hoopla?”

Comparing detention of two people to the actions taken against German-Americans after World War I and against Japanese-Americans after World War II, Wilkinson asked if “we’ve lost our sense of perspective.”

“The calculus for determining constitutionality is not whether we have a good king or a bad king,” Gregory observed. “It’s not whether he stays his hand in generosity.”

Arguing for the government, Gregory Garre outlined the “extremely careful” procedures used in al-Marri to determine he was an enemy combatant. Garre said the government agencies on whose intelligence the president drew – the CIA, FBI and DOD – collected classified information and made both individual and collective assessments of the detainee’s status.

Garre also reinforced Wilkinson’s comment that al-Marri had available “channels to challenge a baseless seizure,” and that there were “no roadblocks put in his way to challenge” his transfer to military custody.

Al-Marri “squandered his opportunity to challenge” his custody, Garre said.

Richmond lawyer Margaret Sanner, who attended the argument, said debate among the judges and lawyers was “thoughtful and energetic” because “these judges had all done very serious homework” about the language of the relevant statutes and the precedents.

Sanger serves as counsel to a group of law professors from several Virginia and Ivy League schools that filed an amicus brief on behalf of al-Marri. She pointed particularly to questions by Judge William Traxler toward the close of argument that probed the “indefinite” nature of al-Marri’s detention.

“How does a person who’s held incommunicado challenge” his detention, Traxler asked.

The Supreme Court of Virginia’s advisory committee on rules is looking for comment on a proposal to make counterclaims compulsory and on changes to rules to make e-discovery consistent with changes in federal rules on e-discovery.

Virginia Lawyers Weekly has an article in this week’s issue that is available along with links to detailed reports from the committee on the counterclaim and e-discovery proposals.

The conviction of Deanna Hilda Large for involuntary manslaughter because she recklessly allowed dangerous dogs to run at large might have been a first, but the Virginia Court of Appeals saw it as little more than a routine sufficiency-of-the-evidence case.

Large contended that the prosecution failed to prove that she knew that the dogs were dangerous or that she owned two of the three pit bulls that attacked and killed 86-year-old Dorothy Sullivan and her pet Shih Tzu, Buttons, in Spotsylvania County in March 2005.

In the unpublished opinion, Large v. Commonwealth, issued Tuesday, Judge Jean Harrison Clements detailed the testimony of several witnesses who connected the dogs to Large at the time of Sullivan’s death and in earlier attacks on animals and aggressiveness toward people. “[F]from this evidence, the jury could properly conclude that appellant knew or should have known her dogs were dangerous,” Clements wrote.

The Virginia Court of Appeals usually hears writs in four different cities across the commonwealth. but it doesn’t get to Frederickburg very often.

According to The Free Lance-Star, the intermediate court was last there about 10 years ago.

But the court will be in Fredericksburg tomorrow as part of the reopening of the newly renovated circuit courtroom. About 20 writ panels are scheduled.

A lawyer’s former secretary, charged with stealing from a dead woman’s estate, is scheduled to plead guilty today under an agreement with federal prosecutors.

Shelia Mae Boone, who worked for Richmond lawyer Harvey Latney Jr., is charged with forging checks totaling more than $272,000, reports the Richmond Times-Dispatch.

Roy L. Pearson Jr., who lost his $54 million lawsuit against a D.C. dry cleaning shop over a lost pair of pants, is out of a job. He had been an administrative law judge with the Office of Administrative Hearings, but a panel has voted against reappointing him, reports the Washington Post.

According to the Post, the lawsuit wasn’t really a factor in the panel’s decision. Members had concerns over Pearson’s judgment and temperament.

As a post script to the pants story, the Korean immigrant couple who operated Custom Cleaners in Northeast DC may have won the lawsuit, but they closed that shop last month, citing the stress and strain of dealing with the lawsuit.

Frank J. Santoro has been named a bankruptcy judge for the Eastern District of Virginia in Norfolk, to replace David H. Adams who will retire Jan. 2, 2008, upon the completion of his term of appointment.

Santoro (right) is expected to take the bench in March 2008, according to a press release from the Bankruptcy Court. Santoro currently is the managing partner of Marcus, Santoro & Kozak P.C., a Chesapeake law firm. Santoro has served as Standing Chapter 13 Trustee since October 1987 for the Norfolk and Newport News Divisions. He also has served as a Chapter 7 Trustee.

Santoro graduated in 1976 from Allegheny College, and received his law degree in 1979 from the Marshall Wythe School of Law at William & Mary. Bankruptcy judges are appointed by the 4th Circuit U.S. Court of Appeals to serve for a 14-year term.

A woman and her daughter, visiting Virginia Beach from the Midwest, claim they were attacked by bedbugs at the Rodeway Inn, a hotel on Atlantic Avenue.

The Virginian-Pilot reports that the pair have filed a lawsuit, seeking more than $400,000 for bites and other injuries and for damage to their property.

Of the 20 people indicted last year in the Henry County drug-trafficking scandal, only one, a former sergeant in the sheriff’s office, sought a jury trial.

That case is scheduled to begin today in Roanoke federal court.

The Roanoke Times reports that nearly four dozen witnesses may testify.

Yesterday, the American Bar Association renewed its call for a nationwide moratorium on use of the death penalty; the group issued a report based on several states’ experience, calling the system “deeply flawed.” Virginia was not one of the states studied.

Through a spokesman, Attorney General Bob McDonnell says he disagrees with the ABA study, adding that the death penalty is constitutional and that the system works.

As a practical matter, there has been a general freeze in executions across the country since Sept. 25, when the U.S. Supreme Court agreed to hear the case of a Kentucky man challenging lethal injections as cruel and unusual punishment.

The Richmond Times-Dispatch has the story.