JURIST - Paper Chase: Friday, January 1, 2010

[JURIST] A sharply divided Montana Supreme Court [official website] ruled [opinion, PDF] Thursday that physician assisted suicide is not banned by state law, making Montana the third state to allow the practice after Oregon and Washington. The Court upheld in part and reversed in part a lower court ruling, agreeing with its finding that physician assisted suicide is not illegal under state law, but giving no opinion on the greater constitutional question addressed by the lower court. Instead, it found in a 4-3 decision that physician assisted suicide was not rendered illegal under state statute or by public policy concerns, stating:

There is no indication in [state law] that physician aid in dying is against public policy. Indeed, [it] reflects legislative respect for the wishes of a patient facing incurable illness. [It] also indicates legislative regard and protection for a physician who honors his legal obligation to the patient. [State statute] immunizes a physician for following the patient’s declaration even if it requires the physician to directly unplug the patient’s ventilator or withhold medicine or medical treatment that is keeping the patient alive. ... In light of the long-standing, evolving and unequivocal recognition of the terminally ill patient’s right to self-determination at the end of life ... it would be incongruous to conclude that a physician’s indirect aid in dying is contrary to public policy. ... [T]he inquiry stops there.

An official of the Montana Department of Justice [official website] said [NYT report] that the ruling represented the Court's recognition that the issue should be resolved in the state legislature. The Montana Family Foundation [advocacy website] an opponent of physician assisted suicide, has promised [Spokesman-Review report] to take the issue to the state legislature.

Montana's First Judicial District ruled [JURIST report] in December 2008 that terminally ill patients have the right to commit physician assisted suicide. The case, Baxter v. Montana [case materials], was brought by a number of terminally-ill Montanans, their doctors, and Compassion & Choices [advocacy website], an organization supporting the legalization of physician assisted suicide. The plaintiffs alleged that their right to assisted suicide was guaranteed by the Montana Constitution [text], under provisions relating to their rights of privacy, individual dignity, due process, equal protection, and the right to seek safety, health and happiness in all lawful ways. The lower court held that terminally ill individuals have the right to die with dignity, and have the right to obtain self-administered medications to hasten death if they find their suffering to be unbearable. In November 2008, voters in Washington state approved a ballot initiative [JURIST report] that allows terminally ill, legally competent adults to obtain lethal prescriptions without exposing themselves, their physicians, or others to criminal penalties. The Washington measure was modeled on neighboring Oregon's Death with Dignity Act [official materials], enacted in 1997 and upheld [JURIST report] by the US Supreme Court in 2006.

[JURIST] Judge Richardo M. Urbina of the US District Court for the District of Columbia [official website] Thursday dismissed [opinion, PDF] voluntary manslaughter and weapons charges against the five Blackwater [JURIST news archive] guards indicted for their involvement in the deaths of 17 Iraqi civilians [JURIST report] in September 2007. Urbina cited statements of the defendants which he said were given under the threat of job loss and with the promise of immunity. Because of the unconstitutionality of the statements, Urbina determined, prosecutors had to put together a case without them, something they had failed to do, explaining:

The compelled statements of [the] defendants played a determinative role in the government’s decision to focus the prosecution on them. ... [It] guided the questioning of witnesses during the investigation, resulted in the discovery of physical evidence and provided the government with a version of events that each defendant was locked into and helped steer the investigation. In sum, far from being unimportant and insubstantial, the defendants’ compelled statements pervaded nearly every aspect of the government’s investigation and prosecution, and the government’s use of those statements appears to have played a critical role in the indictment against each of the defendants. Accordingly, the court declines to excuse the government’s reckless violation of the defendants’ constitutional rights as harmless error.

Prosecutors expressed disappointment [NPR report] with the decision, but have yet to announce whether they will appeal. A spokesman for the Iraqi government has stated [Al Jazeera report] that it will push for an appeal, fearing the decision as it stands will cause a strain in relations between the two countries. The Iraqi government also stated that an independent investigation carried out by the Iraqi investigators had conclusively confirmed the guilt of the defendants.

Prosecutors from the US Department of Justice [official website] dropped manslaughter charges [JURIST report] against one of the defendants in November. Five defendants pleaded not guilty [JURIST report] to manslaughter and weapons charges last January. The five guards were indicted [JURIST report] in December 2008 on charges of voluntary manslaughter, attempt to commit manslaughter, and using and discharging a firearm during and in relation to a crime of violence, which carries a 30-year mandatory minimum sentence. A sixth guard pleaded guilty to charges of voluntary manslaughter and attempt to commit manslaughter for his role in the same incident. The Blackwater incident caused domestic outrage in Iraq and has prompted legal controversy in the US. A Federal Bureau of Investigation [official website] inquiry into the incident concluded that the shootings were unjustified [JURIST report]. Iraq security contractors lost their immunity from prosecution under the new US Status of Forces Agreement with Iraq that was approved [JURIST reports] in December 2008.

[JURIST] US Chief Justice John G. Roberts, Jr. [OYEZ profile] issued an unusually brief year-end report [PDF] on the federal judiciary Thursday in his capacity as head of the Judicial Conference of the United States [official website], declining to address judiciary needs as done in previous years. On a single page, the 2009 report said the federal courts were "operating soundly" and thanked judges and court employees for their service. The report skirted budgetary requests, reasoning that only essential information should be passed on when the federal government was facing "many difficult issues" and when many citizens were experiencing hardship. In a four-page statistical appendix, however, Roberts noted several significant trends:

The total number of cases filed in the Supreme Court decreased from 8,241 filings in the 2007 Term to 7,738 filings in the 2008 Term—a decrease of 6.1%.
The number of cases filed in the Court’s in forma pauperis docket decreased from 6,627 filings in the 2007 Term to 6,142 filings in the 2008 Term—a 7.3% decrease.
In 2009, filings in the regional courts of appeals declined 6% to 57,740. Filings of criminal appeals, bankruptcy appeals, and original proceedings rose, but reductions occurred in filings of civil appeals and appeals of administrative agency decisions.
Civil filings in the U.S. district courts rose 3%, increasing by 9,140 cases to 276,397.
Criminal case filings (including transfers) rose 8% to 76,655, and the number of defendants climbed 6% to 97,982, surpassing the previous record for the number of defendants, 92,714, set in 2003. The number of criminal cases reached its highest level since 1932, the year before ratification of the Twenty-first Amendment, which repealed prohibition.
Immigration filings climbed to record levels, as cases jumped 21% to 25,804, and the number of defendants rose 19% to 26,961.

Last year, Roberts' report called for cost-of-living raises for federal judges. In his 2007 report [JURIST report], Roberts called for judicial pay raises in accordance with pending legislation. In 2006 [JURIST report], Roberts declared that raises were necessary to keep up with private-sector salaries and to maintain the quality and independence of federal judges. Roberts' first annual report [JURIST report] as Chief Justice in 2005 contained similar requests.

[JURIST] The US Court of Appeals for the Second Circuit [official website] on Wednesday ruled [opinion, PDF] that the National Security Agency (NSA) and the Department of Justice (DOJ) [official websites] are not required to confirm or deny the existence of electronic surveillance records under the Freedom of Information Act (FOIA) [text]. The suit was brought by advocates of former Guantanamo Bay detainees after the agencies invoked FOIA exceptions to information requests regarding warrantless electronic surveillance conducted pursuant to the Terrorist Surveillance Program (TSP). The appellate court affirmed the district court's holding, finding that federal agencies are allowed to file Glomar responses [DOI backgrounder] declining to address the existence of information, and that such responses are allowable in regards to information obtained through publicly known intelligence programs. Plaintiffs had argued that the Glomar doctrine is limited to information obtained by secret programs. The court wrote:

The fact that the public is aware of the program’s existence does not mean that the public is entitled to have information regarding the operation of the program, its targets, the information it has yielded, or other highly sensitive national security information that the government has continued to classify. Indeed, the fact that the TSP’s existence has been made public reinforces the government’s continuing stance that it is necessary to keep confidential the details of the program’s operations and scope.

We therefore hold that, as a threshold matter, and as a general rule, an agency may invoke the Glomar doctrine in response to a FOIA request regarding a publicly revealed matter. An agency only loses its ability to provide a Glomar response when the existence or nonexistence of the particular records covered by the Glomar response has been officially and publicly disclosed.

The court found that the affidavits provided by the agencies met their burden of proof for the FOIA exception. Additionally, the court found no evidence that the NSA used the exception to conceal illegal or improper activities.

The NSA's warrantless surveillance program has been harshly criticized since being disclosed by then-president George W. Bush in 2005. In July, former DOJ attorney John Yoo defended [JURIST report] warrantless wiretapping practices in the Wall Street Journal, criticizing the Foreign Intelligence Surveillance Act (FISA) [text] as being obsolete and contributory in the government's failure to prevent the 9/11 attacks. In April, the DOJ announced that it had limited the NSA's electronic surveillance [JURIST report], but maintained that the information being received was still important. In February, the Ninth Circuit [official website] denied [JURIST report] an appeal by the DOJ seeking to stop a lawsuit [JURIST report] brought by an Islamic charity alleging it was the subject of an illegal NSA wiretap.