So, we’ve been getting a lot of comments about the ACLU’s stance on the Second Amendment. For those of you who didn’t catch our response in the blog comments, here it is again:

The ACLU interprets the Second Amendment as a collective right. Therefore, we disagree with the Supreme Court’s decision in D.C. v. Heller. While the decision is a significant and historic reinterpretation of the right to keep and bear arms, the decision leaves many important questions unanswered that will have to be resolved in future litigation, including what regulations are permissible, and which weapons are embraced by the Second Amendment right that the Court has now recognized.

As always, we welcome your comments.

It’s been a riveting month at Guantánamo. First was the sad spectacle of the “arraignment” of alleged 9/11 conspirators — in a courtroom expressly designed to suppress their statements about brutal torture in CIA custody, and in a system expressly fashioned to permit their execution on the basis of evidence extracted through that torture. The embarrassing proceedings were rushed forward in a last-ditch Bush administration effort to turn Guantánamo to its political advantage, but, as usual, it was the administration that endured ridicule for the very public collapse of its “full and fair” military commission system.

And then, on Thursday, the hammer truly fell with the Supreme Court’s final rebuke to the legal and moral disaster of the Guantánamo detention regime. We shouldn’t need a Supreme Court decision to remind us that executive detention without judicial review violates our most fundamental constitutional values — but we did, and the Court delivered, and we should be proud of the Court and of our system and of all the lawyers who worked for six years to make yesterday’s landmark decision possible.

We have had moments like this in the last four years, only to see defeat snatched from the jaws of victory. This was the third Supreme Court repudiation of Guantánamo “justice,” but after each of the first two victories — Rasul in 2004, and Hamdan in 2006 — the Bush administration and a compliant Republican Congress effectively reversed the Court’s decisions with ill-advised (and, we can now say, unconstitutional) legislation — only to be reversed again by the Court. Could it happen again? There’s a sense, I think, that this constitutional whack-a-mole may be over, and that the administration may have permanently overplayed its hand.

So why is my own celebration muted? I can’t stop thinking about a scene I witnessed in Guantánamo this past April during military commission proceedings against Salim Ahmed Hamdan, whose challenge to the legality of President Bush’s first military commission system resulted in a resounding Supreme Court defeat for the Bush Administration. The military judge saluted Hamdan, telling him that he should be proud to have taken on the government and won. But Hamdan pointed out that his victory had been hollow — that his reward was to face trial once again in unfair and illegal proceeding.

Hamdan the case is already being studied by law students, but Hamdan the man is sitting alone, as you read this, in a windowless cell. He and the other men still detained are closer than ever to having their detention reviewed by an impartial decision maker. But these cases could have been in court many years ago had the administration not fought so tirelessly to evade the rule of law.

Earlier this week I had another painful reminder of the consequences of the administration’s abandonment of the rule of law. I was in Germany visiting my client, Khaled El-Masri, perhaps the best-known victim of the CIA’s so-called extraordinary rendition program. El-Masri, an entirely innocent man, was kidnapped by the CIA, chained to the floor of a plane, injected with drugs, transported to a secret prison in Afghanistan, interrogated under torture, and only released months after the CIA realized it had abducted the wrong man. Like the vast majority of Guantánamo detainees, he was never charged with a crime. Like the Guantánamo detainees, he was transported to a place where, in the administration’s view, no law applied. We may never know how many of the Guantánamo detainees were innocent, like El-Masri. But we know without doubt that when the protections of our Constitution and international law are stripped away, such tragic mistakes go uncorrected. There’s reason to hope that the Boumediene decision will prevent the needless suffering of the next Khaled El-Masri. And that’s certainly worth celebrating.

Our Legal Director, Steve Shapiro, comments on the Boumediene decision:

Today’s decision forcefully repudiates the essential lawlessness of the Bush administration’s failed Guantánamo policy. It should also mark the beginning of the end of the military commission process, which permits the use of coerced evidence and hearsay and thus cannot survive the constitutional scrutiny that today’s decision demands. It is time to close Guantánamo, end indefinite detention without charge and restore the rule of law.

Salon’s Glenn Greenwald, a Friend-of-the-ACLU (and Membership Conference speaker!), has posted his analysis of the Supreme Court’s Boumediene decision.

In upholding the right of habeas corpus for Guantanamo detainees, the Court found that the "Combatant Status Review Tribunals" process ("CSRT") offered to Guantanamo detainees — established by the John-McCain-sponsored Detainee Treatment Act of 2005 — does not constitute a constitutionally adequate substitute for habeas corpus. To the contrary, the Court found that such procedures — which have long been criticized as sham hearings due to the fact that defendants cannot have a lawyer present, government evidence is presumptively valid, and defendants are prevented from challenging (and sometimes even knowing about) much of the evidence against them — "fall well short of the procedures and adversarial mechanisms that would eliminate the need for habeas corpus review." Those grave deficiencies in the CSRT process mean that "there is considerable risk of error" in the tribunals’ conclusions.

The Court’s ruling was grounded in its recognition that the guarantee of habeas corpus was so central to the Founding that it was one of the few individual rights included in the Constitution even before the Bill of Rights was enacted.

…In ruling that the CSRTs woefully fail to provide the constitutionally guaranteed safeguards, the Court quoted Alexander Hamilton’s Federalist No. 84: "The practice of arbitrary imprisonments, in all ages, is the favorite and most formidable instruments of tyranny." It is that deeply tyrannical practice — implemented by the Bush administration and authorized by a bipartisan act of Congress — which the U.S. Supreme Court, today, struck down.

You can listen to Glenn speak at the Membership Conference about the abuse of executive power in this podcast.

This morning the Supreme Court announced its decision in Boumediene v. Bush, and it’s a good one! SCOTUSBlog writes:

In a stunning blow to the Bush Administration in its war-on-terrorism policies, the Supreme Court ruled Thursday that foreign nationals held at Guantánamo Bay have a right to pursue habeas challenges to their detention. The Court, dividing 5-4, ruled that Congress had not validly taken away habeas rights.

The Court stressed that it was not ruling that the detainees are entitled to be released — that is, entitled to have writs issued to end their confinement. That issue, it said, is left to the District Court judges who will be hearing the challenges. The Court also said that “we do not address whether the President has authority to detain” the individuals at the U.S. Naval base in Cuba; that, too, it said, is to be considered by the District judges.

We’ll have more once the decision is released. For some background on Guantánamo, Ben Wizner, Staff Attorney for the ACLU’s National Security Project, wrote a great history of Gitmo as a prison and the court cases that surround it.

Remember this day: it’s the beginning of the end for Guantánamo.

Today the U.S. Supreme Court heard Virginia v. Moore, a Fourth Amendment case that’s been wending through the judicial system for nearly five years.

The petitioner, David Lee Moore, happened to be driving by police officers Anthony and McAndrew on February 20, 2003, in Portsmouth, Va., at just about the moment that Detective B.J. Karpowski was alerting them to keep an eye out for an ex-con nicknamed “Chubs,” who was believed to be driving with a suspended license.

The “Chubs” Karpowski was referring to was Christopher Delbridge, a man just released from a federal prison whose driving privileges the detective knew were suspended. But, as Moore’s luck would have it, he shared with Delbridge this unfortunate nickname. In fact, “Chubs” is the name that officer Anthony knew Moore by. Moore also happened to be driving on a suspended license.

And so it came to pass that cops looking for Delbridge that day, found Moore.

Operating a vehicle with a suspended license in Virginia is a Class 1 misdemeanor offense, and officers are required to do nothing more than issue a citation to appear in court, and then release the offender. But rather than simply cite and release Moore, officers Anthony and McAndrew chose to handcuff and arrest him, an option unavailable to them under Virginia state law.

“Do you have any drugs on you?” officer Anthony asked Moore, adding, “where are you staying?”

Moore told him he was staying at an Econo-Lodge in Chesapeake. The officers asked him to sign a consent form allowing them to search his hotel room without a warrant. He signed the form. The officers searched Moore’s room, then searched Moore himself and discovered that he had 16 grams of crack cocaine and $516 in his pants pockets.

At his trial for possession of drugs with intent to distribute, Moore protested the use of the drug evidence. The search violated, among other things, his Fourth Amendment right protecting him against unreasonable searches and seizures without a warrant. In addition, the officers violated a state law that prohibits arrests for misdemeanors. But Moore’s trial judge didn’t buy these arguments. He convicted him.

A three-judge panel of the Virginia Court of Appeals found the search illegal and threw out the verdict. But when Virginia’s attorneys appealed this verdict before the full, 11-judge panel, the court’s majority reinstated Moore’s conviction. While conceding that state law forbade arresting Moore simply for driving with a suspended license, the court made a confounding decision that neither the arrest nor the subsequent search violated the Fourth Amendment. Their reasoning? An arrest based on “probable cause,” which the majority found Moore’s to be, is not unconstitutional. Therefore, the subsequent search did not violate the Fourth Amendment either.

Moore’s attorneys took the second decision from the appeals court to the Virginia Supreme Court, which, in a unanimous decision, reversed the lower court’s second ruling.

Now Moore finds himself before the U.S. Supreme Court today. The high court will settle once and for all whether the Virginia police officers violated Moore’s Fourth Amendment rights, as our friend-of-the-court brief maintains. We hope the justices will find that officers Anthony and McAndrews acted outside the rule of law by violating Moore’s constitutional right against unreasonable searches and seizures.

On Monday I attended the oral argument before the Supreme Court in Baze v. Rees. This case concerns the constitutionality of the three-drug lethal injection protocol that Kentucky, and all death penalty states but one, uses to execute condemned inmates. The petitioners, Kentucky death row inmates Ralph Baze and Thomas Bowling, argued that the protocol causes an unnecessary risk of pain, and therefore violates the Eighth Amendment’s prohibition against cruel and unusual punishment.

We, together with the Rutherford Institute, filed a friend-of-the-court brief in support of Baze and Bowling. Unfortunately, the central point made in our brief - that the secrecy surrounding the lethal injection protocols has enabled the states to use them despite the serious risk that inmates will suffer excruciating pain - was not addressed at the hearing.

Nor was the documented history of botched executions and the pain that they have caused the condemned to endure fully explored. By ignoring these fundamental issues, the Court missed the practical significance of this case - that the states have clandestinely adopted an unexamined and poorly administered method of execution which they tout as painless, when in fact it may well cause inmates serious, excruciating pain and suffering. The Court stayed away from these practical realities and instead focused on such surface issues as alternative protocols, available safeguards and its own caseload.

Donald Verrilli argued for Baze and Bowling. Many of the justices’ questions focused on alternatives to the current lethal injection protocol - both about ways to improve the three-drug cocktail and about the petitioners’ proposed one-drug alternative. The liveliest exchange occurred when Justice Scalia asked Verrilli where the Constitution requires a painless method of execution, and pushed him to weigh in on the constitutionality of older methods of execution such as hanging and electrocution.

Chief Justice Roberts raised the concern that if the Court found the three-drug protocol unconstitutional and endorsed the petitioners’ one-drug protocol, the Court would soon see an inmate arguing that the one-drug protocol was untried, undignified, and therefore unconstitutional. This concern over a glut of lawsuits surrounding methods of execution was later echoed by Justice Scalia, who hesitated to send this case back to the trial court, which he claimed would halt all executions for years to come.

Roy Englert argued on behalf of the state of Kentucky. Englert contended that Kentucky has “excellent safeguards” in place that prevent excruciating pain from occurring during the execution process. The justices, particularly Justice Ginsburg, questioned Englert about the qualifications of the people who monitor executions in Kentucky.

The justices also questioned Englert on the feasibility of the one-drug protocol, with Justice Stevens questioning the State’s justification and need for the second drug, pancuronium bromide, which serves only to paralyze the inmate. This line of questioning raised the point that the Kentucky legislature has banned the use of such neuromuscular blocking agents when euthanizing animals.

Englert gave part of his argument time to Gregory Garre of the United States Solicitor General’s office, which filed a friend-of-the-court brief in support of the state of Kentucky. Garre argued that the Eighth Amendment does not prohibit negligently inflicted pain. Prompted by questions from Justice Scalia, Garre stated that the petitioners’ proposed standard would embroil the Court in endless litigation surrounding methods of execution.

The Justices asked only one question during Verrilli’s three-minute rebuttal, in which he underscored the risk of excruciating pain caused by the three-drug protocol by highlighting data from states that have studied the physical effects of lethal injection executions on inmates.

The most important voting story tomorrow won’t be who won the New Hampshire primary. No, the big event will be unfolding at the Supreme Court.

Tomorrow the high court will be hearing Crawford v. Marion County, the ACLU’s challenge to Indiana’s most-restrictive-in-the-nation voter ID law. This 2005 law requires voters to present a government-issued ID to vote in federal, state and local elections. Voters without identification may vote with a provisional ballot, which is counted only if the voter travels to a circuit court or county election board to prove his or her identity within 10 days of the election. In effect, the law could deny the right to vote of thousands of Indiana’s registered voters who do not have, and, in many instances, cannot obtain the limited identification that Indiana will accept for voting.

Voter ID laws like Indiana’s are fundamentally flawed, and disproportionately deny the voting rights of eligible voters who happen to be poor, disabled, elderly or minorities.

Over 20 states have similar voter ID laws and more states are considering such restrictions. The court’s decision on the constitutionality of these laws will have broad national significance with this year’s presidential election.

We saw in the 2000 presidential race how the disenfranchisement of thousands of Floridians compromised the nation’s confidence in the election’s integrity. Here’s hoping the high court will protect voting rights, unfettered.

On Wednesday, we were pleased to learn that the Supreme Court agreed to hear Crawford v. Marion County Election Board and Indiana Democratic Party v. Rokita, cases that challenge Indiana’s voter ID law.

In 2005, the Indiana state legislature passed Public Law 109-2005, which requires that voters present a government-issued ID to vote in federal, state and/or local elections. A voter who does not have a government-issued ID may vote by provisional ballot, but must verify his identity at a county board of elections or circuit court within 10 days of the election for his vote to be counted.

In agreeing to hear these cases, the Supreme Court is acknowledging ongoing concerns that voter ID laws create unnecessary bureaucracy, and may disproportionately impact minorities, the elderly, and the poor.

According to the Department of Justice, only 120 of the more than 200 million people who cast ballots between 2002 and 2006 were charged with election fraud; among those, only 86 were convicted. Furthermore, despite upholding Indiana’s law, a Federal Appeals Court panel conceded that no one in the state has been prosecuted for in-person vote fraud. When the incidence of election fraud is marginal at best, there is no reason to babysit voters.

A 2005 study conducted by the University of Wisconsin-Milwaukee found that 23 percent of people in that state over the age of 65 did not possess a driver’s license. And in the most populous county in the state, less than half of African-American and Latino adults possessed a driver’s license. Overall, as The New York Times recently suggested, as many as 22 million Americans of voting age would not be able to vote today if Indiana’s policy were instituted nationally.

Election fraud is not the pandemic states like Indiana believe it to be. However, states can minimize the risk of election fraud by better publicizing state voting laws, simplifying the registration process, and easing felony disfranchisement policies. If states want to protect the integrity of elections, they ought to invest in voter education, not voter taxation.

The Supreme Court’s decision to hear Baze v. Rees is already having a big impact on scheduled executions throughout the country.

Just last night, the Supreme Court stayed the execution of Carlton Turner Jr., a Texas death row inmate. The Court did not give a reason for the stay: Turner requested it until the constitutionality of the method can be decided by the Justices.

In a separate development yesterday, Alabama Gov. Bob Riley stayed the execution of Tommy Arthur, who won’t be executed until the state can be sure that its lethal injection protocol will ensure that the inmate is unconscious before the fatal dose is delivered.

We were happy to learn on Tuesday that the Supreme Court has agreed to hear a death penalty case, Baze v. Rees, in which a death-row inmate claims that the three-drug cocktail the State of Kentucky wants to use to execute him and other prisoners amounts to “cruel and unusual punishment.”

There are a number of potential issues in this case. One is whether the combination of drugs causes unnecessary risk of pain and extreme suffering. When the execution isn’t botched, the first drug is supposed to render the prisoner unconscious, the second drug paralyzes them, and the third drug causes cardiac arrest. The process should take about 20 minutes.

Except for when it doesn’t. The use of this cocktail is barbaric - animals are put down with more humane drug combinations. The potential scenario at issue? The first drug does not fully render the prisoner unconscious, putting them at risk to feel the excruciating pain of cardiac arrest. But the prisoner won’t be able to scream or communicate that they’re in pain because the second drug has paralyzed them. A number of renowned doctors have testified that this horrifying scenario is a very real possibility with the three-drug cocktail.

The decision in this case could well have nationwide implications: 37 of the 38 death penalty states use the same three-drug cocktails. And as recently as last week, a federal court judge ruled against Tennessee’s use of the same cocktail, finding it caused “a substantial risk of unnecessary pain.” Today, The Washington Post reported that a scheduled execution in Virginia will likely be put on hold pending the Supreme Court’s decision in Baze.