De Novo: (Ir)relevant Distinctions

April 25, 2006

(Ir)relevant Distinctions

by PG

They seem to be the order of the day.

First, the leak by Central Intelligence Agency analyst Mary McCarthy that led to her being fired. If it doesn't run afoul of whistleblower protection statutes, McCarthy's dismissal seems pretty straightforward: she violated CIA policy on media contact by talking to a Washington Post reporter about secret CIA prisons, and she lost her job for breaking the rules. Hers is the sort of public-spirited gesture that whistleblower statutes tend to protect, but the ones I've read imply that talking to the media is a last resort after the entire chain of command has ignored one's complaint, and McCarthy's ability to claim whistleblower status probably would be further complicated by invocation of state secrets privilege. If she didn't comply with the whistleblower standards, then she deserved to be fired, even though history may class it with the jailings of MLK and Gandhi (neither of whom whined when imprisoned for disobeying the law).

What I find odd, however, are the calls to have McCarthy prosecuted for the leak, the justification being that if there's prosecution for the leaker(s) of Valerie Plame's identity, then there should be prosecution for any other leak of CIA secrets. Those making the comparison refuse to recognize any difference between a leak that could have endangered an individual, and a leak with more diffuse and mixed effects. I don't know of any benefit to the public that Robert Novak's column created, but it theoretically created a risk for Ms. Plame. The revelation about the secret prisons is one that will affect the entire nation for better and worse: better if this is something Americans don't want and needed to know about so they could end the practice; worse if it allows Al Qaeda et al. to interfere with a necessary and democratically desired tool. In contrast, Christopher Hitchens declares,

One can argue that national security is damaged by unauthorized leaks, or one can argue that democracy is enhanced by them. But one cannot argue, in the case of a man who says that his CIA wife did not send him to Niger, that the proof that his wife did send him to Niger must remain a state secret. If one concerned official can brief the press off the record, then so can another.

Second, the opinions in Day v. McDonough (via CS), in which case the plaintiff appealed a dismissal of his habeas petition. Ginsburg's opinion for the majority wants to distinguish between "a State’s deliberate waiver of a limitations defense" that the Court would consider "an abuse of discretion to override," and "an evident miscalculation of the elapsed time under a statute designed to impose a tight time constraint on federal habeas petitioners," which the Court held the federal court to have discretion to correct.

Scalia's dissent, on the other hand, criticizes Ginsburg for not wanting "to distinguish in this regard AEDPA’s time bar from other threshold constraints on federal habeas petitioners,” which distinction he deems relevant because the Antiterrorism and Effective Death Penalty Act of 1996 is "a recent creature of statute" rather than bearing the patina of age and tradition of defenses "created by the habeas courts themselves, in the exercise of their traditional equitable discretion."

Even the opening zinger of Scalia's dissent points to a difference of opinion on what constitutes a difference. "The Court today disregards the Federal Rules of Civil Procedure (Civil Rules) in habeas corpus cases, chiefly because it believes that this departure will make no difference. See ante, at 9. Even if that were true, which it is not, I could not join this novel presumption against applying the Civil Rules." To the majority, the relevant difference would be one in the consequences of this particular case: had the Chief Magistrate pointed out the error to the state's attorney and allowed him to amend the answer, rather than being the hand squashing the petitioner's complaint, the state presumably would have chosen to use the defense to defeat the complaint, and Day would have been in the same position (i.e. still in a Florida prison). Scalia doesn't claim that the state would have waived the defense in this particular controversy, but worries that it would in other cases. "Granberry and the like raise the possibility that the courts can impose a procedural defense over the State’s affirmative decision to waive that defense. The Court takes care to point out that this is not such a case, but it invites such cases in future."

Dan Filler at Concurring Opinions says, "Scalia makes a good case that precedent and Congressional action both cut against this snubbing of the Federal Rules," but I don't see what Congressional action there was to favor Scalia's decision, aside from the FRCP themselves. Scalia is toeing his textualist line here to the likely exclusion of original legislative intent; I doubt that Congress, particularly at the time it enacted AEDPA, would have wanted attorneys' poor math skillz* to allow otherwise expired deadlines to be extended.

BTQ's Milbarge summarizes it well: "This case is more about the old rules v. standards argument, and about deference to legislatures v. judicial policymaking," although I'd again specify that it's deference to legislatures' text rather than intent. (And of course, Milbarge is also correct that Scalia has voted several times before now to assist defendants, though I find Day a little unusual because he's a defendant who's claiming a post-conviction right. Scalia usually is a defendant's best friend until conviction and then thinks the Constitution permits notching the convict's ears.)

* I'm not sure whether it really was a question of being able to count, or if the attorney was confused as to whether to count 90 days or not. As a commenter on Sentencing Law and Policy says,

It is not unusual for appellate judges to write separate opinions concurring in the result. This is where they agree with the majority or plurality on the "bottom line" of affirm or reverse but disagree with the reasoning. In this case, though, Justice Stevens dissented in the result. He agreed with the majority's resolution of the question presented and decided, but he would have held the case until the Court decides (next term) a question that "lurk[s] in the record" and is pending in another case but was not presented in the certiorari petition. In nearly 20 years of doing Supreme Court work, I do not recall ever seeing an opinion "dissenting from the judgment."

The pending case (via SCOTUSblog) is supposed to resolve a circuit split over whether to include the 90 days a petitioner can seek SCOTUS cert, in the time stopped on AEDPA's one year clock for habeas petitions while a properly filed application for state postconviction relief is pending. The 11th Circuit, which includes Florida and thus both Day's and Lawrence's cases, does not include the 90 days. Ginsburg footnotes,

Day urges this Court to find his petition timely. He asserts that the Eleventh Circuit misinterpreted §2244(d)(2) in holding that AEDPA’s time limitation was not tolled during the 90-day period he could have petitioned this Court to review the denial of his motion for state postconviction relief. This question was not “set out in the petition [for certiorari], or fairly included therein,” and we therefore do not consider it here. This Court’s Rule 14.1(a). We note, however, that the Court recently granted certiorari in Lawrence v. Florida, which presents the question whether AEDPA’s time limitation is tolled during the pendency of a petition for certiorari from a judgment denying state postconviction relief. The instant opinion, we emphasize, addresses only the authority of the District Court to raise AEDPA’s time bar, not the correctness of its decision that the limitation period had run.

April 25, 2006 05:50 PM | TrackBack

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