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Two weeks ago, while the House of Representatives was finalizing its 700-page legislation authorizing the Treasury to borrow and spend $1.9 trillion in the next six months, and the Senate was attempting to confirm more of President Joseph R. Bidens cabinet nominees, Biden secretly ordered the Pentagon to bomb militias in Syria.

The United States is not at war with Syria. It is not at war with the militias that were bombed, and it didnt seek or have the permission of the Syrian government to enter its air space and engage in deadly military activities. Biden later claimed that the bombing was conducted as a lesson to Iran, another country with which the U.S. is not war.

His campaign promises to the contrary notwithstanding, Biden has followed in the footsteps of his immediate predecessors. They bombed civilians in an aspirin factory in Kosovo (Clinton), bombed civilians in Iraq (G.W. Bush), bombed military targets and government buildings in Libya and bombed a cafe in the Yemen desert targeting an American who was having tea (Obama), bombed the same location as Biden in Syria, and bombed a convoy of trucks in Iraq targeting an Iranian general who was on his way to lunch with an Iraqi counterpart (Trump).

All of these bombings and targeted killings violated the U.S. Constitution, the U.N. Charter which is a treaty largely written by the U.S., and to which the U.S. is a signatory and international law.

What is going on with American presidents and war?

The Constitution specifically separates the power to make war from the power to wage war. The delegates to the Constitutional Convention in 1787 spent more time debating this than any other topic beside the makeup of Congress. In the end, they were adamant and unanimous that only Congress can declare war and only the president can wage war.

Congress cannot tell the president how to deploy the military, and the president cannot use the military against foreign targets without a congressional declaration of war.

James Madison the scrivener at the Convention famously offered that if a president could declare war and wage war, or even use the military to target any foreign entity he wished, then he would be a king, not a president. He argued that war exacerbates the presidents strongest passions and most dangerous weaknesses. And when he drafted the Bill of Rights, Madison had the presidency in mind when he wrote in the Fifth Amendment that the government may not take life, liberty or property without due process of law.

Taken together, the exclusive constitutional delegation of war-making to Congress and the Due Process Clause absolutely restrain the legal ability of the president to use violence in another country without a declaration of war from Congress; and in the case of violence against an American, without a conviction by a jury and all the constitutional protections attendant upon that. And, against civilians never.

When President George W. Bush decided to invade Afghanistan in retaliation for what he argued was providing haven and resources for those who planned, paid for and carried out the attacks on 9/11, he first went to Congress. Congress did not declare war on Afghanistan. Instead, it enacted a resolution called the Authorization to Use Military Force of 2001. That authorized Bush and his successors to use the military to target the perpetrators of 9/11 wherever and whenever they found them.

Unlike traditional declarations of war, the AUMF of 2001 did not have an endpoint, and that is its fatal flaw. Presidents Barack Obama, Donald Trump and Biden disingenuously cited it as their legal authority to bomb Middle Eastern targets that had no conceivable relationship to the perpetrators of 9/11.

When Bush sought to invade Iraq to locate and destroy what he claimed were weapons of mass destruction, Congress enacted another AUMF in 2002. It, too, has no endpoint.

Last week, a bipartisan group of senators offered legislation to repeal both AUMFs and Biden has indicated that he will sign the repeal. That is a good start toward taming the executive appetite for military violence, but it is not enough.

Under international law and the natural law, the U.S. may only use force defensively. That means it may attack the military of a foreign country or group that has attacked the U.S. or an ally, and it may attack the military of a foreign country or group that is imminently about to attack the U.S. or an ally. Those are the only instances in which the president may deploy U.S. forces for violent purposes without a congressional declaration of war.

Congress must do more than just repeal the two AUMFs if it believes that the Constitution means what it says. Congress needs to repeal the War Powers Resolution of 1973 which purports to permit presidents, upon notification to Congress, to wage 90-day offensive wars, in violation of the Constitution and international law.

Congress needs to prohibit absolutely the unauthorized presidential expenditure of money and deployment of armed personnel on any nondefensive violent actions. I say personnel rather than military because modern presidents have often used the CIA to fight wars and argued that because those wars did not involve the military, no congressional approval or notification was needed.

Congress should criminalize such presidential violence and the expenditures of resources to support it, as it is a crime to kill without lawful authority. And Congress should call nondefensive killings by the government or anyone by their legal name: Murder.

See original here:
Napolitano: The power to make war - Daily Herald

The view outside the Nevada Legislature on Sunday, Aug. 2, 2020.

Assemblywoman Lisa Krasner, R-Reno, joined by public defenders across the state, called on lawmakers to pass legislation designed to make sure juveniles younger than 18 dont waive their Fifth Amendment rights without first talking to a parent, guardian or an attorney.Kendra Bertschy of the Washoe County Public Defenders Office said more than 40 percent of juveniles waive those rights without understanding the consequences. AB251 would require police with a juvenile in custody get them in contact with a parent, guardian or attorney before asking any questions.But Chuck Callaway, representing the sheriffs and police, said if officers cant question juveniles, officers will just arrest everyone. The Nevada DAs Association also came out against AB251 as did several juvenile officers.Bertschy responded saying she was disappointed that law enforcement thinks their only option is arresting everyone.Krasner said the bill would also seal a juveniles arrest record at age 18 to give them a clean slate as they become adults under the law. She said a series of misdemeanors on juveniles records can impact their ability to get a job, go to college and other things.Serious crimes in a juvenile record, including sex offenses, would not be sealed.Alex Ortiz of Clark Countys financial office said he has no problem with the policy in the legislation but is concerned about its potential cost. He said the county would have to open, staff and run another juvenile housing unit at a cost of $2 million a year.The committee took no action on the bill with Krasner saying she would work with stakeholders to resolve some of their issues while still trying to protect juvenile suspects from themselves when taken into custody.

See the rest here:
Bill would protect juveniles' Fifth Amendment rights | Serving Carson City for over 150 years - Nevada Appeal

In civil disputes including bankruptcy litigation it is not uncommon for questions to arise about a clients potential exposure to criminal liability, whether the client is a party or a witness. Civil litigators must therefore understand the role of the Fifth Amendment privilege against self-incrimination in the civil context.

Lets say our client is a target or witness in a civil investigation or embroiled in litigation with business partners who have alleged criminal wrongdoing or made threats to contact law enforcement. At some point, the client may need to provide testimony, submit a sworn declaration, or participate in an interview. How do you mitigate the risk that the client will say something self-incriminating, and what are the effects of a client taking the Fifth in a civil lawsuit?

This article which is based on research that we conducted for a client discusses four questions relating to the intersection of the Fifth Amendment and civil litigation. In later articles, we will discuss the risk assessment process civil practitioners should undertake when a client is faced with allegations of criminal wrongdoing.

In the criminal context, no adverse inference is permitted from a witnesss refusal to testify based on the Fifth Amendment. In federal civil litigation, however, an adverse inference may be drawn when independent evidence exists of the fact to which the party refuses to answer meaning that an adverse inference can be drawn when silence is countered by independent evidence of the fact being questioned, but that same inference cannot be drawn when, for example, silence is the answer to an allegation contained in a complaint. Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d 1258, 1264 (9th Cir. 2000) (internal citations omitted).

Once a witness in a civil suit has invoked his or her Fifth Amendment privilege against self-incrimination, the trier of fact is entitled to draw an adverse inference from the witnesss refusal to testify. Chaffee v. Keller Rohrback LLP, 200 Wash.App. 66, 83-84 (2017) (citing King v. Olympic Pipeline Co., 104 Wash.App. 338, 355-56 (2000) and Ikeda v. Curtis, 43 Wash.2d 449, 261 P.2d 684 (1953)).

In a civil proceeding such an [adverse] inference is permissible, where appropriate, not as a sanction or remedy for any unfairness created by exercise of the privilege but simply because the inference is relevant and outside the scope of the privilege. Diaz v. Washington State Migrant Council, 156 Wash.App. 59, 85-86 (2011). Fifth Amendment invocations by corporate employees or principals may also result in an adverse inference drawn against the corporation. Id. (collecting cases). Moreover, invocation of the Fifth Amendment privilege may supply an avenue for investigation by prosecutors. Chaffee, 200 Wash.App. at 84.

In Olympic Pipeline, decided in 2000, the court noted that Washington courts have not addressed whether the trial court has discretion to limit the adverse inference that follows from invocation of the privilege. 104 Wash.App. at 356. The Olympic Pipeline court declined to resolve this question (which appears to remain open) but observed that ER 403 permits the court to exclude relevant evidence where unduly prejudicial, and that controlling precedent does not [a]s a logical matter prohibit the usual analysis under the rules of evidence. Id.

Although Olympic Pipeline suggests that a trial court might have discretion to exclude under ER 403 evidence that a witness took the Fifth, Washington does not appear to have adopted the federal independent evidence requirement, meaning the risk of an adverse inference may be greater in Washington state court.

Oregon prohibits an adverse inference from the invocation of the Fifth Amendment privilege, even in civil cases. Under Oregon Rule of Evidence 513 (O.R.S. 40.290(1)), [n]o inference may be drawn from a claim of privilege.

In John Deere Co. v. Epstein, 307 Or. 348 (1989), the Oregon Supreme Court considered whether Rule of Evidence 513 permits an adverse inference in a civil proceeding based on a witnesss invocation of the Fifth Amendment right against self-incrimination. The Courts analysis in John Deere turned on whether invoking this right qualifies as a claim of privilege under Rule 513.

The Court found that an adverse inference is barred, even in civil cases, because claim of privilege includes federal constitutional privileges not just privileges under state authority or listed in the Oregon code. Thus, although such an adverse inference is allowed under the U.S. Constitution, it is inconsistent with Rule 513.

John Deere is over 30 years old but has only been cited in a handful of subsequent cases, none of which appears to address the adverse inference question as applied to civil cases. It has not been reversed or limited, and the current language of Rule 513 is materially identical to the language in effect in 1989 ([n]o inference may be drawn from a claim of privilege). John Deere thus appears to be good law.

As illustrated by the differences between federal court and the state courts of Washington and Oregon, the rule regarding an adverse inference in civil cases varies by jurisdiction. In the case that prompted this research, our client was deposed by a receiver in Washington, but the subject of the clients deposition was also at issue in a civil suit by the Washington Division of Financial Regulation, an SEC investigation, and a federal criminal investigation in Oregon. Because it is hard to predict where a client may be sued, it is safest to assume an adverse inference may be allowed.

Can a witness testify as to certain transactions or events but assert the Fifth as to others? Answering this question is difficult and highly fact-dependent.

When a party testifies voluntarily, and therefore controls the extent of disclosure, [t]he privilege is waived for the matters to which the witness testifies. OSRecovery, Inc. v. One Groupe Int'l, Inc., 262 F.Supp.2d 302, 30708 (S.D.N.Y. 2003) (quoting Brown v. United States, 356 U.S. 148, 15455 (1958)).

Thus, the privilege has already been waived if a party testifies to certain transactions and then refuses to testify further because the disclosure of a fact waives the privilege as to its details. In re Enron Corp. Securities, Derivative & ERISA Litig., 762 F.Supp.2d 942, 961 (S.D. Tx. 2010) (citing cases); State v. Huizenga, 198 Wash.App. 1031 (2017) (unpublished). The breadth of such a waiver is determined by the scope of relevant cross-examination. Brown, 356 U.S. at 154-55; see also McGautha v. California, 402 U.S. 183, 215 (1971) ([a] defendant who takes the stand in his own behalf cannot then claim the privilege against cross-examination on matters reasonably related to the subject matter of his direct examination).

As suggested above, this standard is inherently vague, and it is difficult to predict in advance where a court might draw the line. It is generally safest to assume the court will construe any waiver broadly.

It is settled that a waiver of the Fifth Amendment privilege is limited to the particular proceeding in which the waiver occurs. U.S. v. Licavoli, 604 F.2d 613, 623 (9th Cir. 1979) (emphasis added) (citations omitted) (voluntary testimony before grand jury does not waive privilege at trial); see also U.S. v. TrejoZambrano, 582 F.2d 460, 464 (9th Cir. 1978) ([a] waiver of the Fifth Amendment privilege at one stage of a proceeding is not a waiver for other stages); 8 J. Wigmore, Evidence 2276, at 470-72 (a witnesss voluntary testimony [in a] preliminary and separate proceeding, e.g. in bankruptcy, is not a waiver for the main trial, and [n]or is his testimony at a first trial a waiver for a later trial).

For these purposes, the term proceeding is defined narrowly. Even if they arise from the same events, a civil action and criminal case would certainly be separate proceedings. The Washington Supreme Court has also held that a witnesss waiver in testifying at an inquest did not extend to a subsequent wrongful death lawsuit, which the Court described as [an] unrelated legal proceeding[ ]. Stone v. State, 85 Wash.2d 342, 344 (1975). Indeed, in Mitchell v. U.S., 526 U.S. 314, 325 (1999), the Supreme Court held that a guilty plea and statements made during a plea colloquy did not function as waiver at sentencing.

To be clear, however, this does not mean that a witness can invoke the Fifth Amendment to bar the admission of self-incriminating sworn statements made during an earlier proceeding. The witnesss waiver of the privilege is limited to a single proceeding, but the government can introduce in a criminal trial a transcript of the defendants prior testimony in a civil deposition in which he had waived the privilege. See, e.g., KST Data, Inc. v. DXC Technology Co., 344 F.Supp.3d 1132, 1134-35 (C.D. Cal. 2018) (citing Licavoli, 604 F.2d at 623).

Conclusion

The issues addressed in this brief article are just some of those to consider when advising a client on whether to assert the Fifth Amendment privilege in the civil context.

See original here:
Taking the Fifth in a Civil Context - Lexology

OGDEN A suspects refusal to give his cellphone unlock code to police is protected by the 5th Amendment, the Utah Court of Appeals ruled in overturning an Ogden mans three first-degree felony convictions.

During his arrest for the alleged assault of an ex-girlfriend on Aug. 30, 2017, Alfonso M. Valdez would not show investigators his Android phones nine-dot-pattern swipe code so they could look for texts that supposedly showed he had been reconciling with the woman.

Police had a search warrant for the contents of the phone, but they never got access to the data because of Valdezs refusal.

In its ruling issued Thursday, the Court of Appeals said Valdezs right against self-incrimination was violated when 2nd District Judge Joseph Bean in Ogden allowed a detective to testify about Valdezs withholding of the code.

His rights were further violated, the court in Salt Lake City ruled, when Weber County prosecutors argued the jury should infer that Valdezs refusal meant that no make up texts existed.

The jury convicted Valdez, now 55, of first-degree felony counts of kidnapping, robbery and aggravated assault and Bean sentenced him to three terms of five years to life in the Utah State Prison, where he remains incarcerated.

After attorneys argued about the swipe code refusal during the trial, Bean said the Fifth Amendment does not necessarily protect such a refusal. But the appeals court ruled, Communicating a cell phone swipe code to law enforcement is a testimonial act protected by the Fifth Amendment.

Quoting U.S. Supreme Court precedent, the court said the amendment reflects a judgment that the prosecution should not be free to build up a criminal case, in whole or in part, with the assistance of enforced disclosures by the accused.

With modern technology, that applies to cellphone codes, the court said.

The amendment forbids either comment by the prosecution on the accuseds silence or instructions by the court that such silence is evidence of guilt, the Court of Appeals said.

One of Valdezs main defenses was his claim, supported by testimony by his ex-wife, that his encounter with the former girlfriend had been friendly, not adversarial, and was preceded by a sexually charged text exchange discussing reconciliation.

In closing arguments, prosecutors pointed out no such messages were in evidence. They urged jurors not to believe the ex-wifes statement that she had seen the texts. Then they described Valdezs refusal to give up the pass code.

The ex-girlfriend testified Valdez threatened her with a gun and a knife when she got into his car. She said he also pulled her hair and put his hand around her neck before she was able to escape.

The court noted police never found a knife and the womans cellphone, and that the gun was a starter pistol, incapable of firing live bullets.

The woman also had only a small cut on her lip and no other injuries, court documents said.

The ruling sends the case back to the district court for a possible new trial.

Excerpt from:
Court says suspect's refusal to give police a cell phone unlock code is protected by 5th Amendment - Standard-Examiner

In a recent opinion, the United States Court of Appeals for the First Circuit affirmed the constitutionality of so-called basic or routine searches of electronic devices at the border absent a warrant, probable cause or even reasonable suspicion. Given the volume and sensitivity of information increasingly stored on phones and other devices, the courts opinion offers a reminder that personal privacy is at significant risk when traveling abroad or returning home.

Background

The appeal in Alasaad v. Mayorkas, Nos. 20-1077, 20-1081, 2021 U.S. App. LEXIS 3586 (1st Cir. Feb. 9, 2021), involved a civil suit in which ten US citizens and one lawful permanent resident sought declaratory and injunctive relief, alleging that officers from the US Customs and Border Protection Agency and the US Immigration and Customs Enforcement Agency (together, the Agencies) searched their respective electronic devices at the nations ports of entry without a warrant, probable cause or reasonable suspicion pursuant to the Agencies own internal policies (the Policies).

Beginning in 2018, the Policies defined both basic and advanced searches of electronic devices. A so-called advanced search is any search of an electronic device conducted in order to review, copy or analyze its contents, which may involve the use of external equipment. It may also extend to deleted or encrypted files. To justify such a search, the Agency must have reasonable suspicion that the search will yield evidence of criminal activity.

By contrast, a so-called basic search is relatively limited in duration, must be conducted manually (ie, without the use of external equipment) and does not extend to deleted or encrypted files. As the District Court noted, the basic searches at issue lasted approximately 45 minutes and involved the viewing of emails and text messages. The Agency may conduct such a search without any suspicion of criminal activity. Notably, the Policies require for both basic and advanced searches that the device must be disconnected from the internet before the search can commence.

Each of the plaintiffs alleged that, at various ports of entry (mostly international airports), they had their laptops or smartphones temporarily seized, and their contents searched, by Agency personnel without any warrant, probable cause or articulable degree of suspicion. In most cases, the individuals provided their passwords after what they understood to be orders to do so.

First Circuits opinion

After the lower court granted in part and denied in part the plaintiffs motion for summary judgment, the First Circuit considered the plaintiffs arguments grounded in both the Fourth and the First Amendments de novo. Specifically, the plaintiffs argued that (i) all electronic device searches at the border require a warrant, and that, in the alternative, (ii) all electronic device searches at the border require, at least, reasonable suspicion that the device contains contraband.

The plaintiffs primarily based their challenge on the US Supreme Courts opinion in Riley v. California, 573 U.S. 373, 382 (2014), which held that a warrantless search incident to arrest cannot extend to the electronic contents of a cell phone. Riley, however, did not involve an arrest or search at the border.

For the reasons further detailed below, the First Circuit rejected all of the plaintiffs arguments.

Basic electronic device searches at the border require neither warrants nor reasonable suspicion

The court quickly dispatched the plaintiffs argument that either a warrant or probable cause is necessary to conduct any search. It began by placing the searches at issue squarely within the border search exception to the general warrant requirement. Previously endorsed by the US Supreme Court, this exception is grounded in the governments inherent authority to protect its territorial integrity. In fact, the expectation of privacy at the border is markedly lower than the expectation of privacy in the nations interior.

The court further explained that, given the volume of travelers passing through the nations borders, warrantless electronic device searches are essential. More specifically, it opined that the Executive Branch will only be able to adequately protect the border if it is not subject to the warrant requirement because the resulting delays would necessarily hamstring its efforts to protect the country from national security threats.

In turning to the next level of justification reasonable suspicion the court analogized basic searches under the Policies to routine searches of other property at the border which the Supreme Court has previously held can be performed without any degree of suspicion. In the First Circuit, permissible routine property searches have been held to include, for example, the compelled removal of an outer layer of clothing. See United States v. Braks, 842 F.2d 509, 513 (1st Cir. 1988). By contrast, however, a search that is not routine, such as an advanced search under the Policies, must be justified by, at least, reasonable suspicion. Whether a search is routine or non-routine has traditionally been a fact-specific inquiry.

The court distinguished prior opinions (like the Supreme Courts decision in Riley) that have remarked upon the significant privacy interests necessarily affected by electronic device searches in non-border contexts, from such searches when they occur at the border. The court stated that, there, the governments interest in preventing the entry of unwanted persons and effects is at its zenith. Accordingly, the First Circuit concluded that searches may include looking for evidence of crimes, thereby rejecting the plaintiffs request to simply limit them to contraband.

After explaining the limits of Fourth Amendment protection, the court noted that Congress and the Executive Branch are certainly free to grant individuals greater protection than that afforded by the Constitution.

No express limit set as to duration of detention of devices searched

The court declined to set a bright-line rule as to the appropriate duration of a devices seizure, remarking that the plaintiffs did not present any facts about the actual length of the detentions at issue. Instead, the court indicated that the relative reasonableness of the duration will be decided on a case-by-case basis.

Notably, however, the Policies require supervisory approval to extend a device detention beyond 5 days (under the Customs and Border Patrol Policy) and 30 days (under the Immigration and Customs Enforcement policy). Such approval is also necessary if the devices are to depart from the location of their initial detention. As to the scope of the initial search, the Policies state only that a basic search must be both brief and reasonable.

The First Amendment does not provide any additional protection in this context

The plaintiffs also asserted that these searches mandated the compelled disclosure of expressive information, thereby violating the First Amendment. After remarking that neither the First Circuit nor the US Supreme Court has identified an appropriate standard through which First Amendment intrusions at the border might be assessed, the court rejected this challenge as well. In doing so, the court focused on the fact that the Policies are content-neutral. It also reiterated the governments paramount interests in protecting the nations border.

The plaintiffs argument that a higher level of suspicion would be required to search expressive material was similarly rejected. Citing Ninth Circuit precedent, the court explained that drawing such a distinction for expressive material would be unworkable in practice and would potentially protect important terrorist communications.

The court expressly left open the question of whether the outcome of a First Amendment challenge to the Policies would be different if there were reason to believe that the agencies were specifically targeting journalists.

Key takeaways

The First Circuits opinion underscores the risks that one takes when entering the country while in possession of sensitive material and information.

Significantly, the court expressly passed on deciding whether the disclosure of the plaintiffs passwords the circumstances surrounding which varied widely among the plaintiffs was constitutional. Therefore, it is at least likely that using passwords will continue to provide some protection, at least from such basic searches in the absence of reasonable suspicion. Ultimately, if no level of suspicion that the contents of the phone might contain evidence exists, the Policies would preclude an advanced search. In this circumstance, it is quite difficult to envision a scenario in which the agents could access a phones contents absent an individuals voluntarily providing their password.

Additionally, in non-border contexts, other jurisdictions have deemed it violative of the Fourth Amendment to compel individuals to provide their passwords without cause, and a petition for a writ of certiorari is currently pending before the Supreme Court concerning whether the Fifth Amendment protects an individual from being compelled to disclose a passcode. See Petition for Writ of Certiorari, Andrews v. New Jersey, (No. 20-937). However, given its highly permissive view of border searches, the First Circuit could theoretically distinguish such holdings in the future in that specific context.

As noted above, under the Agencies Policies at issue in Alasaad, a basic search must be conducted manually, must be limited in time and scope, and must occur only at the location of the seizure. Therefore, it seems unlikely that Agencies could access an individuals locked data if the devices owner does not voluntarily unlock the device, or alternatively provide its password. And, under the Policies, if more complex methods of accessing the contents of a device are to be employed, then an articulable degree of suspicion is likely required because that would probably entail an advanced search.

Of course, although perhaps easier said than done, travelers can protect themselves and their employers by taking certain precautions:

In sum, while the courts opinion in Alasaad authorizes expansive search authority at the border, some common-sense protective measures should offer travelers, employees and employers some comfort.

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Court of Appeals affirms broad government authority to conduct warrantless searches of electronic devices at the border - Lexology