William W. Van Alstyne, Lee Professor of Law at the College’s Marshall-Wythe School of Law, has signed two briefs written in association with other legal scholars and former government officials.
The first is for a case in the Sixth Circuit Court of Appeals. It concerns President Bush’s authorization of the domestic spying program.
The second is for a case in the Fourth Circuit Court of Appeals, which discusses joint presidential and congressional efforts to suspend habeas corpus.
Van Alstyne has signed more than 20 amicus curiae briefs in the past. “Amicus curiae” literally translates to “friend of the court,” which describes someone who volunteers information about the law or some aspect of a case to the court. The amicus statement can come in the form of testimony, a learned treatise or a legal brief.
Scholars and former government workers come together to create the amicus briefs. Sometimes, the collaboration will be initiated by a legal scholar. Other times, members of Congress or staff members for judges will solicit advice, asking professors to appear at hearings.
“For the same reason that those whose field is biology should be willing to come forward when there are questions of science at issue,” Van Alstyne said, there is an obligation, as an expert in Constitutional law to try and “clear the air of public misunderstanding.”
Van Alstyne also said that “these briefs are not written to favor a particular political party.”
The brief about domestic spying actually started as a simple letter to Congress. Over a year ago, on Jan. 9, 2006, Van Alstyne co-signed the letter, which stated concern about the National Security Agency’s domestic spying program. Authorized by President Bush, the NSA program allows surveillance on any person in the United States without a warrant.
A second letter to Congress was then sent by the same group, including Van Alstyne, on Feb. 2, 2006, in response to a memorandum by the U.S. Department of Justice.
Fourteen legal scholars and former officials signed the letters, including a former director of the FBI, a former acting solicitor general, two lawyers who worked in the executive branch, and deans or former deans at Yale, Stanford and the University of Chicago law schools.
The letter says, “One of the crucial features of a constitutional democracy is that it is always open to the President"or anyone else"to seek to change the law. But it is also beyond dispute that, in such a democracy, the President cannot simply violate criminal laws behind closed doors because he deems them obsolete or impracticable.”
A few days later, the same group filed their amicus brief to the Sixth Circuit Court of Appeals. In this case, the government is appealing an earlier decision that the executive order for NSA warrant-less domestic surveillance was unconstitutional. The case has already been argued and parties are awaiting the decision.
Van Alstyne said he has a “genuine concern as to whether or not the program was permitted under the Constitution and was inconsistent with certain acts of Congress.”
The second brief, over habeas corpus, was filed in conjunction with professors at Harvard, Duke, Stanford and the University of Virginia. It looks at efforts to suspend the writ of habeas corpus.
Habeas corpus has historically been regarded as an important safeguard on individual freedom, allowing detainees a legal avenue to seek for release from wrongful imprisonment.
The President and Congress have both tried to suspend the writ of habeas corpus. In particular, President Bush suggested that the courts’ authority to hear habeas corpus cases has been removed by Congress. Van Alstyne’s brief concludes this is not the case and that, consequently, habeas corpus cases should be heard.
“Habeas corpus is a fundamental part of the Constitution,” said Van Alstyne. “This is a very important issue of American justice and human rights.”
Van Alstyne joined the College’s Marshall-Wythe Law School as the Lee Professor of Law in 2004, following his work at Duke University Law School. Frequently cited as a legal scholar, Van Alstyne has also served as president of the American Association of University Professors and on the National Board of Directors of the American Civil Liberties Union.
The letter about domestic spying is available at http://www.nybooks.com/articles/18650.