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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud,

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Speaker 1: and on Bloomberg dot com slash podcasts. It may seem

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Speaker 1: like deja vu, the US government arguing in court that

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Speaker 1: it can detain a US citizen indefinitely as an enemy

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Speaker 1: combatant without giving him access to an attorney that he's

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Speaker 1: asked for. A DC federal judge said the government was

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Speaker 1: trying to do an end raun around the right to

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Speaker 1: habeas corpus, a basic constitutional right to challenge detention. The

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Speaker 1: unidentified American has been held by the US military in

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Speaker 1: a rock since he was captured in Syria in September

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Speaker 1: after allegedly fighting on behalf of isis joining me is

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Speaker 1: William Banks, a professor at Syracuse University Law School. Bill

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Speaker 1: set the stage for this week's hearing by telling us

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Speaker 1: how Judge Tanya Chutkin has had to use court or

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Speaker 1: is to get basic information from the government. It really

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Speaker 1: is quite an extraordinary situation. Uh. This this man, we're

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Speaker 1: calling him John Doe because we do not know his

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Speaker 1: identity has been held by the governments. In September, he

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Speaker 1: either surrendered or was apprehended by the Syrian Democratic forces

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Speaker 1: and then handed over to the United States and taken

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Speaker 1: to Iraq, where he has been ever since. The government

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Speaker 1: has not let us know his name, the circumstances of

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Speaker 1: his capture or or turning himself in, or his current status,

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Speaker 1: except to say that he's being held. Uh. It's it's

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Speaker 1: certainly possible that the government has the legal right to

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Speaker 1: detain this man. The Supreme Court held in the two

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Speaker 1: thousand four decision called Hamdi versus runs But that the

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Speaker 1: government may have a right to detain even a citizen

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Speaker 1: combatant to his fighting for an enemy in an armed

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Speaker 1: conflict against the United States. In that case, the citizen

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Speaker 1: is not different than any other enemy if he's bringing

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Speaker 1: arms against the United States. What's so extraordinary here is

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Speaker 1: that the government has not afforded this young man an

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Speaker 1: opportunity to contest the circumstances of his detention, that is,

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Speaker 1: to have his day in court. The a c o

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Speaker 1: U has filed a habeas corpus petition on behalf of

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Speaker 1: this unidentified American. What were the Justice Department's arguments against

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Speaker 1: that petition. The arguments really weren't legal arguments at all.

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Speaker 1: They simply argued that that it wasn't time yet, that

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Speaker 1: they were still trying to determine what to do with them.

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Speaker 1: There of course various possibilities here, but the possibilities are

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Speaker 1: are stretching credibility now that it's been more than twelve

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Speaker 1: weeks since he's been detained. One is that they were

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Speaker 1: trying to amass evidence with which they could charge him

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Speaker 1: in a regular civilian or in the United States. As

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Speaker 1: as many of your listeners know, the United States routine

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Speaker 1: brings captured alleged terrorists to the United States to stand trial,

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Speaker 1: and that system works quite well. The second possibility is

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Speaker 1: that they are trying to arrange for transfer of him

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Speaker 1: to a third country somewhere that might take him. With this,

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Speaker 1: with this man's consent, even though he is the United

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Speaker 1: States citizen, that could be taking a lengthier period of time.

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Speaker 1: And the third possibility is less favorable for the government,

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Speaker 1: which is that they simply don't know what to do

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Speaker 1: with this guy, whether to prosecute him, let him go,

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Speaker 1: which has yet another possibility, or transferring somewhere. So the

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Speaker 1: government admits that the detainee asked for a lawyer before

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Speaker 1: he would go forward with questioning. At that point, wasn't

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Speaker 1: the government required to provide him with a lawyer, which

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Speaker 1: they don't want to give him through the a c

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Speaker 1: l U. Apparently, well, that's the standard interpretation that most

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Speaker 1: of us would have full or what we call the

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Speaker 1: Miranda rights. When you rehim his rights and law enforcement interrogation,

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Speaker 1: he told you have a right to an attorney, but

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Speaker 1: that right actually doesn't detach until the government moves to

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Speaker 1: bring a case against you. So he's in a limbo.

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Speaker 1: Now he's being held. He's not being prosecuted, he's simply

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Speaker 1: being held. So following the miranda principle, he doesn't have

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Speaker 1: that right to the attorney until the government takes the

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Speaker 1: next step. And it's it's art of circular because they say,

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Speaker 1: we're not ready to take the next step yet. Now

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Speaker 1: let's discuss what is settled law and what is not.

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Speaker 1: You mentioned the Supreme Court's ruling in hom D v.

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Speaker 1: Rumsfeld that the government can detain US citizens as enemy combatants,

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Speaker 1: but they have the right to challenge their detention before

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Speaker 1: a neutral arbiter. What are the questions that are still open?

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Speaker 1: How long is too long? And who decides right? Well,

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Speaker 1: Judge Chutkin in the District Court in Washington will make

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Speaker 1: that decision preliminary early, you know. We we hope and

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Speaker 1: expect that she could be making that any day now,

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Speaker 1: ordering the government to provide him a council who could

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Speaker 1: then bring his habeas corpus case in a federal court

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Speaker 1: in the United States. As I said a moment ago.

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Speaker 1: Once once that case is brought, the government may well

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Speaker 1: win it. But the important principle, of course, is to

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Speaker 1: reinforce his right to have his day in court. He

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Speaker 1: had things that are not settled yet. As of course

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Speaker 1: what he was doing, what he did that would would

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Speaker 1: justify his detention. Uh. Sometimes somebody captured is or turned

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Speaker 1: himself in is not necessarily culpable as as a member

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Speaker 1: of an art force of fighting against the United States.

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Speaker 1: They are facts to be heard here. Bill. Is this

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Speaker 1: the same issue that came up under the George W.

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Speaker 1: Bush administration or is it different? Well, it's it is

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Speaker 1: the same in the sense that we're in the Homby

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Speaker 1: case at someone who was allegedly her originally rather thought

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Speaker 1: to be an alien fighting for the Taliban who was

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Speaker 1: sent to Guantanamo Bay, and after some period of time

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Speaker 1: it was discovered that Hammy had actually was born in

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Speaker 1: the United States, so he was transferred to a military

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Speaker 1: break in South Carolina rather than held at Guantanamo. Guantanamo

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Speaker 1: was reserved for non citizen aliens who were unlawful combatants

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Speaker 1: picked up in the soapballed war and tear. So it's

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Speaker 1: it's it's a little bit alike, but somewhat different because

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Speaker 1: this this individual, of course, was presented to the United

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Speaker 1: States UH in a combat zone and being held still

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Speaker 1: in what you could call a combat zone by the

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Speaker 1: US officials. Judge Chukins said, what the government suggests is

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Speaker 1: an end run around the right to habeas He wants counsel,

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Speaker 1: which is an assertion and request that I don't think

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Speaker 1: I can't ignore. Is she signaling pretty clearly how she's

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Speaker 1: going to rule. I think she is, and she's I

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Speaker 1: think been remarkably patient with the government here, trying to

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Speaker 1: give it time to make more UH coherent arguments that

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Speaker 1: would justify the continuing refusal to provide him counsel. I

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Speaker 1: think we're going to find an order to provide him

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Speaker 1: counsel and then ah habeas petition forthwith. The Supreme Court

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Speaker 1: has turned down a chance to decide whether the federal

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Speaker 1: law protecting workers against discrimination based on sex also protects

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Speaker 1: workers from discrimination based on sexual orientation. The circuit courts

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Speaker 1: are divided on the question of whether Title seven covers

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Speaker 1: gay workers, and so are the E O, C and

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Speaker 1: the Justice Department. The Justices did not explain their reasoning

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Speaker 1: for turning down the case of a hospital security guard

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Speaker 1: in Georgia who said she was discriminated against because she

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Speaker 1: was gay. Joining me is Anthony Christ, professor at the

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Speaker 1: Chicago Kent College of Law. Anthony the circuits are split.

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Speaker 1: The seven Circuit rules sexual orientation discrimination is a form

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Speaker 1: of gender bias protected by Title seven. The eleven Circuit

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Speaker 1: ruled it's not, and the second Circuit is considering it now.

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Speaker 1: Isn't this the type of confusion that the Supreme Court

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Speaker 1: is supposed to clear up? Yeah? Absolutely. I think that

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Speaker 1: the Court and not hearing this case is only delayed

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Speaker 1: the timing of when they will actually decide a case

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Speaker 1: of this sort um. This case wasn't a particularly great

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Speaker 1: vehicle to decide this this issue. I mean, it's a

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Speaker 1: it's a big issue, UM. And so certainly the court

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Speaker 1: would want a clean case. UM. There are some procedural

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Speaker 1: problems with the defendants claiming they weren't properly served. UM.

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Speaker 1: And in fact, Jimmy Evans has a potential remedy as

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Speaker 1: a as a traditional gender nonconformity claim that's removed from

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Speaker 1: her such orientation claim. So I think that there are

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Speaker 1: a lot of factors here that my have not made

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Speaker 1: this best case for the court to take up to

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Speaker 1: decide this this incredibly important issue. Tell us what the

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Speaker 1: argument is on both sides. So the argument in favor

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Speaker 1: of expanding our understanding of what sex discrimination is that effectively,

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Speaker 1: if if you take into consideration a person sexual orientation,

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Speaker 1: you're taking into account that person sex and the sex

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Speaker 1: of the people that they form intimate relationships with. And

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Speaker 1: so if you're taking sex into account at all, that's

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Speaker 1: a plain form of sex discrimination that Title seven UH

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Speaker 1: was enacted to to to remove from the workplace. UM.

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Speaker 1: The The counter response is, well, homophobia is a different

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Speaker 1: and distinct form of bias, that's not UH sexism, and

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Speaker 1: so these are distinct things. UM. And that Congress when

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Speaker 1: they enacted Title seven's protections in the N four. Um,

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Speaker 1: we're really thinking about protecting men versus women in the workplace. Um,

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Speaker 1: you know, based on biological sex, and they weren't thinking

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Speaker 1: about sex orientation or LGBT people, and so these things

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Speaker 1: are distinct issues. Um. And if the Court or if

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Speaker 1: if Congress wants to a me entitle seven to include

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Speaker 1: LGBT discrimination claims, and they're free to do so, Anthony,

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Speaker 1: is it important to gay rights groups to get this

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Speaker 1: issue before the Court before Justice Anthony Kennedy retires and

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Speaker 1: that could be this term? Yeah, I think the timing

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Speaker 1: here is is incredibly important. Um. I think gay rights

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Speaker 1: groups certainly would like this, this case, a type of

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Speaker 1: case like this to come before the Court for Justice

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Speaker 1: Kennedy retires. If he does, Um, it certainly would be

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Speaker 1: a lot easier of a road, uh, for for advocates

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Speaker 1: in that sense. Um, you know, if Justice Kennedy is

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Speaker 1: on the Court as opposed to someone who President nominate

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Speaker 1: to replace him in within the next few months. So

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Speaker 1: how did how does it affect rights in the workplace

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Speaker 1: that in the same court case, the Second Circuit case

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Speaker 1: in New York which I was talking about before, the

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Speaker 1: Equal Employment Opportunity Commission was arguing that Title seven protects

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Speaker 1: against discrimination based on sexual orientation, while the Justice Department

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Speaker 1: was arguing that it doesn't. Yeah, it's a very unusual

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Speaker 1: situation where you have two different entities within the federal

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Speaker 1: government taking opposite views. UM. The e of C, of

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Speaker 1: course the agency that Congress charged with the responsibility of

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Speaker 1: UM enforcing Title seven, and so they get a considerable

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Speaker 1: amount of of UM of deference in the sense that

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Speaker 1: you know that that they're the experts in this field. UM.

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Speaker 1: But the Department of Justice certainly has you know, they've

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Speaker 1: claimed that, as the nation's largest employer of the federal government,

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Speaker 1: has a has an important interest in Title seven and

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Speaker 1: the administration of Title seven. UM. And you know, it's

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Speaker 1: it's not surprising that the political appointees that were put

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Speaker 1: in place by the Trump administration UM in the Department

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Speaker 1: of Justice took this position, UM, given you know, Attorney

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Speaker 1: General Sessions and a number of high profile people in

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Speaker 1: the Trump administration have generally been uneasy with pro LGBT

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Speaker 1: policies and and pro or policies that protect LGBT employees

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Speaker 1: and workers. Anthony. Some states do have laws that protect

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Speaker 1: against workplace discrimination, so is titled seven less important in

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Speaker 1: those states. Uh. It depends on a state by state basis. UM.

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Speaker 1: There are a number of states where uh, you know,

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Speaker 1: you certainly have coequal protections, but there are many states,

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Speaker 1: many many states in the fact that they do not. UM.

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Speaker 1: And it's important to have I think it's important to

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Speaker 1: have access to UM, you know, to to have access

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Speaker 1: to robust protections and have protections for people UM on

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Speaker 1: a federal level, because it's important that we have uniform laws.

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Speaker 1: The patch work laws where LGBT people were protecting certain

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Speaker 1: situations and not in other states. UM, it's a fundamentally

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Speaker 1: unworkable UM. And I think we need a national resolution

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Speaker 1: to this for for every LGBT employee to know that

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Speaker 1: they uh, you know, they're free from that, that they're

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Speaker 1: protected from workplace bias and workplace discrimination no matter what

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Speaker 1: state they live and work in. Just briefly, might this

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Speaker 1: second circuit case be the one that the court takes. Yeah,

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Speaker 1: I think this is an ideal vehicle for it. The

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Speaker 1: real question at the end of the day, does the

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Speaker 1: employer want to be the face of defending this at

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Speaker 1: the Supreme Court? UM? They may not necessarily appeal, but

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Speaker 1: that time will tell if that happens. Always a pleasure

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Speaker 1: to have you on that. Professor Anthony Christ of the

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Speaker 1: Chicago Kent College of Law, thanks for listening to the

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Speaker 1: Bloomberg Law Podcast. You can subscribe and listen to the

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Speaker 1: show on Apple Podcasts, SoundCloud, and on bloomberg dot com

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Speaker 1: slash podcast. I'm June Brasso. This is Bloomberg, the Duck,

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Speaker 1: the dependent and duck of the