May 14, 2010
The Legality of Targeted Killings
It's well known by now that President Obama has ordered numerous drone attacks and ordered the killing of Anwar al-Awlaki, an American Muslim cleric allegedly living in Yemen and plotting terrorism against the United States. The New York Times reports today that these orders are causing "unease." We thought we'd elaborate.
The best legal justification offered by the administration is State Department Legal Adviser Harold Koh's speech in March to the American Society of International Law (below). Koh argues that targeted killings are fully constitutional and within the President's powers as part of the United States's right under international law to defend itself (especially in time of war) and under the 2001 Authorization for Use of Military Force.
But Koh makes little mention of the assassination ban under long-standing executive order, E.O. 12333 (he concludes that it does not restrict lawful killings under the law of war), the Hague Convention's ban on "treacherous" killing of enemies, and the Army Field Manual's interpretation of the Hague Convention's ban (in paragraph 31) to prohibit assassination (to say nothing of the Due Process Clause)--all of which seem relevant, even if ultimately deemed inapplicable. ("Assassination" is nowhere well defined and is subject to some dispute. But, as the Congressional Reserach Service writes in this post-9/11 report on E.O. 12333 and the assassination ban, an Army memo issued in the process of reauthorizing the Army Field Manual defines "assassination" as a "surprise" attack during peacetime and notes that the Hague Convention does not preclude defining assassination this way also in wartime.)
Koh's justifications for tageted killings--and his omission of limitations upon targeted killings, as above--seem surprising, given his critiques of the Bush administration justifications for everything from warrantless wiretaps to torture. For example, Koh testified before the Senate Judiciary Committee in 2008 that the AUMF was too vague an authority upon which to base these Bush administration policies. He also argued for a more robust role for Congress and the courts. Koh argued against inherent executive authority to conduct these programs, instead referring to Justice Jackson's three-part framework in Youngstown.
But if, as Koh argued, e.g., FISA limited President Bush's power to conduct warrantless wiretaps (or domestic and international law limited President Bush's power to torture, etc., etc.), why don't E.O. 12333, the Hague Convention, and the Army Field manual (and the Due Process Clause) limit President Obama's power to authorize targeted killings, putting the President's power at its lowest ebb under Jackson's framework? Or at least, why aren't these sources of law even worthy of mention up against the inherent right of self defense, the law of war, and the AUMF (which was too vague for many presidential actions, by Koh's own reckoning)? (Related: If the President's authority is at all in doubt, why not go to Congress and get specific authorization for them?)
There may be three reasons.
First, the administration may be relying upon inherent Article II, Commander in Chief, authority. This seems unlikely, however, given the administration's repeated rejections of this position by the Bush administration. In this area and others, Prsident Obama has gone out of his way to say that his actions are not based upon inherent Article II authority.
Second, Koh may have made the judgment that the nation's right to self-defense and the AUMF outweigh these restrictions. But this seems implausible, given Koh's testimony to the Senate Judiciary Committee (above, and on other matters) carefully considering both the authorities and the restrictions upon presidential action under Jackson's framework (in a Hamdan-like way).
Finally, and most likely, Koh may have judged these authorities inapplicable--that President Obama's ordered killing of al-Awlaki was not an "assassination." But this seems reminiscent of the Bush administration OLC memos defining around "torture." Given the widespread critiques of the torture memos, we might have expected a little bit more from this administration about why a targeted killing isn't an "assassination."
Whatever the answer, Koh's positions seem to lead to the surprising result that there are greater protections against warrantless wiretapping and torture than against a targeted killing.
In any event, Koh's statement to the ASIL may not represent the administration's legal analysis. But the problem is that we don't know. The administration hasn't publicized its legal reasoning, even with the wide-spread reporting of the drone attacks and the ordered killing of al-Awlaki. There can be little down-side to publicizing the reasoning, especially for an administration committed to transparency, unless the administration worries that it is a little too close to Bush administration positions on the constitutionality of presidential actions during wartime.
May 13, 2010
Where's the birth certificate? Hawai'i amends Freedom of Information Act
President Obama's birth certificate is of great interest to some who contend he was not born in the United States, thus making him ineligible to be the President. (Article II section I of the US Constitution provides,"No Person except a natural born Citizen, or a Citizen of the United States at the time of the Adoption of this Constitution, shall be eligible to the Office of President." )
For Hawai'i, the interest in Obama's birth certificate has apparently been an administrative burden. Governor Linda Lingle signed Act 100 into law today, proposed by the legislature as SB2937. The so-called "birther bill" law amends Hawai'i's Freedom of Information act to include an exception:
an agency shall not be required to make government records available or respond to a person's subsequent duplicative request, if:
(1) After conducting a good faith review and comparison of
the earlier request and the pending request, the agency finds that the pending request is duplicative or substantially similar in nature;
(2) The pending request has already been responded to within the past year; and
(3) The agency's response to the pending request would remain unchanged.
It's the type of law that would pass unnoticed if not for the context. But as the Honolulu Advertiser newspaper reports, the Department of Health Director testified in the legislative hearing that the "department receives about 50 e-mail inquiries a month for Obama's birth certificate, primarily from the same four to six people."
May 12, 2010
Indiana Supreme Court Takes Up Civil Right to Counsel
The Indiana Supreme Court recently agreed to hear a case in which an indigent mother was denied counsel on appeal after the trial court entered an order terminating her parental rights. (The mother was represented at trial, but the appellate court denied her motion for appointed counsel on appeal.)
The case, In the Matter of the Termination of the Parent-Child Relationship of I.B. v. Indiana Dep't of Child Services, raises state and federal constitutional issues related to civil right to counsel. But this is no "Civil Gideon." The claimed constitutional right is a right to counsel on appeal--a "Civil Douglas."
"Civil Douglas" refers to Douglas v. California, the 1963 Supreme Court case establishing a right to counsel on appeal for poor criminal appellants. Douglas came down the same day as Gideon v. Wainwright, the case establishing a right to counsel at trial for poor criminal defendants. But despite their obvious similarities, Douglas and Gideon were rooted in different constitutional principles: Gideon was based on procedural considerations under the Sixth Amendment; Douglas was based on equal access to the courts under equal protection. Although the cases came down one right after the other, they didn't even cite each other.
Gideon and Douglas planted the seeds for subsequent access-to-justice cases at trial and on appeal--even civil cases. Thus subsequent cases dealing with all manner of barriers to access at trial (fee barriers, lack of appointed counsel) are based primarily on due process considerations, but subsequent cases dealing with the same barriers on appeal are based primarily on equal protection considerations.
The difference is critical in civil right to counsel cases. The Supreme Court ruled in Lassiter v. Dep't of Social Services in 1981 that poor civil litigants had no categorical right to counsel at trial in cases involving an interest other than physical liberty. The Court ruled that the three-part procedural due process balancing test in Mathews v. Eldridge must overcome a Court-created presumption against counsel in cases not involving physical liberty. The test makes it very difficult for poor civil litigants to get a court-appointed attorney at trial in parental rights cases, housing cases, and other cases involving basic human needs other than physical liberty.
But, under Douglas and its progeny, there is no presumption against counsel on appeal. In fact, there's no necessary consideration of the underlying interests at all. Instead, the courts look to equal access and equal protection considerations, not the interest-bound due process test. As a result, civil right to counsel on appeal may well be easier to establish (as I argue here and here).
Petitioner in the Indiana case puts Civil Douglas squarely before the Indiana Supreme Court.
Petitioner also makes a state constitutional "open courts" argument. The jurisprudence among the several states of state constitutional open courts provisions--which require "justice" to be administered "freely and fairly," "speedily," "without denial," and variations on those terms--is notoriously inconsistent and confused. (I tried to make some sense of it in the context of access and right-to-counsel here.) Indiana may have a cleaner open courts jurisprudence by focusing on "fundamental fairness" in process--a test that sounds like a combination of due process and equal protection.
At the end of the day, though, it's not clear that the court will address any of the constitutional arguments. Indiana has a statute that says that "[a] parent is entitled to representation by counsel in proceedings to terminate the parent-child relationship." The court might well dodge the constitutional questions by interpreting "proceedings" to include appeals.
The "petition to transfer" (the cert. petition) is here.
Arizona "Ethnic Studies" Law: HB 2281
Arizona, the home of the Immigration law, Senate Bill 1070 which we most recently discussed here, is now also home to an "ethnic studies" law, House Bill 2281, which Governor Jan Brewer (pictured below) has signed.
The law prohibits any school or charter school from including in its program of instruction any courses or classes that:
- Promote resentment toward a race or class of people;
- Are designed primarily for pupils of a particular ethnic group; or
- Advocate ethnic solidarity instead of the treatment of pupils as individuals
[Update: CSMonitor article here]RR
Government Urges Judicial Restraint in Rendition Case
The Obama Administration filed a brief urging the Supreme Court to reject a petition to hear Maher Arar's case seeking damages for alleged extraordinary rendition and torture. Thanks to Lyle Denniston at SCOTUSblog for the link to the brief. We previously posted on Arar's cert. petition here.
The case, Arar v. Ashcroft, involves Maher Arar's claim against former AG John Ashcroft and others for their roles in his alleged extroarindary rendition to Syria and torture in violation of the Convention Against Torture (CAT) and the Torture Victims Protection Act (TVPA). The en banc Second Circuit rejected Arar's claims, refusing to create a new Bivensremedy for alleged violations of the CAT, holding that the TVPA does not apply to U.S. officials acting under U.S. law, and ruling that Arar's claim that he was denied access to the courts while held within the United States was insufficiently detailed.
The administration (in a brief filed by Acting Solicitor General Neal Katyal, and not Elena Kagan, who, because of her nomination to the Court, has apparently taken herself out of SG briefing) argued narrowly in support of the Second Circuit's ruling and against cert. The administration focused primarily on the Bivens remedy and the separation-of-powers considerations counselling against a new cause of action--that the courts are ill-equipped to rule on, and second guess, the political branches in foreign affairs and national security. Katyal also argues that the Immigration and Nationality Act provided a narrow remedy for individuals alleging violations of the CAT, and that therefore an additional Bivens remedy is not warranted.
The administration argued that the Second Circuit got it right on the TVPA (that the TVPA does not apply, as here, to U.S. officials acting under U.S. law) and on the pleading standard for Arar's access claim (that Arar's allegations were insufficiently detailed to support his claim).
May 11, 2010
Ninth Circuit Weighs In on Citizens United
A three-judge panel of the Ninth Circuit last week issued the second circuit court ruling on campaign expenditures and contributions in the wake of Citizens United v. FEC, the Supreme Court's January 21 ruling striking down limits on independent campaign expenditures.
The case, Long Beach Area Chamber of Commerce v. City of Long Beach, followed last month's D.C. Circuit ruling, SpeechNow.org v. FEC, in result, but not exactly in reasoning.
The Ninth Circuit ruling struck down a portion of the Long Beach Campaign Reform Act, which prohibited any person or organization from making an independent expenditure supporting or opposing any candidate, when that person or organization accepted a contribution in excess of $350 or $650, depending on the office. The Act defies easy classification as a restriction on "contributions" or "expenditures," but the court ruled that it didn't matter: The Act failed the First Amendment test for either.
Under Buckley v. Valeo and subsequent cases, including McConnell v. FEC, limits upon contributions to independent election committees (IECs) are subject to a lower level of scrutiny than limits upon IEC expenditures. (Restrictions on contributions must be closely drawn to serve sufficiently important interests; restrictions on expenditures are subject to strict scrutiny.) The Court in Citizens United expressly addressed expenditures only, applied strict scrutiny, overturned the limitation on expenditures, and in the course narrowed the only recognized compelling government interest, preventing corruption. The Citizens United Court didn't address the test for contributions, although some language in the case may be read to anticipate a heightened test for contributions.
The Ninth Circuit didn't address the appropriate test for contributions. Instead, it ruled that the city's purposes in restricting contributions didn't meet either test. The city's strongest interest, preventing corruption, didn't pass muster, because the Chamber's relationship with candidates was too attenuated to support any claim of corruption.
Thus the Ninth Circuit reached the same result as the D.C. Circuit, but for slightly different reasons. The D.C. Circuit in SpeechNow.org--the first circuit court case applying Citizens United--held that the reasoning of Citizens United applied equally to contributions, and ruled that the government has no anti-corruption interest in limiting contributions to an IEC:
In light of the Court's holding as a matter of law that independent expenditures do not corrupt or create the appearance of quid pro quo corruption, contributions to groups that make only independent expenditures also cannot corrupt or create the appearance of corruption. The Court has effectively held that there is no corrupting "quid" for which a candidate might in exchange offer a corrupt "quo."
Given this analysis from Citizens United, we must conclude that the government has no anti-corruption interest in limiting contributions to an independent expenditure group such as SpeechNow.
SpeechNow.org, at 14. The Ninth Circuit, in contrast, left the door open for a possible anti-corruption purpose justifying contribution limits, even as it required a tight relationship between the IEC and candidates to show corruption.
The Specter of a Lesbian Supreme Court Justice?
That is not Elena Kagan, in some real or imagined dialogue.
That was Donna Shalala in 1992, Clinton's Secretary of Health and Human Services. Janet Reno, Clinton's third and ultimately successful nominee for Attorney General explicitly told reporters she was "attracted to strong, brave, rational, and intelligent men."
The absence of heterosexual bona fides, however, for both Shalala and Reno meant that rumors about their sexuality dogged them.
As recent discussions about Elena Kagan here, here, and here demonstrate, things haven't changed as much as one might have thought. But what relevance is sexual orientation in terms of a nation's highest court?
In 1993, I argued "we need a Lesbian on the Supreme Court," and then unpacked what such a statement might mean in terms of both identity and identity politics, as well as constitutional doctrine. The article, The Specter of a Lesbian Supreme Court Justice, is now available on ssrn here.
May 10, 2010
Fish on Strauss's Living Constitution
Fish takes on Strauss's thesis that "the text of the Constitution will play, at most, a ceremonial role" in constitutional law and that "on a day-to-day basis, American constitutional law is about precedents, and when precedents leave off, it is about commonsense notions of fairness and good policy."
But if Strauss takes a pure anti-dead hand, "living constitution" approach, Fish counters with an original intent response that has gone out of vogue even with the hardest core textualists. Fish:
The question is not, as Strauss would have it, is this proffered meaning in the Constitution? The question is, can a chain of inference be formed that links this meaning to something the framers can be said to have intended?
While the interpretation debate has moved beyond pure-living-constitutionalism versus pure-original-intent--and into "constitutional fidelity" versus any number of variations on originalism--Fish's is a thoughtful review of a provocative book.
Elena Kagan Nominated to United States Supreme Court
President Obama announces the nomination this morning:
Whitehouse Press Release here.