December 23, 2011
The New York Times Sues the Justice Department for Memos Authorizing Targeted Killing
The New York Times and reporters Charlie Savage and Scott Shane sued the Department of Justice in the Southern District of New York this week to obtain any legal analysis from the Office of Legal Counsel authorizing the government's targeted killing of suspected terrorists. Courthouse News Service first reported here.
Recall that Savage reported on the government's legal justification for its targeted killing of Anwar al Alwaki, a United States citizen and alleged terrorist living in Yemen. But Savage relied on a government source, not an OLC memo or other formally released legal advice. According to Savage's story, the government's legal advice probably closely tracked State Department Legal Adviser Harold Koh's arguments to the American Society of International Law in May 2010. But still, the government had not released the actual legal advice.
Savage and Shane filed two separate FOIA requests with the Department of Justice for any legal advice that the Department offered to the administration on the legality of, or authority to commit, targeted killings. The DOJ rejected the requests, citing FOIA Exemption 1 (relating to national defense or foreign policy information classified under EO 13526), Exemption 3 (relating to information protected by statute), and Exemption 5 (relating to privileged information).
The complaint argues that Exemptions 1 and 3 do not apply, because the FOIA request seeks only legal analysis, and "[m]emoranda containing only legal analysis fail to meet the requirements for properly classified materials under Executive Order No. 13526 or other legal authority." (Para. 55.) It argues that Exemption 5 doesn't apply, because "[m]emoranda containing legal analysis relied upon by the government constitute final determination of policy by the government and therefore are not deliberative materials." (Para. 54.)
The complaint also cites the widespread calls for release of any memos--by Members of Congress and former OLC attorneys.
Given the widespread calls for release, the all-but-known legal advice that's in the memo, and the administration's stated commitment to transparency, the government's intransigence doesn't seem to make a lot of sense. (The government also succeeded in dismissing al Alwaki's father's case on the pleadings--and, alas, could probably succeed in dismissing any similar case on similar grounds--and so there doesn't appear to be a threat that release of any memo now would give up a litigation position later.) And now, in response to the Times's case, the government may feel like it has to dig in its heels to preserve the vitality of these exemptions in future cases.
The government should just release the memo publicly--something it should have done months ago, without the threat of a FOIA suit--and move to dismiss the Times's case as moot.
December 22, 2011
Court Dismisses Guantanamo Detainee's Torture Claims
Judge Richard Leon (D.D.C.) today dismissed the torture claims of Abdul Rahim Abdul Razak Al Janko, a Syrian national detained at Guantanamo Bay and the first detainee released on habeas to seek damages for actions taken while he was in custody.
Al Janko sued the U.S. government, 20 high level officials, and 100 Jane and John Does for 18 counts of torture and civil conspiracy under the Constitution, the Alien Tort Statute, and the Federal Tort Claims Act. Judge Leon dismissed all his counts under the jurisdisction-stripping provision of the Military Commissions Act of 2006, 28 U.S.C. Sec. 2241(e), which says:
[N]o court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention . . . treatment . . . or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
(Judge Leon's emphasis.)
Judge Leon rejected Al Janko's argument that he won his habeas case and therefore wasn't "determined by the United States to have been properly detained," because "United States" here refers to the executive, not the judiciary.
Judge Leon wrote that Al Janko's claims against the government would have failed under the ATS and FTCA even absent the MCA's jurisdiction-stripping provision, because the government didn't waive sovereign immunity for this kind of claim.
December 22, 2011 in Cases and Case Materials, Congressional Authority, Courts and Judging, Habeas Corpus, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (1) | TrackBack
December 21, 2011
The Constitutional Issues Facing Sheriff Joe Arpaio
Joe Arpaio, who styled himself as "America's toughest sheriff" in his 1997 book and the 2008 sequel is facing some tough constitutional times. As elected sheriff of Maricopa County, Arizona, Arpaio has long been controversial for his immigration and prison "get tough" stances.
The death yesterday of a Latino veteran who had been tased while in custody of the Maricopa County jails - - - informally called Arpaio's jails - - - might well result in a lawsuit.
A complaint filed yesterday on behalf of a woman who was shackled while she giving birth also addresses problems at the jails. In Mendiola-Martinez v. Arpaio, the plaintiff, a non-citizen, alleges she was imprisoned without bail for forgery when she was six months pregnant. During her labor, she was transferred to the medical center, gave birth by Cesarean section, was shackled before and after the surgery, was discharged while bleeding, shackled hands and feet, and walking through the hospital only in her hospital gown, and was taken back to jail. The complaint claims violations of the Eighth Amendment and Fourteenth Amendment regarding deliberate indifference to medical needs, cruel and unusual punishment, and a denial of Equal Protection under the Fifth, Fourteenth, and Fifteenth Amendments. The last claim alleges liability under Monell v. New York City Dept. of Social Svcs., 436 U.S. 658 (1978), including a failure to train, supervise, and discipline employees. All these claims are buoyed by disapproval of the shackling of women in labor. As a press release from Mendiola-Martinez's attorneys summarizes the law:
The American College of Obstetricians and Gynecologists and the American Medical Association oppose the shackling of women in labor or recuperating from delivery. In 2008, in Nelson v. Norris, the Eighth Circuit Court of Appeals found the shackling of women prisoners during labor to constitute cruel and unusual punishment, in violation of the Eighth Amendment. The Arizona Department of Corrections eliminated the practice of shackling women in labor or in postpartum recovery in 2003. In 2007, the United States Marshal’s Service eliminated the practice of shackling women in labor. In 2008, the Federal Bureau of Prisons eliminated the practice of shackling women in labor.
The immunity of Joe Arpaio will surely be raised by his attorneys. The extent to which Arpaio is immune was also a question before the en banc Ninth Circuit last week in the unrelated case of Lacey v. Arpaio, in which reporters for the Phoenix New Times claim a violation of their First Amendment rights based in part on their midnight arrests. The en banc hearing vacated the previous Ninth Circuit panel opinion, causing some consternation and confusion in the oral argument, available for viewing here. Here's a synposis of the problem, via the Phoenix New Times, and verifiable by the video:
24:50 -- Sheriff Arpaio's lawyer Eileen GilBride gets her turn. At about 27 minutes, she begins to be hit with questions and hypothetical situations about the possibility of a conspiracy by the county officials. This stays interesting for several minutes.
38:30 -- GilBride's blunder: She doesn't realize that New Times has alleged a conspiracy because she apparently isn't familiar enough with the case. And she forgot the document that contains the part about the conspiracy allegation.
"You come to court without briefs?" Kozinski chides, waving some papers in the air.
GilBride plunges ahead on her bad recollection until called on it by Kozinski, who informs her that the conspiracy allegation is in the suit's opening brief.
40:15 -- The dress-down: "Coming to court without the briefs is poor lawyering in itself, but not knowing what's in the briefs is even worse," Kozinski says.
This could be a useful bit for ConLawProfs mentoring or judging moot court teams.
In addition to litigation woes, Sheriff Arpaio and the Maricopa County Sheriff's Office (MCSO) is again the subject of negative Department of Justice findings. The December 15 letter concludes that the office has violated the First, Fourth, and Fourteenth Amendments to the United States Constitution, and has 60 days to take "clear steps" toward reaching an agreement with the Department of Civil Rights to remedy these violations, or there will be a civil suit seeking remedies. This letter states it is unrelated to a previous investigation that it specifically references: an investigation concluding that unconstitutional conditions existed at the jails with respect to (1) the use of excessive force against inmates and (2) deliberate indifference to inmates' serious medical needs. An agreement between the United States and MCSO was reached in October 1997. In this letter, police practices aimed at perceived immigrants are highlighted, with the letter concluding the practices " "are unconstitutional and are harming innocent Latinos."
The December 15 letter specifically focuses on Arpaio's role:
Sheriff Arpaio's own actions have helped nurture MCSO's culture of bias. For example, Sheriff Arpaio has frequently distributed racially charged constituent letters, annotating the letters with handwritten notes that appear to endorse the content of the letter, circulating the letters to others on the command staff, and/or saving the letters in his personal file. Many of these letters contain no meaningful descriptions of criminal activity-just crude, ethnically derogatory language about Latinos.
There is speculation that Arpaio will not run for relection as sheriff, as well as speculation he will run for the United States Senate.
[Photo of Joe Arpaio of Maricopa County, Arizona speaking at the Tea Party Patriots American Policy Summit in Phoenix, Arizona, by Gage Skidmore, via]
December 21, 2011 in Criminal Procedure, Current Affairs, Due Process (Substantive), Equal Protection, Federalism, First Amendment, Fourteenth Amendment, Fourth Amendment, Fundamental Rights, Gender, Medical Decisions, News, Oral Argument Analysis, Privacy, Race, Reproductive Rights, Speech, Teaching Tips | Permalink | Comments (1) | TrackBack
Ron Paul and The Federal Reserve
With Ron Paul reportedly becoming a "serious contender" in the presidential primary, there is renewed attention to his views on the Federal Reserve as "dishonest, immoral, and unconstitutional," encapsulated in his campaign slogan, "end the fed. "
An extended video, Fiat Empire, now about 6 years old, is a good introduction to the issues.
The argument supporting the unconstitutionality of the Federal Reserve can be summed up in the phrase "the poster child of unconstitutional private delegation," cited to John Hart Ely in Timothy Canova's article, Black Swans and Black Elephants in Plain Sight: An Empirical Review of Central Bank Independence, available on ssrn. Section 4 of the article is a great overview and argument regarding the Federal Reserve. (I assigned this section last semester in Constitutional Structures in conjunction with Free Enterprise Fund v. PCOAB which Canova also discusses, and showed a short clip from Fiat Empire; it was well-receoved by students.)
As Canova notes, concerns about the Federal Reserve arise both from the "populist libertarian right" and the "populist progressive left" : When "Representative Ron Paul, a Republican libertarian from Texas, introduced a bill to subject the Federal Reserve to an audit by the Government Accountability Office (GAO)" it was "cosponsored on the left by such Democratic and progressive Congressmen as Dennis Kucinich from Ohio and Alan Grayson from Florida."
Canova and others, including Joseph Stiglitz, Jeffrey Sachs, and Robert Reich have been named experts on a panel advising a United States Senator to "develop legislation to restructure the Fed and tighten rules on conflicts of interest, ensure that the Fed fulfills its full-employment mandate, increase transparency, protect consumers and reduce income inequality." That Senator is Bernie Sanders, Independent-Vt. And while Paul and Sanders may agree on some aspects of the Federal Reserve, they seem to be very far apart on health care reform.
December 20, 2011
The National Defense Authorization Act
There's quite a bit of confusion and argument about what exactly the National Defense Authorization Act, or NDAA, does. (The Conference Report is here; the relevant Title, Subtitle D, Counterterrorism, begins on page H8436.) On one side, detractors claim that it expands government authority to detain aliens and even U.S. citizens. Glenn Greenwald does a nice job setting out the case at salon.com. On the other side, supporters say that it only codifies the government's authority under existing law. Benjamin Wittes and Bobby Chesney carefully make this argument in their thorough examination at lawfare.
It turns out, both sides are right. In short, the plain language of the NDAA expands detention authority beyond the plain language of the Authorization to Use Military Force, P.L. 107-40, but it only codifies the authority already claimed by President Obama and granted by the D.C. Circuit under the AUMF. Here are some of the highlights:
- Indefinite Detention. Section 1021(c)(1) says that "[t]he disposition of a person under the law of war as described in subsection (a) may include . . . [d]etention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force." (Emphasis added.) This is the definition of indefinite detention. But it's also an authority that President Obama claimed from the early days of the administration. In fact, the definition of a "covered person" in Section 1021(b)(2) almost exactly tracks the administration's proposed definition of a "detainable person" under the AUMF in its March 13, 2009, filing in a Guantanamo habeas case in the D.C. District. (More below.) So while this authority in the NDAA is significant for representing clear congressional support for indefinite detention, and while it's deeply troubling, it also merely reflects the administration's long-standing position.
- Detainable Persons. Section 1021(b)(2) says that the government can detain (indefinitely) "[a] person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces." This is new, and adds to the definition of detainable person under the AUMF (and tracked in Section 1021(b)(1)) that allows detention of "[a] person who planned, authorized, committed, or aided the terrorist attacks that occured on September 11, 2001, or harbored those responsible for those attacks." Moreover, Section 1022(a) requires military detention for anyone who is "a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda" and anyone who "participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners." (Section 1022 covers a subset of detainable persons in Section 1021. U.S. citizens and resident aliens are excepted from the requirement; more below.) In short, the NDAA authorizes indefinite detention, and in some cases requires military detention, for those who not only participated in the 9/11 attacks or harbored those who did (as under the AUMF), but also for those who currently attack the United States or its partners. But again, this is an authority that the administration claimed from its early days. Thus the NDAA tracks almost exactly the adminsitration's proposed definition of a detainable person in Guantanamo habeas cases. And it seems congruent with the D.C. Circuit's "part of" test--that under the AUMF the government can detain anyone who is "part of forces associated with Al Qaeda or the Taliban." So here, too, the plain language of the NDAA seems to expand authority beyond the AUMF, but it also seems consistent with the government's long-standing position and the courts' interpretation of the government's authority under the AUMF.
- Detainability of U.S. Citizens. Section 1022(b) says that the military detention requirement in Section 1022 does not apply to U.S. citizens and lawful resident aliens for conduct within the United States. This means that the NDAA does not require the military and indefinite detention of U.S. citizens who are "covered persons" under Section 1022(a)(2) (see above), but it also seems to permit such detention of U.S. citizens. The Act is deliberately ambiguous on this point and seems to punt to the courts. But in any event, it doesn't obviously add anything to the administration's position on detention or to what the courts would permit under Hamdi.
- Guantanamo Transfers. Section 1027 unequivocally denies funds for transfers of Guantanamo detainees to the United States. This restriction means that the administration can't transfer detainees for civilian criminal trials. The administration previously objected to this restriction (among others), even threatening a veto over this and other measures in the bill, but apparently dropped its objection.
- Civilian Trials. In addition to the restrictions in Section 1027, which prevent transfers of Guantanamo detainees to the United States for civilian trials (or for any other reason), Section 1029 requires the Attorney General to consult with the Director of National Intelligence and the Secretary of Defense about civilian trials for anyone held under Sections 1021 and 1022, discussed above.
These provisions in the NDAA represent significant and explicit congressional approval of government detention authority. But they also only represent the administration's long-standing positions, and they're not obviously out of line with the courts' approaches. In short, the codification of these authorities is significant--because it means that Congress is explicitly signing onto them--but they also only represent the creep of authority claimed by the administration and reflected in the courts under the AUMF.
December 19, 2011
Gingrich on the Judiciary
In case you missed it, here's Newt Gingrich explaining his views on the federal judiciary--and how to check it--yesterday to Bob Schieffer on Face the Nation.
Among the more eye-popping claims in the interview, Gingrich explains that separation of powers means that "it's always two [branches] out of three." The "two-out-of-three" rule came up in response to Schieffer's question about whether President Obama could ignore a Court ruling overturning the Affordable Care Act (now at the Court, and scheduled for oral argument March 26 to 28). Gingrich said it would depend on whether President Obama could get Congress to go along--two out of three. (It doesn't matter, apparently, that Congress already went along. It seems that the two-out-of-three rule only works if two out of three come to the right decision.) This exchange is around six minutes into the interview.
Gingrich also says that Congress could subpoena a federal judge to explain his or her reasoning to Congress. And more: Congress could enlist the Department of Justice to help do this.
Gingrich sets out his positions in more detail in a white paper modestly titled Restore the proper role of the judicial branch by using the clearly delineated Constitutional powers available to the president and Congress to correct, limit, or replace judges who violate the Constitution at newt.org, his campaign site. From the intro:
This NEWT 2012 campaign document serves as political notice to the public and to the legislative and judicial branches that a Gingrich administration will reject the theory of judicial supremacy and will reject passivity as a response to Supreme Court rulings that ignore executive and legislative concerns and which seek to institute policy changes that more properly rest with Congress. A Gingrich administration will use any appropriate executive branch power, by itself and acting in coordination with the legislative branch, to check and balance any Supreme Court decision it believes to be fundamentally unconstitutional and to rein in any federal judge(s) whose rulings exhibit a disregard for the Constitution. The historical and constitutional basis for this position is outlined in this paper.
Paper, at 3. "The constitutional solution is threefold":
First, the executive and legislative branches can explicitly and emphatically reject the theory of judicial supremacy and undertake anew their obligation to assure themselves, separately and independently, of the constitutionality of all laws and judicial decisions.
Second, when appropriate, the executive and legislative branches can use their constitutional powers to take meaningful actions to check and balance any judgments rendered by the judicial branch that they believe to be unconstitutional. An outline of some of these constitutional steps is outlined elsewhere in this paper.
Third, the executive and legislative branches should employ an interpretive approach of originalism in their assessment of the constitutionality of federal laws and judicial decisions.
A Gingrich administration will undertake each of these steps.
Paper, at 6.
Gingrich says that one of his strengths is that he's not a lawyer and therefore not bound by elitist views of the role of the courts.
Constitutional Challenge to AETA (Animal Enterprise Terrorism Act)
The First Amendment problems with AETA, the Animal Enterprise Terrorism Act, are well known. Last year, a Northern California District Judge dismissed the high profile indictments against Joseph Buddenberg and three other defendants under AETA, 18 USC 43, on the basis of a Fifth Amendment failure to allege sufficient facts, although related to the First Amendment, as we discussed here. AETA itself concludes with “Rules of Construction” which provide in relevant part that nothing in this section shall be construed"
(1) to prohibit any expressive conduct (including peaceful picketing or other peaceful demonstration) protected from legal prohibition by the First Amendment to the Constitution;
(2) to create new remedies for interference with activities protected by the free speech or free exercise clauses of the First Amendment to the Constitution, regardless of the point of view expressed, or to limit any existing legal remedies for such interference . . . . "
The Center for Constitutional Rights has filed a complaint, Blum v. Holder, in the District of Massachusetts federal court challenging AETA on its face and as applied as a First Amendment violation. The plaintiffs are described as "five longtime animal rights activists whose advocacy work has been chilled due to fear of being prosecuted as a terrorist under the AETA." The complaint alleges that "The AETA classifies certain protected speech and activity as a “terrorist” crime" and "punishes individuals who alone, or with others, criticize or demonstrate against what the statute vaguely identifies as an “animal enterprise,” if that otherwise permissible speech damages the property or profitability of the animal enterprise or even a person or entity connected with it." The complaint also alleges that AETA defines “animal enterprise” uncommonly broadly, "to include almost any business that buys or sells animal products:"
As such, it insulates a large number of businesses from the types of criticism that are deeply rooted in our constitutional tradition. For example, labor picketers, who seek to affect the bottom line of an employer engaged in unfair labor practices (that happens to sell animal products) are subject to prosecution under the act if their peaceful, lawful picket “causes the loss of any…personal property,” including profits.
The complaint claims that AETA violates the First Amendment on the grounds of overbreadth, on the grounds of impermissible viewpoint and content discrimination, and violates the First and Fifth Amendments on vagueness grounds.
More about the specific plaintiffs and the litigation is available on the CCR website.
December 18, 2011
No First Amendment Right to Impose One's Beliefs On Others in Counseling Program
Can a counseling program at a public university require a student to address her deficiencies in becoming a "multiculturally competent counselor," particularly with regard to working with sexual minorities, before allowing her to participate in the program's clinic practicum?
The short answer from the Eleventh Circuit is "definitely, yes." In a 40 page opinion, Keeton v. Anderson-Wiley, the Eleventh Circuit affirmed the District Judge's denial of a preliminary injunction to Jennifer Keeton, a student seeking a master's degree in school counseling at Augusta State University, Georgia. The panel's opinion, authored by Judge Rosemary Barkett, found that Keeton did not show a likelihood of prevailing on the merits. The opinion was joined by Judge Phyllis Kravitch. Judge William Pryor, controversial for his own oft-stated Christian beliefs and confirmed 53-45 by the Senate to the Eleventh Circuit six years ago after serving in a recess appointment, concurred specially, largely to point out how views on homosexuality have changed.
The court rejected Keeton's claims of viewpoint discrimination, retaliation, and compelled speech under the Speech Clause and free exercise under the Free Exercise Clause of the First Amendment, spending the bulk of the opinion on viewpoint discrimination. While Keeton argued that she was discriminated against because of her Christian beliefs, specifically those she held about "homosexuality," Judge Barkett stressed throughout the opinion that the problem was not Ms. Keeton's beliefs, but whether she could - - - or would even agree to try - - - to engage in ethical counseling under the profession's standards. The evidence showed that Ms. Keeton had made several troubling statements indicating that she would not follow the ethical guidelines. She said that as a school counselor she would respond to a student in crisis about his sexual orientation, by voicing her disapproval, telling him any homosexual behavior was morally wrong, and referring him to someone practicing sexual conversion therapy. As Judge Barkett stated:
ASU’s officials confirmed that their primary concern was teaching Keeton not to impose her values on clients and how to become a more effective counselor. Also, in the addendum to the remediation plan, which was added in direct response to Keeton’s email claim that she believed she was being asked to alter her personal religious beliefs, ASU’s officials clarified that “[t]he content of your moral or religious beliefs is not in question,” and that the remediation plan was concerned with teaching her how “to respond in an ethical manner and avoid imposing your personal values on the client.”
The court applied the Hazelwood framework from Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), noting that the practicum might be reasonably thought to "bear the imprimatur of the school" and the practicum, as well as the specific remediation plan to assist Ms. Keeton with meeting acceptable standards, were part of the curriculum.
While the court's treatment of Ms. Keeton's "compelled speech" claim relying on West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), is relatively brief, the court's discussion reveals the heart of the court's reasoning:
ASU is not forcing Keeton to profess a belief contrary to her own personal beliefs. Rather, it is compelling her to comply with the ACA [American Counseling Association] Code of Ethics, which requires those who wish to be counselors to separate their personal beliefs from their work. When a GLBTQ client asks, for example, if his conduct is moral, students are taught to avoid giving advice, to explore the issue with the client, and to help the client determine for himself what the answer is for him. If a client determines for himself that his conduct is moral, the ACA Code of Ethics requires the counselor to affirm the client, which means that the counselor must respect the dignity of the client by accepting the client’s response without judgment, not that the counselor must say that she personally believes that the client is correct. Thus, far from compelling Keeton to profess a belief or change her own beliefs about the morality of homosexuality, ASU instructs her not to express her personal beliefs regarding the client’s moral values. This is the form of treatment that ASU and the ACA have determined best promotes client welfare, which, in their view, is the objective of secular counseling.
Moreover, the court's discussion reveals the applicability of the court's reasoning in other contexts, including law and legal education:
Just as a medical school would be permitted to bar a student who refused to administer blood transfusions for religious reasons from participating in clinical rotations, so ASU may prohibit Keeton from participating in its clinical practicum if she refuses to administer the treatment it has deemed appropriate. Every profession has its own ethical codes and dictates. When someone voluntarily chooses to enter a profession, he or she must comply with its rules and ethical requirements. Lawyers must present legal arguments on behalf of their clients, notwithstanding their personal views. Judges must apply the law, even when they disagree with it. So too counselors must refrain from imposing their moral and religious values on their clients.
Finally, the Supreme Court has hardly indicated an intention to limit a school’s power to require its students to demonstrate whether they grasp a particular lesson. A school must, for instance, be free to give a failing grade to a student who refuses to answer a test question for religious reasons, or who refuses to write a paper defending a position with which the student disagrees ... No doubt, a law school would be permitted to require a student who expressed an intent to indiscriminately disclose her client’s secrets or violate another of the state’s bar rules to take extra ethics classes before letting the student participate in a school- run clinic in which the student would be representing actual clients. These actions, like ASU’s officials’ imposition of the remediation plan, are the types of academic decisions that are subject to significant deference, not exacting constitutional scrutiny.
[image: Winslow Homer, The Country School, via]