Constitutional Law Prof Blog

D.C. Circuit Rejects Torture Suit Against Rumsfeld

A three-judge panel of the D.C. Circuit today rejected a U.S. citizen's Bivens action against former Defense Secretary Donald Rumsfeld for developing, authorizing, and implementing policies that led to his torture while in U.S. custody in Iraq.  The panel, following an earlier similar ruling from the Fourth Circuit, Lebron v. Rumsfeld, held that special factors counseled against a Bivens remedy--special factors "pertaining to military, intelligence, and national security."

The ruling comes on the heels of the Supreme Court's rejection of the plaintiffs' cert. petition in Lebron and while a similar suit is now pending before the en banc Seventh Circuit.  (A three-judge panel of the Seventh Circuit earlier ruled that the plaintiffs in that case did have a Bivens remedy against Rumsfeld.)

The case means that U.S. citizens won't have a civil damage action for constitutional violations against U.S. officials in the D.C. Circuit, even when the violations resulted from torture while in U.S. custody.  With two circuit rulings now on the books--this case, Joe Doe v. Rumsfeld, and Lebron--and with a Seventh Circuit ruling against the plaintiffs now all but certain, and with the Supreme Court's rejection of cert. in Lebron, it now seems all but certain that other circuits faced with the question will follow suit, and that therefore U.S. citizens won't have a civil damage action for constitutional violations against U.S. officials anywhere.

The case also gives extraordinary authority to the executive to evade suits for detention and mistreatment--even torture--of U.S. citizens.  Congress, of course, could change this by authorizing such suits.  But don't look for that to happen anytime soon--or ever.

The D.C. Circuit ruling closely follows the Fourth Circuit's earlier ruling.  That is, the court today ruled that the "special factors" of military, intelligence, and national security foreclose a civil damage remedy for constitutional violations by U.S. citizens.  Here's the court's special factor analysis:

In his complaint, Doe challenges the development and implementation of numerous military policies and decisions.  The complaint would require a court to delve into the military's policies regarding the designation of detainees as "security internees" or "enemy combatants," as well as policies governing interrogation techniques.

Doe's allegations against Secretary Rumsfeld implicate the military chain of command and the discretion Secretary Rumsfeld and other top officials gave to [military] agents to detain and question potential enemy combatants.  The allegations raise questions regarding Secretary Rumsfeld's personal control over the treatment and release of specific detainees.  Litigation of Doe's case would require testimony from top military officials as well as forces on the ground, which would detract focus, resources, and personnel from the mission in Iraq.  And . . . allowing such an action would hinder our troops from acting decisively in our nation's interest for fear of judicial review of every detention and interrogation.

Op. at 10-11.

The court also found persuasive--another "special factor" counseling against a Bivens remedy--that Congress did not authorize such suits under the Detainee Treatment Act, or any other statute.  

Because the court ruled against Doe on Bivens, it did not rule on Rumsfeld's defense of qualified immunity.

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Court Declines Review in Padilla's Torture Case

The Supreme Court on Monday declined to review an earlier Fourth Circuit ruling rejecting Jose Padilla's civil case against former Defense Secretary Donald Rumsfeld and others for torture.  The move leaves the Fourth Circuit ruling untouched and will almost certainly influence the outcome in a similar case now before the full Seventh Circuit.  The move also lends further legitimacy to the Fourth Circuit's approach--that separation-of-powers principles can be a "special factor" counseling against a civil damage remedy in federal court--or, in short, that the executive has something close to a trump card to shut down litigation against executive officers for torture of individuals while detained for reasons that the executive says are related to national security or terrorism.

The case, Lebron v. Rumsfeld, arose out of Jose Padilla's detention and torture.  Padilla filed a Bivens claim against Rumsfeld and others for violations of his constitutional rights.  The Fourth Circuit ruled that special factors counseled against a Bivens remedy and that Padilla had other forms of relief (i.e., habeas).  As to special factors, the court said that separation-of-powers principles counseled against a Bivens remedy--in particular, that military matters like this are the province of the political branches, and that courts lack expertise and risk upsetting the military command structure and intelligence-gathering activities.

The Fourth Circuit ruling is in tension with similar recent rulings by the Seventh Circuit and two district courts.  The Seventh Circuit case, Vance v. Rumsfeld, was vacated and is now on appeal to the full Seventh Circuit.  The Court's rejection of Lebron will almost certainly influence the outcome of Vance (as if the outcome needed any influencing) and other cases by U.S. citizens alleging constitutional violations against executive officials related to national security, terror, intelligence, and the military.

The Court's rejection also lends further legitimacy to the Fourth Circuit approach, which was an aggressively pro-government, anti-plaintiff approach.  The Fourth Circuit reasoning all but gives the executive a trump card to shut down constitutional litigation against executive officials anytime the government says that the case is related to national security, terror, intelligence, and the military.  This approach gives the executive nearly complete control over this kind of litigation, takes the courts nearly entirely out of it, and sharply curtails plaintiffs' remedies for constitutional violations while in custody for anything that the executive says is related national security, terror, intelligence, and the military.

While the Court's rejection of Padilla's cert. petition is certainly not a ruling on the merits, the rejection signals a constriction of Bivens actions--a signal that the full Seventh Circuit will surely read and apply in the Vance case.

Congress, of course, could change this by authorizing suits for individuals like Padilla (or Vance and Ertel in the Seventh Circuit) for constitutional violations against executive officials.  But don't look for that to happen anytime soon.

The next chapter in this saga will come when the full Seventh Circuit issues its ruling in Vance v. Rumsfeld.  Especially now, in light of the Court's rejection of Padilla's cert. petition, look for the court to reverse the three-judge panel and to reject Vance's Bivens claim.  The only interesting aspect of the Seventh Circuit ruling will be how closely the court follows the Fourth Circuit's reasoning.

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Guantanamo Military Commission Arraignments

The arraignments by military commission on Saturday of Khalid Sheikh Mohammed and four others at Guantanamo Bay was rocky, at best.  It featured everything from disputes about clothing--both the prosecutors' and the defendants'--to disputes about barriers to defense counsels' ability to communicate and represent their clients.  The New York Times, The Washington Post, and NPR, among many others, reported. 

While the best live play-by-play was provided by Benjamin Wittes and Wells Bennett at Lawfare, you can read the transcripts of Saturday's proceedings for yourself, available here at the Office of Military Commissions web-site.

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Drone Strike Kills Al-Quso

The Associated Press reported today that a CIA drone strike killed Fahd al-Quso, "a top al-Qaida leader on the FBI's most wanted list for his role in the 2000 bombing of the USS Cole warship."  According to the report, al-Quso served time in a Yemeni prison for his role in the bombing and was released in 2007.  The CIA carried out the attack with the authorization of the Yemeni government--part of its effort to bring the host country on board with strikes.

The strike comes just a week after President Obama authorized expanded use of drones in Yemen.  The new authority allows the government to identify targets based on their "signatures"--those patterns detected through intelligence that indicate that a target is an operative or otherwise poses a threat against U.S. interests--and not just their "personality."

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KSM Military Commission Arraignment Tomorrow

Khalid Sheikh Mohammed is scheduled to be arraigned tomorrow along with four others in a military commission at Guantanamo Bay. We covered the Convening Authority's referral of terrorism charges here (with a link to the charge sheets).

The proceedings will be telecast live at the Post Theater at Fort Meade, Maryland; more information is here and here. Wells Bennett and Benjamin Wittes will live-blog on the proceedings at Lawfare.

Chief Prosecutor General Mark Martins told Charlie Savage at the NYT that he's optimistic that the trial will be fair. Benjamin Wittes (Brookings, Lawfare) similarly wrote in yesterday's WaPo that the commission hearings are "nothing like the kangaroo court of human rights groups' caricatures," and that they have "[q]uietly and gradually . . . become a real court."

But military defense attorneys interviewed in Savage's piece don't share this optimism. Savage writes that they say "improvements are exaggerated," and that they intend to ask presiding Judge Colonel James Pohl "to send the capital charges back to the Pentagon for reconsideration because of problems that, they say, have crippled their ability to provide a meaningful defense."

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D.C. Circuit Rejects Guantanamo Detainee Habeas Claim

A three-judge panel of the D.C. Circuit today reissued a ruling rejecting the habeas claim of a detainee at Guantanamo Bay.  The case, Alsabri v. Obama, affirms the lower court's dismissal. 

Here's the court's summary of facts:

Alsabri is a Yemeni citizen who was born and raised in Saudi Arabia.  He lived in Saudi Arabia until he was deported to Yemen in 1998, following an arrest for allegedly harboring an individual wanted for passport forgery.  In Yemen, he associated with veteran jihadist fighters, including members of al Qaeda, and decided to travel to Afghanistan to fight with the Taliban or al Qaeda.  In the summer of 2000, he traveled to Afghanistan by way of Pakistan, assisted by the Taliban and in the company of several men who expressed a desire to become martyrs.  Once in Afghanistan, Alsabri stayed at several guesthouses affiliated with the Taliban and al Qaeda.  He actively sought out and received military training from the Taliban or al Qaeda, and thereafter--with the authorization of one of Osama bin Laden's lieutenants--traveled to the front lines of the Taliban's fight against the Northern Alliance.

The court rejected Alsabri's claim that the lower court erred in finding certain facts and in concluding that he was part of the Taliban, al Qaeda, or associated forces.  It also rejected his claim that the lower court wrongly admitted certain pieces of evidence of his objection.  Finally, it rejected his claims that the district court wrongly limited his discovery, that the court wrongly admitted hearsay evidence, and that the lower court wrongly applied a preponderance-of-evidence standard instead of a clear-and-convincing-evidence standard.

There's really nothing new here, and the case is hardly a surprise.  As the court said in regard to Alsabri's legal arguments: "As is apparent, all of Alsabri's legal arguments are foreclosed by Circuit precedent, a point his counsel forthrightly acknowledges.  As is appropriate, counsel notes his disagreement with our rulings and includes the arguments in order to preserve the issues."  Op. at 22.

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Federalist Society Debate on Legal Rationale for Targeted Killing of U.S. Citizens

The Federalist Society recently posted a pod-cast debate on the legal rationale for targeted killings of U.S. citizens, featuring Professors Michael Lewis (Ohio Northern) and Stephen Vladeck (AU/WCL).  Dean Reuter moderated.

The discussion followed on the heels of AG Eric Holder's speech outlining the administration's case for targeted killing.  Lewis opens the discussion by claiming that Holder's criteria for designating a target would be sufficient, if they were mandatory.  Here's the portion of Holder's speech that Lewis referenced:

Let me be clear: an operation using lethal force in a foreign country, targeted against a U.S. citizen who is a senior operational leader of al Qaeda or associated forces, and who is actively engaged in planning to kill Americans, would be lawful at least in the following circumstances: First, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States; second, capture is not feasible; and third, the operation would be conducted in a manner consistent with applicable law of war principles.

Lewis examines each of these and gives his take on "operational" leader of al Qaeda (not just any al Qaeda member, or supporter), "associated forces" (which are allowable targets under the gloss that the courts have put on the AUMF),the government's determination of "imminent threat" (looser than the immediacy that we understand in a domestic law-enforcement sense), the feasibility of capture, and law of war principles--proportionality and necessity (and how these overlap with the other considerations). 

Vladeck agrees that the government could target U.S. citizens under certain circumstances, but questions when and how:  What process should the government use to ensure that Holder's criteria (or others) are satisfied?  Vladeck looks to the due process analysis in Hamdi as a model, arguing that at least these due process procedures--applicable when the government takes a citizen's liberty--should be in place before the government takes a citizen's life.  (Holder himself referenced the balancing test in Mathews v. Eldridge, but did not give a precise formula for the process due before the government targets and kills a citizen.)  Vladeck argues that a FISA-like, ex ante judicial review is a bad idea, because it would lend legitimacy to targeted killings and entrench the government's power.  Instead, Vladeck argues for judicial review and damage claims after the killing ( allowing government officials to assert qualified immunity and even the state secrets privilege)--thus helping to ensure that the government would take care in its decisions.

The two also discuss whether the authority should extend off the "hot battlefield" and issues related to transparency in government decisionmaking. 

Vladeck noted how odd Holder's speech was, given that it said very little and that the government has refused to turn over any formal written legal rationale for the program--because the speech only refocuses attention on this, without settling anything.  (For the same reasons, Brennan's recent speech only adds to the odd-ness.) 

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More Justification for Drones

The President's top counter-terrorism advisor, John Brennan, set out the administration's legal and ethical case for the use of drones today at Woodrow Wilson International Center for Scholars.  Brennan's speech comes just under two months after AG Eric Holder stated the case at Northwestern University, just over three months after DOD General Counsel Jeh Johnson argued the administration's case at Yale Law School, and nearly two years after State Department Legal Adviser Harold Koh made the case to the American Society of International Law.  It also comes just over six months after administration sources hinted at the justification in WaPo and the NYT.

We last covered the administration's expanding use of drones in Yemen here.

Brennan's talk echoes Holder's, Jeh's, and Koh's earlier talks, with perhaps more length, but still little detail.  We're still waiting for the administration to release its written legal analysis.  The case by administration officials amounts to little more than "trust us" on its processes for identifying targets that pose a threat to trigger national self-defense.  This falls far short for an authority that the administration used just last year to target and kill a U.S. citizen.

Here's what Brennan said today:

[A]s matter of domestic law, the Constitution empowers the President to protect the nation from any imminent threat of attack.  The Authorization for Use of Military Force--the AUMF--passed by Congress after the September 11th attacks authorizes the president "to use all necessary and appropriate force" against those nations, organizations and individuals responsible for 9/11.  There is nothing in the AUMF that restricts the use of military force against al-Qa'ida to Afghanistan.

As a matter of international law, the United States is in an armed conflict with al-Qa'ida, the Taliban, and associated forces, in response to the 9/11 attacks, and we may also use force consistent with our inherent right of national self-defense.  There is nothing in international law that bans the use of remotely piloted aircraft for this purpose or that prohibits us from using lethal force against our enemies outside of an active battlefield, at least when the country involved consents or is unable or unwilling to take action against the threat.

Second, targeted strikes are ethical.  Without question, the ability to target a specific individual--from hundreds or thousands of miles away--raises profound questions.  Here, I think it's useful to consider such strikes against the basic principles of the law of war that govern the use of force.

Targeted strikes confrom to the principle of necessity--the requirement that the target have definite military value. . . .

Targeted strikes conform to the principle of distinction--the idea that only military objectives may be intentionally targeted and that civilians are protected from being intentionally targeted. . . .

Targeted strikes confrom to the principle of proportionality--the notion that the anticipated collateral damage of an action cannot be excessive in relation to the anticipated military advantage. . . .

Brennan also touched on the administration's internal checks and processes:

This leads me to the final point I want to discuss today--the rigorous standards and process of review to which we hold ourselves today when considering and authorizing strikes against a specific member of al-Qa'ida outside the "hot" battlefield of Afghanistan.  What I hope to do is to give you a general sense, in broad terms, of the high bar we require ourselves to meet when making these profound decisions today.  That includes not only whether a specific member of al-Qa'ida can legally be pursued with lethal force, but also whether he should be. . . .

If our counterterrorism professionals assess, for example, that a suspected member of al-Qa'ida poses such a threat to the United States as to warrant lethal action, they may raise that individual's name for consideration.  The proposal will go through a careful review and, as appropriate, will be evaluated by the very most senior officials in our government for decision.

First and foremost, the individual must be a legitimate target under the law. . . .

Of course, the law only establishes the outer limits of the authority in which counterterrorism professionals can operate.  Even if we determine that it is lawful to pursue the terrorist in question with lethal force, it doesn't necessarily mean we should. . . .

As a result, we have to be strategic. . . .

For example, when considering lethal force we ask ourselves whether the individual poses a significant threat to U.S. interests. . . .  I am not referring to some hypothetical threat--the mere possibility that a member of al-Qa'ida might try to attack us at some point in the future.  A significant threat might be posed by an individual who is an operational leader of al-Qa'ida or one of its associated forces.  Or perhaps the individual is himself an operative . . . .  Or perhaps the individual possesses unique operational skills that are being leveraged in a planned attack. . . . .

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President Obama Expands Drone Authority in Yemen

President Obama this month authorized expanded use of drones in Yemen, according to reports in the Wall Street Journal and Washington Post.  Under the expanded authority, the CIA and the U.S. Joint Special Operations Command can use drones to fire on targets based only on their "signatures"--those patterns detected through intelligence that indicate that a target is an operative or otherwise poses a threat against U.S. interests.  Prior to the expansion, the CIA and USJSOC only had drone authority in Yemen to fire on targets based on individual identity and close vetting, so-called "personality" strikes.

The administration has yet to provide a comprehensive legal justification for its use of drones in Yemen--which last September killed alleged terrorist Anwar al-Awlaki and, mistakenly, his non-targeted son.  AG Eric Holder gave us all the legal justification we know (on the pre-existing Yemen drone program, not the expanded one) in a speech last month; we covered that speech here. 

Bruce Ackerman argued in Sunday's Washington Post that expanded drone use in Yemen exceeds congressional authorization under the AUMF.

According to reports, the expanded authority in Yemen still falls a little short of the broader drone authority in Pakistan.

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Padilla Takes Torture Case to Supreme Court

Jose Padilla filed a cert. petition with the Supreme Court this week, asking the Court to review the Fourth Circuit's ruling rejecting his Bivens claim against former Defense Secretary Donald Rumsfeld and other officials allegedly involved in his torture.

This case could be a first foray for the Court into the spate of cases since the attacks of 9/11 that allege torture by U.S. government officials and their private-sector collaborators.  In particular, despite several similar Bivens cases percolating in the lower courts, the Supreme Court has yet to rule on this precise question: Whether a U.S. citizen can sue government officials for torture while in military custody, when the detention may (or may not) be related to national security.  (We last posted on one of these cases, Vance v. Rumsfeld, recently argued before the en banc Seventh Circuit.  (The three-judge panel ruled that the plaintiffs' torture suit could move forward.))  The Court has also not yet taken up a case involving another barrier to torture suits, the state secrets privilege.

Padilla sued Rumsfeld, et al., for violation of his rights, and authorization of violation of his rights, while he was detained at the Naval Brig in Charleston, South Carolina, for two years as an "enemy combatant."  Padilla sued under Bivens, the 1971 case authorizing an individual cause of action against federal officers for violations of the Fourth Amendment; subsequent cases have restricted Bivens claims when "special factors" counsel against a judicial remedy. The defendants moved to dismiss the case, arguing just that--that "special factors" counseled against a Bivens remedy.  The district court dismissed the case (on this ground, and also on qualified immunity grounds), and the Fourth Circuit affirmed.

Padilla, represented by Ben Wizner and a team at the ACLU, argues that the Fourth Circuit's ruling is contrary to Carlson v. Green (1980), a case extending the Bivens remedy to a prisoner's Eighth Amendment claim that federal officers were deliberately indifferent to his mistreatment in federal custody:

Petitioners' claims here fall squarely within the heartland of Bivens and Carlson.  As in Carlson, petitioners allege mistreatment while in federal custody.  And as in both Bivens and Carlson, the traditional circumstances for permitting Bivens relief are plainly present: petitioners seek to hold individual federal officers accountable for grave abuses of a prisoner in federal custody, and there is no adequate alternative remedy.

Padilla also argues that the Fourth Circuit effectively turned the Bivens "special factors" analysis into an executive trump card in military matters, weildable any time somebody tries to sue the military.  Padilla says that this is a misreading of Bivens and the Court's precedents, which show that "special factors" "embody judicial deference to the legislative, rather than the executive, prerogative."  Padilla also argues that it frustrates checks-and-balances and undermines principles of separation-of-powers (by allowing too much power to be consolidated, unchecked, in the executive).

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AG Holder Responds to Fifth Circuit Order on Judicial Review

Attorney General Eric Holder today filed his three-page, single-spaced response to the order of the Fifth Circuit (by Judge Smith) the other day asking for the administration's position on judicial review.

The letter is here (thanks to ConLawProfBlog's RR); we posted on the earlier order here.

There are obviously no surprises in DOJ's response; it's simply a short essay on judicial review.  It's not clear that the response complies with the order in two respects, however: it's not at least three pages, single-spaced, and it only mentions President's Obama's comments in passing ("The President's remarks were fully consistent with the principles described herein."). 

But it doesn't matter: This was a meaningless order in the first place, and the administration could well have (and should well have) entirely ignored it.  The AG's response only legitimized this meaningless order and, thus, the courts' ability to bully the administration around to no particular end.  AG Holder's response sets an unfortunate separation-of-powers precedent that the administration should have resisted.

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Convening Authority Refers KSM Charges to Military Commission

The Convening Authority today referred terrorism charges against Khalid Sheikh Mohammed, Walid Muhammad Salih Mubarak Bin 'Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, and Mustafa Ahmed Adam al Hawsawi to a capital military commission.  Capital charges include conspiracy, attacking civilians, murder in violation of the law of war, hijacking and aircraft, and terrorism.

We last posted on the case--and separation-of-powers issues in the congressional restriction on trying in a regular Article III court--here.  (Recall that the administration originally sought to try these individuals in regular Article III courts; Congress restricted the administration's ability to do that; the administration balked, but ultimately decided to try them by military commission.)

The Office of Military Commission web-site, including electronic case files, is here.

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Fifth Circuit Judge Orders Administration to State Position on Judicial Review

Judge Jerry Smith (5th Cir.) yesterday ordered a DOJ attorney to deliver a letter to the court stating the position of the AG and DOJ on judicial review.  The order comes in response to President Obama's statements the other day at a news conference on the ACA challenge at the Supreme Court.

This is an uncommonly silly order--serving no legitimate purpose, interfering with separation of powers, and undermining the credibility and seriousness of the federal courts (or at least the Fifth Circuit)--and the DOJ would do well to ignore it.  The President's statements the other day were plainly not a challenge to the idea of judicial review; they were simply a statement of the administration's constitutional position on the ACA, already articulated by the SG at oral argument and repeatedly stated by the administration and the President himself in other contexts.

Here's a recording (thanks to Steve Bussey radio), followed by the language:

 

I would like to have from you by noon on Thursday . . . a letter stating what is the position of the Attorney General and the Department of Justice in regard to the recent statements by the President stating specifically and in detail in reference to those statements what the authority is of the federal courts in this regard in terms of judicial review.  That letter needs to be at least three pages, single-spaced, no less, and it needs to be specific.

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Passport Dispute Does Not Raise Political Question

The Supreme Court ruled on Monday in Zivotofsky v. Clinton that the political question doctrine does not bar judicial review of the constitutionality of a federal statute that requires the Secretary of State to designate "Israel" as the country of birth for a U.S. citizen born in Jerusalem who requests such designation.  We previewed the case here, and we reviewed the oral argument here.

The ruling dodges the significant underlying separation-of-powers question over which branch has authority to designate the country of birth on a U.S. passport--at least for now.  The Court remanded the case for consideration of this issue; it is sure to return.

The case pits State Department regs forbidding the designation of Israel as the country of birth for a U.S. citizen born in Jerusalem against a federal statute that requires such designation--in short, whether the President or Congress has authority to specify the country of birth on a U.S. passport for a U.S. citizen born in Jerusalem.  Here, this power also implicates U.S. foreign policy, because the designation would be seen as taking sides in the Israeli-Palistinian conflict.  Complicating things, President George W. Bush issued a signing statement on the legislation, Section 214(d) of the Foreign Relations Authorization Act, saying that it unconstitutionally interferes with the President's foreign affairs powers.  (The constitutionality of the signing statement, however, wasn't before the Court.)

The D.C. Circuit ruled that the case raised a nonjusticiable political question--the President's authority to recognize foreign sovereigns--and affirmed its dismissal.

The Supreme Court reversed.  Chief Justice Roberts wrote for the Court that the case merely involved the constitutionality of a federal statute--"a familiar judicial exercise"--and did not require the courts to intervene in or to set foreign policy.  This didn't make the case easy, but it did make it appropriate for judicial review.  The Court remanded the case to get the lower courts' best thinking on the merits before the case inevitably comes back to it.

Justice Sotomayor wrote a concurrence joined in part by Justice Breyer, and Justice Alito wrote a concurrence.  Justice Breyer was the lone dissenter, arguing that the case was a political question because it may well require the Court to evaluate foreign policy considerations, because there are no strong reasons for judicial review, and because the political branches can work it out on their own.

The ruling sends the case back to the lower courts for consideration on the merits.  But this important separation-of-powers case is almost certain to come back to the high Court.

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Holder Talks War Powers

Attorney General Eric Holder earlier this week outlined the administration's legal case for surveillance and intelligence-gathering, trials, and targeted killings to an audience at Northwestern University. Here's the transcript.

In all, Holder's message was that the government approached these decisions with balance and care, making efforts to ensure that its actions comport with U.S. law and international law, and that its efforts are transparent and checked by the other branches, even if only minimally. He also emphasized the government's inter-agency coordination on these and other, related measures. But at the same time, Holder didn't back down from defining sweeping government authority in these areas.

And in the end, a good part of the government's case, especially with regard to targeted killings, amounts to this: Trust us.

As to surveillance and intelligence-gathering, Holder pointed to the administration's on-going efforts under section 702 of the FISA, which authorizes the AG or the DNI to authorize annually, through the FISA court, collection directed at identified categories of foreign intelligence targets without a warrant. Holder said that the executive branch has three checks on this power--an internal check within the executive branch, reporting to Congress and the requirement for reauthorization by Congress, and the FISA court.

As to trying alleged terrorists, Holder made a strong case for executive discretion to try alleged terrorists in a regular Article III court or a military tribunal. How to decide which?

• "First of all, commissions only have jurisdiction to prosecute individuals who are part of al Qaeda, have engaged in hostilities against the United States or its coalition partners, or who have purposefully and materially supported such hostilities."
• "Second, our civilian courts cover a much broader set of offenses than the military commissions, which can only prosecute specified offenses, including violations of the laws of war and other offenses traditionally triable by military commission."
• "Third, there is the issue of international cooperation." Without it, military commissions are tougher.

As to targeted killings of enemies, including American citizen enemies, Holder's speech didn't really have any surprises. He said that a combination of the AUMF and Article II authorities, plus the exectuive's inherent power to protect the nation and self-defense, gave the President power to engage in targeted killings with minimal, and apparently all internal, due process. Holder did say that the administration would respect the counter-veiling values in the constituiton (like due process) and international law. And he elaborated on what we've seen with regard to international law:

The principle of necessity requires that targets have definite military value. The principle of distinction requires that only lawful targets--such as combatants, civilians directly participating in hostilities, and military objectives--may be targeted intentionally. Under the principle of proportionality, the anticipated collateral damage must not be excessive in relation to the anticipated military advantage. Finally, the principle of humanity requires us to use weapons that will not inflict unnecessary suffering.

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War Powers Resolution Challenge to Libyan Mission Moot

Judge Richard W. Roberts (D.D.C.) on Tuesday dismissed as moot Whitney v. Obama, a civil case seeking a declaration and injunction against President Obama's commitment of U.S. troops to Libya last year.  We previously posted on House Members' claim against the President here (with links to our past posts on the Libyan mission).  (Judge Walton dismissed that case, Kucinich v. Obama, for lack of standing.)

The plaintiff brought the case under the War Powers Resolution.  Judge Roberts declined to address the merits but instead ruled the case moot because the operation ended in 2011:

"[T]he [U.S.] ceased air operations in support of" NATO's Operation Unified Protector on October 31, 2011, and Whitney cites no authority for the proposition that the War Powers Resolution covers the continued presence of peaceful troops.  Because "[t]he clash . . . has subsided, and what occurred during the dispute cannot be undone[,] "the court can grant no meaningful relief[.]"  The declaratory judgment Whitney seeks would constitute an "improper advisory opinion" since no live dispute remains.  Granting injunctive relief likewise would prove ineffectual, as the challenged actions have long since ceased.  Accordingly, Whitney's claims are moot.

Op. at 6-7 (citations omitted).  Judge Roberts also ruled that the action was neither capable of repetition (because there's no reasonable expectation that Whitney will suffer the same alleged violation of the WPR again), nor evading review (because "offensive wars initiated without congressional approval are not in th[is] category[,]" and neither are military missions "inherently short in duration," Campbell v. Clinton, 203 F.3d 19, 34 (D.C. Cir. 2000).

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House Judiciary Examines Recess Appointments

The House Judiciary Committee might not be the most obvious body to conduct oversight of President Obama's recent recess appointments to the NLRB and the CFPB.  But that's just what it did in a hearing yesterday, featuring testimony by two former OLCers and a law professor.

The prepared statements of the Honorable Charles Cooper (arguing against authority for the appointments), John Elwood (arguing for), and Jonathan Turley (arguing against) are together a terrific back-and-forth on the constitutional issues and a wonderful complement to the Obama administration's OLC memo concluding that the appointments were authorized.

We've covered this issue from its beginning.  Here are some highlights:

• Plaintiffs in ongoing litigation challenge the President's recess appointments to the NLRB in court;
• Republican Senators join that suit as amicus;
• Obama Administration's OLC OKs the recess appointments;
• The President makes the recess appointments in the first place.

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House Republicans Poised to Subpoena Administration Officials

Republicans on the House Energy and Commerce Committee will vote on Friday whether to subpoena administration officials in the Committee's ongoing investigation into the Solyndra loan guarantee.  We posted on this most recenty here; here's the proposed resolution.

Republicans seek testimony from five officials:

• Kevin Carroll, Energy Branch Chief, OMB
• Kelly Colyar, Branch Chief, OMB
• Aditya Kumar, Deputy Assistant to the Vice President and Senior Advisor to then White House Chief of Staff Rahm Emanuel
• Fouad Saad, Program Examiner, OMB
• Heather Zichal, Deputy Assistant to the President for Energy and Climate Change

The Committee site has other resources, including a web-cast of Friday's hearing, at 10:15 a.m. Eastern time.

SDS

Oral Arguments in Torture Suit Against Rumsfeld

The en banc Seventh Circuit heard oral argument on Wednesday in Vance v. Rumsfeld, the case by two American military contractors against the former Secretary of Defense (among others) for authorizing their torture while in military detention in Iraq.  We posted on the three-judge panel decision allowing the case to move forward here.  The full Seventh Circuit vacated that decision and took up the case en banc.

The plaintiffs, Vance and Ertel, filed a Bivens claim against Rumsfeld and others, seeking monetary damages and injunctive relief.  The government, on behalf of Rumsfeld, moved to dismiss, arguing that special factors counseled against a Bivens remedy, namely wartime context and the military's ability to do its job without threat of litigation.

The arguments today focused around these themes--all relating to special factors counseling against Bivens except the last one:

Disincentives.  Some on the bench, led by Judge Posner, were concerned that allowing a Bivens claim to move forward here would discourage talented people from considering public service.  Others expressed concern that not allowing a Bivens claim here would give a green light to the military to violate whatever constitutional provisions it likes, with no judicial check.

Separation of Powers.  Some, again led by Judge Posner, argued that Congress was the better branch to provide a remedy, and that the courts should take great caution in crafting a judicial remedy, or in applying Bivens beyond its narrow facts. 

Contractor Status.  Judge Posner pressed the plaintiffs' attorney about the plaintiffs' contractor status, suggesting that this status, equivalent in all but name to active members of the military, creates exactly the same special factors counseling against a Bivens remedy that an active-duty member's claim raises.  And the courts have rejected Bivens for such a military-on-military claim.

Alternative Remedies.  Several on the bench seemed concerned that the plaintiffs hadn't pursued, or hadn't at least tried to pursue, alternative compensation remedies through the Defense Department.

Judge Posner, the most vocal voice on the court against a Bivens damage remedy, was also most vocal about saying that the plaintiffs could get injunctive relief.  Thus one possibility is that the en banc court would dismiss the damage action but allow injunctive relief to move forward.  The problem: Plaintiffs might then face a Lyons-like standing problem.

Another possibility: The en banc court might dodge the thorny question of special factors and instead dismiss the case based on the plaintiffs' failure to pursue alternative remedies.

Oddly, nobody on the bench (or behind the podium) seemed to consider that the qualified immunity doctrine could cover for the discourage-public-service concern--and that qualified immunity might do it in a better way: Allowing the Bivens case to move forward would give the plaintiffs their day in court and only discourage plainly unconstitutional public service, not all public service.

SDS

Republican Senators to Oppose Recess Appointments as Friends of Court

A group of 39 Republican Senators said on Friday that they would file an amicus brief in a court case challenging President Obama's recent recess appointments to the Consumer Financial Protection Bureau and the National Labor Relations Board.  

We posted most recently on the ongoing litigation brought by the National Right to Work Legal Defense and Education Foundation and the National Federation of Independent Business against the NLRB.  The plaintiffs in that case most recently filed a motion to amend their complaint to include a charge that President Obama's recess appointments to the NLRB were unconstitutional, and therefore that the NLRB didn't have sufficient sitting members to enforce its new rules.  It's not clear if the Republicans seek to weigh in on this case, though: It involves only the NLRB, not the CFPB.

Senator John Cornyn (R-TX) released this statement on Friday:

American democracy was born out of a rejection of the monarchies of Western Europe, anchored by limited government and separation of powers.  We refuse to stand by as this President arrogantly casts aside our Constitution and defies the will of the American people under the election-year guise of defending them.

Here's the statement from the Republican Senators:

We the undersigned believe that President Obama's January 4, 2012 recess appointments of individuals to lead the Consumer Financial Protection Bureau and National Labor Relations Board were unprecedented and unconstitutional.  We intend to jointly file an amicus brief challenging the constitutionality of President Obama's appointments to the National Labor Relations Board and Consumer Protection Financial Bureau.

SDS