Thursday, September 13, 2012
Judge Katherine B. Forrest (SDNY) ruled in Hedges v. Obama that the detention authority in Section 1021 of the National Defense Authorization Act violated free speech and free association and was unconstitutionally vague. Judge Forrest issued a permanent injunction against its enforcement.
The ruling comes nearly four months after Judge Forrest issued a temporary injunction in the same case. The ruling means that the government cannot use Section 1021 as authority for military detention--at least in the Southern District, if not beyond--and it warns the government strongly against using the AUMF instead. Judge Forrest wrote that the AUMF never authorized the kind of detention authorized in Section 1021--that Section 1021 is a new and different kind of detention authority--undermining the government's claim that the AUMF allowed this all along. According to Judge Forrest, it didn't. And still doesn't. The ruling thus not only strikes Section 1021; it also strikes at the government's sweeping theory of detention under the AUMF itself. Needless to say, the ruling is a huge victory for opponents of limitless and military detention without trial.
Recall that the plaintiffs in the case, a group of writers, journalists, and activists, sued the government, arguing that Section 1021 violated the First Amendment. That Section provides:
(a) In General. Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the [AUMF] includes the authority of the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.
(b) Covered Persons. A covered person under this section is any person as follows
. . .
(2) A person who was 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.
(c) Disposition Under the Law of War. The disposition of a person under the law of war as described under subsection (a) may include the following:
(1) Detention under the law of war without trial until the end of hostilities authorized by the [AUMF].
. . .
(d) Construction. Nothing in this section is intended to limit or expand the authority of the President or the scope of the [AUMF].
The plaintiffs argued that the language was pliable and vague enough that the government could use Section 1021(b)(2) to detain them as "covered persons."
Judge Forrest agreed. She ruled that the government had done nothing since the preliminary injunction to better or more clearly define vague terms in that subsection, and that it had done very little to assure her that the plaintiffs in this case wouldn't be subject to detention under its authority. Here are some key points from the ruling:
- Standing. Judge Forrest rejected the government's claim that the plaintiffs lacked standing, particularly becuase the government had done almost nothing to persuade her that the plaintiffs might not be subject to detention under Section 1021 in violation of the First Amendment. Since the preliminary injunction, the government only issued a highly qualified statement that said that the plaintiffs, based solely on their independent activities described in their affidavits and testimony, wouldn't be subject to detention. For Judge Forrest, this wasn't enough. The highly qualified statement left the door wide enough open for prosecution of protected activities that the plaintiffs still had standing.
- AUMF Authority. Judge Forrest categorically rejected the government's repeated claim in this litigation (and elsewhere) that Section 1021 only codified authority that it already enjoyed pursuant to the AUMF. Judge Forrest was clear that the authorities differed--and that Section 1021 added to authority under the AUMF, that the AUMF didn't go so far as to authority detention of those "substantially or directly supporting" "associated forces." She wrote that the government itself extended its own authority under the AUMF to resemble something like the authority codified in Section 1021, but that the AUMF itself (without the government's subsequent gloss) does not grant the same authority as Section 1021. (The AUMF authorizes "all necessary and appropriate force against those . . . [who the President determines] planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons . . . ." Compare that language to the language of Section 1021(b)(2), above.)
- Alternative Use of AUMF. Related to that last point, Judge Forrest issued a strong statement warning the government against using the "substantially or directly supporting" theory as the basis of any detention. She wrote,
If, following issuance of this permanent injunctive relief, the Government detains individuals under theories of "substantially or directly supporting" associated forces, as set forth in Section 1021(b)(2), and a contempt action is brought before this Court, the Government will bear a heavy burden indeed.
Op. at 14.
- Habeas. Judge Forrest categorically rejected the government's claim that habeas would ensure that detainees under Section 1021 would get their day in court. She said that if only habeas review were available to U.S. citizens detained within the U.S., core constitutional rights (like the right to a jury trial in a criminal case) would be eliminated.
September 13, 2012 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, First Amendment, Mootness, News, Opinion Analysis, Speech, War Powers | Permalink | Comments (0) | TrackBack (0)
Friday, August 31, 2012
Attorney General Eric Holder announced yesterday that the Justice Department will not pursue criminal charges in the two cases--the only two, and the last two--that it investigated involving torture of detainees in U.S. custody. The announcement means that no U.S. official, employee, or service member will face criminal charges for torture.
This announcement, along with the courts' now widely adopted view that civil suits for torture are barred by either the state secrets privilege or by "special factors" counseling against such suits (under Bivens), means that no U.S. official, employee, or service member is likely to face any judicial accountability for torture.
Recall that the Justice Department in 2009 tasked Assistant U.S. Attorney John Durham of the District of Connecticut with an expanded investigation into whether federal laws were violated in connection with the interrogations of specific detainees at overseas locations. But AG Holder said that the Department wouldn't prosecute anyone who acted in good faith and within the scope of legal guidance by the OLC. In June 2011, Durham recommended opening full criminal investigations into only two cases. The announcement today means that those investigations are now closed--without prosecutions.
Thursday, August 23, 2012
A group of ICE officers sued DHS Secretary Janet Napolitano today in the United States District Court for the Northern District of Texas to halt the Department's deferred action program, which defers removal of qualifying aliens. (Deferred action is simply an exercise of executive discretion not to remove certain aliens; it's the administration's way of achieving the goals of the DREAM Act without a DREAM Act.) The administration has argued that the program is a valid exercise of prosecutorial discretion. We last posted on it here, including a link to a letter by immigration and constitutional law profs arguing that the action is fully constitutional (and outlining a handful of different ways that the administration might go about it).
It's not easy to get a case like this into the courts: by definition, it's hard to identify somebody who has been harmed (and thus who has Article III standing) by a non-action by the government. The ICE officers claim that they're harmed because their bosses, through deferred action, are forcing them to violate federal law and their oaths to uphold federal law and the Constitution. It's not clear that this will be enough; and even if it is, there's this problem: If the officers here have sufficient Article III harm, then any federal officer who has even a vague constitutional disagreement with his or her bosses' policies will be able to sue to stop them. There are other preliminary problems, too, maybe most obviously the political question doctrine and related separation-of-powers considerations.
The officers state five causes of action. First, the officers claim that deferred action requires them to violate federal law that requires them to detain any alien "who is not clearly and beyond a doubt entitled to be admitted." Next, they say that deferred action confers a benefit on qualifying aliens, the deferred action itself, that is not authorized by federal law. Third, the officers argue that deferred action confers the benefit of employment authorization on qualifying aliens without any statutory basis and "under the false pretense of 'prosecutorial discretion.'" Fourth, they say that deferred action amounts to a legislative act (as evidenced by the numerous DREAM Act bills in Congress that didn't pass) and thus intrudes on the powers of Congress. Finally, they claim that deferred action violates the executive's constitutional obligation to take care that the laws are faithfully executed.
Between the preliminary problems and the inherently weak claims, it's hard to see that this case has much of a future. But maybe it's not supposed to. The complaint--signed by Kris Kobach and apparently bankrolled by NumbersUSA, a group that advocates for "lower immigration levels"--seems as much designed to get the issue out in the public as it is to get the issue into the courts.
August 23, 2012 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)
Friday, August 17, 2012
Judge Cormac J. Carney (C.D. Cal.) this week dismissed a case brought by several Muslims challenging an FBI surveillance program on the government's assertion of the state secrets privilege. (Thanks to emptywheel.net for links to the opinions below.)
The ruling, along with a companion ruling on the plaintiffs' FISA claim, terminates all but a sliver of the case. It also illustrates what a powerful weapon the state secrets privilege can be--protecting an indiscriminate surveillance program that, as described by the plaintiffs, even the judge called "disturbing." At the end of the day, Judge Carney dismissed the entire case (aside from the FISA claim, discussed below and dismissed in part on other grounds) on the government's own claim, based on a sealed declaration, that its defense would necessarily reveal state secrets.
The rulings in Fazaga v. FBI arose out of the plaintiffs' challenge to the FBI's "Operation Flex" program. According to the complaint, the FBI engaged a civilian, Craig Monteilh, to conduct indiscriminate surveillance on Muslims in Southern California. The surveillance resulted in hundreds of hours of video and thousands of hours of audio recordings from the mosques, homes, businesses, and associations of hundreds of Muslims. But it didn't result in a single criminal charge.
The plaintiffs sued the FBI and its officers under several constitutional and statutory theories, including FISA. The government moved to dismiss, arguing that its defense necessarily required disclosure of information that would harm national security--that is, state secrets--and the court agreed. Judge Carney explained:
Here, Plaintiffs' claims are predicated on their core allegation that Defendants engaged in an indiscriminate investigation, surveillance, and collection of information of Plaintiffs and the putative class because they are Muslim. . . . [T]he Court is persuaded that privileged information provides essential evidence for Defendants' full and effective defense against Plaintiffs' claims--namely, showing that Defendants' purported "dragnet" investigations were not indiscriminate schemes to target Muslims, but were properly predicated and focused. . . . [T]he Court is [also] convinced that the privileged and nonprivileged information are inextricably intertwined, such that litigating the instant case to judgment on the merits would present an unacceptable risk of disclosing state secrets.
Op. at 31, 33 (emphasis in original).
Judge Carney's ruling is thorough and thoughtful--explaining the Totten bar and the Reynolds privilege; navigating between and synthesizing recent rulings coming out of the Ninth Circuit (Jeppesen Dataplan) and the Fourth Circuit (El-Masri); reviewing the government's confidential supporting affidavit and memorandum; checking the government's assertion against the government's own standards and processes for asserting the privilege; and explaining in broad terms just what the kind of information might be disclosed in the litigation. In other words, the ruling seems modest, balanced, and reasonable.
But still there's this: Judge Carney dismissed the entire case because the government's defense would have required revealing information that would harm national security, based only on the government's own say so. The dramatic result creates a perverse incentive for the government to overreach in its surveillance programs, with the knowledge and comfort that it can successfully shut down an entire case simply by showing that any defense of it would reveal state secrets.
In the companion ruling, Judge Carney dismissed the plaintiffs' FISA claim against the government, but not the individual defendants. Judge Carney relied on the Ninth Circuit's recent ruling that FISA's civil damages provision did not unequivocally waive sovereign immunity. But Judge Carney also said that nothing in the civil damages provision stops the suit against the individual defendants. And the government didn't assert the state secrets privilege over the FISA part of the case.
As a result, the plaintiffs' FISA claim against the individual defendants appears to go on. We might expect a government assertion of the state secrets privilege over this remaining part of the case now. If so, it could face a hurdle: The Northern District of California ruled in In re Nat'l Sec. Agency Telecomms. Records Litig., 564 F. Supp. 2d 1109, 1120 (2008) that FISA preempts the state secrets privilege with respect to a FISA claim. While the court cited and discussed the case (in rehearsing the plaintiffs' argument), it's not clear that it would agree with it, or not.
August 17, 2012 in Cases and Case Materials, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, State Secrets, War Powers | Permalink | Comments (0) | TrackBack (0)
Monday, August 13, 2012
The House Committee on Oversight and Government Reform filed its anticipated complaint today in the United States District Court for the District of Columbia against Attorney General Eric Holder, seeking a declaration that AG Holder's assertion of executive privilege is without merit and that his failure to turn over certain documents to the Committee was without justification, and requiring AG Holder to turn over certain "obstruction" documents.
The complaint seeks a mere subset of the larger body of documents originally sought by the Committee--the so-called "Obstruction Component" documents, relating to DOJ's alleged obstruction of the Committee's investigation into the Fast and Furious program. (The Committee does not seek other documents covered in its earlier subpoena--the "Operations Component" documents, related to the operations of the program--although it maintains its right to seek and to receive those documents.) The Committee explains, in paragraph 62 of the complaint:
The Department's and the Attorney General's response to the Committee's investigation has been woefully inadequate in every respect. However, notwithstanding their lack of cooperation, the Committee has managed to obtain sufficient facts--principally through the aid of DOJ whistleblowers--to begin reporting to the American people on the Operations Component of its investigation. Accordingly, although the Committee has a legal and constitutional right to obtain from the Attorney General all documents responsible to the Holder Subpoena not already produced, the Committee chooses in this action to seek only a limited subset of such responsive but unproduced documents, namely, those documents that are relevant to the Obstruction Component of the Committee's investigation which the Committee cannot obtain from any other source. To that end, the Committee here seeks to compel the Attorney General to produce those documents dated or that were created after February 4, 2011, that are responsive to Categories 1, 4, 5, and 10 of the Holder Subpoena [attached to the complaint]. In the Committee's judgment, this limited subset of responsive documents--referred to herein as the "Post-February 4 Subset"--includes or constitutes the documents most likely to be relevant to the Obstruction Component of the Committee's investigation and, when produced, most likely to enable the Committee to complete its investigation.
Here's what the Committee thinks of the administration's executive privilege claim:
The principal legal issue presented here is whether the Attorney General may withhold that limited subset on the basis of "Executive privilege" where there has been no suggestion that the documents at issue implicate or otherwise involve any advice to the President, and where the Department's actions do not involve core constitutional functions of the President.
No Court has ever held that "Executive privilege" extends anywhere near as far as the Attorney General here contends that it does. Indeed, it is no exaggeration to say that the Attorney General's conception of the reach of "Executive privilege," were it to be accepted, would cripple congressional oversight of Executive branch agencies, to the very great detriment of the Nation and our constitutional structure. Accordingly, the Committee asks this Court to reject the Attorney General's assertion of "Executive privilege" and order him forthwith to comply with the Committee's subpoena, as set forth below.
Compl. at page 3.
Recall that AG Holder urged the assertion of the privilege based on "executive branch deliberative communications"--supported, AG Holder argued, by several DOJ and OLC opinions (including DOJ advice, authored by Paul Clement, in the Bush administration relating to the assertion of executive privilege in the congressional investigation on the politicization of the Justice Department). See Holder Memo at 2-3.
The privilege dispute thus centers on whether the President himself had to be part of the communications--or whether the communication had to be in relation to advice to the President--or whether the privilege applies more broadly over "executive branch deliberative communications" that did not involve the President directly.
In the D.C. court's last foray into this and similar issues, in a similar case involving above-mentioned congressional investigations into the politicization of the Justice Department, Committee on the Judiciary v. Miers, Judge John D. Bates ruled that the Committee jumped the several significant hurdles to get the case into court and that White House Counsel Harriet Miers did not have absolute immunity from testifying before Congress. (The case was stayed pending appeal and resolved itself by agreement of the parties in January 2009.)
But while Judge Bates's opinion dealt at length with (and ultimately rejected) the defendants' claimed barriers to the Committee's suit, it did not resolve the executive privilege issues presented in this case.
Miers may provide useful guidance, though, for a more pragmatic reasons: The D.C. Circuit in that case declined to put the appeal on the fast track, suggesting that the case could become moot when the 110th Congress, along with its subpoenas, expired.
This case, like that one, will not reach final judicial resolution (and maybe even not a district court ruling) before the end of the current Congress. The case could fizzle out--that is, moot out, because the subpoena will have expired with the current Congress--when the new Congress comes in . . . unless the new House reauthorizes it.
August 13, 2012 in Cases and Case Materials, Congressional Authority, Executive Authority, Executive Privilege, Jurisdiction of Federal Courts, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)
Wednesday, August 8, 2012
In the latest and perhaps last chapter of the Al-Haramain case, the Ninth Circuit ruled that the government did not unequivocally waive sovereign immunity through the Foreign Intelligence Surveillance Act civil liability provision, ending the plaintiffs' case challenging the government's terrorist surveillance program.
As the court said, "[t]his case effectively brings to an end the plaintiffs' ongoing attempts to hold the Executive Branch responsible for intercepting telephone conversations without judicial authorization." Op. at 8784.
Recall that the plaintiffs sued under the FISA's civil liability provision for damages resulting from the government's surveillance of them through the TSP. Most recently, the district court ruled that the state secrets privilege did not foreclose the plaintiffs' suit--that "FISA preempts or displaces the state secrets privilege . . . in cases within the reach of its provisions"--and that the government implicitly waived sovereign immunity through FISA. The district court ruling would have allowed the case to move forward.
But the Ninth Circuit stopped it. The court ruled that the government did not unequivocally waive sovereign immunity through the FISA civil damages provision, and therefore the plaintiffs could not sue for damages from the government.
The FISA civil damages provision, 50 U.S.C. Sec. 1810, reads,
An aggrieved person . . . who has been subjected to an electronic surveillance or about whom information obtained by electronic surveillance of such person has been disclosed or used in violation of section 1809 of this title shall have a cause of action against any person who committed such violation . . . .
For the court, the key missing phrase was "the United States" (as in "against the United States" or "the United States shall be liable")--a mainstay of statutes in which the government unequivocally waived sovereign immunity. Without such an unequivocal waiver, the government cannot be sued for damages.
Even with the government off the hook, though, the plaintiffs still could have proceeded against FBI Director Mueller, another defendant in the action (and a "person" under 50 U.S.C. Sec. 1810). But the court said that the plaintiffs "never vigorously pursued its claim against Mueller" and dismissed it. Op. at 8797.
The case almost certainly puts an end to the plaintiffs' litigation efforts to hold the government responsible for the TSP.
August 8, 2012 in Cases and Case Materials, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, State Secrets, War Powers | Permalink | Comments (1) | TrackBack (0)
Friday, July 6, 2012
A three-judge panel of the D.C. Circuit ruled today in Intercollegiate Broadcasting System, Inc. v. Copyright Royalty Board that the appointment of Copyright Royalty Judges, or CRJs, violated the Appointments Clause. The court remedied the violation by reading out of the CRJ statute the CRJs' for-cause removal provision and permitting the Librarian of Congress to remove CRJs at will. The court said that this alone changed CRJs from "Officers" to "inferior Officers" under the Appointments Clause and allowed them to be appointed by the Librarian of Congress (as provided by statute), and without Presidential nomination and advice and consent of the Senate.
The ruling simply modifies a characteristic of the CRJs' job to put them in line with the Appointments Clause (by making them inferior officers) and sends the case back to the lower court for consideration of the merits. It probably doesn't break any significant new ground under the Appointments Clause or separation of powers (even if this kind of ruling is relatively rare). The court looks to both the power of the position and to its removability to determine whether it's an "Office" or "inferior Office," but the court turns it from an "Office" into an "inferior Office" by focusing only on removability. The court's remedy--reading out of the CRJ statute the for-cause removal and leaving CRJs with only at-will removal--takes a page from the Supreme Court's playbook in Free Enterprise Fund v. PCAOB.
The case arose out of a challenge to a CRJ decision on licensing terms between an association of noncommercial webcasters who transmit digital music over the internet in high schools and colleges and owners of the songs' copyrights. CRJs have statutory authority to set these terms, subject to review, discussed below, when the parties can't come to an agreement. The association, Intercollegiate, didn't like the terms set by the CRJ and brought this case arguing that the CRJ is unconstitutional under the Appointments Clause.
That Clause, Article II, Section 2, Clause 2, says that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Officers of the United States," but that "Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." Intercollegiate lodged a two-prong attack: First, it argued that CRJs were "Officers" and thus required Presidential nomination and Senate advice and consent (and that their appointment by the Librarian of Congress therefore violated the Appointments Clause); and second, it argued that the Library of Congress wasn't a "Department" (and that therefore Congress couldn't vest CRJs' appointment in its head, the Librarian of Congress, and their appointment was therefore unconstitutional).
The court agreed on the first argument, but disagreed on the second. The court, principally applying Edmond v. United States, ruled that the CRJs were "Officers," not "inferior Officers" the the purpose of the Appointments Clause. It wrote that the CRJs were supervised by the Librarian of Congress and the Registrar, but only as to pure issues of law, leaving the CRJs with vast discretion and authority to set rates on their own. It said that CRJs could only be removed by the Librarian of Congress for misconduct or neglect of duty. And it wrote that the CRJs' rate determinations were not reviewable or correctable by any other officer or entity within the executive branch (although they are reviewable by the D.C. Circuit). Thus it ruled that the three Edmond factors lined up in favor of "Officer," not "inferior Officer."
But the court didn't stop there. Following the Supreme Court's approach in Free Enterprise Fund, the court severed the removability provision for CRJs--the one that allows the Librarian of Congress to fire them only for misconduct or neglect of duty--and read out the "misconduct or neglect of duty" part. The effect was to leave CRJs with no protection against termination--and to allow the Librarian of Congress to remove them at will. This alone, the court ruled, turned the otherwise "Officers" into "inferior Officers." And this allowed Congress to vest their appointment in the Librarian of Congress--exactly what Congress did--and saved them. And: "We further conclude that free removability constrains their power enough to outweigh the extent to which the scope of their duties exceeds that of the special counsel in [Morrison v. Olson]."
As to Intercollegiate's second argument, the court ruled that the Library of Congress is a "Department" under the Appointments Clause. It ruled that the Library's power "to promulgate copyright regulations, to apply the statute to affected parties, and to set rates and terms case by case" are associated with executive authority, even if there are some aspects of the Library (like the Congressional Research Service) that make it look like a legislative agency. The Librarian of Congress is the Library's "head," and so the appointment of the now-inferior-officers is valid.
July 6, 2012 in Appointment and Removal Powers, Cases and Case Materials, Congressional Authority, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0) | TrackBack (0)
Thursday, June 28, 2012
The House of Representatives voted today to approve House Resolution 706, holding AG Eric Holder in contempt of Congress for declining to turn over documents related to the DOJ's response to congressional and media inquiries into the Fast and Furious program. Under the Resolution, the House holds AG Holder in contempt and authorizes the Chair of the House Oversight and Government Reform Committee, Rep. Darrell Issa, "to initiate or intervene in judicial proceedings in any Federal court of competent jurisdiction . . . to seek declaratory judgments affirming the duty of [AG Holder] to comply with any subpoena that is a subject of the resolution accompanying House Report 112-546"--the report issued by the Committee last week.
The move means that Rep. Issa and his committee can take the case directly to court, bypassing another option--referring the matter to the Assistant U.S. Attorney for D.C. If Rep. Issa files, he will ask the court to order AG Holder to turn over the subpoenaed documents, notwithstanding the administration's assertion last week of executive privilege.
The vote was 255 to 67, largely along party lines. Seventeen Democrats voted with Republicans; two Republicans crossed the aisle. More than 100 Democrats boycotted the vote altogether.
Friday, June 22, 2012
In the wake of President Obama's announcement last week that his administration would exercise prosecutorial discretion not to deport certain young people--undocumented aliens brought to the U.S. by their parents--Republicans cried foul and accused the President of overstepping his bounds by violating the law and not just enforcing it.
Representative Steve King (R-IA) apparently moved one step closer to filing a lawsuit to stop the administration's move, citing separation-of-powers concerns. Although we haven't seen a complaint yet, Rep. King argues, according to the Daily Caller, that the President's move was "constitutional overreach." According to King:
If he can do this by memorandum, then he can raise the debt limit by the same standard. He could argue that he's not going to audit nor enforce tax collection on certain classes of people. He could do that by age group. He could do that by race, by ethnicity. The president can do anything he wants to do.
According to the story, Rep. King's "central argument" is that "the president has legislated by memorandum."
Rep. King's legal claims aren't particularly developed--they're bald, they overstate any slippery slope, and they're at least in part obviously false--but they well represent the kinds of claims we've heard from opponents of the President's move.
On the other side, a group of immigration and constitutional law professors sent this letter to the White House late last month, outlining three different ways that President might exert prosecutorial discretion under the law and prior practice. According to the profs, the President could use "deferred action," "parole-in-place," or "deferred enforced departure" to support his prosecutorial discretion not to deport this class of individuals. The profs argue that these methods are supported in both law and prior executive practice.
Indeed, Secretary Janet Napolitano's memorandum implementing the President's announced practice draws on deferred action, even if it doesn't cite specific authority (as the profs do). The memo is careful to emphasize "prosecutorial discretion," attention to "enforcement priorities," and case-by-case consideration, ensuring that the practice stays on the execution-side of that sometimes fuzzy line between lawmaking (reserved for Congress) and law-executing (reserved for the President).
The memo sets out 5 criteria for individualized consideration and says,
Our Nation's immigration laws must be enforced in a strong and sensible manner. They are not designed to be blindly enforced without consideration given to the individual circumstances of each case. Nor are they designed to remove productive young people to countries where they may not have lived or even speak the language. Indeed, many of these young people have already contributed to our country in significant ways. Prosecutorial discretion, which is used in so many other areas, is especially justified here.
As part of this exercise of prosecutorial discretion, the above criteria are to be considered whether or not an individual is already in removal proceedings or subject to a final order of removal. No individual should receive deferred action under this memorandum unless they first pass a background check[,] and requests for relief pursuant to this memorandum are to be decided on a case by case basis. DHS cannot provide any assurance that relief will be granted in all cases.
Opponents, like Representative King, seem to argue that President Obama's announcement represents a blanket policy that thrusts into the lawmaking power reserved for Congress. But Secretary Napolitano's memo makes clear that this is no blanket policy; it is more like guidance to ensure that enforcement officers take the administration's priorities into account when determining whether to pursue deportation on a case-by-case basis. And the law profs' letter shows why this exercise of prosecutorial discretion is supported by law and past executive practice.
Also working against opponents: Both the House and the Senate last year introduced legislation, but then let it stall in committee, to rein in the President's authority to do exactly what he did. The bills, cleverly titled the Hinder the Administration's Legalization Temptation, or HALT, Act, H.B. 2497 and S. 1380, are both tied up in committees. The bills, by moving to rein in the President, also recognize that the President has prosecutorial discretion. Yet Congress didn't pass them, or even, apparently, prioritize them.
Friday, June 15, 2012
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.
June 15, 2012 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Executive Authority, Fundamental Rights, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)
Wednesday, June 13, 2012
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.
June 13, 2012 in Cases and Case Materials, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Recent Cases, Separation of Powers, Supreme Court (US), War Powers | Permalink | Comments (0) | TrackBack (0)
Sunday, May 6, 2012
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.
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."
Friday, May 4, 2012
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).
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."
Thursday, May 3, 2012
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.
Wednesday, May 2, 2012
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.)
Monday, April 30, 2012
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. . . . .
Thursday, April 26, 2012
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.
Wednesday, April 25, 2012
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).