April 22, 2013
Oral Arguments in USAID v. Alliance for Open Society, the "Prostitution Pledge"
The Court heard oral arguments today, sans Justice Kagan, in United States Agency for International Development v. Alliance for Open Society International, Inc., involving a First Amendment challenge to a provision of federal funding statute requiring some (but not other) organizations to have an explicit policy opposing sex work.
In other words, a NGO must have a "prostitution pledge" - - - actually, an anti-prostitution pledge - - - as a condition of receiving funds, unless it is one of the "grandfathered" NGOs. The question is whether this pledge is compelled speech and whether any compelled speech is sufficient to distinguish the situation from Rust v. Sullivan. The Second Circuit had held the provision unconstitutional.
Arguing as Deputy Solicitor General in support of the provision's constitutionality, Sri Srinivasan stressed that the Congressional requirement was "germane" to the government's goal in "partnering" with private organizations. Justice Scalia, in addition to finding the term "partnering" a "terrible verb," seemed to voice sentiments consistent with his previous conclusions in funding cases that the government can choose to spend its money as it wished. Interestingly, Justice Alito was more troubled, as he expressed in his first comment and question to the Deputy Solicitor General:
JUSTICE ALITO: I'm not aware of any case in which this Court has held that it is permissible for Congress to condition Federal funding on the recipient's expression of agreement with ideas with which the recipient disagrees. I'm not aware of any case in which that kind of compelled speech has been permitted. And I would be interested in -- and it seems to me like quite a -- a dangerous proposition. I would be interested in whatever limitations you think there might be on that rule, which seems to be the general rule that you're advocating. Other than the requirement of germaneness, is there anything else.
Alito soon thereafter posed an example mentioned in an amicus brief about the ability of government funding schools, and again, Srinivasan repeated the requirement of "germaneness." Later, Alito mentioned another example, mixing advocacy of guns and receiving health care, and Srinivasan again answered similarly.
Justice Ginsburg's concerns were similar, with an addition of the question of the recipients as foreign NGOs as a distinguishing feature from precedent as well as a practical issue.
David Bowker, arguing for Alliance for Open Society and other organizations, attempted to distinguish a funding criteria from mandated speech once the fnding decision had been made, although this led into a discussion of viewpoint discrimination rather than compelled speech. Later, Bowker brought it back to the distinction based upon Rust v. Sullivan, in a colloquy with Justice Sotomayor:
MR. BOWKER: And what Rust says, and I – I think we fall back on Rust, which we think is just on all fours with where we are here, and that is what the government cannot do -- and I think this answers your question -- is outside the government program the government cannot control private speech. And it was critical in that case -- Justice Rehnquist, at pages 196 and 197, said, "The doctors there and the public health organizations there are free to engage in their own private speech and their own activities, and they are not required to endorse any viewpoint they don't, in fact, hold." And here -
It was not until the Government's rebutal that one of the oddest features of the statute was raised, when Sotomayor stated,
JUSTICE SOTOMAYOR: I would have less problem accepting your message if there weren't four major organizations who were exempted from the policy requirement . . .
There seems to be a bit of selection on the government in terms of who it wants to work with. It would seem to me that if you really wanted to protect the U.S., you wouldn't exempt anybody from this.
In his last moments of argument, Srinivasan, responding to Justice Ginsburg, argued that the exemptions made "good sense" given that three of the four have members that are sovereign entities. Unfortunately, the rationale supporting that fourth entity was not explored.
The hypotheticals and examples raised by the Justices in oral argument showed some concern about just how far Congress could extend a provision similar to the one about prostitution in the Leadership Act. The distinction between funding and compelled speech doctrines was often obscured, making the outcome uncertain. More certain is that Justice Kagan's perspective will be sorely missed.
March 22, 2013
Drone Attacks Outside the Ongoing Conflict Zone
The Obama Administration has given us just a glimpse of its legal analysis authorizing its use of drone attacks on U.S. citizens in a foreign country outside the zone of active hostilities. And that mere glimpse contains a telling, and deeply troubling, reference to an earlier episode, Nixon's bombing of Cambodia, writes Professor Mary Dudziak (Emory), author of War Time: An Idea, Its History, Its Consequences, in the NYT.
Dudziak points to a citation to a 1970 speech by Department of State Legal Adviser John R. Stevenson in the recently released "white paper" setting out the administration's legal justification for drone attacks. In that speech, Stevenson argued that the U.S. had authority to take military action in Cambodia in self-defense against North Vietnamese attacks from that country. Dudziak explains:
Since 1965, "the territory of Cambodia has been used by North Vietnam as a base of military operations," [Stevenson] told the New York City Bar Association. "It long ago reached a level that would have justified us in taking appropriate measures of self-defense on the territory of Cambodia. However, except for scattered instances of returning fire across the border, we refrained until April from taking such action in Cambodia."
But there was a problem:
In fact, Nixon had begun his secret bombing of Cambodia more than a year earlier. (It is not clear whether Mr. Stevenson knew this.) So the Obama administration's lawyers have cited a statement that was patently false.
Here's the full paragraph from page 4 of the white paper:
The Department has not found any authority for the proposition that when one of the parties to an armed conflict plans and executes operations from a base in a new nation, an operation to engage the enemy in that location cannot be part of the original armed conflict, and thus subject to the laws of war governing that conflict, unless the hostilities become sufficiently intense and protracted in the new location. That does not appear to be the rule of the historical practice, for example, even in a traditional international conflict [i.e., a conflict between nations]. See John R. Stevenson, Legal Adviser, Department of State, United States Military Action in Cambodia: Questions of International Law, Address before the Hammarskjold Forum of the Association of the Bar of the City of New York (May 28, 1970), in 3 The Vietnam War and International Law: The Widening Context 23, 28-30 (Richard A. Falk, ed. 1972) (arguing that in an international armed conflict, if a neutral state has been unable for any reason to prevent violations of its neutrality by the troops of one belligerent using its territory as a base of operations, the other belligerent has historically been justified in attacking those enemy forces in that state). Particularly in a non-international armed conflict, where terrorist organizations may move their base of operations from one country to another, the determination of whether a particular operation would be part of an ongoing armed conflict would require consideration of the particular facts and circumstances in each case, including the fact that transnational non-state organizations such as al-Qa'ida have no single site serving as their base of operations. [Citation omitted.]
Dudziak argues that the citation to Nixon's bombing of Cambodia illustrates a problem, instead of providing a precedent:
The Cambodia bombing, far from providing a valuable precedent for today's counterterrorism campaign, illustrates the trouble with secrecy: It doesn't work. If Nixon had gone to Congress or announced the plan publicly, the historian Jeffrey P. Kimball has written, "there would have been an uproad." But disclosure was ultimately forced upon him when he decided to send ground troops into Cambodia. A new wave of giant antiwar protests erupted, and Nixon's ability to take further aggressive action became infeasible.
She writes that we expect more, and deserve more, of President Obama.
March 19, 2013
Zimbabweans Overwhelmingly Approve New Constitution
Zimbabweans voted overwhelmingly this weekend to approve a new draft constitution. Ninety-five percent of voters cast a ballot in favor, according to the Washington Post and others. We posted earlier here.
Now the document goes to Parliament and the president for approval and signature--ceremonial steps that'll take another 30 days or so.
The text is available here, at COPAC's web-site.
February 11, 2013
Daily Read: Congressional Research Service on Leaks of Classified Information
The leak of the DOJ white paper on drone attacks and its publication raise yet again the First Amendment issues surrounding prosecutions for leaks and possibily for publication.
Less than two weeks ago, the Congressional Research Service released its 33 page report, authored by legislative attorney Jennifer Elsea, entitled "Criminal Prohibitions on the Publication of Classified Defense Information."
The report centers wikileaks and Bradley Manning, but also discusses five other pending prosecutions that have received less publicity, including the Administration's attempt to compel New York Times reporter James Risen to testify
at the trial of former CIA officer Jeffrey Sterling, who is accused of providing classified
information to Mr. Risen that formed the basis of part of Risen's book, State of War: The Secret History of the CIA and the Bush Administration.
The report considers the statutory frameworks, problems such as jurisdiction and extradition, other legislative proposals, and - - - in six pages - - - the constitutional issues. While brief, the First Amendment discussion is nevertheless a good review and a good reminder that the law is deeply unsettled even with respect to classified information.
February 06, 2013
Daily Read: Academic Freedom and Controversial Programs
ConLawProfs often appear on controversial panels and law schools often present controversial programming. Are there limits?
Policitical Science Professor (and Chair of the Department) Paisley Currah (pictured) of Brooklyn College has been embroiled in a "firestorm" of late. As Professor Currah writes in The Chronicle of Higher Education:
Last month the political-science department at Brooklyn College, which I chair, was asked to either cosponsor or endorse a panel discussion on the boycott, divestment, and sanctions (BDS) movement organized by a student group, Students for Justice in Palestine. We decided to cosponsor the event, which is to take place on Thursday and to feature the philosopher Judith Butler and the Palestinian-rights activist Omar Barghouti. The BDS movement advocates using nonviolent means to pressure Israel to withdraw from Palestinian territories. Our decision landed us in a firestorm.
The flames of the firestorm have been fanned by controversial LawProf Alan Dershowitz as well as a letter signed NYC officials with (somewhat) veiled threats of reducing government funding. The NYT weighed in on the matter, comparing it to Chuck Hagel's nomination for secretary of defense, and the Center for Constitutional Rights has also highlighted the controversy. As Professor Currah concludes:
The damage wrought by this controversy, however, could be long-lasting, and the lesson for other colleges is, I think, instructive. Many people have written letters and signed petitions in support of the principle of academic freedom, and my colleagues and I appreciate those efforts. But what we have learned at Brooklyn College is that supporting the principle of academic freedom is one thing; exercising that freedom by organizing or cosponsoring an event on a highly charged subject, like BDS, is another.
For ConLawProfs teaching First Amendment this semester, the underlying facts could be the basis for an excellent class discussion or exercise. For everyone involved in the academic enterprise, Currah's piece is an important read.
February 05, 2013
DOJ White Paper Says Why Drone Attacks on Americans Are Constitutional
A Department of Justice white paper leaked to NBC gives the more detailed version of the administration's legal case for drone attacks against overseas Americans associated with al-Qa'ida. (Note that the white paper is unsigned and undated; it is not an OLC memo. It is titled simply "Department of Justice White Paper.") Michael Isikoff wrote on the white paper here. The leak is significant, because the administration has steadfastly refused to release a formal legal justification for the program. Just last month, the administration successfully defended against a FOIA claim in federal court seeking legal justification for the program.)
According to the white paper, the president has constitutional authority to order drone attacks and is not prohibited by due process. The paper says that the president has authority to respond to order strikes as part of his authority to defend the country against the imminent threat posed by al Qa'ida and associated forces, including U.S. citizens associated with al Qa'ida, under "the inherent right of the United States to national self defense under international law, Congress's authorization of the use of all necessary and appropriate military force against this enemy, and the existence of an armed conflict with al-Qa'ida under international law."
According to the paper, due process does not prohibit this:
Were the target of a lethal operation a U.S. citizen who may have rights under the Due Process Clasue and the Fourth Amendment, that individual's citizenship would not immunize him from a lethal operation. Under the traditional due process balancing analysis of Mathews v. Eldridge, we recognize that there is no private interest more weighty than a person's interest in his life. But that interest must be balanced against the United States' interest in forestalling the threat of violence and death to other Americans that arise from an individual who is a senior operational leader of al-Q'aida or an associated of al-Q'aida and who is engaged in plotting against the United States.
Instead, the white paper sets out a three-part test for targeted killing of a U.S. citizen who is outside the United States and who is "an operational leader continually planning attacks against U.S. persons and interests":
(1) where an informed, high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States;
(2) where a capture operation would be infeasible--and where those conducting the operation continue to monitor whether capture becomes infeasible; and
(3) where such an operation would be conducted consistent with applicable law of war principles.
The paper says that "[i]n these circumstances, the 'realities' of the conflict and the weight of the government's interest in protecting its citizens from an imminent atack are such that the Constitution would not require the government to provide further process to such a U.S. citizen before using lethal force."
The paper, however, goes on to define "imminent" quite broadly (and surprisingly): "the condition that an operational leader present an 'imminent' threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future." The paper also goes on at length as to why this isn't unlawful murder.
It mentions as part of the justification that "under the circumstances described in this paper, there exists no appropriate judicial forum to evaluate these constitutional considerations."
January 21, 2013
Carol Anne Bond Going Back to the Supreme Court
The Court granted certiorari Friday in Bond v. United States - - - again.
Recall that the first time the Court heard Carol Anne Bond's case, it held that she did indeed have standing to assert a Tenth Amendment argument against her charge for violating 18 U.S.C. § 229(a), enacted by Congress to implement the United States’ treaty obligations under an international arms-control agreement, the Chemical Weapons Convention, that prohibits nation-states from producing, stockpiling, or using chemical weapons. Bond, a biologist, used her expertise to spread injurious chemicals on the property of her former best friend, after learning that the friend was pregnant by Bond’s husband. Although Bond was prosecuted in state court, she continued her campaign against her former friend and she was eventually prosecuted in federal court.
On remand, the Third Circuit held that the Chemical Weapons Convention "falls comfortably within the Treaty Power's traditional subject matter limitation" and thus the implementing Act is "within the constitutional powers of the federal government under the Necessary and Proper Clause and the Treaty Power, unless it somehow goes beyond the Convention." While the Circuit did find the prosecution of Bond puzzling, there was also much puzzlement over the statement in Missouri v. Holland that “[i]f [a] treaty is valid there can be no dispute about the validity of the statute [implementing that treaty] under Article 1, Section 8, as a necessary and proper means to execute the powers of the Government."
It seems the Supreme Court is ready to clarify - - - or attempt to - - - Missouri v. Holland's famous statement.
[image of Methyldichloroarsine via]
January 09, 2013
Daily Read: Bradley Manning and Civil War Precedent
Writing about recent developments in the case of Bradley Manning (pictured), New Yorker commentator Amy Davidson considers how the charge of aiding the enemy by releasing information to the press has precedent in a Civil War prosecution - - - and how the possible sentence now is dramatically different.
December 06, 2012
Daily Read: Bradley Manning's Attorney on C-Span
Some excellent reporting and gathering of materials from C-SPAN on the Bradley Manning case, involving constitutional issues of state secrets, First Amendment, and due process, among others.
Today's daily "read" is the video from an event discussing the Manning case features a very rare appearance by Manning's attorney, David Coombs. The introduction of Coombs starts at 22:40. Coombs discusses the "unlawful pretrial punishment motion" regarding Manning's treatment during detention which he describes as "criminal" before the move to Leavenworth, the public attention to the case, whistle-blowing. He also responds to vetted questions: he lauds the military justice system, including the judges and any possible panel, as educated, open-minded, and fair; discusses his own legal career; generally discusses the relationship between the "press" and an "aiding the enemy" offense; the perils of "trying the case in the press;" and privileged communication between attorney and client. Interestingly absent is any discussion of Manning's sexuality.
This is definitey worth a listen!RR
November 20, 2012
Daily Read: Reporting the MSK Trial at Guantanamo
In an excerpt published in Slate this morning, from his e-book, Camp Justice, journalist Mattathias Schwartz writes compellingly of covering the ongoing trial United States v. Khalid Sheikh Mohammed, et al. We most recently discussed Khalid Sheikh Mohammed (KSM), the so-called "mastermind" of 9-11 and the onlgoing legal proceedings, when KSM was arraigned.
Recall that whether or not KSM would have a trial - - - and where - - - were hotly contested matters. Now, Schwartz states that although the KSM trial at Guantanamo is an “open” and “public” proceeding [his quotes], accepting the Pentagon’s “invitation” to cover the proceedings, meant signing the 13-page Media Ground Rules document:
Among other things, I agreed not to disclose any Protected Information. The definition of Protected Information makes ample use of the word includes and sets no upper limit on what Protected Information might be.
The geographical restraints also limit reportial opportunities:
For the most part, News Media Representatives are confined to a few acres of Guantánamo, an area known as Camp Justice. Cut off from the town and the detention camps, Camp Justice is carved up into a jigsaw of designated zones by every conceivable type of wall: interlocking traffic barriers, chest-high, made of orange plastic; chains hanging between yellow stanchions; retractable fabric bands stretched airport-style between flimsier black stanchions; chain-link fences veiled in black tarps and topped with spools of concertina wire; chain-link blocks wrapped in green tarps and filled with rubble; “no photography” signs; “restricted area” signs; gates that swing on hinges; gates that pop up from the ground.
And then there is the trial itself, with the imposition of a 40 second sound delay.
This first hand journalistic account provides a useful context for any constitutional analysis of a "public trial," as well as for the ongoing discussions of national security and constitutionalism.
November 13, 2012
Eleventh Circuit Says Maritime Drug Law Enforcement Act Exceeds Congressional Authority
A three-judge panel of the Eleventh Circuit ruled in U.S. v. Ballaizac-Hurtado that Congress lacks authority to enact the Maritime Drug Law Enforcement Act. The ruling reverses four convictions of defendants who were charged under the Act for drug crimes that occurred in Panama.
The ruling could strike a blow at federal enforcement of extraterritorial drug crimes not committed on the high seas. (The court distinguished those cases, because Congress has independent authority to restrict conduct on the high seas.) While the ruling is limited to the facts of the case (i.e., outside the U.S., but not on the high seas), it's easy to see how it could apply to other, similar cases. That means for now--unless and until the government appeals and wins--federal criminal charges under the Act for drug trafficking outside the U.S., but not on the high seas, won't stand in the Eleventh Circuit.
The court held that Congress lacked authority to enact the Act as applied to the defendants under its power to "define and punish . . . Offenses against the Law of Nations." Art. I, Sec. 8, cl. 10. The problem: The Clause authorizes Congress to "define and punish" offenses that are recognized under customary international law; and drug trafficking is not one of them. The court reviewed the history (or lack of history) of the law of international drug trafficking from the founding period through today and concluded that there simply was no customary international law prohibiting drug trafficking. Instead, "unlike genocide, the international community has addressed drug trafficking at the domestic, instead of international, level." Op. at 21.
As to any treaties on drug trafficking, the court said that certain affected States simply ignore them, making their obligations "not a matter of mutual legal obligation under customary international law." The court explained:
The practice of these specially affected States evidences that drug trafficking is not yet considered a violation of customary international law. Governments corrupted by the interests of drug traffickers are not simply unable to prosecute drug traffickers, but are often unwilling to do so because their economies are dependent upon the drug trade. The persistent failure of these specially affected States to comply with their treaty obligations suggests that they view the curtailment of drug trafficking as an aspirational goal, not a matter of mutual legal obligation under customary international law.
Op. at 20. (As the court explained, "[t]reaties may constitute evidence of customary international law, but 'will only constitute sufficient proof of a norm of customary international law if an overwhelming majority of States have ratified the treat, and those States uniformly and consistently act in accordance with its principles.'" Op. at 18, quoting Flores v. S. Peru Copper Corp., 414 F.3d 233 (2d Cir. 2003).)
The court also ruled that the power to "define . . . Offenses against the Law of Nations" didn't stretch congressional authority any, because to "define" simply means to re-state, not to re-define or to create. For example, the Clause doesn't give Congress power to re-define "piracy" as including "murder" and thus expand its authority by way of mere definition. Instead, to "define" authorizes Congress only to codify existing customary international law--as it actually exists. The court looked to the text, history, and structure of the Clause to arrive at this conclusion, and, in particular, the limited power of the federal government.
October 09, 2012
Daily Read: Bowden on Obama on binLaden's Possible Article III Trial
in the unlikely event that bin Laden surrendered, Obama saw an opportunity to resurrect the idea of a criminal trial, which Attorney General Eric Holder had planned for Khalid Sheikh Mohammed. This time, the president tells Bowden, he was prepared to bring bin Laden back and put him on trial in a federal court. “We worked through the legal and political issues that would have been involved, and Congress and the desire to send him to Guantánamo, and to not try him, and Article III.” Obama continues: “I mean, we had worked through a whole bunch of those scenarios. But, frankly, my belief was if we had captured him, that I would be in a pretty strong position, politically, here, to argue that displaying due process and rule of law would be our best weapon against al-Qaeda, in preventing him from appearing as a martyr.”
Obama's representations, given in an interview with Bowden, present an interesting - - - and perhaps unlikely - - - counterfactual. Over at Lawfare, Wells Bennett observes that "it seems a safe bet that congressional resistance to a civilian prosecution would have been extreme, at least as heated as the resistance to the civilian prosecution of the 9/11 co-conspirators."
October 9, 2012 in Books, Courts and Judging, Current Affairs, Executive Authority, Foreign Affairs, International, Jurisdiction of Federal Courts, News, War Powers | Permalink | Comments (0) | TrackBack
May 04, 2012
Carol Anne Bond on Remand: Conviction Upheld by Third Circuit
Last June, in an unanimous opinion in Bond v. United States, the United States Supreme Court reversed the Third Circuit and found that Carol Anne Bond had standing to argue that the statute exceeded Congressional power and was inconsistent with the Tenth Amendment.
In an opinion today on remand, the Third Circuit reached the merits and again ruled against Bond. Recall that Bond was convicted for a violation of 18 U.S.C. § 229(a), the Chemical Weapons Convention Implementation Act, enacted by Congress to implement the United States’ treaty obligations under an international arms-control agreement that prohibits nation-states from producing, stockpiling, or using chemical weapons. Bond, a biologist, used her expertise to spread injurious chemicals on the property of her former best friend, after learning that the friend was pregnant by Bond’s husband. Although Bond was prosecuted in state court, she continued her campaign against her former friend and she was eventually prosecuted in federal court.
Bond urged the Third Circuit to "set aside as inapplicable the landmark decision Missouri v. Holland, 252 U.S. 416 (1920), which is sometimes cited for the proposition that the Tenth Amendment has no bearing on Congress‟s ability to legislate in furtherance of the Treaty Power in Article II, § 2 of the Constitution." Bond argued that "legal trends since the Supreme Court‟s 1920 decision in Holland make it clear that the Tenth Amendment should not be treated as irrelevant when examining the validity of treaty-implementing legislation."
The Third Circuit found that the Chemical Weapons Convention "falls comfortably within the Treaty Power's traditional subject matter limitation" and thus the implementing Act is "within the constitutional powers of the federal government under the Necessary and Proper Clause and the Treaty Power, unless it somehow goes beyond the Convention." Bond did argue that the Act exceeded the Convention, but the panel found this argument without merit. However, the panel did remark that Bond's prosecution seems a questionable exercise of prosecutorial discretion," stating in footnote 20:
The decision to use the Act – a statute designed to implement a chemical weapons treaty – to deal with a jilted spouse's revenge on her rival is, to be polite, a puzzling use of the federal government's power.
Concurring, Judge Rendell also remarked on the odd "fact pattern":
No one would question a prosecution under the Act if the defendant were a deranged person who scattered potassium dichromate and 10-chloro-10H-phenoxarsine, the chemicals which Ms. Bond used, on the seats of the New York subway cars. While that defendant could be punished under state law, applying the Act there would not offend our sensibilities.
But he added, "The judgment call to prosecute Ms. Bond under a chemical weapons statute rather than allowing state authorities to process the case is one that we question. But we see that every day in drug cases. Perhaps lured by the perception of easier convictions and tougher sentences, prosecutors opt to proceed federally."
Obviously, however, this "puzzling" or pragmatic use of federal law has cost the federal government much time, money, and energy in litigating this case.
Judge Ambro, however, was not so worried about the prosecution of Bond, but wrote separately "to urge the Supreme Court to provide a clarifying explanation of its statement in Missouri v. Holland that “[i]f [a] treaty is valid there can be no dispute about the validity of the statute [implementing that treaty] under Article 1, Section 8, as a necessary and proper means to execute the powers of the Government." This "most important sentence in this most important case about the constitutional law of foreign affairs" can be read as providing a "blank check" to Congress.
[image: colored chemicals via]
March 26, 2012
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.
March 26, 2012 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Foreign Affairs, News, Opinion Analysis, Political Question Doctrine, Separation of Powers | Permalink | Comments (0) | TrackBack
February 08, 2012
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.
February 8, 2012 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Foreign Affairs, Jurisdiction of Federal Courts, News, Oral Argument Analysis, War Powers | Permalink | Comments (0) | TrackBack
December 20, 2011
The National Defense Authorization Act
There's quite a bit of confusion and argument about what exactly the National Defense Authorization Act, or NDAA, does. (The Conference Report is here; the relevant Title, Subtitle D, Counterterrorism, begins on page H8436.) On one side, detractors claim that it expands government authority to detain aliens and even U.S. citizens. Glenn Greenwald does a nice job setting out the case at salon.com. On the other side, supporters say that it only codifies the government's authority under existing law. Benjamin Wittes and Bobby Chesney carefully make this argument in their thorough examination at lawfare.
It turns out, both sides are right. In short, the plain language of the NDAA expands detention authority beyond the plain language of the Authorization to Use Military Force, P.L. 107-40, but it only codifies the authority already claimed by President Obama and granted by the D.C. Circuit under the AUMF. Here are some of the highlights:
- Indefinite Detention. Section 1021(c)(1) says that "[t]he disposition of a person under the law of war as described in subsection (a) may include . . . [d]etention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force." (Emphasis added.) This is the definition of indefinite detention. But it's also an authority that President Obama claimed from the early days of the administration. In fact, the definition of a "covered person" in Section 1021(b)(2) almost exactly tracks the administration's proposed definition of a "detainable person" under the AUMF in its March 13, 2009, filing in a Guantanamo habeas case in the D.C. District. (More below.) So while this authority in the NDAA is significant for representing clear congressional support for indefinite detention, and while it's deeply troubling, it also merely reflects the administration's long-standing position.
- Detainable Persons. Section 1021(b)(2) says that the government can detain (indefinitely) "[a] person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces." This is new, and adds to the definition of detainable person under the AUMF (and tracked in Section 1021(b)(1)) that allows detention of "[a] person who planned, authorized, committed, or aided the terrorist attacks that occured on September 11, 2001, or harbored those responsible for those attacks." Moreover, Section 1022(a) requires military detention for anyone who is "a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda" and anyone who "participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners." (Section 1022 covers a subset of detainable persons in Section 1021. U.S. citizens and resident aliens are excepted from the requirement; more below.) In short, the NDAA authorizes indefinite detention, and in some cases requires military detention, for those who not only participated in the 9/11 attacks or harbored those who did (as under the AUMF), but also for those who currently attack the United States or its partners. But again, this is an authority that the administration claimed from its early days. Thus the NDAA tracks almost exactly the adminsitration's proposed definition of a detainable person in Guantanamo habeas cases. And it seems congruent with the D.C. Circuit's "part of" test--that under the AUMF the government can detain anyone who is "part of forces associated with Al Qaeda or the Taliban." So here, too, the plain language of the NDAA seems to expand authority beyond the AUMF, but it also seems consistent with the government's long-standing position and the courts' interpretation of the government's authority under the AUMF.
- Detainability of U.S. Citizens. Section 1022(b) says that the military detention requirement in Section 1022 does not apply to U.S. citizens and lawful resident aliens for conduct within the United States. This means that the NDAA does not require the military and indefinite detention of U.S. citizens who are "covered persons" under Section 1022(a)(2) (see above), but it also seems to permit such detention of U.S. citizens. The Act is deliberately ambiguous on this point and seems to punt to the courts. But in any event, it doesn't obviously add anything to the administration's position on detention or to what the courts would permit under Hamdi.
- Guantanamo Transfers. Section 1027 unequivocally denies funds for transfers of Guantanamo detainees to the United States. This restriction means that the administration can't transfer detainees for civilian criminal trials. The administration previously objected to this restriction (among others), even threatening a veto over this and other measures in the bill, but apparently dropped its objection.
- Civilian Trials. In addition to the restrictions in Section 1027, which prevent transfers of Guantanamo detainees to the United States for civilian trials (or for any other reason), Section 1029 requires the Attorney General to consult with the Director of National Intelligence and the Secretary of Defense about civilian trials for anyone held under Sections 1021 and 1022, discussed above.
These provisions in the NDAA represent significant and explicit congressional approval of government detention authority. But they also only represent the administration's long-standing positions, and they're not obviously out of line with the courts' approaches. In short, the codification of these authorities is significant--because it means that Congress is explicitly signing onto them--but they also only represent the creep of authority claimed by the administration and reflected in the courts under the AUMF.
November 08, 2011
Separation of Powers and Passports, Foreign Affairs
The Supreme Court heard oral arguments yesterday in MBZ (Zivotofsky) v. Clinton, the case testing whether Congress or the President or both have the power to designate (or not) the place of birth on a U.S. passport. We previewed the argument here.
The separation-of-power issue in the case is obvious: When Congress enacts a law in direct opposition to the President's practice (which, in turn, is driven by the President's foreign policy), who wins? But the case may turn on a more basic question: Separation of powers about what?
The plaintiffs in the case argued that the case is merely about passports, and not foreign policy. They said that the case can be decided easily under Justice Jackson's three-part framework in the steel-seizure case, Youngstown Sheet & Tube Co. v. Sawyer: When Congress acts pursuant to its own authority, as here, the President's power is at its lowest ebb. The plaintiffs translated this as a kind of congressional veto over executive power--that when Congress and the President clash, Congress wins.
But more: The plaintiffs seemed to argue that even if the passport power implicates foreign affairs, Congress has a "shared" power with the President over foreign affairs. This leaves little exclusive power to the President over foreign affairs--an approach to executive authority over foreign affairs that Justice Kennedy called "crabbed." Others on the bench also signalled difficulties with this position; for example, Justice Sotomayor showed how it would "hobbl the President with respect to situations that occur frequently [in foreign affairs]," like changes in governments and changes in sovereignty. Justice Scalia put perhaps the finest point on all this:
Mr. Lewin, you're--it seems to me you are not arguing for a co-equal congressional power, you are arguing for a superior congressional power. You are saying whatever Congress says, the President has to comply with. Now, that's quite different from saying that they both have authority in the field.
There was an even more basic problem with the plaintiff's approach, though. That is: What exactly is Congress's authority over passports, and where does it come from? The plaintiffs didn't have a great answer for that question (from Justice Kagan).
But even with these problems with the plaintiffs' approach--its all-or-nothing nature, its rigidity, and its lack of textual support--the argument was by no means one-sided. The government similarly dug in its heels on its position on executive authority in foreign affairs: The President has exclusive authority, leaving no room for Congress. But it's not obvious that such expansive authority here derives from the text--the government only has the reception clause (its power to receive ambassadors) and its historical gloss on that power. And the government's theory didn't adequately address how it squares with Congress's power of the purse, its advice-and-consent power over appointments, and its oversight authority--whether those quite clear congressional authorities could in effect override the President's execution of the foreign affairs power. (The government said that a congressional act defunding a foreign affairs policy might raise constitutional problems, but it didn't say why. This is exactly what the government faced with congressional defunding of transportation of Guantanamo detainees to the mainland for criminal trials in Article III courts. The Obama administration balked, but only a little, and basically acquiesced in that act of congressional control over a foreign affairs matter.)
Moreover, the Court was quick to recognize that the government's aggressive position on the political question doctrine--that the issue here is textually delegated to the President alone, and therefore the courts shouldn't intervene--answers the underlying merits question. That is, to decide that the Constitution gives the power to the President for the purpose of the political question doctrine is also to decide that the Constitution gives the power to the President for the purpose of actualizing the power. This didn't seem to sit well.
Some on the bench floated intermediate positions. On the merits, both Congress and the President probably have some power over place-of-birth designation on passports, but that that power might be very different. The President may have some power by way of recognition, derived from the reception clause; but Congress, too, may have power by way of appropriations, appointments, and oversight. On the political question doctrine, this case could well be a "political question" (or otherwise nonjusticiable) for that very reason--that both political branches have some power, but that their powers are different, and that the courts should let them work it out (as they do in so many issues). These intermediate positions offer a more moderate and appealing view of shared power than the extreme views of either side in the case, and they keep the Court well away from delving into the underlying foreign policy itself--something that many on the Court seemed concerned about.
November 8, 2011 in Cases and Case Materials, Congressional Authority, Executive Authority, Foreign Affairs, Jurisdiction of Federal Courts, News, Separation of Powers | Permalink | Comments (0) | TrackBack
November 06, 2011
Argument Preview: Foreign Affairs and Separation of Powers
The Supreme Court will hear arguments on Monday in MBZ (Zivotofsky) v. Clinton, a case that on its face tests whether Congress or the President has authority to name the place of birth on a U.S. passport--but it's likely about much more.
The case arose when two U.S. citizens living in Israel sought a passport for their child, born in Jerusalem, with a place of birth as "Jerusalem, Israel." Embassy officials agreed to designate the place of birth "Jerusalem," but refused to designate "Israel." The officials' refusal was based on long-standing U.S. policy not to recognize Jerusalem as part of Israel and U.S. State Department regulations that prohibit the designation of "Israel" as the country of birth for any U.S. citizen born in Jerusalem.
The parents sued. They pointed to the Foreign Relations Authorization Act, Fiscal Year 2003, that requires the Secretary of State to designate "Israel" as the country of birth for any U.S. citizens born in Jerusalem who so requests. But President Bush issued a signing statement on the Act that claimed that this provision was unconstitutional and said that the executive branch would decline to enforce it.
The case thus pits the President against Congress on the question of which branch has authority over the birthplace on the passport.
The lower courts dismissed the case, holding that it raised a nonjusticiable political question. The Zivotofskys appeal that ruling. But the Supreme Court also directed the parties to argue the merits: whether the Act unconstitutionally infringes upon the President's authority in foreign affairs.
The Zivotofskys argue that the case involves a run-of-the-mine issue relating to passports--the mere designation of a place of birth, which serves identification objectives, not foreign policy objectives. Thus in their view the case does not involve a political question, and requiring the designation of "Israel" as a country of birth for a U.S. citizen born in Jerusalem is within congressional authority.
Secretary of State Clinton argues that the President's Article II power to receive Ambassadors includes the power to recognize (or not) foreign sovereigns and the power to designate them (or not) on U.S. passports. She also argues that this is a political question because of the sensitive foreign policy issues behind the State Department regulation--the kind of issues that are delegated to the President alone under the Constitution.
The fact that the Court directed the parties to brief the merits suggests that it'll say at least something about the merits. If it does, it seems likely that it'll say something very narrow--dealing only with the extent of the President's authority to receive Ambassadors as against any congressional authority over passports. But even that narrow ruling could say something broader about the respective roles of the political branches over foreign policy--a much broader question. This seems to be a narrow, even small, case on the surface, but there are potentially very big issues beneath.
As to presidential signing statements: it seems unlikely that the Court will say anything at all about them: this issue is not squarely before the Court; the parties did not brief it thoroughly; and the Court doesn't have to deal with it to decide the case.
November 6, 2011 in Cases and Case Materials, Congressional Authority, Executive Authority, Foreign Affairs, Jurisdiction of Federal Courts, News, Political Question Doctrine, Separation of Powers | Permalink | Comments (0) | TrackBack
October 20, 2011
Members of Congress Lack Standing to Sue Administration Over Libyan Engagement
Judge Reggie B. Walton (D.D.C.) ruled today in Kucinich v. Obama that ten members of the United States House of Representatives lack standing to sue President Obama for violating the War Powers Clause of the Constitution and the War Powers Resolution for the President's commitment of U.S. forces to Libya without explicit congressional consent. We previously posted on the issue here (OLC memo concluding that the President has authority without congressional consent); here, here, and here (congressional responses to the administration's campaign in Libya); here (administration's answers on claims that it lacks authority without congressional consent); and here (Kucinich's case).
Judge Walton wrote that the group lacked both legislative standing and taxpayer standing. Legislative standing is foreclosed by Kucinich v. Bush, a similar case from the same court in 2002 by the very same lead plaintiff--a fact not overlooked by Judge Walton, who wrote with some frustration that this case was a waste of the court's time. Taxpayer standing is foreclosed by basic taxpayer standing principles and the fact that the plaintiffs can't shoehorn it into the narrow exception in Flast v. Cohen. Judge Walton didn't even get to the administration's argument that this also a nonjusticiable political question.
The ruling is hardly a surprise. But, as Judge Walton noted, it obviously doesn't mean that Congress lacks a check on the President. It can still use its power of the purse, its oversight power, the Senate's advice-and-consent power to hold up appointments (a power it's demonstrated some competence wielding), and, ultimately though unlikely, its impeachment power.
October 20, 2011 in Cases and Case Materials, Congressional Authority, Courts and Judging, Foreign Affairs, News, Opinion Analysis, Separation of Powers, Standing, War Powers | Permalink | Comments (1) | TrackBack
October 10, 2011
OLC: Congressional Restrictions on Collaboration with Chinese are Unconstitutional
The Office of Legal Counsel opined last month that a provision in an appropriations act that purported to prevent the Office of Science and Technology Policy from using appropriated funds to collaborate with the Chinese was unconstitutional.
Recall that President Obama issued a signing statement on the bill (taking issue with the restrictions on transfer of Guantanamo detainees and restrictions on appointment of presidential advisers), but he wrote nothing about the restrictions on collaborating with the Chinese. Nothing requires the President to preserve a constitutional objection in a signing statement; and failure to do so certainly doesn't constitute acquiescence to its constitutionality. Still, the OLC analysis came a little late. It seems that if Presidents are going to object to the constitutionality of a bill that they nevertheless sign, the better practice is to object early and publicly, in the signing statement, and not only later, through a comparatively less public OLC opinion.
The provision, Section 1340(a) of the Department of Defense and Full-Year Continuing Appropriations Act, 2011, says that
None of the funds made available by this division may be used for . . . [the OSTP] to develop, design, plan, promulgate, implement, or execute a bilateral policy, program, order, or contract of any kind to participate, collaborate, or coordinate bilaterally in any way with China or any Chinese-owned company unless such activities are specifically authorized by a law enacted after the date of enactment of this division.
The OLC wrote that this interferes with the President's exclusive authority to "conduct . . . negotiations with foreign governments." The memo said that Congress "possess significant Article I powers in the areas of foreign affairs," but that in foreign negotiations "it is imperative that the United States speak with one voice" and that "[t]he Constitution provides that that one voice is the President's." Op. at 4.
The OLC also wrote that Congress could use its power of the purse to defund OSTP. But once having appropriated funds, it can't "impair the President's conduct of foreign affairs by imposing restrictions on expenditures that serve diplomatic purposes." Op. at 6. The memo said, however, that some restrictions--those on activities "that are neither diplomatic in character nor otherwise within the exclusive constitutional authority of the President"--did not run into the President's Article II powers.