Constitutional Law Prof Blog

Alston on Targeted Killings

Philip Alston (NYU) recently posted his now-even-more-timely article The CIA and Targeted Killings Beyond Borders late last month on SSRN.  In it, Alston argues that there's no effective check on CIA targeted killings, and that this undermines the international rule of law.  From the abstract:

The CIA's internal control mechanisms, including its Inspector-General, have had no discernible impact; executive control mechanisms have either not been activated at all or have ignored the issue; congressional oversight has given a "free pass" to the CIA in this area; judicial review has been effectively precluded; and external oversight has been reduced to media coverage which is all too often dependent on information leaked by the CIA itself.  As a result, there is no meaningful domestic accountability for a burgeoning program of international killing.  This in turn means that the United States cannot possibly satisfy its obligations under international law to ensure accountability for its use of lethal force, either under IHRL or IHL.  The result is the steady undermining of the international rule of law, and the setting of legal precedents which will inevitably come back to haunt the United States before long when invoked by other states with highly problematic agendas.

We post on Judge Bates's dismissal of a case brought by al-Awlaki's father here; we posted on the legality of targeted killings here.

SDS

Fourth Circuit: Iraqis' Torture Claims Preempted

A sharply divided 3-judge panel of the Fourth Circuit ruled last week in a pair of cases that a group of Iraqi citizens could not sue U.S. military contractors in tort for torture in Abu Ghraib prison and other locations throughout Iraq. 

The court ruled in Al Shimari v. CACI Int'l and Al Quraishi v. L-3 Services, Inc. that federal interests preempted the plaintiffs' claims and dismissed the cases.  But there was no preempting federal statute; instead the court relied on federal "interests" in interrogating detainees on a battlefield.  Judge Niemeyer explained in an opinion joined by Judge Shedd:

[W]e too conclude that this case implicates important and uniquely federal interests.  The potential liability under state law of military contractors for actions taken in connection with U.S. military operations overseas would similarly affect the availability and costs of using contract workers in conjunction with military operations.  In this case, that uniquely federal interest was especially important in view of the recognized shortage of military personnel and the need for assistance in interrogating detainees at Abu Ghraib prison.  Not only would potential tort liability against such contractors affect military costs and efficiencies and contractors' availability, it would also present the possibility that military commanders could be hauled into civilian courts for the purpose of evaluating and differentiating between military and contractor decisions.  That effort could become extensive if contractor employees and the military worked side by side in questioning detainees under military control, as the complaint alleges in this case.  Moreover, such interference with uniquely federal interests would be aggravated by the prison's location within the war zone.  Finally, potential liability under state tort law would undermine the flexibility that military necessity requires in determining the methods for gathering intelligence.

. . .

In addition to the specific adverse impacts on the uniquely federal interests of interrogating detainees in foreign battlefields, a broader and perhaps more significant conflict with federal interests would arise from allowing tort law generally to apply to foreign battlefields.

Al Shimari at 8-10.  In ruling the plaintiffs' claims preempted, the court followed the lead of the D.C. Circuit in Saleh v. Titan Corp., a 2009 case holding that where a civilian contractor is integrated into combat activities over which the military maintains authority, tort claims against the contractor are preempted.

Judge Neimeyer wrote separately to say that he would have dismissed the case under the political question doctrine and derivative absolute immunity, too.

Judge King wrote a lengthy dissent.  Judge King said that the court lacked jurisdiction over this interlocutory appeal, a position he explains in his dissenting opinion in Al Quraishi, and that, if the court had jurisdiction, preemption didn't apply to bar the plaintiffs' claims.

In Al Quraishi, a case with similar facts, the divided panel (Judge King, dissenting) ruled that the court had jurisdiction over the contractor's interlocutory appeal of the district court's denial of its motion to dismiss. 

SDS

Court Upholds Conviction of Former Airborne Infantryman Against Separation of Powers Challenge

A three-judge panel of the Sixth Circuit ruled Tuesday that a conviction against an Airborne infantryman under the Military Extraterritorial Jurisdiction Act did not violate separation of powers.  The conviction stands.

The case, U.S. v. Green, arises out of a gruesome and horrific multiple rape and multiple murder of Iraqi civilians committed by Green and two colleagues in Iraq.  The Army charged Green's colleagues under the UCMJ, but the Army discharged Green (for a personality disorder).  The government then charged and convicted him using the MEJA, a law that permits the government to prosecute former members of the military in Article III courts for crimes committed overseas while they were in the military.  (The MEJA thus closes a loophole for former military who commit crimes overseas: They can't be charged under the UCMJ, but they can't be charged under U.S. criminal law, either; MEJA allows the government to prosecute.  You might ask why the Iraqi authorities couldn't charge Green: Because Paul Bremer's Coalition Provisional Authority Order Number 17 says that coalition forces "shall be immune from the Iraqi legal process.")

Green argued that his conviction was unconstitutional, because MEJA violated the separation of powers and the nondelegation doctrine (among other things).  The Sixth Circuit disagreed.  It said that MEJA certainly expanded executive branch power, but not at the expense of any other branch.  MEJA is no different than, say, any new criminal law that Congress might enact.

The ruling is utterly unremarkable and unsurprising.  But the government's position contrasts starkly with its position in the Seventh Circuit's recent decision in Vance v. Rumsfeld.  In Vance, the Seventh Circuit ruled that a Bivens claim for overseas torture by U.S. citizens against Donald Rumsfeld can move forward, despite the government's vigorous arguments that separation-of-powers considerations prohibit a Bivens remedy, because courts have no business poking their noses around issues of national security, foreign policy, war-making, and the like.  As the Seventh Circuit noted, the government's extreme position in that case would also mean that someone like Green couldn't be on the receiving end of a Bivens claim (even if his victims were U.S. citizens). 

The separation-of-powers concern in Vance, of course, was different than in Green.  The government argued in Vance that the courts' involvement in such matters intruded upon executive authority.  The government had no such concern in Green, apparently: It ran to the courts, using MEJA, to prosecute Green, not at all worried that such a prosecution would inappropriately mire the courts in national security concerns (as in Vance).  A double standard?  You decide.  But it does seem that the government would have a hard time squaring its prosecution of Green with its position in Vance.

SDS

[Image: Francisco de Goya, Desastre de la Guerra, Wikimedia Commons]

Court Rules Torture Claim Against Rumsfeld Can Move Forward

Judge James S. Gwin (D.D.C.) ruled this week in Doe v. Rumsfeld that a U.S. citizen's Bivens suit against former Secretary of Defense Donald Rumsfeld can move forward beyond the pleadings.  In so ruling, Judge Gwin also flatly rejected some of the kinds of claims we've grown accustomed to by the government in cases arising out of its anti-terrorism programs--most especially a separation-of-powers claim that the courts have no business poking their noses in foreign affairs and national security. 

The ruling comes on Rumsfeld's motion to dismiss the plaintiff's complaint.  The plaintiff, a U.S. citizen and civilian employee once deployed with a Marine intelligence unit in Iraq, alleged that Rumsfeld authorized his torture at overseas prisons operated by the United States and denied him fair process to challenge his designation and detention.  He brought a Bivens claim for violations of substantive due process, procedural due process, and access to the courts and sought monetary damages.

Rumsfeld argued that the plaintiff's claim amounted to an unwarranted expansion of Bivens--that Bivens did not contemplate this kind of monetary damages claim, and that special factors counseled against recognizing the plaintiff's Bivens claim here--in particular, the separation-of-powers argument that this case raised foreign affairs, national security, and war-time issues uniquely within the bailiwick of the political branches, and that the courts have no expertise in these areas.

The court disagreed.  Judge Gwin cited the Supreme Court's relatively recent and not-so-recent forays into foreign affairs, national security, and war-time issues--cases in which the government made arguments very similar to those Rumsfeld made here--and ruled that courts do, in fact, sometimes get involved in these issues.  Moreover, Judge Gwin noted that the plaintiff was detained on his way out of Iraq, after he left the field of battle, when he could no longer offer low-level aid to insurgents (as the government alleged).  Judge Gwin also rejected Rusmfeld's related "real world consequences" of allowing a Bivens remedy here, that the threat of liability would impede military decisionmaking; that proceeding with the case would involve sensitive information, distracting discovery, and testimony by soldiers that would disrupt the military's efforts; and that the action would "embroil the judiciary in war-related decisions" that are complicated to litigate.

Judge Gwin also rejected Rumsfeld's qualified immunity defense.  Judge Gwin wrote that the plaintiff pleaded sufficient facts to show that Rumsfeld approved of policies that led to his torture, in violation of substantive due process.  (He was careful to write that this was not a respondeat superior claim in violation of Ashcroft v. Iqbal.  Instead, it was a direct claim for authorizing torture.)  But Judge Gwin wrote that the plaintiff did not plead sufficient facts to show that Rumsfeld directed his shoddy process in violation of procedural due process and the right of access to the judiciary.  He thus dismissed these two claims.

The ruling means that the plaintiff jumped one of his most significant hurdles--getting past the pleadings on his torture claim against Rumsfeld--especially after the Supreme Court clarified the high pleading standard in Iqbal and especially given a very recent ruling by the D.C. Circuit in a very similar case.  Just over a month ago, the D.C. Circuit dismissed a Bivens claim against Rumsfeld for torture by an alien detained overseas.  Key to the D.C. Circuit's ruling in Arkan v. Rumsfeld was that it wasn't clearly established at the time that the Fifth and Eighth Amendments applied to aliens detained abroad (not our case).  But maybe just as key--and more relevant to Doe--the court ruled that prudential considerations--that cases like this against military officials would disrupt the war effort, just like Rumsfeld's argument in Doe--counselled against extending a Bivens remedy. 

If the D.C. Circuit applies this same prudential considerations analysis to Doe, this case won't go far.

SDS

Why U.S. Operations in Libya are not "Hostilities" under the WPR

State Department Legal Adviser Harold Koh on Tuesday gave the administration's case for why U.S. operations in Libya are not "hostilities" under the War Powers Resolution, and therefore why the administration is not violating the WPR in not either gaining congressional authorization or withdrawing U.S. forces after the WPR's 60-day deadline passed.  Koh testified along with Louis Fisher and Prof. Peter Spiro (Temple) before the Senate Foreign Relations Committee.

Koh relied on the administration's understanding at the time of enactment of the WPR and subsequent practice to make his case:

In this case, leaders of the current Congress have stressed this very concern in indicating that they do not believe that U.S. military operations in Libya amount to the kind of "hostilities" envisioned by the War Powers Resolution's 60-day pullout provision.  The historical practice supports this view.  In 1975, Congress expressly invited the Executive Branch to provide its best understanding of the term "hostilities."  My predecessor Monroe Leigh and Defense Department General Counsel Martin Hoffmann responded that, as a general matter, the Executive Branch understands the term "to mean a situation in which units of the U.S. armed forces are actively engaged in exchanges of fire with opposing units of hostile forces." . . .  In the third-six years since Leigh and Hoffmann provided their analysis, the Executive Branch has repeatedly articulated and applied these foundational understandings.

Testimony, at 6-7.  Koh went on to argue that the mission is limited, the exposure of U.S. armed forces is limited, the risk of escalation is limited, and military means are limited.  Together, these mean that the operations are not "hostilities" under the WPR, and the President isn't violating the pull-out provision by failing to gain congressional approval and yet continuing the engagement.

Koh urged the Senate to adopt Senate Joint Resolution 20, the Kerry-McCain bill authorizing limited use of U.S. forces in Libya, but only so that the U.S. Government could show a united front--and not because it's constitutionally necessary.

Fisher responded point-by-point to the administration's claims (or "doubletalk") throughout the Libyan debates, including the OLC's conclusion that the operations are not a "war" under the Declaration of War Clause and the administration's conclusion that the operations are not "hostilities" under the WPR. 

Spiro found a middle ground, focusing less on the constitutionality of the pull-out provision and ultimately  on the political and pragmatics of it:

Does this mean that section 5(b) is unconstitutional?  That question may better be left to the court of history.  Although presidents may not declare the Act unconstitution, from the Reagan Administration onward they have been careful not to concede the point.  They have good cause to avoid the distraction of constitutional confrontation where a more minimalist argument will serve the same end.

On the other hand, Congress has no real need of the provision, lack of respect for which reflects poorly on the institution.  Congress has ample tools with which to control presidential deployments of U.S. armed forces.  . . .  In coming years we may well witness a trend towards greater congressional participation in decisions relating to the use of U.S. armed forces.

In any event, devising a position of the Congress with respect to the operatiosn in Libya should be the primary task at hand.  Disputes relating to the War Powers Resolution are likely to distract from that undertaking.  I believe we would be having the same sort of discussion today even if the War Powers Resolution had not been enacted.  The persistent cloud over the Act underlines the perception of some that Congress is ill-equipped in this realm.  Congress would be better served by focusing on other institutional tools for participating in the full spectrum of use-of-force decisions.

Spiro Testimony, at 5.

For some, even many, however, the issue now is less whether the administration has a plausible claim that U.S. operations in Libya are not WPR "hostilities," and more why the President seemed to cherry-pick advice from his legal advisors.  There's nothing unconstitutional about this kind of cherry-picking, but it smacks of the kind of decision-making that led to opinions in the Bush administration relating to, among other things, torture.

SDS

Indiana Immigration Law (SEA 590) Enjoined by Federal Judge

Indiana has joined several other states, most notably Arizona, in passing statutes intended to regulate immigration.  The Indiana statute, SEA 590 set to become effective July 1, has been partially enjoined by a federal district judge in a 39 page Order

The judge enjoined both provisions challenged by plaintiffs:

• Section 19 of SEA 590, which amends Indiana Code § 35-33-1-1(1), by adding new sections (a)(11)-(a)(13), authorizing state and local law enforcement officers to make a warrantless arrest of a person when the officer has a removal order issued for the person by an immigration court, a detainer or notice of action issued for the person by the United States Department of Homeland Security, or has probable cause to believe the person has been indicted for or convicted of one or more aggravated felonies.
• Section 18 of SEA 590, to be codified as Indiana Code § 34-28-8.2, which creates a new infraction under Indiana law for any person (other than a police officer) who knowingly or intentionally offers or accepts a consular identification card as a valid form of identification for any purpose.

The opinion considers standing issues, as well at the standards for preliminary injunction, but found both sections 19 and 18 unconstitutional and enjoined their enforcement.

As to section 19, the judge found it troubling under both pre-emption and Fourth Amendment principles.  On pre-emption, the judge stated that :

Clearly, it is not the intent or purpose of federal immigration policy to arrest individuals merely because they have at some point had contact with an administrative agency about an immigration matter and received notice to that effect. Authorizing an arrest for nothing more than the receipt of an administrative notification plainly interferes with the federal government’s purpose of keeping those involved in immigration matters apprised of the status of their cases, but not arresting them.

As to the Fourth Amendment issue, the judge noted that the State conceded that "nothing under Indiana law makes criminal the receipt of a removal order, a notice of action or detainer, or a person’s having been indicted for or convicted of an aggravated felony."   Section 19 expressly provides that state and local enforcement officers 'may arrest' individuals for conduct that all parties stipulate and agree is not criminal."   While the State argued that the statute would only be enforced in circumstances in which the officer had a "separate, lawful reason for the arrest," the judge found that construction "fanciful" and would " in effect, read the statute out of existence."  The judge thus found the statute violative of the Fourth Amendment.

On section 18, the judge similarly considered pre-emption, but also an equal protection and due process challenge.   On pre-emption, the treaty power was also implicated, and planitiffs argued that the provision interferes with rights bestowed on foreign nations by treaty as well as with the federal government’s responsibilities for the conduct of foreign relations.  The State rejoined that the statute does not directly conflict with any treaty nor does it impede the federal government’s ability to manage foreign affairs, because Section 18 is merely an "internal regulation outlining acceptable forms of identification within the State of Indiana that does not single out or conflict with any identifiable immigration policy or regulation."  The judge reasoned that the provision targeted "only one form of identification – CIDs issued by foreign governments" and moreover, regulated CIDs "in the broadest possible terms, restricting not just what state agencies may accept as valid identification but prohibiting what identification may be shown and accepted for purely private transactions."   With regard to equal protection, the judge cited United States Dep’t of Agriculture v. Moreno, 413 U.S. 528, 534 (1973), noting that this "targeting" was a "bare desire to harm a politically unpopular group."  Thus, the judge found this provision unconstitutional as well.

The District Court Judge, Sarah Evans Parker (pictured above) was appointed to the bench by president Ronald Regan in 1984; an interesting profile of the judge, with video interviews, appeared earlier this year from Indiana Business Journal. 

RR

House Rejects Support of President on Libya, but Declines to Defund Operations

The House of Representatives voted today on two key measures relating to on-going military operations in Libya.  In a rebuff to the administration, the House voted 123 to 295 against House Joint Resolution 68, a measure that would have "authorized" continued, but limited, use of U.S. Armed Forces in Libya (but would have also opposed the use of ground troops there).  But the House also voted 180 to 238 against House Resolution 2278, a measure that would have defunded Libyan operations.

 The actions, alone or together, only reflect the (mixed) sense of the House on the military operations in Libya; they neither confirm nor restrict the President's authority.

The spirited debate on the measures in the House today came just one week after Charlie Savage reported that administration attorneys differed on the President's authority, and that the President seemed to do an end-run around the traditional practice of receiving legal advice (through the OLC) in order to cherry-pick the advice he wanted.  The administration's position--that the military actions in Libya are not "hostilities," and that they are therefore not covered by the reporting and withdrawal requirements in the War Powers Resolution--has been hotly controversial, drawing comparisons to practices in the Bush administration that led to advice in the torture memos, e.g. 

SDS

A More Constitutional Military

ConLawProf Diane Mazur's recent book published by Oxford University Press, A More Perfect Military: How the Constitution Can Make Our Military Stronger argues that the military has become unmoored from constitutional constraints.   The Court, she argues, has not only engaged in military deference, but in military exceptionalism.

In an interview about the book, Mazur states "the military is most healthy when it respects constitutional values.  Unfortunately, since the end of the Vietnam draft, our civilian branches of government–the President, Congress, and the courts–have been trying to distance the military from the Constitution.  They assume that constitutional values get in the way of military effectiveness, but that’s not true."

Much of her book concerns the constitutional concerns of equality: how should the military deal with sexual minorities and with women within its ranks?   She provides concrete examples, but argues that the Court - - - in cases such as the unanimous opinion in  Rumsfeld v. FAIR (the Solomon Amendment case) - - - has impeded the military from diversifying.

RR

Lawmakers Sue President to Stop Military Operations in Libya

A bipartisan group of House lawmakers led by Rep. Dennis Kucinich (D., Ohio) today sued the President and Secretary of Defense to stop U.S. military operations in Libya.  The complaint in Kucinich v. Obama alleges that the President exceeded his authority under Article II, violated congressional power to declare war under Article I, violated the War Powers Resolution, and misused federal funds in violation of Articles I and II.  The Plaintiffs seek declaratory relief that the President's actions are unconstitutional and injunctive relief to stop the U.S. military operations in Libya.  Here's the press release.  We previously posted on constitutional issues involved in U.S. military efforts in Libya here, here, and here.



In related news, the White House today released a Letter from the President on the War Powers Resolution.  The Letter, which updates Congress on a variety of different engagements, sets out the administration's position on the Libyan campaign--that this isn't a "war."  Check it out:

As I reported on March 21, and at my direction, consistent with a request from the Arab League, and as authorized by the United Nations Security Council . . . U.S. military forces commenced operations on March 29, 2011, to prevent a humanitarian catastrophe and address the threat posed to international peace and security by the crisis in Libya and to protect the people of Libya from the Qadhafi regime. . . .  By April 4 . . . the United States had transferred responsibility for the military operations in Libya to NATO and the U.S. involvement has assumed a supporting role in the coalition's efforts. . . .  With the exception of operations to rescue the crew of a U.S. aircraft on March 21, 2011, the United States has deployed no ground forces to Libya.

 Here's what the complaint says about some of these points, including the U.N. Security Council resolutions, which were a large part of the OLC's analysis on why the President had authority to wage the Libyan campaign:

74.  A U.S. resolution does not abrogate or change the obligation of President Obama to obtain a declaration of war under Article I, Section 8, Clause 11 of the Constitution. 

75.  The Obama administration has denied that the Libyan operations aare at a war and, on March 24, 2011, White House Spokesman Jay Carney stated that the administration had defined these combat operations as "a time-limited, scope-limits military action."

76.  "Time-limited, scope-limited" military actions are not referenced in the U.S. Constitution or the constitutional convention debates.

SDS

Defining Terrorism: Sudha Setty on the War on Terror

The War on Terror obviously requires a definition of "terror" and "terrorism."  Unlike the definitional challenges we discussed yesterday, it is difficult to imagine any Justices of the United States Supreme Court consulting a dictionary to elucidate "terrorism."   Yet perhaps they should.  For, as Professor Sudha Setty (pictured left) argues, the meaning of terrorism is far from clear and there is a "definitional creep" which results in loss of individual rights.

Setty's article, What's in a Name? How Nations Define Terrorism Ten Years After 9/11, forthcoming in University of Pennsylvania Journal of International Law, available on ssrn, compares the definitional quagmire in United States law, as well as in United Nations documents, and in Great Britain and India. 

Setty's article considers the challenges of relying on what she calls "an incomplete and piecemeal definition of terrorism" at the United Nations level in conjunction with the mandate for robust counterterrorism measures in United Nations member states.  The article then examines how the United States, United Kingdom, and India have developed their current legal definitions of terrorism, the application, and the underlying value judgments and policies.  

Without being exhaustive, Setty is comprehensive.  The discussion of the various statutory schemes is excellent and her own analysis cogent.  The comparative approach of the article should be of interest not only to ConLawProfs teaching or writing in the area of comparative constitutional law, but anyone working on US national security issues because of her illuminating comparisons, especially the work of Lord Carlile reviewing the British legislation.

RR

House Resolution on Libya

The U.S. House of Representatives on Friday passed a resolution (268-145) introduced by Speaker Boehner purporting to limit the use of ground troops in Libya and to require the President to provide justification for and information about U.S. involvement in Libya.  We posted on other congressional efforts related to U.S. involvement in Libya and the War Powers Resolution here; we posted on OLC's opinion that the President had authority to order operations in Libya here.

The House resolution says that "[t]he President shall not deploy, establish, or maintain the presence of units and members of the United States Armed Forces on the ground in Libya unless the purpose of the presence is to rescue a member of the Armed Forces from imminent danger."  It also "directs" members of the administration to transmit "copies of any official document, record, memo, correspondence, or other communication" relating to communications with Congress or the WPR and Libya.  It further directs the President to submit detailed information to the House on a variety of often very specific questions.  (Reporting directions have a 14-day deadline.)  Finally, it reminds us that Congress has the power of the purse.

Speaker Boehner explained yesterday on the House floor:

This resolution puts the President on notice.  He has a chance to get this right.  If he doesn't, Congress will exercise its constitutional authority to make it right.

The House adopted Speaker Boehner's resolution over Representative Kucinich's much more aggressive resolution (which would have required U.S. withdrawal from supporting NATO allies in Libya).

Here's the White House response, through a press Q&A with Principal Deputy Press Secretary Josh Earnest:

Q: Josh, clearly--in the House of Representatives there's a vote today.  Clearly in both sides of the aisle now there's growing concern about mission creep in Libya, the lack of official notification in accordance with existing American law.  What is the President's thought about this vote today and is he concerned about a lack of support of Congress?

A: Well, as you remember, Mike, congressional--the administration believes strongly in the concept of consulting with leaders of Congress.  That's why the President himself consulted with congressional leaders before military action in Libya even began.  And as this operation has continued, as we've shifted control of this operation to our NATO partners--or the lead of this NATO operation to our partners, we've continued to consult with Congress all along.  In fact, in just the last week, there have been three separate congressional briefings that have been convened by this administration's national security team for leaders in Congress to keep them apprised of the progress and the situation there.  So clearly--

Q: --not in accordance with the War Powers Act, in terms of official notifications and the 60-day expiration, which happened two weeks ago.

A: It is the view of this administration that we've acted in accordance with the War Powers Act because of this regulation consultation.  We've been engaged in that consultation all along--as I mentioned, three separate briefings have been held just this week for members of Congress.  We're committed to that moving forward.  But in terms of the resolutions that you asked about in your first question, the President--that continued consultation demonstrates why these resolutions are unnecessary and unhelpful.

SDS

Congressional Response to WPR Restriction on Libyan Operations

Since President Obama blew by the 60-day restriction in the War Powers Resolution, 50 U.S.C. Sec. 1544(b), on unauthorized troop commitments in Libya on Friday, a spate of legislation has appeared authorizing, de-authorizing, or otherwise expressing the sense of Congress on Libyan operations.

The WPR states:

Within sixty calendar days after a report is submitted or is required to be submitted [on a Presidential commitment of U.S. troops], whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States. . . .

Friday was the 60-day deadline.

In reaction, Rep. Dennis Kucinich yesterday introduced House Concurrent Resolution 51, directing the President, pursuant to Section 5(c) of the WPR, to remove U.S. forces from Libya.  Section 5(c), 50 U.S.C. Sec. 1544(c), reads:

Notwithstanding subsection (b) of this section [quoted above], at any time that United States Armed Forces are engaging in hostilities outside the territory of the United States, its possessions and territories without a declaration of war or specific statutory authorization, such forces shall be removed by the President if the Congress so directs by concurrent resolution.

Senator Rand Paul took a different tack in his Senate Joint Resolution 13, "declaring that a state of war exists between the Government of Libya and the Government and people of the United States, and making provisions to prosecute the same."  And Senator John McCain introduced Senate Resolution 194, "expressing the sense of the Senate on United States military operations in Libya."

Earlier bills include Senator John Cornyn's Senate Resolution 148, calling on the President to report to Congress on matters related to the Libyan operation and calling on the President to seek congressional authorization for the use of force in Libya.  Senate Resolution 146 expresses the sense of the Senate that it's not in the vital interest of the U.S. to intervene in Libya and urging others to step up.  Other resolutions call on the administration to report to Congress on the Libyan operation and to comply with the WPR.

We posted on the OLC memo concluding that the President had authority to commit U.S. troops to Libya here.  Here's what the OLC had to say about the relevant sections of the WPR:

Indeed, Congress itself has implicitly recognized this presidential authority.  The [WPR], a statute Congress described as intended "to fulfill the intent of the framers of the Constitution of the United States," provides that, in the absence of a declaration of war, the President must report to Congress within 48 hours of taking certain actions, including introductions of U.S. forces "into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances."  The Resolution further provides that the President generally must terminate such use of force within 60 days (or 90 days for military necessity) unless Congress extends this deadline, declares war, or "enact[s] a specific authorization."  As this Office has explained, although the WPR does not itself provide affirmative statutory authority for military operations, the Resolution's "structure . . . recognizes and presupposes the existence of unilateral presidential authority to deploy armed forces" into hostilities or circumstances presenting an imminent risk of hostilities.  That structure--requiring a report within 48 hours after the start of hostilities and their termination within 60 days after that--"makes sense only if the President may introduce troops into hostilities or potential hostilities without prior authorization by the Congress.

Memo at 8 (citations omitted).

The memo thus recognizes the limits in the WPR as valid authority for the President.  If so, the legislation introduced yesterday seems to say, the President must also recognize these limits in the WPR as restrictions.

SDS

President Expands Order Blocking Property of Syrian Officials

President Obama this week expanded his recent executive order blocking the property of certain Syrian officials responsible for human rights abuses in the recent crackdowns against protestors and political activists.  The new EO expands the list of persons whose property is and may be blocked.

The new EO, issued Wednesday, blocks the property of President Al-Assad, VP Al-Shara, PM Safar, the Interior and Defense Ministers, the Head of Syrian Military Intelligence, and the Director of Political Security Directorate.  It also authorizes the Treasury Secretary, in consultation with the Secretary of State, to block property of others determined to have assisted in the crackdowns, including any "senior official of the Government of Syria."  (The earlier EO blocked property of three lower level officials and two groups, the Syrian General Intelligence Directorate and the Islamic Revolutionary Guard Corps, and included an authorization to block property of a narrower group.)

SDS

O Canada: The Election and Torture Worries

The re-election this week in Canada of PM Harper and a decisive victory for his Conservative party was presumably not cause for celebration for Craig Scott, Professor of Law at Osgoode Hall.   Scott's article, Will Canada Be an Open Democracy after May 2?, available on ssrn, posits there is a "threat to open democracy in Canada posed by the nearly pathological extent to which secrecy and manipulation of access to the truth has taken over Ottawa and Parliamentary affairs in Canada" under Harper.  

 

 

Scott's specific concern should be of great interest to US constitutional scholars.  Scott questions the Canadian government's "policy of transferring detainees in Afghanistan to Afghan intelligence services (notably, the National Directorate of Security or NDS) in full knowledge of the torture practices of those agencies and thus of the risks faced by each transferred detainee."

RR

Obama Made His Guantanamo Bed . . .

Owen Fiss (Yale) argues in the Boston Review that President Obama's pickle--caught between his former policy to close Guantanamo and his desire to try KSM and others in Article III courts, on the one hand, and the congressional ban on using appropriated funds to transfer Guantanamo detainees to the U.S., on the other--is of his own creation.

Fiss argues that President Obama's May 2009 speech at the National Archives (in which he announced that some detainees would get Article III trials while others would get military commissions while yet others would get indefinite detention) and his support for the Military Commissions Act of 2009 (which revised military commission procedures, but still fell short of Article III trials) lined up such that "the Guantanamo closure ceased to be of much importance."  According to Fiss, President Obama's resistance to extending habeas to detainees at Bagram in the Al Maqaleh litigation only underscores this conclusion.

With a Guantanamo closing all but off the table (by the President's own actions), congressional restriction on the use of appropriated funds to transfer Guantanamo detainees to the U.S. was only the final straw.  After the ban,

[t]he options that then remained for Obama were: (a) the continued imprisonment of Khalid Sheikh Mohammed without trial (he had already been incarcerated for more than seven years) or (b) trial before a military commission.  Given the alternative options, Obama chose the one that is, in my judgment, the less constitutionally offensive.  Sympathy for Obama's choice, however, should not obscure his complicity in constructing the alternatives he confronted.

In truth, there was (is) a third option, the one that the administration adopted: Sign the legislation banning the use of funds for transfer, but issue a signing statement that claims that such a ban unconstitutionally encroaches on a core executive function, and move to overturn it.

This third way is emblamatic of President Obama's approach to so many of these issues--detention, military trial, habeas, state secrets, even signing statements: He's made some constitutionally significant changes to Bush administration positions around the edges on each of these, but in the end the refined positions only result in more-or-less the same policies.

But with regard to KSM and some others, President Obama once seemed truly committed to moving forward in Article III courts.  And with regard to Guantanamo, he once seemed truly committed to closing.  Sure, his positions and policies may have contributed to a larger political environment in which closing Guantanamo "ceased to be of much importance."  (And maybe he could have (should have) spent even more political capital in seeking closure and Article III trials.) 

But in the end the congressional ban on transfers was a congressional ban.  (And the most recent version came in the eleventh-hour spending bill negotiated between the White House and Congress to avoid a shut-down, presenting President Obama with no practical option but to sign the measure.)  The ban entirely foreclosed even any marginal change that President Obama might have made (e.g., an Article III trial for KSM) using his third way. 

SDS

Court to Hear Challenge to President's Foreign Affairs Power

The Supreme Court today agreed to hear a case involving the justiciability of a dispute over the administration's non-recognition of Jerusalem as the capital city of Israel.  But the Court also instructed the parties to brief the scope of Presidential power to recognize foreign sovereigns.  (See page 3 of the May 2 Order List.)  The case thus gives the Court a rare opportunity to explore the contours of separation-of-powers in foreign affairs and the President's foreign affairs power.

The case arose out of a dispute over a the recorded birthplace of a U.S. citizen born in Jerusalem.  Petitioner's mother asked the State Department to record the birthplace as "Jerusalem, Israel" on the petitioner's Consular Report of Birth Abroad and U.S. passport.  But the State Department regs and policy required it to record merely "Jerusalem" as the birthplace.

The State Department's long-running policy not recognizing Jerusalem as Israel's capital (or even as a city within Israel's sovereign territory) is designed to preserve U.S. neutrality on state sovereignty over Jerusalem, leaving that issue to be decided by negotiation between the parties to the Arab-Israeli dispute.  According to the State Department's assessment, "[a]ny unilateral action by the United States that would signal, symbolically or concretely, that it recognizes that Jerusalem is a city that is located within the sovereign territory of Israel would critically compromise" the peace process.

In 2002, however, Congress enacted, and the President signed, legislation that specifically required the State Department to list "Israel" as the birthplace of any citizen born in Jerusalem, upon the parents' request.  President Bush issued a signing statement construing the provision, Section 214 of the Foreign Relations Authorization Act, Fiscal Year 2003, as advisory, not mandatory, because it "impermissibly interfere[s] with the President's constitutional authority to formulate the position of the United States, speak for the Nation in international affairs, and determine teh terms on which the recognition is given to foreign states."

The petitioner sued, but both the district court and D.C. Circuit dismissed the case as a nonjusticiable political question.

The Supreme Court today agreed to hear the case, with this further instruction:

In addition to the question presented by the petition [whether the case presents a nonjusticiable political question], the parties are directed to brief and argue the following question: "Whether Section 214 of the Foreign Relations Authorization Act, Fiscal Year 2003, impermissibly infringes the President's power to recognize foreign sovereigns."

The case thus puts front-and-center the question of Presidential authority over foreign affairs when executive policy and action violate plain law.  The case is unusual in that executive action and the law directly and obviously conflict, pitting one source of authority (the President's Article II powers) immediately against another (Section 214) and thus bringing Presidential foreign affairs power into particularly sharp focus.

We might also look for anything the Court has to say about Presidential signing statements that decline to enforce a law based on its intrusion into core areas of executive responsibility. 

The administration argued against review.  In its view, the lower courts properly dismissed the case as a nonjusticiable political question, because under the recognition or nonrecognition of foreign sovereigns is textually committed to the executive branch (under Article II, Section 3, the power to "receive Ambassadors and other Public Ministers.").  Baker v. Carr.

SDS

President Blocks U.S. Property of Human Rights Abusers in Syria

President Obama today issued an Executive Order blocking U.S.-based property of certain persons and entities responsible for human rights abuses in Syria.

The EO cites as authority the Constitution, the International Emergency Economic Powers Act (IEEPA) and the National Emergencies Act.  It expands the national emergency declared in EO 13338 (May 11, 2004), and relied upon for additional steps taken in EO 13399 (April 25, 2006) and EO 13460 (February 13, 2008), finding that the Syrian Government's human rights abuses "constitute an unusual and extraordinary threat to the national security, foreign policy, and economy of the United States . . . ."

The EO also prohibits donations to persons and entities whose property is blocked under the Order and prohibits transactions or conspiracies to violate the Order.

Section 7 of the Order implements the freeze without prior notice to those in the U.S. whose property is covered.  The stated purpose is to capture the property before the owner can transfer it electronically:

For those persons whose property and interests in property are blocked pursuant to this order who might have a constitutional presence in the United States, I find that because of the ability to transfer funds or other assets instantaneously, prior notice to such persons of measures to be taken pursuant to this order would render those measures ineffectual.  I therefore determine that for these measures to be effective in addressing the national emergency declared in Executive Order 13338 and expanded in this order, there need be no prior notice of a listing or determination made pursuant to section 1 of this order [which authorizes the blockage of covered property].

The EO also lists three current and former Syrian Government officials by name and two entities by name.

SDS

Court Declines to Hear Uighur Case (Again)

The Supreme Court today denied cert. in Kiyemba v. Obama, the case involving the Chinese Muslims held without lawful cause for seven years at Guantanamo Bay.

The petitioners sought release into the United States.  The district court ordered release, but the D.C. Circuit reversed.  The Supreme Court first granted cert. on the question whether a district court may order release into the United States where no other remedy is available. 

But the Court remanded after learning that other remedies were available--that the government offered, and the petitioners rejected, at least two offers of resettlement.  The D.C. Circuit reinstated its original opinion as modified, and the petitioners again sought cert.

The Court today declined to take the case.  Justice Breyer issued a statement, joined by Justices Kennedy, Ginsburg, and Sotomayor, concluding:

the lack of any meaningful challenge as to [the appropriateness of the Government's resettlement offers], and the Government's uncontested commitment to continue to work to resettle petitioners transform petitioners' claim.  Under present circumstances, I see no Government-imposed obstacle to petitioners' timely release and appropriate resettlement.  Accordingly, I join in the Court's denial of certiorari.  Should circumstances materially change, however, petitioners may of course raise their original issue (or related issues) again in the lower courts and in this Court.

(The statement appears at the end of today's order list.)

The denial today ends this chapter (and perhaps the entire book) on the Uighurs' judicial challenges to their confinement at Guantanamo Bay.

SDS

Amnesty and Other Organizations have Standing to Challenge Constitutionality of FISA Amendments, Second Circuit Holds

A panel of the Second Circuit has reversed the district judge's summary judgment against plaintiffs who claimed that a portion of the FISA Amendments Act of 2008 ("FAA") amending the Foreign Intelligence Surveillance Act of 1978 (“FISA”), is unconstitutional.  

In a 63 page opinion, the panel in Amnesty International, USA v. Clapper considered the plaintiffs fears of being monitored by the government electronic surveillance authorized by FAA section 702 targeting  non-United States persons outside the United States for purposes of collecting foreign intelligence.  The unanimous opinion, written by Gerald Lynch and joined by Judges Guido Calabresi and Robert Sack, rejected the contentions of the government that the plantiffs' fears were too speculative. 

The panel articulated the relationship between the plaintiffs' fears and the concrete acts that the plaintiffs were taking to circumvent the government's surveillance:

If the plaintiffs can show that it was not unreasonable for them to incur costs out of fear that the government will intercept their communications under the FAA, then the measures they took to avoid interception can support standing. If the possibility of interception is remote or fanciful, however, their present-injury theory fails because the plaintiffs would have no reasonable basis for fearing interception under the FAA, and they cannot bootstrap their way into standing by unreasonably incurring costs to avoid a merely speculative or highly unlikely  potential harm. Any such costs would be gratuitous, and any ethical concerns about not taking those measures would be unfounded. In other words, for the purpose of standing, although the plaintiffs’ economic and professional injuries are injuries in fact, they cannot be said to be “fairly traceable” to the FAA – and cannot support standing – if they are caused by a fanciful, paranoid, or otherwise unreasonable fear of the FAA.

Opinion at 28-29.  The panel found it a significant distinction from Lyons v. City of Los Angeles (the "choke-hold" case) that FAA is a statute and not a government practice:

This case is not like Lyons, where the plaintiff feared injury from officers who would have been acting outside the law, making the injury less likely to occur. Here, the fact that the government has authorized the potentially harmful conduct means that the plaintiffs can reasonably assume that government officials will actually engage in that conduct by carrying out the authorized surveillance. It is fanciful, moreover, to question whether the government will ever undertake broad-based surveillance of the type authorized by the statute. The FAA was passed specifically to permit surveillance that was not permitted by FISA but that was believed necessary to protect the national security. [citations omitted]. That both the Executive and the Legislative branches of government believe that the FAA authorizes new types of surveillance, and have justified that new authorization as necessary to protecting the nation against attack, makes it extremely likely that such surveillance will occur.

Opinion at 38-39.  In addition to Amnesty, the plaintiff organizations include Global Fund For Women, Global Rights, Human Rights Watch, International Criminal Defence Attorneys Association, The Nation Magazine, Pen American Center, Service Employees International Union, and Washington Office on Latin America. The panel concluded that

the FAA has put the plaintiffs in a lose-lose situation: either they can continue to communicate sensitive information electronically and bear a substantial risk of being monitored under a statute they allege to be unconstitutional, or they can incur financial and professional costs to avoid being monitored. Either way, the FAA directly affects them.

Opinion at 52.  Thus, unless the finding of standing reaches the United States Supreme Court, the plaintiffs will proceed to the merits of their arguments that the FAA violates the First and Fourth Amendments, as well as being violative of the separation of powers and beyond the powers of Congress and the Executive.

RR

[image: Spy Museum in Washington, DC via]

Is DOMA's Demise Imminent?

The judicial finding that the Defense of Marriage Act is unconstitutional, preceded by DOJ's vigorous defense of DOMA in another case, some waffling, and then the announcement that the DOJ will not defend the constitutionality of DOMA, which some characterized as a constitutional crisis,  has seriously compromised the future of DOMA.  

Today, Senator Dianne Feinstein introduced the Respect for Marriage Act of 2011, which would repeal DOMA and change the federal law to provide:

§ 7. Marriage
(a) For the purposes of any Federal law in which marital status is a factor, an individual shall be considered married if that individual's marriage is valid in the State where the marriage was entered into or, in the case of a marriage entered into outside any State, if the marriage is valid in the place where entered into and the marriage could have been entered into in a State.

Feinstein was joined by co-sponsors Patrick Leahy (D-Vt.), Kirsten Gillibrand (D-N.Y.), John Kerry (D-Mass.), Barbara Boxer (D-Calif.), Chris Coons (D-Del.), Ron Wyden (D-Ore.), Frank R. Lautenberg (D-N.J.), Richard Blumenthal (D-Conn.), Jeff Merkley (D-Ore.), Dick Durbin (D-Ill.), Al Franken (D-Minn.), Patty Murray (D-Wash.), Sheldon Whitehouse (D-R.I.), Charles Schumer (D-N.Y.), Mark Udall (D-Colo.), Jeanne Shaheen (D-N.H.), Dan Inouye (D-Hawaii), and Daniel Akaka (D-Hawaii).

 The precusor Respect for Marriage Act was previously introduced in 2009.

With considerably less fanfare, the State Department has amended its policy to include same-sex partners of foreign service employees. (H/T Professor Janet Calvo).  Here is an excerpt from the State Department's explanation of the process:

Scenario Three: American Foreign Service Employee Partners with Same-Sex American or non-American

Amending the Orders: To add your same-sex domestic partner to your orders, you will need to provide your HR Assignment Technician with an updated Foreign Service Residence and Dependency Report (OF-126), a completed affidavit Pursuant to Declaring Domestic Partner Relationship (DS-7669 ), and a medical clearance. The DS-7669 affidavit should be submitted to the State Department’s Bureau of Human Resources, Office of the Executive Director, Assignment Support Unit (HR/EX/ASU). As soon as your HR Assignment Technician has all of these documents, he/she can process your orders. Guidance can be found at 3 FAM 1600. In addition, if your partner is not a U.S. citizen, please note procedures outlined in 12 FAM 275 – Reporting Cohabitation with and/or Intent to Marry a Foreign National (http://www.state.gov/documents/organization/88344.pdf) or contact HR/CDA.

For non-US partners, this will include an alteration of the immigration policies, to include a same-sex partner that would not be included ordinarily:

Foreign-born partners holding non-U.S. passports: If your new partner is not an American citizen, he/she may be able to enter the U.S. on a J-1 visa. In February, 2011, the Department designated the Bureau of Human Resources as an Exchange Visitor Program (J-1 visa) sponsor for a government visitor program under which non-US-citizen same-sex domestic partners (SSDP) of members of the Foreign Service may be eligible to come to the United States during their partners' domestic assignments. . . . 

Strictly speaking, this process is not barred by DOMA, but it does cast even more doubt on the federal government's committment to enforcing DOMA.

Meanwhile, earlier this month Speaker of the House John Boehner issued a statement entitled House Will Ensure DOMA Constitutionality Is Determined By The Court:

“Today, after consultation with the Bipartisan Leadership Advisory Group, the House General Counsel has been directed to initiate a legal defense of this law.  This action by the House will ensure that this law’s constitutionality is decided by the courts, rather than by the President unilaterally.”

RR