Wednesday, May 4, 2011
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."
Tuesday, May 3, 2011
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.
May 3, 2011 in Congressional Authority, Executive Authority, Foreign Affairs, Fundamental Rights, Habeas Corpus, International, News, Scholarship, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)
Monday, May 2, 2011
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.
May 2, 2011 in Congressional Authority, Executive Authority, Foreign Affairs, International, Jurisdiction of Federal Courts, News, Political Question Doctrine, Separation of Powers | Permalink | Comments (0) | TrackBack (0)
Friday, April 29, 2011
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.
Wednesday, April 20, 2011
The Index defines "rule of law" around four "universal principles":
1. The government and its officials and agents are accountable under the rule of law;
2. The laws are clear, publicized, stable, and fair, and protect fundamental rights, including the security of persons and property.
3. The process by which the laws are enacted, administered, and enforced is accessible, fair, and efficient.
4. Access to justice is provided by competent, independent, and ethical adjudicators, attorneys or representatives, and judicial officers who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.
The Index measures "rule of law" by way of 10 factors (more information on how each is measured in the report):
1. Limited government powers.
2. Absence of corruption.
3. Clear, publicized, and stable laws.
4. Order and security.
5. Fundamental rights.
6. Open government.
7. Regulatory enforcement.
8. Access to civil justice.
9. Effective criminal justice.
10. Informal justice.
Among 11 countries designated "high income," the United States ranked best (3 out of 11) in open government and worst (11 out of 11) in access to civil justice. It ranked somewhere in the middle of this group in the other 8 categories. Other high income countries in the Index include Australia, Austria, Canada, France, Japan, the Netherlands, Singapore, South Korea, Spain, and Sweden.
Agree or disagree with the conclusions, the Index is certainly worth a look. The World Justice Project put it together based on interviews with over 35,000 people and 900 experts in the 35 countries studied. There's a good deal of data here, and the Index only promises to improve with future versions.
Saturday, March 12, 2011
The keynote lecture Friday evening at this year's conference of the Association for the Study of Law, Culture and the Humanities was Anatomies of Torture: CIA Black Sites and Redacted Bodies, delivered by Joseph Pugliese (pictured) of Macquarie University in Australia.
In his examination of the so-called "black sites," secret prisons located outside U.S. jurisdiction in which a range of state-sanctioned practices of torture have transpired, Pugliese focused on the death of a young Afghan man, Gul Rahman, who died on 20 November 2002, in the CIA black site prison known as the Salt Pit, located in northern Kabul, Afghanistan. While Rahman's body has never been recovered, Pugliese argues that Rahman is nominally buried within the Classified Response to the U.S. Department of Justice Office of Professional Responsibility Classified Report Dated July 29, 2009. This document, prepared by Counsel for Judge Jay S. Bybee, is a detailed repost to the accusation made by the Office of Professional Resposibility (OPR) that Bybee committed professional misconduct in light of Bybee’s memo (August 1, 2002) to Alberto Gonzales, Counsel to the President, which authorised some forms of torture.
Yet portions of the memos are redacted. Pugliese displayed the memos and examined the legal process that edits and censors a document of any secret or sensitive information through the application of a black marker over designated text. In the context of the CIA "black sites" and the Salt Pit in particular, Pugliese argues that the process of redaction must be seen as producing its own discursive black sites of silence, loss and death.
Pugliese's presentation was spell-binding and an excellent capstone to a conference in which the critical tools of humanities scholars and legal scholars were so often combined.
Tuesday, March 8, 2011
As the centenary of international women's day, March 8, arrives, the end of combat restrictions on women in the United States military also seems to be ending.
In Rostker v. Goldberg, 1981, the United States Supreme Court upheld the Congressional decision to exempt women from registration for the military. The challengers argued that the gender classification of the Congressional statute violated equal protection as embodied in the Fifth Amendment's Due Process Clause. The Court opined that the Congressional exempt was not an "accidental by-product of traditional ways of thinking" about women, but instead was permissible because men and women were not similarly situated given the combat restrictions on women. That these combat restrictions were legal (rather than natural) did not seem important to the six Justices in the majority.
Today, according to the United States Department of Defense, a
commission established to study diversity among military leaders is recommending that the Defense Department rescind its policy that prevents women from being assigned to ground combat units below the brigade level.
In a report issued today, the Military Leadership Diversity Commission recommends that the department and the services eliminate combat exclusion policies for women, as well as other “barriers and inconsistencies, to create a level playing field for all qualified service members.”
The Military Leadership Diversity Final Report, From Representation to Inclusion: Diversity Leadership for the 21st-Century Military, considers a range of diversity, including racial and ethnic diversity. The final report, at 162 pages, contains 20 broad recommendations, discussed in the shorter Executive Summary. The exclusion of women from combat is specifically linked to career advancement. The Press Release, dated March 8, provides an interesting connection to International Women's Day.
March 8, 2011 in Cases and Case Materials, Congressional Authority, Current Affairs, Equal Protection, Fifth Amendment, Gender, History, International, News, Race, War Powers | Permalink | Comments (2) | TrackBack (0)
Monday, March 7, 2011
President Obama today issued an executive order providing for "periodic review of individuals detained at Guantanamo Bay Naval Station pursuant to the Authorization for Use of Military Force."
The move suggests that the White House won't achieve its goal to close down Guantanamo anytime soon.
The new periodic review process applies only to those 172 individuals currently detained at Guantanamo and subject to the interagency review process in 2009. Under the process, detainees may present a written or oral statement to the review board, introduce relevant information including written declarations, answer any questions posed by the review board, and call witnesses who are reasonably available. Each detainee gets a "personal representative" and a right to independent counsel (not at government expense).
The EO explicitly grounds authority for the new process in the Authorization for Use of Military Force and explicitly subjects detention at Guantanamo to the Convention Against Torture, Geneva Conventions Common Article 3, the Detainee Treatment Act of 2005, "and other laws relating to the transfer, treatment, and interrogation of individuals detained in armed conflict." It also explicitly recognizes detainees' right to habeas corpus.
The EO sets this standard for continued detention:
Continued law of war detention is warranted for a detainee subject to the periodic review . . . of this order if it is necessary to protect against a significant threat to the security of the United States.
Tuesday, March 1, 2011
Article 21, Protection of life and personal liberty, provides:
No person shall be deprived of his life or personal liberty except according to procedure established by law.
The Court described Article 21 as the "heart and soul" of fundamental rights and "the most important feature of our Constitution." But the Court also cited Article 22(1), Protection against arrest and detention in certain cases; U.S. Supreme Court cases Powell v. Alabama, Gideon v. Wainwright, and Brewer v. Williams; its own precedent; and a treatise.
The Court even drew on its own brand of originalism:
The Founding Fathers of our Constitution were themselves freedom fighters who had seen civil liberties of our people trampled under foreign rule, and who had themselves been incarcerated for long periods under the formula Na vakeel, na daleel, na appeal (No lawyer, no hearing, no appeal). Many of them were lawyers by professor, and knew the importance of counsel, particularly in criminal cases. It was for this reason that they provided for assistance by counsel under Article 22(1), and that provision must be given the widest construction to effectuate the intention of the Founding Fathers.
The Court extended the right to appeals, even though the case involved only the right to counsel at trial. In the U.S., it took a second case, Douglas v. California, to extend the right to counsel to appeals. Douglas and Gideon came down the same day, March 18, 1963, but Douglas was announced from the bench first. As Anthony Lewis wrote in Gideon's Trumpet:
A fourth state criminal case came from California, and Justice Douglas for a six-three majority said poor prisoners were entitled to free counsel for their appeals. To any informed listener it was obvious that the same rule must apply at trials . . . . Those who had before them the printed opinions in the California case--page boys bring them around to a few newspaper reporters and the Solicitor General as they read--knew from the text that they were about to hear the Gideon case decided, because there was a reference to "Gideon v. Wainwright, decided today."
But unlike Gideon and Ali, which both sounded in process, Douglas sounded in equal protection. Citing and quoting Griffin v. Illinois, the Court in Douglas wrote:
In either case, the evil is the same: discrimination against the indigent. For there can be no equal justice where the kind of an appeal a man enjoys "depends on the amount of money he has."
March 1, 2011 in Comparative Constitutionalism, Criminal Procedure, Equal Protection, International, News, Opinion Analysis, Procedural Due Process, Sixth Amendment | Permalink | Comments (0) | TrackBack (0)
Friday, February 18, 2011
In Citizenship and its Exclusions: A Classical, Constitutional, and Critical Race Critique, Professor Ediberto Román offers a highly readable and trenchant discussion of historical and contemporary citizenship.
Román begins by discussing the cases of three "terrorists": John Walker Lindh, Yaser Esam Hamdi, and Jose Padilla. He argues that while they were all U.S. citizens, they were "treated in dramatically different
Lindh, a Caucasian, was not treated as a terrorist and was characterized as merely a misguided young man. Hamdi, an Arab American, was effectively forced to renounce his American citizenship and was expatriated to the land of his parents, even though he was born and raised in the United States. Padilla, of Puerto Rican descent, was immediately treated as an enemy combatant and terrorist, with the limited rights associated with such labels. The stark differences in their treatment illustrate the dichotomous and confounding nature of citizenship, particularly when applied to favored versus disfavored groups.
Román thus argues that citizenship is "confounding," but he helpfully considers both dejure citizenship and defacto citizenship, exploring how formal and informal citizenship both contradict and reinforce each other. His last chapter, “A New Vision of Citizenship,” articulates a coherent vision of constitutional citizenship that values inclusion rather than exclusion.
Román will be speaking about the book tonight at Books & Books in Miami, Florida.
Friday, February 4, 2011
Hillary Clinton, speaking as US Secretary of State, condemned violence against members of the press in Egypt, noting that "freedom of the press" is one of the pillars of an "open and inclusive society."
Meanwhile, in the United States itself, a complaint in federal court has been filed this week against former president Jimmy Carter and Simon & Schuster, the publisher of Carter's book, Palestine: Peace Not Apartheid. The cause of action is noteworthy: consumer protection statutes in New York prohibiting deceptive acts in the conduct of business and trade. The complaint alleges:
5. Plaintiffs wish to be clear about what this lawsuit is not about. It is not in any way an attempt to challenge Defendant JIMMY CARTER's right to write a book, or Defendant SIMON & SCHUSTER's right to publish a book which serves as a forum for Carter to put forward his virulently ant-Israeli bias or any other agenda he or his financial backers wish to put forward. Nor do Plaintiffs challenge his right to use falsehood, misrepresentations and omissions, misleading statements, or outright lies, all of which characterize this book, to further his agenda. Indeed, Plaintiffs fully recognize that, such an agenda from Defendant JIMMY CARTER should come as no surprise, given his well known bias against Israel and the interests of Israel's sworn enemies who have given millions of dollars to support the Carter Center and Defendant JIMMY CARTER's work.
6. Rather, Plaintiffs bring this action to challenge Defendants' actions in deceiving the public by promoting and selling this Book as a factually accurate account in all regards of the events its purports to depict, rather than truthfully and accurately promoting and selling it as the anti-Israel screed that it is, intentionally presenting untrue and inaccurate accounts of historically recorded events, as witnesses to and participants in such events pointedly have come forward to declare. This lawsuit challenges the Defendants actions in attempting to capitalize on Carter's status as a former President of the United States to mislead unsuspecting members of the reading public who thought they could trust their former President to tell the truth.
7. The Plaintiffs are members of the reading public who thought they could trust a former President of the United States and a well-established book publisher to tell the truth and who paid to get the truth from the Defendants, but were deceived when they learned that the Book is characterized instead by falsehoods, misrepresentations, misleading statements,omissions of material facts, and outright lies designed to mislead and misstate the facts concerning the important subject it purports to address and the underlying historical record.
The Complaint then proceeds to list specific instances of facts as portrayed in the book and seeks to refute those facts. A representative from Simon and Schuster, via the Washington Post, characterized the complaint as "a chilling attack on free speech that we intend to defend vigorously.”
North of the US Border, the Supreme Court of Canada considered the companion cases of Canadian Broadcasting Corporation v. Canada (Attorney General), 2011 SCC 2, and Canadian Broadcasting Corporation v. Canada, 2011 SCC 3, which involve "the interrelationship of freedom of the press, the open court principle and the fair administration of justice." At issue in the Attorney General appeal was the constitutionality of rules prohibiting broadcasting recordings of hearings and on conducting interviews, filming and taking photographs in court; the other appeal involved a prohibition on broadcasting of a video recording tendered in evidence at trial. A good discussion of the cases is available from our colleagues at the Canada Supreme Court blog. In both cases, the Supreme Court of Canada upheld the constitutionality of the banning of the press:
The right to freedom of expression is just as fundamental in our society as the open court principle. It fosters democratic discourse, truth finding and self‑fulfilment. Freedom of the press has always been an embodiment of freedom of expression. It is also the main vehicle for informing the public about court proceedings. In this sense, freedom of the press is essential to the open court principle. Nevertheless, it is sometimes necessary to harmonize the exercise of freedom of the press with the open court principle to ensure that the administration of justice is fair. . . . . this Court must determine whether certain rules are consistent with the delicate balance between this right, this principle and this objective, all of which are essential in a free and democratic society.
This balancing is familiar to US scholars as the First Amendment/ Sixth Amendment conflicts in landmark cases such as Sheppard v. Maxwell.
The continuing controversy surrounding Wikileaks tests commitment to freedom of the press in many nations. The Guardian of the UK, which has published much of the Wikileaks material, is an excellent source of updates and information. In a comment today, journalist Clay Shirkey notes the ways in which Wikileaks "freedom of the press" is a transnational phenomenon, not bound by specific national laws, and presumably constitutional norms. Both The Guardian and the New York Times have published books about the newspapers dealings with Wikileaks: The Guardian book is Wikileaks: Inside Julian Assange's War on Secrecy, and is available as an ebook and forthcoming in paperback. The NYT book, Open Secrets: Wikileaks, War, and American Diplomacy, is available only as an ebook. The NYT Magazine published an adapted introduction to Open Secrets by journalist Bill Keller.
ConLawProfs teaching freedom of the press this semester should be able to use any - - - or all - - - of these situations to foster a great class discussion or a more focused class project.
February 4, 2011 in Books, Cases and Case Materials, Comparative Constitutionalism, Criminal Procedure, Current Affairs, First Amendment, Foreign Affairs, Fundamental Rights, International, Speech, State Secrets, Teaching Tips, Theory, Web/Tech, Weblogs | Permalink | Comments (1) | TrackBack (0)
Sunday, January 16, 2011
GLOBAL CONSTITUTIONALISM (Glob-Con), a new journal forthcoming in January 2012, has issued a Call for Papers.
Global Constitutionalism – World of Human Rights, Democracy and the Rule of Law (Glob-Con) seeks to promote a deeper understanding on the foundations, limitations and principles of political order and their dynamics over time on a global scale. The journal is interested in work that refers to constitutionalism as a template for empirical, conceptual or normative research on past, present and future political and legal practices, within and beyond the state.
Constitutionalism is understood here not as the study of a legal document, but as a reference frame for interdisciplinary research with a particular focus. Constitutionalism in a wide sense is associated with the study of the constitutive elements of legal and political practice that are central for the assessment of its legality or legitimacy. Constitutionalism does not presuppose the existence of a written constitution. It merely presupposes the interplay between social and institutional practices in which claims to legality and, therefore, legitimate authority, and democracy are central. Constitutionalism analyses the role of fundamental norms, the type of actors, and the institutions and procedures through which legal and political decisions are made. In a more narrow modern sense constitutionalism focuses on the basic ideas relating to justice (such as human rights), procedural fairness and participation (e.g. democracy) and the rule of law as they relate to institutional practices and policies in and beyond the state.
The Journal's editorial board includes Mathias Albert, Richard Bellamy, Seyla Benhabib, Armin V. Bogdandy, John Borrows, Jutta Brunnée, Michael Byers, Carlos Closa, Gordon Christie, Jean L. Cohen, Grainne de Burca, Avigail Eisenberg, Michelle Everson, Ezzedine Choukri Fishere, Rainer Forst, Friedrich Kratochwil, Jürgen Neyer, Konrad Ng, Nicholas G. Onuf, Robert Post, Susan Rose-Ackerman , Kim Rubenstein, Joanne Scott, Rainer, Schmalz-Bruns, Jo Shaw, Quentin Skinner, Boaventura de Sousa Santos, Stephen Toope, Neil Walker, Jeremy Webber, JHH Weiler and Michael Zürn. The Editors are Mattias Kumm, New York University, School of Law, USA; Anthony F. Lang Jr, University of St. Andrews, Scotland; Miguel Poiares Maduro, European University Institute, Florence, Italy; James Tully, University of Victoria, Canada (consulting editor); and Antje Wiener, University of Hamburg, Germany.
GlobCon will review articles up to 15,000 words (including notes and bibliography), although authors will be encouraged to reduce their papers to fewer than 12,000 words before publication. Brevity is encouraged and shorter papers will be advantaged in acceptance decisions. Please include a word count with submission, along with an abstract of approximately 200 words which is not repeated from the paper itself. Please include up to five keywords for the article. Authors should submit both a complete version of the manuscript and an anonymous version, stripped of all identifying references to the author(s) that can be sent to reviewers. The citation style of the submission should either be Chicago or Harvard Style. Please do not use endnotes.
Submissions via email to the journal’s managing assistant:
Sassan Gholiagha, email@example.com.
[image: David Teniers, Stilleben, c. 1645-1650 via].
Friday, January 14, 2011
Profs. Martha Davis (Northeastern) and Johanna Kalb (Loyola New Orleans) recently released an American Constitution Society Issue Brief, Oklahoma State Question 755 and an Analysis of Anti-International Law Initiatives. We most recently posted on Oklahoma's vote to amend its constitution to ban the use of Sharia law in its courts here.
Davis and Kalb put Oklahoma's ballot initiative in a larger context of federal and state initiatives to ban the use of international or foreign law in U.S. courts and explore the legal and policy issues raised by these initiatives. Thus they argue that state anti-international law initiatives undermine federalism, interfere with federal protections for American citizens and businesses, and interfere with judicial independence.
From the Brief:
What the proponents of the amendment fail to acknowledge, however, is that it is impossible to bar judicial "consideration" of any source--particularly when, as described above, international law is relevant to the dispute. If anything, the amendment forces judges and justices to be less transparent in their reasoning or (if they try to abide by the strict letter of the provision) to reach incorrect decisions. And as unlikely as these provisions are to promote their intended goal, the consequences of these sorts of measures for Oklahoma and for the nation are severe. The federal government's capacity to protect American citizens and businesses on the international stage is directly related to its ability to guarantee our nation's reciprocal compliance. Oklahoma's action threatens our national commitment to honoring our international obligations and undermines the states' ability to work cooperatively with the federal government to implement them.
The Brief is good reminder that there are important legal and policy issues in these initiatives--beyond the First Amendment issues that most often catch our attention.
Sunday, January 9, 2011
President Obama on Friday issued a signing statement upon signing HR 6523, the Ike Skelton National Defense Authorization Act for Fiscal Year 2011, taking issue with the restrictions on his authority to transfer Guantanamo detainees. We most recently posted on this here.
The statement claims that the restrictions interfere with the President's Article II authority, but stop short of calling them unconstitutional. The statement ends with a line that the administration will work with Congress to repeal those provisions--an unlikely prospect in the new Congress--underscoring the relatively passive approach here.
This statement is in stark contrast to earlier signing statements raising constitutional objections. President Obama has previously declared some portions of legislation unconstitutional and flatly declined to enforce them. (President Obama wasn't the first to do this, or even the most aggressive. President George W. Bush issued a number of such statements, drawing heavy criticism for his unilateral, and questionable, determinations that some provisions were unconstitutional and for his resulting refusal to enforce them. President Obama moved to reform the practice soon into his administration.)
For comparison, consider the text of the signing statement issued on Friday:
Section 1032 bars the use of funds authorized to be appropriated by this Act for fiscal year 2011 to transfer Guantanamo detainees into the United States, and section 1033 bars the use of certain funds to transfer detainees to the custody or effective control of foreign countries unless specified conditions are met. Section 1032 represents a dangerous and unprecedented challenge to critical executive branch authority to determine when and where to prosecute Guantanamo detainees, based on the facts and the circumstances of each case and our national security interests. The prosecution of terrorists in Federal court is a powerful tool in our effort to protect the Nation and must be among the options avaiable to us. Any attempt to deprive the executive branch of that tool undermines our Nation's counterterrorism efforts and has the potential to harm our national security.
With respect ot section 1033, the restrictions on the transfer of detainees to the custody or effective control of foreign countries interferes with the authority of the executive branch to make important and consequential foreign policy and national security determinations regarding whether and under what circumstances such transfers should occur in the context of an ongoing armed conflict. We must have the ability to act swiftly and to have broad flexibility in conducting our negotiations with foreign countries. The executive branch has sought and obtained from countries that are prospective recipients of Guantanamo detainees assurances that they will take or have taken measures reasonably designed to be effective in preventing, or ensuring against, returned detainees taking action to threaten the United States or engage in terrorist activities. Consistent with existing statutes, the executive branch has kept the Congress informed about these assurances and notified the Congress prior to transfers. Requiring the executive branch to certify to additional conditions would hinder the conduct of delicate negotiations with foreign countries and therefore the effort to conclude detainee transfers in accord with our national security.
Despite my strong objection to these provisions, which my Administration has consistently opposed, I have signed this Act becuase of the importance of authorizing appropriations for, among other things, our military activities in 2011.
Nevertheless, my Administration will work with the Congress to seek repeal of these restrictions, will seek to mitigate their effects, and will oppose any attempt to extend or expand them in the future.
Compare that relatively timid statement with the President's much more aggressive signing statement on signing the Omnibus Appropriations Act of 2009; here's just a taste:
The Department of Justice has advised that a small number of provisions of the bill raise constitutional concerns.
[As to restrictions on negotiations in foreign affairs] . . . I will not treat these provisions as limiting my ability to negotiate and enter into agreements with foreign nations.
[As to restrictions on UN Peacekeeping Missions] . . . [t]his provision raises constitutional concerns by constraining my choice of particular persons to perform specific command functions in military missions, by conditioning the exercise of my authority as Commander in Chief on the recommendations of subordinates within the military chain of command, and by constraining my diplomatic negotiating authority. Accordingly, I will apply this provision consistent with my constitutional authority and responsibilities.
[As to restrictions on pay of federal employees who interfere with communications between federal employees and Congress] . . . I do not interpret this provision to detract from my authority to direct the heads of executive departments to supervise, control, and correct employees' communications with the Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential.
Why the difference in the two signing statements?
- One possiblity is that the Gutanamo restrictions touch a political nerve that the President would rather not aggrevate by declaring them outright unconstitutional and declining to enforce them. In other words, the administration judged that the constitutionally correct position (that the restrictions are unconstitutional) did not sufficiently outweigh the likely political backlash of fully endorsing and actualizing that position. This seems the most likely reason for the different tone on Friday. If true, it means that the politics drove the constitutional practice and, as the President wrote, set a very dangerous constitutional precedent. And because practice and precedent are important tools for constitutional interpretation (especially over Article II authority), the politics in some important ways changed the constitutional law. The President's language about the interference with Article II authority and setting a dangerous precedent do little, if anything, to preserve the constitutional objection the next time Congress seeks to interfere with executive authority in this way. Rather the restrictions set the precedent and practice: the restrictions in the legislation, not the timid signing statement, are what future congresses and presidents will look to in judging presidential authority in like situations.
- Another possibility is that the administration has come around to view the more aggressive variety of signing statements--those that declare a provision unconstitutional and decline to enforce it--are themselves undesirable (or even unconstitutional). This seems consistent with the administration's early reevaluation of signing statements, but it seems inconsistent with its own practice (as above). If this were the reason, we might have expected some additional signal from the administration that it's fundamentally changing its position on signing statements--even more than its earlier statements.
- A final possibility is that the administration will act as though this latest signing statement read the same way that the more aggressive style of signing statements read--that is, the administration will decline to enforce these provisions. There's a small hint that this may be the direction the administration intends to move: the phrase "will seek to mitigate their effects" in the last line. But it also seems utterly inconsistent with the administration's earlier position on signing statements and its more general commitment to transparency. This would also result in especially grave political fallout once President Obama started closing Guantanamo and transferring detainees in violation of the restrictions: not only would the President have ignored the restrictions; he also would have publicly misled about his intentions in the signing statement. This seems like the least likely reason for the difference in this most recent signing statement.
If ever there were a time for a signing statement with a strong constitutional objection, this would have been it. (A veto, with a constitutional message, would have been much better. But the timing and the politics wouldn't allow it here.) Instead, the weaker signing statement and enforcement of the restrictions (even "mitigated") sets the precedent the next time Congress wants to interfere with core Article II powers of prosecution and foreign affairs.
Friday, December 17, 2010
President Obama announced yesterday at the White House Tribal Nations Conference that the U.S. will now lend its support to the UN Declaration on the Rights of Indigenous Peoples.
The Declaration is a non-binding treaty designed to protect the human rights of indigenous peoples. It incorporates rights in the UN Charter, the Universal Declaration, and international human rights law, and specifically protects the right to self-determination and cultural rights, among others. The Declaration was adopted in 2007 over the opposition of the United States and three other member states.
President Obama announced on April 20, 2010, that the U.S. would reconsider its position on the Declaration. (Two days later, the UN special rapporteur on the rights of indigenous peoples told the Permanent Forum on Indigenous Issues that "[t]he [worldwide] violations of indigenous peoples are deep, systemic and widespread.") There's apparently little publicly available information on the review; DOJ's Office of Tribal Justice mentions it here, and the State Department mentions it here. The Office of Legal Counsel opined in 1996 that the U.S. government could establish the kind of government-to-government relationship that it currently maintains with federally recognized Indian Tribes with "other appropriately constituted indigenous communities within the jurisdiction of the United States." But otherwise there's no publicly available OLC opinion on the Declaration. The only bill in Congress to support the Declaration stalled in the House Committee on Foreign Affairs.
It's not clear what "support for the Declaration" means to the administration, where the Declaration is non-binding and where many of the rights contained in it (like many of the rights contained in other international human rights instruments) exceed those provided under (or required by) the U.S. Constitution. President Obama committed--and came through on--opening up the government to Native Americans and Native American concerns, but full compliance with the Declaration would go several significant steps further. Given the non-binding nature of the Declaration, its rights (which exceed our own constitutional rights and traditional practices), and the government's historic treatment of Native American peoples, it seems likely that "support for the Declaration" means something like "treat the Declaration as aspirational"--a move toward recognizing the rights contained it, but stopping short of treating it as mandatory.
Thursday, December 16, 2010
In a lengthy decision today, the European Court of Human Rights (the Grand Chamber) held Ireland's criminalization of abortion contravened the European Convention on Human Rights as to one of the three women litigants.
Central to the decision in Case of A, B, and C v. Ireland, is Article 8 of the European Convention on Human Rights:
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
The challengers, A, B, and C, all residents of Ireland who traveled to the United Kingdom to obtain an abortion because of the criminalization of abortion in Ireland, argued that their rights under Article 8 were violated.
Each of the women has sympathetic circumstances. Challenger A was impoverished, suffering from depression and recovering from alcoholism, has four children in foster care with whom she is struggling to be reunited. Challenger B was single and feared an ectopic pregnancy. Challenger C was in remission from cancer, and feared both a relapse and that certain treatments may have caused damage to the fetus.
The Court found Article 8 was contravened only with regard to Challenger C. Ireland's violation was a failure to implement its existing constitutional right to an abortion when the pregnant woman's life was at stake.
The decision is thus a narrow one and certainly does not invalidate Ireland's abortion ban.
Tuesday, December 7, 2010
Judge John D. Bates (D.D.C.) today dismissed Nasser Al-Aulaqi's case on behalf of his son, Anwar Al-Aulaqi, to stop the administration from killing his son. Anwar is a U.S. citizen tagged by the Obama administration as a terrorist and targeted for extrajudicial killing. We most recently posted on the case here.
The 83-page opinion in Al-Aulaqi v. Obama concludes that Nasser lacks standing, failed to allege a violation of the Alien Tort Statute, and that the case raises non-justiciable political questions. (Judge Bates declined to rule on the administration's state secrets claim.) The ruling does not address the merits--except to say that that the case is "unique and extraordinary."
Judge Bates ruled that Nasser lacks standing as next-friend or under third-party-standing rules. According to Judge Bates, Nasser failed to explain why Anwar could not appear in court himself and failed to show that he would be truly dedicated to Anwar's best interests. (Judge Bates wrote that "no U.S. citizen may simultaneously avail himself of the U.S. judicial system and evade U.S. law enforcement authorities"--even, apparently, if he is subject to killing or indefinite detention as a terrorist if he shows up. Judge Bates also ruled that Nasser did not show that Anwar even wanted to bring this case--and therefore Nasser did not show that he was representing Anwar's best interests.) Moreover, Nasser did not allege a sufficient harm--loss of his relationship with his son--to support third-party standing.
Next Judge Bates ruled that Nasser failed to satisfy the requirements of the Alien Tort Statute--both that he suffered a legally cognizable tort that rises to the level of a customary international law norm, and that the U.S. waived sovereign immunity. As to the former, Judge Bates ruled that a threatened extrajudicial killing is not a violation of customary international law (even if an actual extrajudicial killing is). Moreover, this case has a complicating factor: an alien (Nasser) brings the case on behalf of a citizen (Anwar). The ATS doesn't allow for this. As to the latter, the U.S. has not waived immunity.
Finally, Judge Bates ruled that the case is barred by the political question doctrine. Resolution of the case would require the court to delve into complicated issues of foreign affairs and national security, and therefore the court must abstain.
The opinion recognizes the importance and the complicated and troubling nature of the case--on both sides. (It starts with a series of questions like this: "How is it that judicial approval is required when the United States decides to target a U.S. citizen overseas for electronic surveillance, but that, according to defendants, judicial scrutiny is prohibited when the United States decides to target a U.S. citizen for death?" And this: "Can a U.S. citizen--himself of through another--use the U.S. judicial system to vindicate his constitutional rights while simultaneously evading U.S. law enforcement authorities, calling for 'jihad against the West,' and engaging in operational planning for an organization that has already carried out numerous terrorist attacks against the United States?" Good questions, indeed.) But it doesn't address these, at least not directly. Instead, it dismisses the case largely on non-merits issues. In so doing, the court leaves the substantive questions for the political branches--here, the executive alone. In short, under this opinion there doesn't appear to be a way that a U.S. citizen could safely challenge an ordered extrajudicial killing through the U.S. courts: Upon revealing her- or himself, she or he would almost certainly be killed or detained (indefinitely). (If the latter, she or he could challenge the detention by way of habeas, but could apparently not challenge the ordered killing.) This apparently leaves unchecked power in the hands of the executive to order killings of anyone, including U.S. citizens, it deems a terrorist.
Recognizing the "drastic nature" of the government's power, Judge Bates tried to limit the ruling in two ways--limiting the political question analysis to the facts, and declining to rule on the state secrets privilege. But in the end, the holdings on standing, the ATS, and even the political question doctrine mean that targets of extrajudicial killings have no real way to challenge the government in the courts.
December 7, 2010 in Courts and Judging, Executive Authority, Foreign Affairs, International, Jurisdiction of Federal Courts, Opinion Analysis, Political Question Doctrine, Recent Cases, Separation of Powers, Standing, State Secrets, War Powers | Permalink | Comments (0) | TrackBack (0)
Thursday, November 25, 2010
In addition to the Thanksgiving holiday in the United States, today is International Day for the Elimination of Violence Against Women as proclaimed by the UN.
The Declaration on the Elimination of Violence Against Women was adopted by the UN General Assembly in 1994. It rests in part on the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which was signed by President Jimmy Carter but has not been ratified by the Senate.
A recently published and excellent article discussing the current state of CEDAW, including the constitutional issues, is Ann Piccard's U.S. Ratification of CEDAW: From Bad to Worse? available in draft form on ssrn here.
Monday, November 15, 2010
The Washington Post reported this weekend that the Obama administration is unlikely to push for federal trial for Khalid Sheik Mohammed (because it would anger lawmakers in Congress and in New York) and unlikely to push for trial in a military tribunal (because it would alienate liberal supporters).
The result? It looks like indefinite detention.
The administration has long claimed that indefinite detention is authorized under the AUMF and legal under international law, although it hasn't given us its precise reasons. (We posted on indefinite detention here and here.)
The AtlanticWire collects reactions--from a critique that this means we're in a "forever war" to glee that Obama seems to be following the Bush administration's approach (but without also offering the aggressive legal claims).
Wednesday, October 20, 2010