Wednesday, July 17, 2013

Secret Surveillance Court May Pull Back Curtain

Scott Bombay, over at Constitution Daily, reports on a recent order of the Foreign Intelligence Surveillance Court, or FISC, directing the Justice Department to conduct a "declassification review" of a April 25, 2008, ruling and legal briefs involving Yahoo!  The move could lead to release of documents that reveal some of the FISC's secret workings--in particular, according to Yahoo!, "how the parties and the Court vetted the Government's arguments supporting the use of directives" to gather information about subscribers without their knowledge.  (Yahoo!'s interest is in showing that it vigorously defended its users' privacy.)

But Bombay notes that when the Justice Department finishes its classification job, there may not be much left of the ruling or the briefs to help us understand much of anything.

FISC Presiding Judge Reggie Walton ordered the Justice Department to report back to him by July 29 about when the documents could be ready for public inspection.

We posted on the recent spate of criticism over the FISC's secrecy here.

SDS

July 17, 2013 in Congressional Authority, Courts and Judging, Executive Authority, Fundamental Rights, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Authority for ACA Delay

Simon Lazarus argues at The Atlantic that the White House's delayed enforcement of the employer mandate is legal.  We previously posted on this here and here.

Lazarus says, referencing Assistant Secretary for Tax Policy Mark Mazur's letter to Congressman Fred Upton, that delayed enforcement, or temporary postponements, of tax reporting and payment requirements are routine across Republican and Democratic administrations.  Moreover, the administration's delay is well within the courts' zone of tolerance under the Administrative Procedure Act:

To be sure, the federal Administrative Procedure Act authorizes federal courts to compel agencies to initiate statutorily required actions that have been "unreasonably delayed."  But courts have found delays to be unreasonable only in rare cases where, unlike this one, inaction had lasted for several years, and the recalcitrant agency could offer neither a persuasive excuse nor a credible end to its dithering.

In other words, the courts give the administration some room, and the administration's delayed enforcement of the employer mandate, just one year while the administration gears up for it, is well within that space.

Mazur's letter also cites the IRC:

The Notice [of delayed enforcement] is an exercise of the Treasury Department's longstanding administrative authority to grant transition relief when implementing new legislation like the ACA.  Administrative authority is granted by section 7805(a) of the Internal Revenue Code.

This authority has been used to postpone the application of new legislation on a number of prior occasions across Administrations. 

SDS

July 17, 2013 in Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Delays on ACA's Mandates

In response to the White House announcement that it will delay enforcement of the so-called employer mandate in the Affordable Care Act, House Republicans introduced two bills, H.R. 2667 and H.R. 2668, that would amend the ACA to delay the effective date of the employer mandate and the individual mandate, respectively.

The White House promised a veto, saying that legislation authorizing a delay for the employer mandate is unnecessary (because according to the White House it can do this unilaterally) and that legislation authorizing a delay for the individual mandate would raise health insurance premiums and result in fewer insured.  

The bills were clearly designed to highlight the Republicans' complaint that the administration is treating businesses more favorably than individuals and to force the administration to own up to its more favorable treatment of businesses.  The White House didn't bite.  (The Hill covered the politics here.)

But there's still this problem: It's not at all clear on what authority the administration can delay the enforcement of the employer mandate.  As we wrote earlier, the ACA says that the employer mandate "shall apply to months beginning after December 31, 2013."  That doesn't leave much wiggle room.

If the administration doesn't enforce the employer mandate until later, it's not clear that anyone could complaint (that is, that anyone would have standing to sue in federal court to compel enforcement).  So the administration, as a practical matter, may not need a legal theory for delayed enforcement.  

SDS

July 17, 2013 in Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (1) | TrackBack (0)

Thursday, July 11, 2013

More on Employer Mandate Delays

Representative Scott Garrett (R-NJ) introduced a resolution, H. Con. Res. 45, saying that President Obama violated Article II, Section 3 of the Constitution by postponing the requirement that employers with more than 50 employees provide health insurance or pay a fine.  (Article II, Section 3 says that the President "shall take Care that the Laws be faithfully executed.")  The Hill reports here; we posted on Michael McConnell's piece in the WSJ here.

According to the resolution, the Affordable Care Act sets a specific date, December 31, 2013, after which the employer mandate "shall" take effect:

Whereas section 1513(d) of such Act states that the employer mandate "shall apply to months beginning after December 31, 2013";

This is right, and it seems pretty firm.  

Lyle Denniston argues (correctly) over at Constitution Daily, the blog of the U.S. Constitution Center, that administrative agencies enjoy some flexibility in enforcing federal law.  In particular, agencies may sometimes require time to be able to write regs to effectively enforce the law.  

But here the language of the ACA is clear on the date of its application, and the administration's delay doesn't seem to have anything to do with its ability to enforce the employer mandate.  Instead, the delay seems designed to meet the concerns of business owners--a policy consideration, not an administrative one.

The best way for the two ends of Pennsylvania Avenue to work this one out would be to amend the ACA, to give employers another year--simply change that date to December 31, 2014.  This is a simple step, but an unlikely one in the current political climate, where pols can score points instead of making policy.

SDS

July 11, 2013 in Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 10, 2013

Federal Judge Urges Halt to Guantanamo Force-Feeding

Judge Gladys Kessler (D.D.C.) this week reluctantly denied a Guantanamo detainee's plea to stop his force-feeding.  Detainee Jihad Dhiab requested expidited consideration because of the risk that force-feeding during the day will deprive him of the Ramadan fast, which started July 8.  

Dhiab is an 11-year detainee at Guantanamo who has received no habeas or military commission proceeding to determine the merits of his case.  He was cleared for release two years ago.

Judge Kessler wrote that the court lacked jurisdiction to hear Dhiab's petition, because 28 U.S.C. Sec. 2241(e)(2) deprives courts of jurisdiction to hear an action related to "any aspect of the detention, transfer, treatment, trial, or conditions of confinement" of an alien detainee at Guantanamo.  She wrote that "the Court feels just as constrained now, as it felt in 2009, to deny this Petitioner's Application for lack of jurisdiction."

Judge Kessler went on to address the merits, though, and to urge President Obama to stop the force-feeding:

The Court also feels constrained, however, to note that Petitioner has set out in great detail in his papers what appears to be a consensus that force-feeding of prisoners violates Article 7 of the International Covenant on Civil and Political Rights which prohibits torture or cruel, inhumane, and degrading treatment. . . .

Even tough this Court is obligated to dismiss the Application for lack of jurisdiction, and therefore lacks any authority to rule on Petitioner's request, there is an individual who does have the authority to address the issue. . . . 

Article II, Section 2 of the Constitution provides that "[t]he Preisdent shall be the Commander in Chief of the Army and Navy of the United States . . ."  It would seem to follow, therefore, that the President of the United States, as Commander-in-Chief, has the authority--and power--to directly address the issue of force-feeding of the detainees at Guantanamo Bay.

The White House responded at the daily press briefing yesterday that the President doesn't want these detainees to die, and that he maintains his position that Guantanamo should close.

SDS

July 10, 2013 in Cases and Case Materials, Congressional Authority, Habeas Corpus, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Scrutiny of the FISA Court

The Foreign Intelligence Surveillance Court, or FISC, has come under increasing scrutiny in recent weeks, after Edward Snowden leaked an order of that court directing Verizon to turn over "comprehensive communications routing information" to the NSA.  We posted here on EPIC's petition to the Supreme Court to overturn that order.

In particular, critics are taking aim at the FISC's secrecy, the un-adversarial nature of its proceedings, and the appointment process for its judges.  (The FISC's decisions, though tremendously important, are classified; only the government, and not private individuals subject to surveillance, gets to make arguments to the FISC; and the Chief Justice alone appoints and details sitting federal judges to the FISC.)

Eric Lichtblau framed some of the issues last week in the NYT, and Orin Kerr reacted on Volokh.  The WSJ reported on the expanding definition of "relevant" in the FISC's jurisprudence--important because under federal law the FISC can order the production of tangible things that are "relevant to an authorized investigation."  That question--how far does "relevant" extend--is front-and-center in EPIC's petition at the Supreme Court.

Bloomberg editors took aim at the FISC's "missing checks and balances," adopting a recommendation by Kerr that an independent office in DOJ should advocate for privacy at the FISC, in order to create some measure of adversity before the court.  Bloomberg editors also recommended changing the appointment process--a recommendation echoed at Bloomberg by Noah Feldman and Ezra Klein.  In particular, critics worry that the current method of appointment could lead to a kind of group-think among judges on the FISC--a worry that seems supported by the government's breathtaking success rate at the court.

There is some legislation in Congress to address these concerns, one way or another.  For example, H.R. 2440, the FISA Court in the Sunshine Act of 2013, would require the disclosure of FISC decisions, or an explanation why they can't be disclosed.  H.R. 2475, the Ending Secret Law Act, and S. 1130, would do the same thing.  H.R. 2586, the FISA Court Accountability Act, would provide for the appointment of FISC judges by the Chief Justice and by congressional leaders.

SDS

July 10, 2013 in Congressional Authority, Courts and Judging, Fourth Amendment, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 9, 2013

Senate Judiciary Questions Comey

The Senate Judiciary Committee today questioned James Comey, Jr., President Obama's pick to replace Robert Mueller as the head of the FBI.  Comey was a deputy attorney general under President George W. Bush who gained fame after his 2004 confrontation with White House Counsel Alberto Gonzales and Chief of Staff Andrew Card over that administration's secret surveillance program at the hospital bedside of former AG John Ashcroft.  But, as Rick Perlstein argues at The Nation, and as Laura Murphy argues at the Guardian, Comey's record is a little more complicated.

As has been widely reported, Comey today told the Committee that he thought waterboarding was torture.  The Atlantic Wire has a summary of his responses to other, similar issues.  Here's the hearing on c-span.org.

SDS

July 9, 2013 in News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Monday, July 8, 2013

EPIC Takes Surveillance Challenge Directly to Supreme Court

The Electronic Privacy Information Center, or EPIC, today asked the Supreme Court to vacate the order of the Foreign Intelligence Surveillance Court, or FISC, compelling the disclosure of domestic phone records by Verizon.  We previously posted on the FISC order here.

EPIC filed a petition for a writ of mandamus directly with the Supreme Court, bypassing the usual route through the lower courts, because of the unique nature of the FISC order.  EPIC claims that FISC Judge Roger Vinson ordered the disclosure of domestic phone records in violation of the FISC's statutory authority under the Foreign Intelligence Surveillance Act, or FISA.  But EPIC says that under the FISA, the only court that can reverse Judge Vinson's order is the Supreme Court.  Moreover, the order creates exceptional circumstances relating to the invasion of privacy, privileged communications, and the First Amendment that warrant mandamus relief.  Thus, the mandamus petition.

On the merits, EPIC argues that Judge Vinson exceeded his authority under FISA:

[T]he FISC issued an order requiring disclosure of records for all telephone communications "wholly within the United States, including local telephone calls."  The Business Records provision does not enable this type of domestic programmatic surveillance.

Specifically, the statute requires that production orders be supported by "reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation. . . . ."  50 U.S.C. Sec. 1861(b)(2)(A).  It is simply unreasonable to conclude that all telephone records for all Verizon customers in the United States could be relevant to an investigation.  Thus, the FISC simply "ha[d] no judicial power to do what it purport[ed] to do."

Petition at 18.

EPIC also argues that the order violates the separation of powers, insofar as it compels the disclosure of phone records of the judicial and legislative branches to the executive branch.

SDS

July 8, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Thursday, July 4, 2013

Hafetz on Loosening Restrictions on Guantanamo Detention

Jonathan Hafetz (Seton Hall), author of Habeas Corpus After 9/11: Confronting America's New Global Detention System, wrote at Al Jazeera that "there appears to be real momentum behind new efforts to reform Guantanamo policies." 

In particular, Hafetz points to loosened restrictions on the administration's transfer of detainees at Guantanamo Bay in the National Defense Authorization Act of 2014, approved last week by the Senate Armed Services Committee.  Still, the bill has to clear the full Senate, where it will surely meet some resistance, and, as Hafetz points out, the House version contains the old restrictions.  

We posted on the 2013 NDAA here, and the 2012 NDAA here.

SDS

July 4, 2013 in Congressional Authority, Executive Authority, Habeas Corpus, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 2, 2013

Illinois Governor Issues Amendatory Veto on Concealed Carry Bill

Illinois Governor Pat Quinn today issued an "amendatory veto" on Illinois HB 183, the state legislature's effort to provide for lawful concealed carrying of handguns, after the Seventh Circuit earlier this year ruled that Illinois's ban on concealed carry violated the Second Amendment.  

Governor Quinn's amendatory veto sends HB 183 back to the legislature, along with his recommended changes to the bill.  The legislature can override the veto as to the original HB 183 by a 3/5 vote in both houses; it can approve Governor Quinn's recommendations, however, by a bare majority in both houses.  If the legislature so approves, and if the Governor certifies that the approval meets his recommendations, the amendatory-vetoed-bill becomes law.  

Here's Article 9(e) of the state constitution:

The Governor may return a bill together with specific recommendations for change to the house in which it originated.  The bill shall be considered in the same manner as a vetoed bill but the specific recommendations may be accepted by a record vote of a majority of the members elected to each house.  Such bill shall be presented again to the Governor and if he certifies that such acceptance conforms to his specific recommendations, the bill shall become law.  If he does not so certify, he shall return it as a vetoed bill to the house in which it originated.

Governor Quinn objected to the very loose standards for concealed carry in HB 183.  In particular, the bill allows people to carry guns into establishments serving alcohol and into the workplace, and it contains no cap on the number of guns or the size or amount of ammunition clips that may be carried.  Governor Quinn also objected to the bill's override of local authority to ban assault weapons--a provision not required by the Seventh Circuit's ruling (which went only to concealed carry).

The Seventh Circuit gave the state until July 9 to write a concealed carry law.  According to the Chicago Tribune, "Quinn's move also raises the possibility that the General Assembly could fail to agree on either option and leave Illinois with a wide-open gun law that even sponsors of the concealed carry law have sought to avoid."

SDS

July 2, 2013 in Cases and Case Materials, Comparative Constitutionalism, Executive Authority, News, Second Amendment, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Monday, July 1, 2013

Alabama Constitutional Revision Commission to Recommend Deleting Segregationist Language

The Alabama Constitutional Revision Commission is considering a proposal to rewrite a section of the state constitution that allows racially segregated schools.  The provision is an embarrassment (to say the very least), but state voters can't seem to vote it out of the state constitution.  (Voters failed to strike it twice in the last 10 years.  The latest vote, in 2012, likely failed because some argued that the amendment didn't go far enough--because it wouldn't have repealed the provision saying that there's no constitutional right to a public education.)

This, the week after the Supreme Court struck the coverage formula for the preclearance provision in the Voting Rights Act--a case brought by Alabama's own Shelby County.

The provision, Section 256, as amended by Amendment 111, approved by voters in 1956, reads:

It is the policy of the state of Alabama to foster and promote the education of its citizens in a manner and extent consistent with its available resources, and the willingness and ability of the individual student, but nothing in this Constitution shall be construed as creating or recognizing any right to education or training at public expense . . . .

To avoid confusion and disorder and to promote effective and economical planning for education, the legislature may authorize the parents or guardians of minors, who desire that such minors shall attend schools provided for their own race, to make election to that end, such election to be effective for such period and to such extent as the legislature may provide.

The Commission today considered a new Section 256, deleting the reference to segregated schools and the lack of right to education, and stating simply that "The legislature shall establish, organize and maintain a system of public schools throughout the state for the benefit of children thereof."  But the Commission couldn't agree on final language and sent the revision to a subcommittee.

The Commission also rejected a provision that would have provided a stronger veto for the governor.  (The legislature can currently override a veto with a bare majority in both houses.  The proposal would have required a 3/5 vote in both houses.)

SDS

 

 

July 1, 2013 in Comparative Constitutionalism, Equal Protection, Executive Authority, Federalism, Fourteenth Amendment, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Monday, June 24, 2013

Supreme Court to Review Recess Appointment Authority

The Supreme Court today agreed to review the President's recess appointment authority.  The Court granted cert. to the D.C. Circuit and agreed to hear an appeal in Noel Canning v. NLRB, the case testing the President's authority under the Recess Appointments Clause to appoint members to the NLRB during an intra-session recess in the Senate.  Our post on the D.C. Circuit's ruling--holding that the President lacks authority--including links to prior posts, is here.  

Recall that the D.C. Circuit ruled President Obama's appointments to the NLRB unconstitutional.  The Third Circuit followed suit.

The Supreme Court's move today gives the high court an opportunity to weigh in.

SDS

June 24, 2013 in Appointment and Removal Powers, Cases and Case Materials, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Friday, June 21, 2013

Sorting Out Fact and Fiction in NSA's Surveillance Program

The Newseum will host a special program NSA Surveillance Leaks: Facts and Fiction on Tuesday, June 25, 2013, at 4:00 p.m., at the Knight TV Studio in Washington, D.C.  More information is here; the program will be streamed live online at newseum.org.  

The program includes an introduction by ABA President Laurel Bellows and a panel of experts on national security law, free speech, and the press.  Harvey Rishikof, chair of the ABA Standing Committee on Law and the National Security Advisory Committee, will moderate.  James Duff, president and CEO of the Freedom Forum and CEO of the Newseum, will deliver welcoming remarks.

SDS

June 21, 2013 in Conferences, Executive Authority, News, Separation of Powers, Speech, War Powers | Permalink | Comments (0) | TrackBack (0)

Thursday, June 20, 2013

What's the Real Standard in Guantanamo Habeas Cases?

The D.C. Circuit this week denied a habeas petition of a Yemeni detained at Guantanamo Bay.  The ruling in Hussain v. Obama is unremarkable, given the lower courts' approach in these cases.  But a concurrence in the case sheds light on a problem: the lower courts are in fact applying the wrong standard.

If that's right--and the concurrence makes a good case that it is--then the courts are denying habeas petitions that shouldn't be denied.  The solution, according to concurring Judge Edwards: "The time has come for the President and Congress to give serious consideration to a different approach for the handling of the Guantanamo detainee cases."  Indeed.

The majority in the case applied the now-settled test for habeas petitions coming out of Guantanamo Bay: Whether the government has shown, by a preponderance of the evidence, that the detainee was "part of" al Qaeda, the Taliban, or associated forces at the time of capture.  (The test purports to apply the government's detention authority under the AUMF, which permits the president to detain individuals who "planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such . . . persons.")  The majority rejected Hussain's arguments to adjust and tighten the test and concluded that it was easily met here.

But concurring Senior District Judge Edwards argued that the court actually and wrongly applied a lower "substantial evidence" test, not the more rigorous preponderance-of-evidence test that the court said it applied.  Judge Edwards argued that the evidence in this case--or lack thereof--only supported a conclusion that Hussain fell into the covered group by a substantial evidence standard, not by a preponderance of the evidence, even though the majority held that it met that higher standard.  Moreover, Judge Edwards wrote that the court implicitly shifted the burden from the government to Hussain in showing that he continued to affiliate with enemy forces after leaving Afghanistan.  

Despite these problems, Judge Edwards concurred in the result, because, he said, the law of the circuit compelled it.

Still, Judge Edwards concluded with a call for change: "The time has come for the President and Congress to give serious consideration to a different approach for the handling of the Guantanamo detainee cases."  Conc. at 5.

SDS

June 20, 2013 in Cases and Case Materials, Congressional Authority, Executive Authority, Habeas Corpus, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 19, 2013

Common Cause Takes Filibuster Challenge to D.C. Circuit

Common Cause this week pursued its case against the Senate filibuster at the D.C. Circuit when it filed its appellate brief, arguing that Judge Emmett G. Sullivan (D.D.C.) was wrong to dismiss the case last December and pressing its argument that the filibuster is unconstitutional.  Common Cause's press release is here; the brief is here.  We posted on Judge Sullivan's decision here.

Recall that Judge Sullivan dismissed the case, Common Cause v. Biden, for lack of standing and for raising a political question.  In its brief, Common Cause takes on Judge Sullivan's ruling and argues that the filibuster is unconstitutional.

As to standing, Common Cause argues that House-member-plaintiffs have standing to challenge Senate Rule XXII, the cloture rule that allows a filibuster if the majority can't muster 60 votes to close debate, because the Rule allowed a minority in the Senate to effectively nullify their votes in favor of the DISCLOSE and DREAM Acts.  Common Cause relies on language from Raines v. Byrd (1997), which says that "legislators whose votes . . . would have been sufficient to . . . enact a specific legislative Act have standing to sue if that legislative action . . . does not go into effect on the ground that their votes have been completely nullified" by a procedural violation of the Constitution.  (In Raines, the Court held that Senator Byrd lacked standing when he mounted a facial challenge to the Line-Item Veto Act but failed to show that his vote on any specific appropriation bill had been nullified by the Act.)

Common Cause also argues that it has standing in its own right, because the filibuster of the DISCLOSE Act frustrated its core mission of campaign reform.  It argues that it has standing based on its members, because they cannot learn the identities of certain campaign contributors.  And it argues that the "dreamer"-plaintiffs have standing, because the filibuster of the DREAM Act denied them the benefits of that Act.

As to political question, Common Cause says that rules of Congress are justiciable, that they must be constitutional, and that "[t]here is nothing in the record of the Federal Convention indicating that the Framers intended to delegate to either house the authority to depart from the principle of majority rule . . . ."  Brief at 15-16.

Finally, on the merits, Common Cause says,

Rule XXII's supermajority vote requirement is inconsistent with the rules of parliamentary practice that preceeded the adoption of the Constitution, the intent of the Framers as reflected in The Federalist Papers, the text of the Quorum and the Presentment Clauses, the exclusive list of exceptions to the principle of majority rule in the Constitution which specify when a supermajority vote is required, the provision of Article I, Sec. 3, cl. 4 that gives the Vice President the power to cast the tie-breaking majority vote when the Senate is "equally divided," and the first rules adopted by the Senate and the House immediately after ratification.

Brief at 56.

SDS

June 19, 2013 in Campaign Finance, Cases and Case Materials, Congressional Authority, Courts and Judging, Jurisdiction of Federal Courts, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Monday, June 10, 2013

Ninth Circuit Dismisses Challenge to TSP, Request to Destroy Records

The Ninth Circuit today dismissed a case first challenging the Bush Administration's warrantless wiretap program (the Terrorist Surveillance Program, or TSP) and later requesting destruction of records retained from that program.  The case, In re National Security Agency Telecommunications Records Litigation, was brought by the Center for Constitutional Rights.  CCR's information page, including links to earlier filings and rulings, is here.

The Ninth Circuit dismissed the case in a very brief, unpublished decision that relied on the Supreme Court's ruling in Clapper v. Amnesty International.  Recall that the Court in that case dismissed a challenge to the government's surveillance program under the FISA Amendments Act of 2008.  The Court ruled that the plaintiffs lacked standing, because they could not demonstrate that they were injured by the Act.

So too, here, the Ninth Circuit said.  The court ruled that CCR had the same "highly attenuated chain" of alleged injury with one difference: the Amnesty International plaintiffs challenged a program with judicial oversight (by way of the FISC), whereas the CCR case challenged a program with no judicial oversight.  Still, the Ninth Circuit said that "CCR's asserted injury relies on a different uncertainty not present in Amnesty Int'l, namely, that the government retained 'records' from any past surveillance it conducted under the now-defunct TSP."

The ruling puts an end to CCR's efforts to destroy any records that the government retained under the TSP.  Indeed, it puts an end to efforts to determine whether the government even retained any such records at all.

SDS 

June 10, 2013 in Cases and Case Materials, Executive Authority, Fourth Amendment, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Thursday, June 6, 2013

NSA Collecting Phone Records

The National Security Agency is collecting telephone metadata of U.S. customers of Verizon, first reported The Guardian.  The NSA sweeping effort appears to have been in place for years, but The Guardian first published a top secret Foreign Intelligence Surveillance Court order just last night.  The remarkably short order, issued pursuant to a provision in the PATRIOT Act, 50 U.S.C. Sec. 1861, directs the telecommunications company to turn over "telephony metadata" on communications between its subscribers in the United States and abroad and wholly within the United States.  ("Metadata" includes identifying information like the originating and terminating phone numbers, and the time and duration of calls.  It does not include the substantive content of the communication or the name, address, or financial information of a subscriber or customer.)

The order also prohibits any person from disclosing that the FBI or NSA sought or obtained any information under the order.

The White House defended the efforts, while reactions on Capitol Hill were mixed.  There's a ton of reporting and commentary; here are some links:

SDS

June 6, 2013 in Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 28, 2013

White House Reacts to Republican Obstruction of Judicial Nominations

President Obama plans to simultaneously nominate three judges to the D.C. Circuit, reports the NYT and HuffPo.  The nominations would fill the three remaining vacancies on the 11-member court.  The reports come the week after the Senate voted 97-0 to approve the President's nomination of Deputy SG Sri Srinivasan--nearly a year after his nomination.  

The move is part of a strategy by Senate Democrats to highlight obstruction of judicial nominees by Senate Republicans.  Democrats hope that by putting up three nominations at once, Republicans will be less likely to foot-drag (because foot-dragging on three nominations, and not just one, would highlight Republicans' obstruction).  

Senate Republicans have reacted, calling the this an effort to "stack the court" (Senator McConnell's words).  According to the NYT, Senate Republicans are considering a proposal to eliminate the three empty seats on the court and move two of them to other circuits.

The measure, S. 699, sponsored by Senator Grassley, would eliminate the three seats from the D.C. Circuit, add one seat to the Second Circuit, and add one seat to the Eleventh Circuit.  If it could ever get out of the Senate, it would surely meet a veto.  

The NYT reports that some Democrats think that Republican overreaching on these nominations could bring enough public pressure to change Senate rules to prohibit filibusters on judicial nominations.

SDS

May 28, 2013 in Appointment and Removal Powers, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Thursday, May 23, 2013

President Obama on Drones, Guantanamo

President Obama spoke out today on his administration's use of drone attacks and argued (again) for closing the detention facility at Guantanamo Bay in a speech that looked to wind down the war on terror.  Politico reports here.

President Obama's speech came the same day as the administration released a "fact sheet" on U.S. policy standards and procedures for drone strikes and other hostile actions against terrorist suspects outside the United States and areas of active hostilities.  According to the document, there's a preference for capture (and other reasonable alternatives) over killing, but still the document sets out standards for the use of lethal force:

First, there must be a legal basis for using lethal force, whether it is against a senior operational leader of a terrorist organization or the forces that organization is using or intends to use to conduct terrorist attacks.

Second, the United States will use lethal force only against a target that poses a continuing, imminent threat to U.S. persons.  It is simply not the case that all terrorists pose a continuing, imminent threat to U.S. persons; if a terrorist does not pose such a threat, the United States will not use lethal force.

Third, the following criteria must be met before lethal action may be taken:

1. Near certainty that the terrorist target is present;

2. Near certainty that non-combatants will not be injured or killed;

3. An assessment that capture is not feasible at the time of the operation;

4. An assessment that the relevant governmental authorities in the country where action is contemplated cannot or will not effectively address the threat to U.S. persons; and

5. An assessment that no other reasonable alternatives exist to effectively address the threat to the U.S. person.

Finally, whenever the United States uses force in foreign territories, international legal principles, including respect for sovereignty and the law of armed conflict, impose important constraints on the ability of the United States to act unilaterally--and on the way in which the United States can use force.  The United States respects national sovereignty and international law.

The "fact sheet" makes some changes in emphasis and language, but seems to basically leave in place the substance of the three-part test outlined earlier this year in the White Paper.  The "fact sheet" emphasizes rule-of-law principles and broad government decisionmaking and oversight over hostilities, but it does not specifically address or define "imminence" or the process by which the administration will designate a person a target.  (Recall that the White Paper looked specifically at the question when lethal force could be used against a U.S. citizen who is a senior leader of al-Qa'ida or an associated force; the "fact sheet" sweeps in a broader class of potential targets.  Recall, too, that the White Paper defined imminence rather broadly, and it counterbalanced a target's interest in life with the U.S. interest in forestalling attacks on other Americans, under Mathews v. Eldridge.)  The upshot: only time will tell whether the Fact Sheet represents a real change in the way the administration actually executes drone attacks.  

SDS

May 23, 2013 in Executive Authority, Fundamental Rights, News, Procedural Due Process, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Monday, May 20, 2013

Third Circuit Invalidates President Obama's NLRB Recess Appointment

A divided three-judge panel of the Third Circuit last week invalidated President Obama's recess appointment of Craig Becker as a member of the National Labor Relations Board.  The ruling, National Labor Relations Board v. New Vista Nursing and Rehabilitation, marks the second time a federal appeals court invalidated President Obama's "intrasession" recess appointments.  The first came earlier this year from the D.C. Circuit, in the Noel Canning case.  We posted on that case when it came down, and more recently when the government filed for cert. review at the Supreme Court.

The Third Circuit, like the D.C. Circuit before it, ruled that "the Recess of the Senate" in the Recess Appointments Clause refers only to the period between sessions of the Senate, or intersession breaks, and not breaks while the Senate is in session, or intrasession breaks.  Because President Obama appointed Becker while the Senate was holding pro forma sessions every three or four days--during intrasession breaks--the court said that Becker's appointment was invalid.  And because Becker's appointment was invalid, the NLRB lacked a quorum to issue a bargaining order to a New Jersey nursing facility that was at the center of the dispute.

Judge Greenaway, Jr., wrote a lengthy dissent, stating that "[t]he Majority's rationale undoes an appointments process that has successfully operated within our separation of powers regime for over 220 years."

As we said, the government has already filed its cert. petition in the Noel Canning case.  Now with this ruling, the Court is all but certain to take the question up and issue a final ruling on "intrasession" recess appointments.

SDS

May 20, 2013 in Appointment and Removal Powers, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0) | TrackBack (0)