Sunday, January 27, 2013
The D.C. Circuit on Friday vacated a military commission conviction of Ali Hamza Ahmad Suliman al Bahlul for material support, conspiracy, and solicitation, according to Lawfare and others. (Thanks to Lawfare for the links.) The ruling came after the government filed a supplemental brief a couple weeks ago arguing that the D.C. Circuit's ruling in Hamdan ("Hamdan II") compelled the court to vacate the ruling, but also disagreeing with the court's reasoning in Hamdan II. (The government made the latter point in order to preserve the argument for appeal.)
Recall that the D.C. Circuit vacated Hamdan's military commission conviction for "material support for terrorism" in October 2012. The court ruled that the Military Commissions Act of 2006, which criminalized material support, did not apply to acts before 2006, and that the government's other authority, 10 U.S.C. Sec. 821, which authorizes the government to try persons by military commission for violations of the "law of war" didn't apply, because material support wasn't a violation of international law of war.
The government argued that Hamdan II compelled the court to vacate al Bahlul's conviction, too. But it also went on to argue that the D.C. Circuit was wrong in Hamdan II, preserving that argument for appeal.
The D.C. Circuit agreed and, referencing the government's supplemental brief, on Friday issued a one-page per curiam ruling vacating al Bahlul's conviction.
Thursday, January 24, 2013
President Obama will re-nominate former Ohio AG Richard Cordray to head the Consumer Financial Protection Bureau, according to WaPo. Cordray is currently serving in that role as a recess appointee.
Recall that President Obama recess-appointed Cordray just over a year ago after Republicans made clear that they wouldn't confirm him. Republicans objected to both the CFPB and to Cordray. We posted on substantive objections here; we posted on procedural and constitutional objections here.
Cordray's nomination and another nomination expected today, former federal prosecutor Mary Jo White to head the SEC, are seen as part of the administration's drive to more tightly regulate financial markets. They promise to (again) create a stir in Congress.
Wednesday, January 23, 2013
Representative Steve Stockman (R-TX) and Senator Rand Paul (R-KY) today introduced companion bills that would overturn President Obama's series of recent orders on gun control. Politico reports here; The Hill here; and Stockman's press release is here. (Rep. Stockman, you may recall, earlier called for President Obama's impeachment over the orders.)
According to Stockman's press release, his objection is more about separation of powers than infringement on the Second Amendment, though he mentions both. As to powers, he argues that "the Constitution flatly prohibits the President from making up his own laws." Stockman's legislation, the Restore The Constitution Act, would
declare any past, present or future executive action that infringes on the powers and duties of Congress in Article I, Section 8 of the Constitution, or the Second Amendment to the Constitution or that would require the expenditure of federal funds not specifically appropriated for the purpose of executive action, is advisory only and has no force or effect unless enacted by law.
Monday, January 7, 2013
Pamela Karlan's "Democracy and Disdain" is the Forward to Harvard Law Review's annual Supreme Court issue for the 2011 Term and is a compelling - - - indeed, necessary and delightful - - - read. Karlan's central thesis, as the title aptly communicates, is that the Roberts' Court has little but disdain for the democratic process. By "Roberts' Court," of course, she means the five Justices who usually form the majority, including Roberts, Scalia, Thomas, Alito, and Kennedy.
The Roberts Court’s narrow substantive reading of enumerated powers maps fairly closely onto the contemporary conservative political agenda. To the extent that the conservative agenda gains popular acceptance, the Court may garner acclaim as a guardian of constitutional values. But if the public rejects that agenda, or remains sharply divided, the Court risks being perceived as simply another partisan institution. The Court’s current status rests in substantial measure on its having been on the right side of history in Brown v. Board of Education. Only time will tell whether the Court will retain that status given the choices the Roberts Court is making.
Karlan is adept at comparing the present Court to previous ones, not only including the Warren Court. Spoiler alert: When she quotes Justice Roberts, she might not be quoting the 2012 John Roberts but the 1936 Owen Roberts, a device she uses to especially good effect. Also to good effect is her usage of other justices, colloquies in oral argument, the occasional poet, and theorist. The writing is broad and engaging without being precious. It makes her analysis of the cases even more trenchant, situated in larger themes and trends.
Of course, not all ConLawProfs will agree with Karlan's views of the Court, including one subsection entitled "Protecting Spenders and Suspecting Voters," and another "Suspecting Congress." And Karlan's argument is hardly unique, as anyone who recalls Rehnquist Court scholarship, including the excellent 2001 article "Dissing Congress," by Ruth Colker and James J. Brudney can attest. And it is especially noteworthy that the Court did uphold the constitutionality of the Affordable Care Act in National Federation of Independent Business v. Sebelius, a case that Karlan extensively discusses and more interestingly, situates within the Term's other less notable decisions.
But this is a must read article before beginning the new semester.
[image of Pamela Karlan via]
January 7, 2013 in Courts and Judging, Due Process (Substantive), Elections and Voting, Fifteenth Amendment, First Amendment, Fourteenth Amendment, History, Interpretation, Race, Recent Cases, Reconstruction Era Amendments, Scholarship, Separation of Powers, Supremacy Clause, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Friday, January 4, 2013
President Obama signed the National Defense Authorization Act for FY 2013 this week and, just as he did on last year's NDAA, issued a signing statement objecting to several provisions on separation-of-powers grounds. In characteristic language, the President said that he will implement those provisions "to avoid a constitutional conflict." This means, largely, that the administration will ignore them. But it's unlikely that the administration will act contrary to all of them.
Perhaps the most notable provisions restrict the President's use of funds to transfer detainees out of Guantanamo Bay--either to the U.S. for criminal trials in regular Article III courts, or to other countries--or to house detainees in the U.S. Last year's NDAA also contained similar restrictions. These provisions--Sections 1022, 1027, and 1028--are designed to prevent the President from closing Guantanamo and detaining suspected terrorists in the United States; they effectively foiled the President's plans last year to close Guantanamo.
But another provision, Section 1025, new this year, similarly restricts the President's use of funds to transfer detainees out of the detention facility in Parwan, Afghanistan. The President wrote,
That facility is located within the territory of a foreign sovereign in the midst of an armed conflict. Decisions regarding the disposition of detainees captured on foreign battlefields have traditionally been based upon the judgment of experienced military commanders and national security professionals without unwarranted interference by Members of Congress. Section 1025 threatens to upend that tradition, and could interfere with my ability as Commander in Chief to make time-sensitive determinations about the appropriate disposition of detainees in an active area of hostilities.
The President also objected to provisions interfering with his authority to conduct foreign relations and supervise the executive branch. As to the latter, Sections 827 and 828 enhance whistleblower protection for executive branch contractors. The President wrote, "I will interpret those sections consistent with my authority to direct the heads of executive departments to supervise, control, and correct employees' communications with Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential."
Section 1034 requires the President to "transmit to the congressional defense committees a report by the Commander of the United States Strategic Command, without change, detailing whether the recommended reduction would create a strategic imbalance or degrade deterrence and extended deterrence between the total number of nuclear weapons of the United States and the total number of nuclear weapons of the Russian Federation." President Obama wrote, "section 1034 would require a subordinate to submit materials directly to the Congress without change, and thereby obstructs the traditional chain of command."
Monday, December 31, 2012
The Seventh Circuit ruled last week in Richards v. NLRB that the petitioners lacked standing to challenge President Obama's 2012 recess appointments to the NLRB. The ruling means that this challenge to the recess appointments is dismissed. We posted on another challenge, in the D.C. District, with links to other posts on those recess appointments, here.
The Seventh Circuit case arose out of a dispute over unions' rule that required non-union employees to file an annual objection to opt out of paying dues for the unions' non-collective-bargaining activities. (Non-union members that are part of a union's collective bargaining unit can be charged dues for a union's collective bargaining, but they cannot be required to pay dues for non-collective-bargaining activities, like political activities.) Non-members filed unfair labor practice charges against the unions, arguing that the annual renewal requirement violated the unions' duty of fair representation by placing an undue burden on objectors. They sought an order striking the policies and a refund for non-members who at one time objected but failed to renew their objections. The petitioners did not seek a refund for themselves, because they renewed their objections every year.
The NLRB granted the order striking the annual renewal requirement, but denied the refund for other non-members.
While the case was pending at the NLRB (on the petitioners' motion for reconsideration), on January 4, 2012, President Obama made three recess appointments to the Board, without which the Board would have lacked a quorum. The NLRB later denied the petitioners' motion for reconsideration.
The petitioners argued that President Obama's appointments were invalid, and therefore that the NLRB's action on reconsideration was invalid. They said that the Recess Appointments Clause allowed the President to make recess appointments only during intersessions of Congress (any recess between the two annual sessions of Congress, generally starting in December and ending on January 3, when the next session starts), not intrasessions of Congress (any recess during an annual session of Congress). They also said that the Senate didn't consider itself in recess when President Obama made the appointments. (It was in pro forma sessions.)
The Seventh Circuit dismissed the case for lack of standing and didn't reach the merits. The court ruled that the plaintiffs already got all the relief they asked for and all they qualified for--that they suffered no injuries from NLRB decisions that could be remedied on appeal. In particular, the court said that the NLRB already struck the annual renewal requirement, and that the petitioners didn't qualify for a refund because they renewed their objections annually and didn't pay the non-collective-bargaining assessment.
The court also ruled that the plaintiffs didn't have standing to seek postage fees they paid for their annual objection renewals, because they didn't raise this claim at the NLRB.
December 31, 2012 in Appointment and Removal Powers, Cases and Case Materials, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, Standing | Permalink | Comments (0) | TrackBack (0)
Sunday, December 23, 2012
Judge Emmet G. Sullivan (D.D.C.) on Friday dismissed Common Cause v. Biden, the legal challenge to the Senate's filibuster rule. Recall that Judge Sullivan heard oral arguments in the case earlier this month, and that standing was front and center. it wasn't surprising then that Judge Sullivan's ruling on Friday turned on standing, and on separation of powers.
The ruling ends the case, unless and until the plaintiffs appeal. It seems unlikely that the D.C. Circuit would rule differently. In any event, if the Senate Democrats succeed in reforming the filibuster at the beginning of the next Congress, the case may become moot.
Judge Sullivan ruled that the plaintiffs lacked standing. As to the House members: he wrote that he was "not persuaded that their alleged injury--vote nullifcation--falls into a narrow exception enunciated by the Supreme Court in Raines v. Byrd." Op. at 2. As to the other plaintiffs: they failed to "demonstrate that this Court can do anything to remedy the alleged harm they have suffered: the inability to take advantage of the opportunity to benefit from proposed legislation [the DREAM Act] that was never debated, let alone enacted." Op. at 2.
On separation of powers, Judge Sullivan said that Article I reserves to each House the power to determine its own rules, and there's nothing in the Constitution constraining the Senate from allowing debate to continue absent a super-majority vote. "[A]bsent a rule's violation of an express constraint in the Constitution or an individual's fundamental rights, the internal proceedings of the Legislative Branch are beyond the jurisdiction of this Court." Op. at 3.
December 23, 2012 in Cases and Case Materials, Congressional Authority, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Political Question Doctrine, Separation of Powers, Standing | Permalink | Comments (0) | TrackBack (0)
Monday, December 17, 2012
The government late last week moved to dismiss Al-Aulaqi v. Panetta, the case for civil damages brought by family members of those killed in the government's targeted killing of Anwar al-Aulaqi. We covered the complaint here; the ACLU, which represents the plaintiffs, has a case page here.
The government's motion isn't a surprise. It raises all the expected separation-of-powers arguments, plus a couple others. As the motion notes, the tide of recent circuit rulings is behind it--at least insofar as several circuits have dismissed similar torture cases against high-level government officials because they raised "special factors" under a Bivens analysis. That seems the likely result here, too.
This excerpt from the introduction pretty well summarizes the government's position:
But courts have recognized that the political branches, with few exceptions, have both the responsibility for--and the oversight of--the defense of the Nation and the conduct of armed conflict abroad. The Judiciary rarely interferes in such arenas. In this case, Plaintiffs ask this Court to take the extraordinary step of substituting its own judgment for that of the Executive. They further ask this Court to create a novel damages remedy, despite the fact that--based on Plaintiffs' own complaint--their claims are rife with separation-of-powers, national defense, military, intelligence, and diplomatic concerns. Judicial restraint is particularly appropriate here, where Plaintiffs seek non-statutory damages from the personal resources of some of the highest officials in the U.S. defense and intelligence communities. Under these weighty circumstances, this Court should follow the well-trodden path the Judiciary--and particularly the D.C. Circuit--have taken in the past and should leave the issues raised by this case to the political branches.
Memo at 1.
More particularly, the government argues that the political question doctrine bars the court from hearing this case; that "special factors" counsel against a judicial remedy under Bivens; and that the defendants enjoy qualified immunity.
The government also argues that the plaintiffs failed to plead that they had capacity to sue as representatives of the killed. Under Federal Rule of Civil Procedure 17(b), the plaintiffs can act as representatives of an estate only if the law of the jurisdiction where the court sits allows. Here, the government says that they didn't comply with the requirements of D.C. law.
Finally the government claims that the plaintiffs' bill of attainder claim fails, because the Bill of Attainder Clause doesn't apply to executive actions (it only applies to bills).
Circuits that have ruled on government actor liability for torture have announced the courts closed for this kind of case. If this recent history is any guide, this case, too, will have a hard time getting off the ground.
December 17, 2012 in Cases and Case Materials, Courts and Judging, Fundamental Rights, Jurisdiction of Federal Courts, News, Political Question Doctrine, Separation of Powers | Permalink | Comments (0) | TrackBack (0)
Sunday, December 16, 2012
Justice Ginsburg on Friday declined to reinstate a permanent injunction against the government's detention authority in the National Defense Authorization Act. The ruling means that the NDAA's authorization for detention stays on the books pending appeal of the case, Hedges v. Obama, to the Second Circuit.
We covered the district court case and ruling here.
Recall that the plaintiffs in Hedges, a group of writers, journalists, and activists, sued the government, arguing that Section 1021 of the NDAA violated the First Amendment. That Section provides:
(a) In General. Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the [AUMF] includes the authority of the Armed Force of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.
(b) Covered Persons. A covered person under this section is any person as follows
. . .
(2) A person who was part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.
(c) Disposition Under the Law of War. The disposition of a person under the law of war as described under subsection (a) may include the following:
(1) Detention under the law of war without trial until the end of hostilities authorized by the [AUMF].
. . .
(d) Construction. Nothing in this section is intended to limit or expand the authority of the President or the scope of the [AUMF].
We covered the NDAA here.
The plaintiffs argued that the language was pliable and vague enough that the government could use Section 1021(b)(2) to detain them as "covered persons" based on their communications with certain individuals overseas.
Judge Katherine B. Forrest (SDNY) agreed and issued a permenant injunction this past September. But the Second Circuit stayed that injunction in October and ordered expedited review.
On Friday, Justice Ginsburg denied the plaintiffs' request to vacate the Second Circuit stay. She cited her own previous denial of an application to vacate a stay in Doe v. Gonzales, a case challenging the FBI's authority to collect electronic communications for use in anti-terrorism investigations under the PATRIOT Act. Just like Judge Forrest here, the district court in Doe ruled that portion of the PATRIOT Act unconstitutional; and just like the Second Circuit here, the Second Circuit stayed that ruling and ordered an expedited appeal.
Thus it's a mistake to read Justice Ginsburg's denial as a ruling on the merits. Instead, she appears to be letting the case run its course at the Second Circuit. She said as much, writing, "Respect for the assessment of the Court of Appeals is especially warranted when that court is proceeding to adjudication on the merits with due expedition."
Monday, December 3, 2012
The Fourth Circuit upheld a federal statute requring challenges to Transportation Security Administration orders, including TSA airport checkpoint screening procedures (body scans, patdowns), to be filed in in the first instance in a federal appeals court.
The plaintiffs in Blitz v. Napolitano challenged the jurisdictional requirement, 49 U.S.C. Sec. 46110, as violating due process and separation-of-powers principles--arguing that the requirement prevented them from developing a factual record in district court. The Fourth Circuit rejected those claims and upheld the statute.
The court wrote that a circuit court, faced with a Section 46110 challenge, could remand the case for factual development, if necessary. Moreover,
There is nothing unique in Congress's adoption of Section 46110, thereby vesting judicial review of orders of the TSA Administrator in an appropriate court of appeals. Indeed, agency decisions are commonly subject to such jurisdiction-channeling provisions, and final agency actions are generally reviewed in the courts of appeals.
Op. at 14-15.
The ruling is consistent with rulings in the D.C. and Eleventh Circuits.
Friday, November 9, 2012
The en banc Seventh Circuit this week ruled in Vance v. Rumsfeld that two American military contractors had no cause of action against former Defense Secretary Donald Rumsfeld for torture. The ruling was expected: the court previously vacated the three-judge panel ruling allowing the case to move forward; oral arguments suggested that the full court was hostile to the plaintiffs' claims; and the ruling aligns with similar (but distinguishable and less sweeping) rulings in the Fourth and D.C. Circuits. We posted last on the case, with links to an earlier post, here.
The ruling ends the plaintiffs' case and effectively creates absolute immunity against such claims for military personnel and their civilian commanders--at least in the Seventh Circuit. Given similar rulings in the Fourth and D.C. Circuits--and no circuit going the other way--the case almost surely will not attract the attention of the Supreme Court. (Even if the Court took it up, it would almost certainly affirm the Seventh Circuit's ruling, given its trend with Bivens actions.) The case also extended the no-supervisory-liability rule for Bivens claims (affirmed in Iqbal), holding that Secretary Rumsfeld's alleged authorization of torture, even if true, was simply too attenuated from the actions of those who actually tortured the plaintiffs.
The case involved two American military contractors who claimed that they were detained and tortured by military authorities in Iraq. They sued Secretary Rumsfeld under Bivens based on his alleged authorization of torture techniques.
The en banc Seventh Circuit reversed a three-judge panel and held that Bivens did not offer a remedy to the plaintiffs. Chief Judge Easterbrook, writing for the court, set the tone early in his opinion, expressing hostility to "creating new Bivens claims":
[The Supreme Court] has not created another [Bivens] remedy during the last 32 years--though it has reversed more than a dozen appellate decisions that had created new actions for damages. Whatever presumption in favor of a Bivens-like remedy may once have existed has long since been abrogated. The Supreme Court never created or even favorably mentioned the possibility of a non-statutory right of action for damages against military personnel, and it has twice held that it would be inappropriate to create such a claim for damges. The Court has never created or even favorably mentioned a non-statutory right of action for damages on account of conduct that occurred outside the borders of the United States. Yet plaintiffs propose a novel damages remedy against military personnel who acted in a foreign nation--and in a combat zone, no less.
Op. at 9. Chief Judge Easterbrook wrote that "special factors" counseled against a Bivens remedy, in particular the courts' relative inability to assess the merits of military policies and decisions. Chief Judge Easterbrook also mentioned that Congress declined to create a statutory remedy, suggesting that it didn't want plaintiffs suing military personnel or their superiors, and that Congress created two administrative paths to remedies but that the plaintiffs did not pursue them. "But Congress has not authorized awards of damages against soldiers and their superiors, and creating a right of action in common-law fashion would intrude inapropriately into the military command structure." Op. at 17.
Note that the ruling (Part III) extends to "soldiers and their superiors," even though this case was only against Secretary Rumsfeld.
Chief Judge Easterbrook also wrote that Secretary Rumsfeld's authorization of torture was too attenuated from the actions of those who actually tortured the plaintiffs to survive the no-supervisor-liability rule for Bivens claims. The plaintiffs sought to navigate this rule by alleging that Secretary Rumsfeld personally authorized torture--i.e., that he wasn't vicariously liable, but was rather directly responsible. But Chief Judge Easterbrook wrote that Iqbal requires that a defendant "wants the unconstitutional or illegal conduct to occur." Op. at 19. That, he said, the plaintiffs did not allege.
Judge Wood concurred in the judgment only but wrote separately to emphasize that the alleged actions were torture, and could not hide behind the euphamism of enhanced interrogation techniques. Judge Wood also disagreed with the majority insofar as its opinion (Part III) would insulate military personnel (and not merely the Secretary of Defense) from Bivens liability.
Judges Hamilton, Rovner, and Williams all wrote a separate dissent and all joined each others' dissents, emphasizing different points. Judge Hamilton pointed out that the ruling gives more rights to aliens (under the Torture Victim Protection Act) than U.S. citizens and explained in great detail why U.S. law, in fact, assumes that the plaintiffs should have had a Bivens claim. Judge Rovner argued that the plaintiffs pleaded sufficiently specific facts related to Secretary Rumsfeld's direct responsibility to survive the pleading standards set in Iqbal and Twombley. And Judge Williams emphasized the remarkable scope of the majority's opinion. "No case from our highest court or our sister circuits has approached such a sweeping conclusion." Op. at 73.
November 9, 2012 in Cases and Case Materials, Courts and Judging, Fundamental Rights, Jurisdiction of Federal Courts, News, Opinion Analysis, Recent Cases, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)
Wednesday, October 17, 2012
Earlier this week the Justice Department filed its motion to dismiss and supporting memorandum in Committee on Oversight and Government Reform v. Holder. The motion was expected, and the arguments are not a surprise.
Recall that the Committee brought the case seeking a declaration that the administration's assertion of executive privilege was without merit and that its failure to turn over certain documents to the Committee in its investigation of the "Fast and Furious" program was without justification. The Committee seeks an order requiring the government to turn over these documents.
Recall also that since the Committee filed its suit, the DOJ Inspector General issued its report into the program and testified before Congress on it.
DOJ argues that the court lacks Article III jurisdiction because the case presents a political question and that separation-of-powers principles counsel against the case moving forward. In short, DOJ says that the political branches should work this out. According to the Department, this is especially so with regard to material on internal deliberations regarding the Department's responses to congressional inquiries for substantive material on the program.
DOJ also argued that the court lacks subject matter jurisdiction and that the Committee has no cause of action. It says that the Committee brought the case under 28 U.S.C. Sec. 1331, but that given the history of that provision and 28 U.S.C. Sec. 1365, the court lacks jurisdiction. In particular, DOJ argues that Congress enacted 1365, giving the court jurisdiction over Senate subpoena enforcement actions, after Congress was foiled by the old amount-in-controversy in 1331. (Congress asserted no claim for monetary damages in that case.) Congress later removed the amount-in-controversy requirement, but DOJ argues that 1365, with its careful language limiting jurisdiction to cases brought by the Senate (not the House), trumps. (Otherwise 1365 would be a nullity.) If so, the court lacks jurisdiction over the House Committee's suit. Morever, DOJ says that the Committee has no cause of action, because the Declaratory Judgment Act contains no independent cause of action (contrary to the D.C. District court's own relatively recent prior ruling in Miers) and because the Constitution grants no independent cause of action.
Now we wait for the Committee's response.
October 17, 2012 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Executive Privilege, Jurisdiction of Federal Courts, News, Political Question Doctrine, Separation of Powers | Permalink | Comments (0) | TrackBack (0)
Tuesday, October 16, 2012
A unanimous three-judge panel of the D.C. Circuit today in Hamdan v. U.S. reversed the judgment of the Court of Military Commission Review and directed that Salim Ahmed Hamdan's conviction for "material support for terrorism" be vacated. The ruling clears Hamdan, who already served time (66 months minus credit for time already served at Guantanamo) and has been released, of this conviction.
Hamdan here is the same Hamdan who successfully challenged the government's authority to try him by military commission in Hamdan v. Rumsfeld. After Congress passed the Military Commissions Act of 2006 and expanded the list of crimes for which a person could be tried by military commission, the government re-charged Hamdan with conspiracy and material support for terrorism. Hamdan was acquitted of conspiracy, but convicted of five specifications of material support for terrorism. He was sentenced to 66 months, but credited for served for most of that sentence, and released in Yemen in 2008.
The D.C. Circuit ruled that Hamdan's case was not moot (even though he already served time and was released in 2008 in Yemen) and that the MCA, which specifically made "material support for terrorism" a crime triable in a military commission, did not apply (in order to avoid ex post facto problems). This left the court to determine whether the government had authority to try Hamdan for "material support for terrorism" under 10 U.S.C. Sec. 821, which authorizes the government to try persons by military commission for violations of the "law of war."
In short, the court ruled that the international law of war at the time did not proscribe "material support for terrorism" and that the government therefore lacked authority to try Hamdan for that crime by military commission. The court wrote that
neither the major conventions on the law of war nor prominent modern international tribunals nor leading international-law experts have identified material support for terrorism as a war crime. Perhaps most telling, before this case, no person has ever been tried by an international-law war crimes tribunal for material support of terrorism.
Op. at 25. The court said that international law leaves "material support for terrorism" to domestic law (even if international law does establish some other forms of terrorism as war crimes), and domestic law didn't outlaw it until the 2006 MCA--after Hamdan's actions.
Judge Ginsburg joined the court's opinion but wrote separately to "explain the unfortunate state of . . . precedent" that saved the case from mootness.
Only Judge Kavanaugh, the author of the court's opinion, joined footnote 6, which explained why Congress had authority to make "material support for terrorism" a war crime, and why it is appropriate to address that question in the first place. Judge Kavanaugh wrote that Congress's war powers are not confined by international law, and therefore even if international law did not define "material support for terrorism" as a war crime, Congress could.
October 16, 2012 in Cases and Case Materials, Congressional Authority, Courts and Judging, Jurisdiction of Federal Courts, Mootness, News, Opinion Analysis, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)
Friday, August 31, 2012
Attorney General Eric Holder announced yesterday that the Justice Department will not pursue criminal charges in the two cases--the only two, and the last two--that it investigated involving torture of detainees in U.S. custody. The announcement means that no U.S. official, employee, or service member will face criminal charges for torture.
This announcement, along with the courts' now widely adopted view that civil suits for torture are barred by either the state secrets privilege or by "special factors" counseling against such suits (under Bivens), means that no U.S. official, employee, or service member is likely to face any judicial accountability for torture.
Recall that the Justice Department in 2009 tasked Assistant U.S. Attorney John Durham of the District of Connecticut with an expanded investigation into whether federal laws were violated in connection with the interrogations of specific detainees at overseas locations. But AG Holder said that the Department wouldn't prosecute anyone who acted in good faith and within the scope of legal guidance by the OLC. In June 2011, Durham recommended opening full criminal investigations into only two cases. The announcement today means that those investigations are now closed--without prosecutions.
Monday, August 27, 2012
The Alabama Supreme Court ruled in Ex Parte Bentley that the state constitution prohibited a common benefit litigant--one who successfully challenged the constitutionality of a permanent legislative committee--from collecting attorneys' fees and costs.
The case is the latest chapter in the McInnish litigation, involving a permanent state legislative committee designed to dole out community service grants. McInnish sued in the earlier case, arguing that the committee violated state constitutional separation of powers. McInnish claimed that the legislative committee, which received funds from a regular legislative appropriation, encroached on executive powers by deciding on particular grants to award and then awarding them.
The Alabama Supreme Court agreed. In McInnish v. Riley the court ruled that the legislative committee engaged in a quintessentially executive power by paying out the grants. It cited the state constitutional separation-of-powers provision, Section 43:
In the government of this state, except in the instances in this Constitution hereinafter expressly directed or permitted, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws and not of men.
In Ex Parte Bentley, the court ruled that McInnish couldn't collect attorneys' fees and costs under the common benefit doctrine, based on the state sovereign immunity provision, Section 14:
That the State of Alabama shall never be made a defendant in any court of law or equity.
According to the court, this section bars any action if it seeks to recover damages or funds from the state treasury--even when a litigant sues for the common benefit.
Thursday, August 23, 2012
A group of ICE officers sued DHS Secretary Janet Napolitano today in the United States District Court for the Northern District of Texas to halt the Department's deferred action program, which defers removal of qualifying aliens. (Deferred action is simply an exercise of executive discretion not to remove certain aliens; it's the administration's way of achieving the goals of the DREAM Act without a DREAM Act.) The administration has argued that the program is a valid exercise of prosecutorial discretion. We last posted on it here, including a link to a letter by immigration and constitutional law profs arguing that the action is fully constitutional (and outlining a handful of different ways that the administration might go about it).
It's not easy to get a case like this into the courts: by definition, it's hard to identify somebody who has been harmed (and thus who has Article III standing) by a non-action by the government. The ICE officers claim that they're harmed because their bosses, through deferred action, are forcing them to violate federal law and their oaths to uphold federal law and the Constitution. It's not clear that this will be enough; and even if it is, there's this problem: If the officers here have sufficient Article III harm, then any federal officer who has even a vague constitutional disagreement with his or her bosses' policies will be able to sue to stop them. There are other preliminary problems, too, maybe most obviously the political question doctrine and related separation-of-powers considerations.
The officers state five causes of action. First, the officers claim that deferred action requires them to violate federal law that requires them to detain any alien "who is not clearly and beyond a doubt entitled to be admitted." Next, they say that deferred action confers a benefit on qualifying aliens, the deferred action itself, that is not authorized by federal law. Third, the officers argue that deferred action confers the benefit of employment authorization on qualifying aliens without any statutory basis and "under the false pretense of 'prosecutorial discretion.'" Fourth, they say that deferred action amounts to a legislative act (as evidenced by the numerous DREAM Act bills in Congress that didn't pass) and thus intrudes on the powers of Congress. Finally, they claim that deferred action violates the executive's constitutional obligation to take care that the laws are faithfully executed.
Between the preliminary problems and the inherently weak claims, it's hard to see that this case has much of a future. But maybe it's not supposed to. The complaint--signed by Kris Kobach and apparently bankrolled by NumbersUSA, a group that advocates for "lower immigration levels"--seems as much designed to get the issue out in the public as it is to get the issue into the courts.
August 23, 2012 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)
Friday, August 17, 2012
Judge Cormac J. Carney (C.D. Cal.) this week dismissed a case brought by several Muslims challenging an FBI surveillance program on the government's assertion of the state secrets privilege. (Thanks to emptywheel.net for links to the opinions below.)
The ruling, along with a companion ruling on the plaintiffs' FISA claim, terminates all but a sliver of the case. It also illustrates what a powerful weapon the state secrets privilege can be--protecting an indiscriminate surveillance program that, as described by the plaintiffs, even the judge called "disturbing." At the end of the day, Judge Carney dismissed the entire case (aside from the FISA claim, discussed below and dismissed in part on other grounds) on the government's own claim, based on a sealed declaration, that its defense would necessarily reveal state secrets.
The rulings in Fazaga v. FBI arose out of the plaintiffs' challenge to the FBI's "Operation Flex" program. According to the complaint, the FBI engaged a civilian, Craig Monteilh, to conduct indiscriminate surveillance on Muslims in Southern California. The surveillance resulted in hundreds of hours of video and thousands of hours of audio recordings from the mosques, homes, businesses, and associations of hundreds of Muslims. But it didn't result in a single criminal charge.
The plaintiffs sued the FBI and its officers under several constitutional and statutory theories, including FISA. The government moved to dismiss, arguing that its defense necessarily required disclosure of information that would harm national security--that is, state secrets--and the court agreed. Judge Carney explained:
Here, Plaintiffs' claims are predicated on their core allegation that Defendants engaged in an indiscriminate investigation, surveillance, and collection of information of Plaintiffs and the putative class because they are Muslim. . . . [T]he Court is persuaded that privileged information provides essential evidence for Defendants' full and effective defense against Plaintiffs' claims--namely, showing that Defendants' purported "dragnet" investigations were not indiscriminate schemes to target Muslims, but were properly predicated and focused. . . . [T]he Court is [also] convinced that the privileged and nonprivileged information are inextricably intertwined, such that litigating the instant case to judgment on the merits would present an unacceptable risk of disclosing state secrets.
Op. at 31, 33 (emphasis in original).
Judge Carney's ruling is thorough and thoughtful--explaining the Totten bar and the Reynolds privilege; navigating between and synthesizing recent rulings coming out of the Ninth Circuit (Jeppesen Dataplan) and the Fourth Circuit (El-Masri); reviewing the government's confidential supporting affidavit and memorandum; checking the government's assertion against the government's own standards and processes for asserting the privilege; and explaining in broad terms just what the kind of information might be disclosed in the litigation. In other words, the ruling seems modest, balanced, and reasonable.
But still there's this: Judge Carney dismissed the entire case because the government's defense would have required revealing information that would harm national security, based only on the government's own say so. The dramatic result creates a perverse incentive for the government to overreach in its surveillance programs, with the knowledge and comfort that it can successfully shut down an entire case simply by showing that any defense of it would reveal state secrets.
In the companion ruling, Judge Carney dismissed the plaintiffs' FISA claim against the government, but not the individual defendants. Judge Carney relied on the Ninth Circuit's recent ruling that FISA's civil damages provision did not unequivocally waive sovereign immunity. But Judge Carney also said that nothing in the civil damages provision stops the suit against the individual defendants. And the government didn't assert the state secrets privilege over the FISA part of the case.
As a result, the plaintiffs' FISA claim against the individual defendants appears to go on. We might expect a government assertion of the state secrets privilege over this remaining part of the case now. If so, it could face a hurdle: The Northern District of California ruled in In re Nat'l Sec. Agency Telecomms. Records Litig., 564 F. Supp. 2d 1109, 1120 (2008) that FISA preempts the state secrets privilege with respect to a FISA claim. While the court cited and discussed the case (in rehearsing the plaintiffs' argument), it's not clear that it would agree with it, or not.
August 17, 2012 in Cases and Case Materials, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, State Secrets, War Powers | Permalink | Comments (0) | TrackBack (0)
Monday, August 13, 2012
The House Committee on Oversight and Government Reform filed its anticipated complaint today in the United States District Court for the District of Columbia against Attorney General Eric Holder, seeking a declaration that AG Holder's assertion of executive privilege is without merit and that his failure to turn over certain documents to the Committee was without justification, and requiring AG Holder to turn over certain "obstruction" documents.
The complaint seeks a mere subset of the larger body of documents originally sought by the Committee--the so-called "Obstruction Component" documents, relating to DOJ's alleged obstruction of the Committee's investigation into the Fast and Furious program. (The Committee does not seek other documents covered in its earlier subpoena--the "Operations Component" documents, related to the operations of the program--although it maintains its right to seek and to receive those documents.) The Committee explains, in paragraph 62 of the complaint:
The Department's and the Attorney General's response to the Committee's investigation has been woefully inadequate in every respect. However, notwithstanding their lack of cooperation, the Committee has managed to obtain sufficient facts--principally through the aid of DOJ whistleblowers--to begin reporting to the American people on the Operations Component of its investigation. Accordingly, although the Committee has a legal and constitutional right to obtain from the Attorney General all documents responsible to the Holder Subpoena not already produced, the Committee chooses in this action to seek only a limited subset of such responsive but unproduced documents, namely, those documents that are relevant to the Obstruction Component of the Committee's investigation which the Committee cannot obtain from any other source. To that end, the Committee here seeks to compel the Attorney General to produce those documents dated or that were created after February 4, 2011, that are responsive to Categories 1, 4, 5, and 10 of the Holder Subpoena [attached to the complaint]. In the Committee's judgment, this limited subset of responsive documents--referred to herein as the "Post-February 4 Subset"--includes or constitutes the documents most likely to be relevant to the Obstruction Component of the Committee's investigation and, when produced, most likely to enable the Committee to complete its investigation.
Here's what the Committee thinks of the administration's executive privilege claim:
The principal legal issue presented here is whether the Attorney General may withhold that limited subset on the basis of "Executive privilege" where there has been no suggestion that the documents at issue implicate or otherwise involve any advice to the President, and where the Department's actions do not involve core constitutional functions of the President.
No Court has ever held that "Executive privilege" extends anywhere near as far as the Attorney General here contends that it does. Indeed, it is no exaggeration to say that the Attorney General's conception of the reach of "Executive privilege," were it to be accepted, would cripple congressional oversight of Executive branch agencies, to the very great detriment of the Nation and our constitutional structure. Accordingly, the Committee asks this Court to reject the Attorney General's assertion of "Executive privilege" and order him forthwith to comply with the Committee's subpoena, as set forth below.
Compl. at page 3.
Recall that AG Holder urged the assertion of the privilege based on "executive branch deliberative communications"--supported, AG Holder argued, by several DOJ and OLC opinions (including DOJ advice, authored by Paul Clement, in the Bush administration relating to the assertion of executive privilege in the congressional investigation on the politicization of the Justice Department). See Holder Memo at 2-3.
The privilege dispute thus centers on whether the President himself had to be part of the communications--or whether the communication had to be in relation to advice to the President--or whether the privilege applies more broadly over "executive branch deliberative communications" that did not involve the President directly.
In the D.C. court's last foray into this and similar issues, in a similar case involving above-mentioned congressional investigations into the politicization of the Justice Department, Committee on the Judiciary v. Miers, Judge John D. Bates ruled that the Committee jumped the several significant hurdles to get the case into court and that White House Counsel Harriet Miers did not have absolute immunity from testifying before Congress. (The case was stayed pending appeal and resolved itself by agreement of the parties in January 2009.)
But while Judge Bates's opinion dealt at length with (and ultimately rejected) the defendants' claimed barriers to the Committee's suit, it did not resolve the executive privilege issues presented in this case.
Miers may provide useful guidance, though, for a more pragmatic reasons: The D.C. Circuit in that case declined to put the appeal on the fast track, suggesting that the case could become moot when the 110th Congress, along with its subpoenas, expired.
This case, like that one, will not reach final judicial resolution (and maybe even not a district court ruling) before the end of the current Congress. The case could fizzle out--that is, moot out, because the subpoena will have expired with the current Congress--when the new Congress comes in . . . unless the new House reauthorizes it.
August 13, 2012 in Cases and Case Materials, Congressional Authority, Executive Authority, Executive Privilege, Jurisdiction of Federal Courts, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)
Friday, August 10, 2012
The Supreme Judicial Court of Massachusetts in In the Matter of the Enforcement of a Subpoena formally recognized a judicial deliberative privilege rooted, in part, in state constitutional judicial independence and separation of powers.
The move simply puts a formal judicial stamp of approval on a privilege already recognized in other states and the federal system, and supported by Massachusetts common law. As the court said, "Such a privilege is deeply rooted in our common-law and constitutional jurisprudence and in the precedents of the United States Supreme Court and the courts of our sister States."
The court said the privilege applied to quash a subpoena issued by the Massachusets Commission on Judicial Conduct in relation to an investigation of allegations of bias against a Massachusetts judge. But the court also said that the Commission might issue a better tailored subpoena that would survive a motion to quash based on the privilege.
The court rooted the privilege in part on two state constitutional provisions, both requiring, in different ways, an independent and impartial judiciary. The first, Article 29 of the Massachusetts Declaration of Rights, reads:
It is essential to the preservation of the rights of every individual, his life, liberty, property, and character, that there be an impartial interpretation of the laws, and administration of justice. It is the right of every citizen to be tried by judges as free, impartial and independent as the lot of humanity will admit. It is, therefore, not only the best policy, but for the security of the right of the people, and of every citizen, that the judges of the supreme judicial court should hold their offices as long as they behave themselves well; and that they should have honorable salaries ascertained and established by standing laws.
The second, Article 30 of the Declaration of Rights, referenced in a footnote in the opinion, reads:
In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end it may be a government of laws and not of men.
(Article 30 is part of Madison's survey of state separation-of-powers provisions in Federalist 47. Madison writes that Article 30 "corresponds precisely with the [strict separation of powers] doctrine of Montesquieu," but also that "[i]n the very Constitution to which it is prefixed, a partial mixture of powers has been admitted.")
The court said in the footnote that "[t]he circumstances of this case raise these very [separation-of-powers] concerns," because the complaint against the judge was initiated by an executive branch official (even though the Commission itself is formally a judicial body).
Wednesday, August 8, 2012
In the latest and perhaps last chapter of the Al-Haramain case, the Ninth Circuit ruled that the government did not unequivocally waive sovereign immunity through the Foreign Intelligence Surveillance Act civil liability provision, ending the plaintiffs' case challenging the government's terrorist surveillance program.
As the court said, "[t]his case effectively brings to an end the plaintiffs' ongoing attempts to hold the Executive Branch responsible for intercepting telephone conversations without judicial authorization." Op. at 8784.
Recall that the plaintiffs sued under the FISA's civil liability provision for damages resulting from the government's surveillance of them through the TSP. Most recently, the district court ruled that the state secrets privilege did not foreclose the plaintiffs' suit--that "FISA preempts or displaces the state secrets privilege . . . in cases within the reach of its provisions"--and that the government implicitly waived sovereign immunity through FISA. The district court ruling would have allowed the case to move forward.
But the Ninth Circuit stopped it. The court ruled that the government did not unequivocally waive sovereign immunity through the FISA civil damages provision, and therefore the plaintiffs could not sue for damages from the government.
The FISA civil damages provision, 50 U.S.C. Sec. 1810, reads,
An aggrieved person . . . who has been subjected to an electronic surveillance or about whom information obtained by electronic surveillance of such person has been disclosed or used in violation of section 1809 of this title shall have a cause of action against any person who committed such violation . . . .
For the court, the key missing phrase was "the United States" (as in "against the United States" or "the United States shall be liable")--a mainstay of statutes in which the government unequivocally waived sovereign immunity. Without such an unequivocal waiver, the government cannot be sued for damages.
Even with the government off the hook, though, the plaintiffs still could have proceeded against FBI Director Mueller, another defendant in the action (and a "person" under 50 U.S.C. Sec. 1810). But the court said that the plaintiffs "never vigorously pursued its claim against Mueller" and dismissed it. Op. at 8797.
The case almost certainly puts an end to the plaintiffs' litigation efforts to hold the government responsible for the TSP.
August 8, 2012 in Cases and Case Materials, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, State Secrets, War Powers | Permalink | Comments (1) | TrackBack (0)