Constitutional Law Prof Blog

Obama as Bush 2.0 on the National Security Constitution

The Obama administration has embraced some of the most dangerous and expansive national security positions of the Bush administration and threatens to set a new baseline for presidential authority, according to a report just released by the ACLU.  The report, Establishing a New Normal: National Security, Civil Liberties, and Human Rights Under the Obama Administration, argues that the Obama administration's significant progress in certain areas related to national security are more than offset by the administration's backtracking to the Bush administration positions.  From the Introduction:

But in the eighteen months since [President Obama issued a series of executive orders repudiating the Bush policies on torture, interrogation, secret detention, and Guantanamo Bay], the administration's record on issues related to civil liberties and national security has been, at best, mixed.  Indeed, on a range of issues including accountability for torture, detention of terrorism suspects, and use of lethal force against civilians, there is a very real danger that the Obama administration will enshrine permanently within the law policies and practices that were widely considered extreme and unlawful during the Bush administration.  There is a real danger, in other words, that the Obama administration will preside over the creation of a "new normal."

The report examines administration policies on government transparency and release of information, accountability of government officials for torture, indefinite executive detention, targeted killings, military commissions, and government surveillance.

This is a good read and an important part of the continuing conversation about administration national security policies.  We routinely cover these issues--just check out our posts under the War Powers tag--and have similarly concluded that the Obama administration has adopted some of the Bush administration's constitutional positions on presidential authority and national security.  (I also make the argument on the Obama administration's use of the state secrets privilege here.)

But the report's conclusion that the administration "will enshrine permanently within the law" certain policies and practices is perhaps overly dire.  For example, some of President Obama's positions have received push-back from Congress; and President Obama has repeatedly signaled that Congress matters--that he will respect Congress in acting under the national security constitution.  Unlike President Bush, President Obama has relied only sparsely on inherent executive authority under Article II, instead looking first to congressional authorization for his actions.  His consistent reliance on the AUMF before any inherent Article II authority is a good example.

Moreover, some of the Obama administration's positions have received push-back from the courts.  Most recently, federal courts have rejected the administration's more outlandish positions in Guantanamo habeas cases.  (The administration itself scaled back its prior expansive definition of a detainable person.)  The full Ninth Circuit now has a chance to reject the administration's extreme position on the state secrets privilege in the Jeppesen case.

Finally, the administration's actions alone simply cannot "enshrine permanently in the law" those extreme policies and positions that never reach Congress or the courts, especially for a president who claims to rely sparsely on inherent Article II authority.  In these areas the President at most establishes an executive precedent.  The practice and precedent of President Obama will be important, to be sure, in interpreting future executive authority, but this is not "enshrin[ing] permanently in the law."  (This kind of past practice doesn't bind a future executive to also adopt it.  Instead, at most, it sets an outer limit to presidential authority with reference to what President Obama did.)

But in the end, it's exactly this practice and precedent in these limited but important areas that make some of President Obama's national security positions potentially durable beyond the next two or six years.  The ACLU report thoughtfully examines these and well captures their potential durability in its apt phrase "The New Normal."

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Top Secret America

The Washington Post has launched its feature "Top Secret America."   The project consists of three days of investigative reporting articles, the first one today entitled "A hidden world, growing beyond control."   

The project also includes a searchable online database detailing private contractors and specific locations.  The Editorial explanation is worth reading; here is a bit of it:

The articles in this series and an online database at topsecretamerica.com depict the scope and complexity of the government's national security program through interactive maps and other graphics. Every data point on the Web site is substantiated by at least two public records.

Because of the nature of this project, we allowed government officials to see the Web site several months ago and asked them to tell us of any specific concerns. They offered none at that time. As the project evolved, we shared the Web site's revised capabilities. Again, we asked for specific concerns. One government body objected to certain data points on the site and explained why; we removed those items. Another agency objected that the entire Web site could pose a national security risk but declined to offer specific comments.

We made other public safety judgments about how much information to show on the Web site. For instance, we used the addresses of company headquarters buildings, information which, in most cases, is available on companies' own Web sites, but we limited the degree to which readers can use the zoom function on maps to pinpoint those or other locations.

The feature should be of interest to anyone working on state secrets doctrine and theory.   The extent of private involvement also implicates the state action doctrine and the problems with holding actors constitutionally accountable.  The Washington Post explanation above also implicates First Amendment concerns.

RR

Lynne Stewart

Lynne Stewart, the criminal defense and activist attorney, was re-sentenced today in New York pursuant to the Second Circuit decision, US. v. Stewart, 590 F. 3d 93 (2nd Cir. 2009) disapproving her original 28 month sentence and remanding for resentencing.  The new sentence is for a period of ten years.  Prosecutors sought fifteen to twenty years for Stewart, aged 70.

The interest of Stewart's case for ConLawProfs was expressed in an Op-Ed in LA Times:

But Stewart's plight has larger implications for us all: It is a bellwether of the increasingly stringent secrecy and security measures imposed in federal courts, particularly in terrorism trials — all part of the systemic erosion of due process that reformers expected would end with the election of Barack Obama but which has been only further institutionalized. Stewart's case has come to symbolize the increasing difficulty attorneys face in zealously advocating for politically unpopular clients — a necessary component of due process in an adversary legal system.

[Update: New York Times story here]

RR

Court Rejects Government's State Secrets Assertion in TSP Case

Judge Vaughn Walker (N.D. Cal.) today denied the government's motion for summary judgment based on its claim that the state secrets privilege prevented plaintiff al-Haramain Islamic Foundation from showing that the government's terrorist surveillance program (TSP) violated the Foreign Intelligence Surveillance Act (FISA).  (Thanks to Rebecca Beyer of the San Francisco Daily Journal for the tip.)  Judge Walker also granted the plaintiffs' motion for summary judgment and ruled the TSP program unlawful.

The case, Al-Haramain Islamic Foundation v. Obama, is the culmination of years of litigation at the district court and Ninth Circuit and incessant delay tactics and perpetual foot-dragging on the part of the government.  Among other things, the government made expansive arguments about the application of the state secrets privilege.  (I just posted my paper surveying the government's position on the state secrets privilege post 9/11 here.)  This latest ruling rejected yet two more of the government's expansive arguments on the privilege.

The plaintiffs originally filed their complaint in the case with a classified document that had been inadvertently disclosed by the Office of Foreign Assets Control as part of a production of unclassified documents related to Al-Haramain's designation as a "Specially Designated Global Terrorist" organization.  (The classified document showed that the plaintiffs were subject to surveillance.)  The government moved to dismiss the case, arguing that the very subject matter of the case was a state secret.  The Ninth Circuit rejected this expansive claim but also ruled more narrowly that the state secrets privilege protected the classified document from use in the case. 

The plaintiffs re-pleaded and included new and detailed factual claims supporting their FISA claim (but omitted the classified document, ruled protected by the state secrets privilege).  The government moved to dismiss again, this time arguing that the state secrets privilege foreclosed plaintiffs' attempt to establish their case without the classified document, and that the state secrets privilege overrides the FISA.  Both of these arguments are close cousins of the government's expansive argument that the very subject matter of the case was a state secret.

The court in its order today rejected both of these arguments.  As to foreclosure, the court ruled that nothing in the Ninth Circuit's ruling foreclosed the plaintiffs from establishing their FISA case through other evidence.  (This approach--allowing plaintiffs' suits to move forward, when possible, without privileged material--is the traditional approach to the evidentiary state secrets privilege since U.S. v. Reynolds, as I argue in my article above.)  As to override, the court held the government's position untenable: it would mean that the government could use the state secrets privilege at will to avoid FISA litigation; this was contrary to congressional intent in enacting FISA and contrary to the Ninth Circuit's interpretation of FISA in the earlier appeal.

In making these arguments, the government continued its efforts to expand the state secrets privilege into a constitutional, separation-of-powers principle (and not a mere common law privilege).  The effect of this position is exactly what Judge Walker wrote: the government could use the privilege anytime it wanted, without meaningful judicial check, to override lawsuits (like Al-Haramain's FISA suit) against it.  But the government's position, while argued in several post-9/11 cases, was accepted (so far) by only one circuit court--the Fourth Circuit in El-Masri.  The claim was rejected by a three-judge panel of the Ninth Circuit in Mohamed v. Jeppsen Dataplan, the extraordinary rendition case, but the government pressed this same expansive argument to the en banc Ninth Circuit.  No word yet on that case.

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State Secrets, UK Style

A three-judge panel of the British Court of Appeal today ordered the release of a seven-paragraph summary of U.S. intelligence information about the treatment of Binyam Mohamed, the detainee who was subject to extraordinary rendition, torture, and detention at Guantanamo under U.S. control with UK assistance.

The British Foreign Office fought for over a year to keep the paragraphs secret, asserting national security concerns--a kind of state secrets privilege--and worries that release would impact the government's relationship with U.S. intelligence agencies.

The British Court of Appeal ruled against the Foreign Office, however, in a lengthy judgment (link above) citing, among other considerations, government openness, accountability, and journalists' right to obtain information as bases for rejecting the Foreign Office's claim that release would damage national security.  The Court also recognized that Mohamed's assertions were already released in a federal court opinion in the D.C. District in December 2009 in another case.

The Court of Appeal approach is a far cry from the sweeping approach to the state secrets privilege by the Fourth Circuit in El-Masri and by the Bush and Obama administrations.  (Our state secrets posts analyzing the scope of the privilege in recent cases and in administration arguments are collected here.)  The Guardian summed it up:

Three of the country's most senior judges today shattered the age-old convention that the courts cannot question claims by the government relating to national security, whatever is done in its name, in an unprecedented ruling that is likely to cause deep anxiety among the security and intelligence agencies.

The Foreign Office elected not to appeal the ruling, because it says that the court, even while ruling against it, validated the "control principle."  That principle holds that only those who create or give intelligence--and not those who receive it--can be ordered to release it.  The Foreign Office web-site says that the court ordered the release of the summary because its substance had already been released by the D.C. District.

This overstates the role that the control principle and the D.C. District played in the decision.  In fact, the court ruling goes to great lengths to discuss values related to government openness and accountability.  The fact that the D.C. District validated some of Mohamed's claims played only one part in the court's final judgment.

But for the Fourth Circuit and for both the Bush and Obama administrations, none of these concerns plays a role.  Government openness and accountability are easily trumped by national security concerns, and prior release of the underlying information--even by the administration itself--is no bar to an assertion of the state secrets claim.  Thus the Fourth Circuit and both the Bush and Obama administrations have claimed a sweeping state secrets privilege that allows little role for the courts in judging the validity of the administration's national security claim.

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Arar Files Cert. Petition in Detention, Access, Torture Case

The Center for Constitutional Rights yesterday filed a cert. petition in the U.S. Supreme Court on behalf of Maher Arar, the Canadian citizen detained by U.S. authorities, denied access to the courts, and delivered to Syria for torture, seeking review of the Second Circuit's rejection of Arar's claims.  The CCR has an outstanding legal resource page, including media links and C-Span's coverage of the Second Circuit's en banc oral argument, here.

Arar filed his claim against a host of senior federal officials and 10 unknown federal law enforcement and immigration agents for violations of the Torture Victim Protection Act and the Fifth Amendment Due Process Clause.  The district court rejected Arar's claims; a divided three-judge panel of the Second Circuit affirmed; and the en banc Second Circuit upheld, 7-4 (with four separate and notably sharp dissents).

Arar argues four points in his cert. petition.  First, he argues that the Second Circuit's rejection of his Bivens claim for obstruction of access to the courts is contrary to laws implementing the Convention Against Torture (the "CAT") and the purpose and spirit of Bivens.  Federal law implementing the CAT prohibits sending any person to a country where he faces danger of torture, 8 U.S.C. Sec. 1231(a) and (e), and grants court of appeals jurisdiction to review constitutional and CAT claims in petitions for review of removal orders.  8 U.S.C. Secs. 1252(a)(2)(D) and (a)(4).  Arar argues that defendants in the case violated both, and that the Second Circuit's rejection of his claims allows federal officials "to escape accountability so long as they ensure that aliens in their custody cannot get to court."  (Cert. Petition at 13.)  This undermines "one of the predominant justifications for Bivens remedies[:] to deter unconstitutional conduct."  (Id.)

Arar argues next that the Second Circuit erred in weighing only those factors against recognizing a Bivens action in the case (and not those factors in favor of recognizing an action) and in holding that any reason for hesitation in recognizing a Bivens action should bar such claims.  Arar argues that this approach is inconsistent with the balancing approach in Wilkie v. Robbins (2007) ("weighing reasons for and against the creation of a new cause of action"), the Court's most recent Bivens decision, and decisions of other courts of appeals.

Third, Arar argues that the Second Circuit erred in ruling that defendants did not act "under color of law" of a foreign nation, for the purpose of the Torture Victim Protection Act, when they conspired with Syrian officials.  Arar argues that defendant's "willful participation in joint action" with Syrian officials satisfies the standard set in Dennis v. Sparks (1980) (holding that private parties who bribed a state judge to issue an injunction acted under color of state law for purposes of 42 U.S.C. Sec. 1983).

Finally, Arar argues that the Second Circuit, in affirming the dismissal because Arar couldn't name the defendants and identify their precise actions, set a pleading standard that exceeded even the heightened pleading standards in Twombly and Iqbal, because, unlike the defendant in Iqbal, the defendants here cannot give (and have not given) an "obvious alternative explanation" for the facts asserted in the complaint.

The sharply divided Second Circuit opinion, and Arar's strong arguments that the ruling runs up against well settled law, make Arar's case a good candidate for Supreme Court review.  But the trend of this Court is to curtail judicial review, not expand it.  A Court ruling in this case could well extend that trend, possibly doing even more damage to Bivens, to liberal pleading standards, and to access to the courts in cases involving the government's claimed interest in national security.  (On this last point, the other case to watch is Mohamed v. Jeppesen Dataplan, the state secrets case pending before the en banc Ninth Circuit.  The case was argued December 15, 2009; audio is here.)  

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Restricting Access to Federal Courts, in Three Parts

Two significant developments in the post-9/11 national security cases have resulted in restricted access to the federal courts: The Fourth Circuit's 2007 ruling in El-Masri v. Tenet, expanding the state secrets privilege (and two successive administrations' extraordinary state secrets claims in Mohamed v. Jeppesen Dataplan, Inc. in the Ninth Circuit); and the Supreme Court's 2008 ruling in Ashcroft v. Iqbal, heightening the pleading standard for plaintiffs in federal court.

Now in Amnesty Int'l USA v. Blair, the Second Circuit case challenging the FISA Amendments Act of 2008, or the "FAA," we may be looking at a third.

The FAA authorizes broad surveillance of certain international communications.  The plaintiffs in Amnesty--a group of civil and human rights organizations--alleged that this violated their First and Fourth Amendment rights and separation-of-powers principles.  The district court threw Amnesty out for lack of standing: The plaintiffs failed to allege that they in fact had been surveilled under the FAA, even if they alleged a "well founded fear" of surveillance and significant costs to avoid surveillance.

If the Second Circuit upholds the district court's ruling, the government could have a third new way to dismiss national security cases--lack of standing.  Here's how it might work:

1.  The plaintiffs in any national security case--extraordinary rendition (as in El-Masri, Mohamed, and Iqbal) or unconstitutional surveillance (as in Amnesty)--would have to allege a more specific harm than the harm alleged in Amnesty to avoid dismissal for lack of standing.

2.  But in order to do this, plaintiffs would need information they don't have--and can't get (without getting past a motion to dismiss and into discovery).  They would need to speculate--the problem in Iqbal, which was dismissed for lack of sufficiently pleaded facts.

3.  And in order to get around Iqbal, plaintiffs would not only need information they don't have, but also information that, by the government's reckoning in El-Masri and Mohamed, constitutes a state secret.  Even if plaintiffs could navigate standing (1.) and pleading (2.), El-Masri's version of the state secrets privilege (which is also the government's version) is a game ender.

This triple protection for the government means that plaintiffs would face nearly insurmountable obstacles to gain access to the federal courts in national security cases.  And as we've seen in the wake of Iqbal, these protections could conceivably spill over to restrict access in non-national security cases, as well.

Two pending cases are critical: The Ninth Circuit's en banc consideration of Mohamed (which was argued earlier this month); and the Second Circuit's consideration of Amnesty.  In Mohamed, the full Ninth Circuit is considering whether to uphold the three-judge panel's ruling rejecting the administration's sweeping state secrets claim.  In Amnesty, the Second Circuit is considering whether to uphold the district court's dismissal for lack of standing.  These cases will provide important signals about the future of access to the federal courts.

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Full Ninth Circuit to Review Jeppesen, State Secrets ruling

A majority of participating judges on the Ninth Circuit voted yesterday to grant en banc review to Mohamed v. Jeppesen Dataplan, the three-judge panel ruling that rejected the Bush and Obama administrations' state secrets claim.  Six judges, including Judge Bybee, did not participate.

The plaintiff in the case filed his complaint against the private company Jeppesen Dataplan for its role in his extraordinary rendition by the CIA.  The Bush administration, and then the Obama administration, intervened and moved to dismiss the entire case on the complaint, claiming that the very subject matter of the case was a state secret.  A three-judge panel of the Ninth Circuit rejected the claim, and the Obama administration sought review by the full Ninth Circuit.  (I interviewed plaintiff's attorney Ben Wizner of the ACLU here.  I posted on the administration's changes to the state secrets privilege here.)

The panel decision put the Ninth Circuit at odds with an earlier Fourth Circuit ruling on state secrets in an extraordinary rendition case against the government.  In that case, El-Masri v. United States, the Fourth Circuit endorsed a sweeping state secrets privilege, and for the first time rooted the privilege in the Constitution (Article II and separation of powers principles).  (Earlier state secrets cases went so far as to dismiss on the pleadings, but the courts have treated state secrets merely as an evidentiary privilege, not a constitutional doctrine.)  The Ninth Circuit order raises the possibility that the full Ninth Circuit will also endorse this sweeping claim. 

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Torture and Academic Freedom

The controversy over John Yoo's professorship at UC-Berkeley School of Law (Boalt Hall) continues. 

The PBS News Hour aired a segment yesterday, available as mp3 audio, streaming video and transcript here.

RR

American Constitution Society Symposium on National Security and Human Rights

The American Constitution Society last week hosted an outstanding half-day symposium titled National Security & Human Rights: Progress, Problems and Possibilities.  The link contains video and audio of the event.  Here's the description:

As the 5th anniversary of the Military Commissions Act approaches, and a few months after the 60th anniversary of the Geneva Conventions, the American Constitution Society for Law and Policy (ACS) hosted a half-day symposium on national security and human rights issues. The symposium included two panel discussions with a diverse array of experts and a keynote address by Assistant Attorney General David Kris.

The morning panel, "Justice for Detainees: A Work in Progress?" featured Deborah Pearlstein, moderator, Visiting Faculty Fellow, University of Pennsylvania Law School; Jameel Jaffer, Director, ACLU National Security Program; Richard D. Klingler, Partner, Sidley Austin LLP; Joanne Mariner, Director, Terrorism and Counterterrorism Program, Human Rights Watch; and Hope Metcalf, Lecturer and Project Director, National Litigation project of the Lowenstein International Human Rights Clinic, Yale Law School.

The keynote address was given by Assistant Attorney General for National Security David Kris. The afternoon panel, "The State Secrets Privilege: A Case for Reform?" featured David Cole, moderator, Professor of Law, Georgetown University Law Center; Amanda Frost, Associate Professor of Law, American University Washington College of Law; David Rivkin, Partner, Baker and Hostetler LLP; Co-Chair, Foundation for Defense of Democracies Center for Law and Counterterrorism; Vincent Warren, Executive Director, Center for Constitutional Rights; and Ben Wizner, Staff Attorney, ACLU National Security Program.

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The "New" State Secrets Privilege: What Changed, and What Didn't

Attorney General Eric Holder yesterday announced new policies and procedures for the administration's invocation of the state secrets privilege.  The DOJ press release is here; Holder's memo for department heads is here.  (Thanks to Walt Kendall for the heads-up.)

Recall that the Obama administration surprisingly reasserted the same sweeping state secrets privilege that the Bush administration asserted in the Ninth Circuit case challenging the former administration's extraordinary rendition program, Mohammed v. Jeppesen Dataplan, Inc. The administrations intervened in the case to move for dismissal on the pleadings, asserting that the state secrets privilege--a constitutional privilege, they argued, and not a mere evidentiary privilege--prevented the courts from entertaining the complaint.  When a three-judge panel of the Ninth Circuit ruled against the Obama administration this spring, the administration filed for en banc review.  (My interview with Mohammed's ACLU attorney Ben Wizner is here.)

The administration has asserted or reasserted this version of the privilege in about a dozen cases.  (Here's my post on one.)  Congress had its own ideas, here and here.

In the wake of all this, Holder's memo yesterday sought to rein in the government's use of the privilege.  Holder's memo establishes new internal procedures for DOJ review of administration assertions of the state secrets privilege, sets a new standard for internal review, and specifically rules out the use of the privilege in certain circumstances. 

More particularly, the memo requires the assistant AG to recommend invocation in any particular case, a review committee to approve that recommendation, and then the AG to sign off.  (This is presumably in addition to the asserting agency head sign off, under U.S. v. Reynods.)  The memo also says that the DOJ will defend an assertion only after a "sufficient showing that assertion of the privilege is necessary to protect information the unauthorized disclosure of which reasonably could be expected to cause significant harm to the national defense or foreign relations."  And the memo rules out assertions to conceal illegalities, to prevent embarrassment, to restrain competition, and to prevent delay of information that would not cause harm to national security.  Finally, the memo provides for regular reports to Congress on assertions of the privilege.

But the memo doesn't specifically back off the administration's re-assertion of the Bush administration argument that the privilege has a basis in the Constitution--that it's compelled by separation-of-powers principles and by the president's Article II authorities.  This extraordinary and novel claim, argued the Bush and Obama administrations in the Mohammed case, elevated the privilege to constitutional status and insulated it from judicial review.  Under this view, the administration alone could assert the privilege to dismiss a case on the pleadings, and the court couldn't even second guess the assertion. 

Holder's memo does not disavow this position.  If anything, it supports it.  The memo focuses on "information" dangerous to national security--and not "evidence" dangerous to national security--thus suggesting that Holder views the the privilege as something more than a mere evidentiary privilege (as in U.S. v. Reynolds).  That "something more," supported by both administrations in Mohammed, was a categorical constitutional privilege, as suggested by Totten v. United States.  The administrations have used the Totten version of the privilege as the basis for motions to dismiss on the pleadings.  (For more on this, see my postwith my interview with Ben Wizner.) 

Moreover, the memo rules out seeking full dismissal of a case "when doing so is necessary to protect against the risk of significant harm to national security."  But this should always have been the administration's standard for moving for complete dismissal of a case.

Holder's memo represents a significant change in the procedures and internal checks on the government's assertions of the state secrets privilege.  It also includes a new, meaningful oversight role for Congress.  But less clear is what, if any, substantive changes it reflects in the administrations' most sweeping position on the privilege--that it has a constitutional (and not merely evidentiary) basis.

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The "Torture Memo" Lawyers

In the NYRB article "The Torture Memos: The Case Against the Lawyers," David Cole (Georgetown) provides a brief rehearsal of the major arguments, legal authorities, and chronologies surrounding the attorneys Jay Bybee, John Yoo, Daniel Levin, and Steven Bradbury, the authors of the so-called "torture memos." 

Cole's ultimate conclusion is that the "least President Obama should do, therefore, is to appoint an independent, nonpartisan commission of distinguished citizens, along the lines of the 9/11 Commission, to investigate and assess responsibility for the United States' adoption of coercive interrogation policies." 

It's a relatively brief article intended for a general (if sophisticated) audience; it would make a great basis for a class discussion, simulation, or exercise in a law school, graduate, or undergraduate constitutional law class.

RR

The Backstory on State Secrets

The backstory of U.S. v. Reynolds, the Supreme Court case that gave rise to the modern state secrets privilege, is well known.  But you might want to check out this 14-minute segment on NPR's This American Life.  Host Ira Glass interviews Barry Siegel, author of Claim of Privilege, and Judy Loether, who lost her father in the B-29 crash that formed the plaintiffs' underlying tort claims in the Reynolds litigation.  This very short piece could make a nice supplement to your lessons on the state secrets privilege.

Click on the link above--the one at "14-minute segment"--click on the full episode, and move the cursor in the audio box forward in the program.  This segment begins at 29:05.

Thanks to student Gina LoGalbo for the tip.

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Government Seeks Review of Ninth Circuit's State Secrets Ruling

The government filed a petition for reconsideration or rehearing en banc of the Ninth Circuit panel's decision in Mohamed v. Jeppesen Dataplan, Inc., the case against a private company for its alleged role in the CIA's extraordinary rendition program.  The panel rejected the government's claim that the state secrets privilege required dismissal of the entire suit at the pleading stage.  I posted most recently on the case here; my interview with lead counsel for the plaintiff, ACLU attorney Ben Wizner, is here.

The government's petition argued that the panel took an unduly narrow view of the privilege as recognized in Totten v. United States; that case, it wrote, held that "dismissal is appropriate whenever it becomes clear that further proceedings risk disclosure of state secrets," and not only under the narrow facts of Totten, i.e., when a plaintiff seeks to enforce an espionage agreement. 

The government also took issue with the panel's interpretation of United States v. Reynods that the state secrets privilege is an evidentiary privilege that therefore cannot protect against the disclosure of secret information through pleadings.  Under the panel's ruling, the government argued, Jeppesen would have to answer the complaint's allegation that it secretly contracted with the CIA to help conduct the extraordinary rendition program.  Any answer could reveal a state secret, wrote the government, and revealing the information would harm CIA relations with cooperating foreign nations.  (Take a look at the amended complaint yourself.  It is, indeed, quite specific in its allegations about the extraordinary rendition program, but it's also based largely on publicly available information (and it cites its sources).)

Finally, the government highlighted the circuit split, leading with El Masri v. United States, the Fourth Circuit decision affirming the pleading-stage dismissal of all claims against the government for alleged detention and torture by the CIA, thus teeing up its Supreme Court cert. petition should the full Ninth Circuit reject the government's claims.

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CFP: Comparative Constitutionalism & National Security

Pace International Law Review 2009-2010 Symposium

Call for Submissions

Pace International Law Review is planning a symposium entitled Comparative Constitutional Law: National Security Across the Globe to be held in November of 2009.  The day-long symposium will feature multiple panelists and guest speakers.  The editors of Pace International Law Review invite proposals for articles, essays and book reviews from scholars, researchers, practitioners, and professionals.  Contributions to be considered for presentation at the symposium and subsequent publication or for publication only.

SUBMISSION INSTRUCTIONS

Please submit proposals of no more than 500 words to pilr@law.pace.edu by June 30, 2009.  All proposals should include the intended author's name, title, institutional affiliation and contact information.  The proposals should address issues pertinent to the interrelationship between national security concerns and constitutional law of a particular nation or nations.   Article proposals that provide a comparative analysis of issues and concerns faced by various nations are preferred.  The proposals should be as thorough as possible and may include suggestions for other panelists who experts in the proposed topic.  

Book review proposals also should include (a) the title and publication date of the book proposed for review; (b) a description of the importance of the book to the general topic; and (c) any other information relevant to the book or proposed review (e.g., the reviewer's expertise or any relationship with the author).  All authors are welcome, but not required, to submit a CV.

We expect to make offers to the selected guest speakers in August, 2009.  We encourage clear, concise, and an accessible proposals for articles, essays and book reviews that will interest lawmakers, attorneys and students.  All proposals will be considered for publication even if not selected for the symposium. Complete manuscripts for work that will not be presented at the symposium will be due by August 31, 2009.

Padilla v. Yoo - Judge denies motion to dismiss "torture memos" case

Federal Judge Jeffery White in San Francisco has substantially denied the motion to dismiss the civil complaint filed by Jose Padilla against John Yoo, formerly of the DOJ, now on leave from UC-Berkeley (Boalt Hall).

In a 42 page opinion (download here), Judge White begins rather grandly:

[War] will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free.

The Federalist No. 8, at 44 (Alexander Hamilton) (E.H. Scott ed., 1898).
The issues raised by this case embody that same tension – between the requirements of war and the defense of the very freedoms that war seeks to protect.

However, the judge soon provides a detailed recitation of the allegations of the complaint and then engages in a closely reasoned opinion relying on United States Supreme Court precedent as well as numerous Ninth Circuit cases.  Judge White acknowledges the separation of powers issues in this Bivens complaint, and interestingly has this comment about Yoo's argument for absention:

Yoo also advocates that this Court should abstain from adjudication because the Court should leave review of his legal memoranda and the conduct which followed to the coordinate branches of government based on substantive areas of law raised by the memoranda. The Court notes the irony of this position: essentially, the allegations of the complaint are that Yoo drafted legal cover to shield review of the conduct of federal officials who allegedly deprived Padilla of his constitutional rights. Now, Yoo argues that the very drafting itself should be shielded from judicial review. Padilla’s allegations here are that the creation of such legal cover was itself an unconstitutional exercise of power. Thus, the question posed by the present motion is whether an alternative branch of government, under the circumstances, should be tasked with prescribing the scope of relief available to Padilla.

Order at 22. 

Judge White also denies Yoo's claim of qualified immunity,  including the claim that there is insufficient causation (linking the memos to the actions against Padilla).

 The Judge's Order denies the motion to dismiss "as to all claims with the exception of the claim for violation of Padilla’s rights under the Fifth Amendment against compelled self-incrimination."  The Judge granted Yoo's motion because "there is no allegation in the complaint before this Court that Padilla was ever made to be a witness against himself or that his statements were admitted as testimony against him in his criminal case," and thus  "he has not stated a claim for violation of the Self-Incrimination Clause of the Fifth Amendment." Order at 37.  Padilla has leave to amend this allegation by July 10.  Yoo has twenty days to file his responsive pleading.

This is an opinion worth reading, just as this case will be worth watching as it proceeds.

RR

ACLU's Ben Wizner Talks About Mohamed v. Jeppesen, Extraordinary Rendition, and State Secrets

ACLU attorney Ben Wizner, lead counsel in Mohamed v. Jeppesen Dataplan, Inc., the case against a private company for its role in the CIA's extraordinary rendition program, took time today to talk with me by phone about the case, the state secrets privilege, and the significance of the Obama administration's reassertion of the Bush administration's sweeping state secrets arguments.  (The Ninth Circuit handed down an important decision yesterday denying the government's state secrets claim.) 

Our full interview--about 17 minutes on an MP3 file--is available here.  Here are some highlights:

On the Scope of the State Secrets Privilege, According to the Government's Theory:

BW: Well, the state secrets privilege is an evidentiary privilege.  It was established and defined by the Supreme Court in a case called United States v. Reynolds in 1953, and in that case the Supreme Court said that it’s a privilege that belongs to the government, that can be invoked essentially during discovery and at trial.  And the purpose of the privilege is to block disclosure of state secrets and military secrets the use of which would harm national security.  What we’ve seen in the last six, seven years in particular is the mutation of that evidentiary privilege into a kind of broad immunity doctrine.  And so instead of, in our case and others, asserting the privilege with respect to specific evidence, the Bush administration and then the Obama administration asserted the privilege with respect to the entire lawsuit.  There was no evidence in dispute in the Jeppesen case, because Jeppesen had not even answered our complaint.  There had not been a single discovery request.  And so the state secrets assertion was made on the basis of a self-serving affidavit by Michael Hayden, the head of the CIA.  And I say self-serving, because you have here a remarkable doctrine that at least according to the Bush administration before this Ninth Circuit opinion allowed the CIA to engage in torture and then have the CIA itself--the perpetrators themselves--go into court and demand dismissal of a case based on secrecy grounds before there had even been a request for evidence.  And that’s why, as you say, this doctrine really had evolved or mutated beyond any recognition.  And what the Ninth Circuit’s decision did yesterday was it restored the state secrets privilege to a rule to its origin as a rule of evidence and not a doctrine of immunity

On the Differences Between El-Masri and Mohamed:

SDS: Ben, you mentioned the El-Masri case out of the Fourth Circuit about a year and a half ago.  What’s the difference between the El-Masri case and the Mohamed case, the Jeppesen case, that came down yesterday, that accounts for the dramatic difference in the opinions in the two different circuits.

BW:  Well, in one sense, the timing I think is significant.  The Ninth Circuit had the benefit of seeing just how broadly or over broadly the Bush administration had been invoking this privilege over the last several years in a wide variety of cases.  But I think fundamentally the right answer to your question is that the Fourth Circuit got the law wrong, and the Ninth Circuit got the law right.  And I don’t know that there is a better way of putting it than that.  But by the Fourth Circuit’s reasoning, the case would have had to be dismissed even if El-Masri had been a U.S. citizen and not a foreign citizen, even if the events had taken place in Minneapolis and not Macedonia, and even if Mr. El-Masri had been assassinated by the CIA and not just kidnapped and tortured by them.  What the Ninth Circuit said yesterday is that the government really wanted to cordon off entire categories of CIA conduct and shield them entirely from judicial review and that that was a serious violation of separation of powers.  Unfortunately, I think that that’s precisely what the impact of the Fourth Circuit decision is in the Fourth Circuit. 

On the Significance of the Ninth Circuit's Decision Yesterday in Mohamed: 

SDS: [Two differences stand out between El-Masri and Mohamed.  First, the Ninth Circuit in Mohamed seemed keenly attuned to the separation-of-powers concerns underlying the state secrets privilege in a way that the Fourth Circuit in El-Masri was not.  Second, the Fourth Circuit in El-Masri seemed to conflate the "Totten privilege" and the "Reynolds privilege," where as the Ninth Circuit separated them.]

BW:  . . . Your second point deserves some elaboration.  There is a narrow doctrine—justicaibility doctrine—that derives from the Totten case in 1875.  The Supreme Court has considered this doctrine in two cases, both of those cases involved precisely the same fact pattern: an alleged former spy, who allegedly had been promised some kind of lifetime of monetary support who was suing the United States for enforcement of that contract, and the Supreme Court has ruled unequivocally that secret espionage contracts can’t be enforced.  Now the government in the El-Masri case and in this case was trying to take that doctrine and essentially say that it rendered non-justiciable any case in which the plaintiffs allege an espionage agreement between various parties.  Now of course in our case we allege that the United States was working together with this company Jeppesen Dataplan.  But of course our clients were not parties to any kind of contract.  And the idea that they could be kept out of court on some kind of contract theory always seemed like a stretch, but the Fourth Circuit really muddled that doctrine I think a fair amount.  As we’ve said in our brief, perhaps if Jeppesen were suing the United States for payment on its rendition work, the Totten doctrine might apply.  But even there probably not, because this was not an espionage contract, and the services that Jeppesen performed for the CIA in connection to the rendition program are not different from the services of whatever company made the blindfolds, or the shackles, or the paper shredders for the CIA in connection with their rendition and torture program.  And so I think the Ninth Circuit really did a service to the country and to the case law by really clarifying those different strands of authority.

As Wizner suggests, we've seen a kind of "Totten creep," best illustrated by the Fourth Circuit's decision in El-Masri.  And, as Wizner says, the implication of El-Masri is that the government could immunize itself from any claim simply by asserting the privilege and supporting it with a single "self-serving" affidavit.  This stretches the state secrets privilege far beyond the scope set in either Totten or Reynolds. 

 

As Wizner suggests later in the interview, the Obama administration's reassertion of the Bush administration's position occured against the backdrop of the debate about investigating and prosecuting agents, contractors, officials, and lawyers who engaged in or authorized torture.  The administration's decision whether to appeal, too, will likely be informed by this debate.  But the state secrets privilege will outlive this debate, and the Obama administration would do well not to press an unreasonably expansive privilege merely to immunize a private contractor (or government official) from suit. 

 

Moreover, the Ninth Circuit ruling is consistent with the administration's stated commitment to openness and transparency, with its commitment to a more measured use of the state secrets privilege, and with legislation now pending before Congress. 

 

Its next move in Mohamed will give us an even stronger indication of how it balances these considerations.

 

SDS

 

Ninth Circuit Rejects Administration's State Secrets Claim

A three-judge panel of the Ninth Circuit today rejected the Obama administration's claim that the state secrets privilege required dismissal of the plaintiffs' entire lawsuit at the pleading stage.  The plaintiffs in the case, Mohamed v. Jeppesen Dataplan, Inc., sued a private corporation for cooperating with the government in extraordinary rendition and torture; the government intervened to assert the state secrets privilege as a basis for complete dismissal.  In an early test of the Obama administration's positions on government transparency and the state secrets privilege, the Obama administration re-asserted the same position advanced by the Bush administration: The state secrets privilege required complete dismissal of the suit.

The Ninth Circuit flatly rejected this claim, in an opinion teeming with separation of powers considerations. 

The Ninth Circuit rejected each of the administration's theories.  As to the Totten version of the privilege (from Totten v. United States), the court held thatcomplete dismissal requires a secret agreement or contract between the plaintiff and the government such that the very fact of the lawsuit would reveal a government secret--a reading that limits Tottento its facts.  Here, there was no such secret agreement or contract between the plaintiffs and the government.  Instead, the agreement was between the defendant and the government (as intervenor, not a party).  The court thus treated the contract not as the very object of the suit (which might trigger the Totten privilege) but rather merely as a piece of evidence in the suit.  This, according to the court, is not enough to trigger the Totten privilege; at most, it would trigger the Reynolds privilege.

As to the Reynolds privilege (from United States v. Reynolds), the court rejected the government's claim that the privilege required the dismissal of the entire case.  Instead, the Reynoldsprivilege is an evidentiary privilege--i.e., it might protect certain secret evidence, but it does not wholesale protect information.  And it cannot prevent a litigant from trying to persuade a jury of facts, even if it might under certain circumstances protect secret evidence.

Finally, the court rejected the government's FOIA claim.  The government here tried to equate "classified" material (under FOIA) with "secret" material (under the privilege).  The court flatly rejected this approach, recognizing the different purposes of FOIA and the state secrets privilege, and the perverse incentive to over-classify that attends this approach.

The government's claims in the case--under the Bush administration, then under the Obama administration--were bold and sought an expanded privilege.  Each of the three arguments would have enlarged the privilege beyond all previous scope and would have given the President much greater power to control information and to direct the outcome of cases that even merely touch upon issues of national security.  The Obama administration's re-assertion of the Bush administration's positions is squarely at odds with its claims of increased transparency and more principled use of the state secrets privilege.  But it seems perfectly consistent with its claims in Jewel v. NSA, the Northern District of California case challenging the NSA's "dragnet surveillance."

Given the administration's motion and aggressive position in Jewel, an appeal in Jeppesen seems likely. 

SDS

Do the Torture Memos Undermine the Administration's State Secrets Claim?

The ACLU filed a letter with the Ninth Circuit arguing that the recently released torture memos undermine the administration's state secrets claim in the case challenging the Bush administration's extraordinary rendition program, Mohamed v. Jeppesen Dataplan.

The ACLU argues that the release of the memos leaves no secrets in the case.  But this wouldn't be the first time that the government argued state secrets when the program at issue had already been revealed; here's my post on the Obama administration's (re)invocation of the privilege in the NSA "dragnet surveillance" case in the Northern District of California.

And moreover: We don't know fully what other secrets--other than the torture techniques revealed in the memos--might have been involved in the rendition program.  There very well might be other things that the government wants to keep quiet.

The Obama administration's response to the letter may give us one more clue as to how serious the administration is in reevaluating its use of the state secrets privilege.

SDS

Setty on Comparative State Secrets

Professor Sudha Setty (Western New England) just posted her enlightening article Litigating Secrets: Comparative Perspectives on the State Secrets Privilege on ssrn; it's also forthcoming in the Brooklyn Law Review.  Setty presents a fresh and interesting comparative approach to state secrets; and the piece is especially timely, what with the Obama Justice Department reasserting the Bush administration's position on state secrets in the Ninth Circuit and Congress considering a state secrets overhaul.  I highly recommend it.

Setty compares the state secrets privilege in the U.S. with similar privileges in Scotland, England, Israel, and India--"other nations which confront serious national security threats"--and draws two conclusions, both of which have implications for U.S. reform.  Setty:

Although the current U.S. use and application of the state secrets privilege is roughly analogous to that of England, [Binyam Mohamed's case in England] suggests that England's current application of the privilege may be more narrow than that of the United States, and that the English court in Mohamed was forced to expand the scope of its own public interest immunity because of the threat of national security repercussions from the United States.  The transnational implications of U.S. pressure regarding the state secrets privilege may be that even if other nations' courts use a narrower standard for that privilege, those standards may be undermined if the U.S. government uses its considerable clout to pressure governments to claim state secrets in cases where U.S. government actions are implicated.

U.S. courts are also less deferential to the executive branch than India, but more so than Scotland and Israel.  The proposed congressional reforms offer some positive steps to establish procedural safeguards that strike an appropriate balance between national security and the rule of law, government accountability and liberty.  However, Congress should consider going further in addressing the need for litigation to compensate those who have suffered gross constitutional and human rights violations at the hands of the government.

How far?  Setty argues that reform efforts should consider explicitly accounting for human rights violations:

[R]eforms in the United States should require courts to consider potential human rights abuses in determining whether a lawsuit should go forward . . . .  It would be appropriate for U.S. judges--like their Israeli counterparts--to undertake a balancing test which accounts for the nature of the claim when deciding whether a case ought to go forward at the discovery stage.  After all, the cases of El-Masri, Al-Haramain and Mohamed, and the violations of human rights and constitutional safeguards that they represent are at the heart of the impetus for reforming the privilege.

And reforms should deal with both state secrets and justiciability:

It would be appropriate and useful for Congress to assist in the clarification between the state secrets privilege and [Totten v. Doe's] standard of dismissal based on the subject matter of the litigation.

Such clarification should be undertaken simultaneously with state secrets reform because it would close a potential avenue for the executive branch to avoid disclosure of evidence.

This is an interesting, important, and timely piece for anyone following developments in the state secrets privilege or separation-of-powers issues in the struggle against terrorism.  I highly recommend it.

SDS