Monday, June 23, 2014
The Second Circuit today released a redacted version of the DOJ/OLC memo outlining the government's legal authority for the use of a drone attack to kill Anwar al-Aulaqi (sometimes spelled al-Awlaki). We've blogged extensively about this issue, including here, on the earlier released white paper outlining the government's authority to conduct the same attack.
The released version does not include the first 11 pages of the memo, presumably including the information that the government passed on to the OLC about al-Awlaki that formed the basis of the analysis. It's not clear whether that first 11 pages included other material or analysis. (The released version starts with "II.") There are other redactions throughout, especially in the portion analyzing the CIA's authority to conduct drone attacks.
The analysis in the memo differs slightly from the analysis in the earlier white paper, but, because of the redactions, it's not clear how much this matters. Thus, for example, the analysis released today makes a careful distinction between DoD authority and CIA authority to conduct a targeted drone attack. (The earlier white paper didn't make this clear distinction.) But it's not entirely clear why or how that distinction is significant, given that much of the CIA analysis is redacted. The analysis released today is also more fact specific. (The earlier white paper didn't so clearly limit itself to the facts of one case.) But the memo today redacts the facts, so we don't know them.
Other than those points, the analysis released today doesn't appear to be importantly different than the earlier white paper.
As we've noted, and as others have noted, the analysis leads to the surprising result that the government may be able to kill someone by drone attack more easily than it may detain them (with due process under Hamdi). Still, we don't know this for sure, because we don't know precisely what processes the government used in killing al-Awlaki: that detail is redacted from the memo.
The memo starts by outlining the statutory prohibition on foreign murder of a U.S. national--the federal provision that outlaws one U.S. national from killing another overseas. That provision, 18 U.S.C. 1119(b), says that "[a] person who, being a national of the United States, kills or attempts to kill a national of the United States while such national is outside the United States but within the jurisdiction of another country shall be punished as provided under sections 1111, 1112, and 1113." Section 1111 penalizes "murder," defined as "the unlawful killing of a human being with malice aforethought." The memo thus centers on whether al-Aulaqi's killing was "unlawful."
The memo says that the killing was not unlawful, because the prohibition includes the "recognized justification" of "public authority"--that is, the government's ability to kill under its public authority. As to the Defense Department's use of drones, the memo says that (1) the president had executive war powers authorized by Congress under the AUMF, (2) the AUMF authorized the president to use all necessary force against al-Qaida and associated forces (the OLC said that the AUMF included associated forces in an earlier memo), (3) al-Aulaqi was a member of al-Qaida or associated forces (AQAP) who posed a "continued and imminent threat" to the U.S., and (4) the DoD was acting pursuant to statutory authorization in targeting and killing al-Aulaqi. Moreover, the memo says that al-Aulaqi's killing comports with the laws of war. That's because DoD "would carry out its operation as part of the non-international armed conflict between the United States and al-Qaida, and thus that on those facts the operation would comply with international law so long as DoD would conduct it in accord with the applicable laws of war that govern targeting in such a conflict." The memo said that this operation in Yemen is part of that conflict, even though Yemen is not within the area of that conflict. Finally, the memo says that the method of killing complies with the laws of war--that is, that the targeted drone attack complies with the principle of distinction, it would minimize civilian casualties, and it would not violate prohibitions on "treachery" and "perfidy" (because those "do not categorically preclude the use of stealth or surprise, nor forbid military attacks on identified, individual soldiers or officers . . . and we are not aware of any other law-of-war grounds precluding the use of such tactics.").
The memo drew the same, or very similar, conclusions as to the CIA's use of a drone strike, but that section was largely redacted.
(The memo also said that another murder-abroad statute similarly did not prohibit the strike, and that the War Crimes Act did not prohibit it, because al-Aulaqi was still an active, fighting beligerent, and an allowable target under the laws of war.)
As to Fourth- and Fifth Amendment protections, the memo says that a high-level decision-maker ("the highest officers in the intelligence community") can make a determination to use lethal force and authorize a strike. (That's about all it said: this portion of the memo is also highly redacted.)
The memo makes clear that this is all context specific: the "facts" given to OLC that form the basis of its analysis are "sufficient" for the Office to form its conclusions, but the memo declines to say whether those facts are also necessary. (And we don't know them, in any event, because they're redacted.)
June 23, 2014 in Cases and Case Materials, Congressional Authority, Executive Authority, Fifth Amendment, Fourth Amendment, Fundamental Rights, News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)
Monday, June 16, 2014
Judge Emmet G. Sullivan (D.D.C.) on Friday dismissed a case brought by a U.S. citizen against FBI agents for torturing and mistreating him as a terrorist suspect in Africa in violation of his constitutional rights.
The plaintiff, Amir Meshal, was visiting Somalia in November 2006. When fighting erupted there, Meshal fled to Kenya. Upon arrival, he was captured by Kenyan soldiers, detained, and later interrogated repeatedly by FBI agents, who used threats, accusations that Meshal was a terrorist, and physical force to intimidate him. Later, Meshal was transferred to Somalia, then Ethiopia, where interrogations by FBI agents continued. Throughout, Meshal was denied outside communication (until U.S. consular officials later gained access to him), access to an attorney, and access to foreign courts. In all, Meshal was detained abroad for four months. He was never charged with a crime.
Meshal filed a Bivens suit for damages against the agents, but Judge Sullivan dismissed the case. Judge Sullivan was highly critical of the U.S. government's treatment of Meshal and of the federal courts' refusal to hear Bivens claims by other U.S. citizens mistreated by government agents. But he nevertheless concluded that the D.C. Circuit's ruling in Doe, the Fourth Circuit's ruling in Lebron, and the Seventh Circuit's ruling in Vance compelled him to dismiss Meshal's case. Doe, Lebron, and Vance all also involved U.S. citizens suing government officers for violations of constitutional right in similar circumstances. The circuit courts all ruled that "special factors" counseled against a Bivens remedy, however, because they all arose in the context of the military and national security.
Given the state of the law, there is no chance of a successful appeal. But that didn't stop Judge Sullivan from delivering a full-throated condemnation of the agents' actions, the courts' rulings, and Congress's failure to create a remedy for U.S. citizens who are mistreated in these situations:
The facts alleged in this case and the legal questions presented are deeply troubling. Although Congress has legislated with respect to detainee rights, it has provided no civil remedies for U.S. citizens subject to the appalling mistreatment Mr. Meshal has alleged against officials of his own government. To deny him a judicial remedy under Bivens raises serious concerns about the separation of powers, the role of the judiciary, and whether our courts have the power to protect our own citizens from constitutional violations by our government when those violations occur abroad.
Friday, May 23, 2014
Thirty-five human rights groups are holding a "May 23 Global Day of Action to Close Guantanamo and End Indefinite Detention" today, one year after President Obama (again) made the case for closing the detention facility. Amnesty International's press release is here.
Recent defense authorization acts, called the National Defense Authorization Acts, or NDAAs, restricted the use of funds for transfering detainees from Guantanamo Bay. We posted on those restrictions, and the White House responses (signing statements) to them, here, here, and here, among other places. The 2014 NDAA loosened some restrictions on repatriation of detainees, but maintained the restriction on the use of funds to transfer detainees to facilities in the United States.
Rep. Adam Schiff (D-Cal.) spoke this morning with Steve Inskeep on Morning Edition about the AUMF. The interview came a day after the House rejected a measure to set an end date on the Authorization.
Schiff said that the AUMF has been invoked as legal authority for actions both longer and broader than originally intended. He also said that Congress has abdicated its responsibility in checking its use.
We posted most recently on legislation related to the AUMF here, after Senate Majority Leader Harry Reid announced that he'd like to reconsider it.
Wednesday, May 21, 2014
Judge Gladys Kessler (D.D.C.) ordered the government to release videos of force-feeding and medical records of Guantanamo detainee Abu Wa'el Dhiab in today's status conference in Dhiab's habeas case. Recall that Judge Kessler previously entered a temporary restraining order halting force-feedings of Dhiab until today and ordering the government to produce medical records and videotapes.
But Judge Kessler's order today didn't address force feedings. According to Wells Bennet over at Lawfare, that means that force-feedings can resume:
Intriguingly, court and counsel didn't address (so far as I could tell) the TRO's "no force feeding" instruction with respect to Dhiab. Considering that Judge Kessler's prior ruling limiting the ban until today's date of May 21, it seems the prohibition could dissolve as early as tomorrow. For her part, Judge Kessler gestured in this direction, by emphasizing both that her prior ruling was meant to preserve the status quo for so long as needed to handle the emergency motion, and that it did not embody a decision regarding preliminary relief. (The motion for a preliminary injunction, like the larger habeas case, obviously aims to stop Dhiab's force feeding; but the detainee's emergency motion papers did not, strictly speaking, ask the court to take that step.)
The Justice Department will release a memo that makes the case that its drone attacks are legal. The move comes in the wake of a Second Circuit ruling last month ordering the release of a redacted version of the memo, and amid calls in the Senate for the memo's release as that body considers the nomination of David Barron, one of the authors, to a federal appeals court.
Recall that the Department previously leaked a white paper outlining the government's case. We posted most recently on the legal challenges here.
Sunday, May 18, 2014
Judge Gladys Kessler (D.D.C.) on Friday temporarily enjoined the government from force-feeding Abu Wa'el Dhiab, a hunger-striking Guantanamo detainee. Judge Kessler's order also requires the government to produce medical records and videotapes of Dhiab's "forcible cell extractions" for the purpose of "enteral feedings." Judge Kessler will preside over a status conference on May 21 to work some of this out.
This isn't the first time Judge Kessler ruled on the case. In her earlier ruling, on July 10, 2013, she held that 28 U.S.C. Sec. 2241(e)(2) deprived the court of jurisdiction to hear a claim over a Guantanamo detainee's conditions of confinement. She was also highly critical of force feedings in that ruling, however, and telegraphed her likely ruling on the merits, should it ever come to the merits.
It did come to the merits after the D.C. Circuit ruled that Guantanamo detainees could challenge the conditions of their confinement under 28 U.S.C. 2241(e)(2). After that ruling, Dhiab's case came back to Judge Kessler, leading to Friday's ruling.
Judge Kessler's ruling is only temporary. But if this ruling and her prior ruling (in the first round) are any indication, she's almost certain to rule against the practice.
Thursday, May 15, 2014
Senate Majority Leader Harry Reid told Buzzfeed that he's ready to reconsider the Authorization for Use of Military Force. The AUMF, enacted just days after the 9/11 attacks, has been cited as legal authorization for a wide range of military actions against al Qaeda and individuals and organizations with links to al Qaeda. Reid's critique isn't new--Members of Congress on both sides have voiced criticism of the broad language in the AUMF in recent years, and have introduced legislation to repeal it--but it may lend some urgency and priority to the issue.
At the same time, Senators Kane, McCain, and King are rethinking Congress's role in war more generally. They introduced legislation earlier this year to repeal the War Powers Resolution and replace it with a requirement that the President consult with a new Joint Congressional Consultation Committee, comprised of House and Senate leadership and certain committee chairs and ranking members, "regarding significant matters of foreign policy and national security" and "[b]efore ordering the deployment of members of the Armed Forces into significant armed conflict." The bill would exempt from the prior consultation requirement certain emergency actions, "[l]imited acts of reprisal against terrorists or states that sponsor terrorism, humanitarian missions, "covert operations," and rescue missions for U.S. citizens overseas. The bill prescribes a streamlined process for Congress to approve or disapprove of military action in the absence of a declaration of war or authorization for use of military force. (The Senate has taken no action on the measure.)
According to the findings, the new procedures are necessary because the War Powers Resolution isn't working, and to create "a constructive means by which the judgment of both the President and Congress can be brought to bear when deciding whether the United States should engage in a significant armed conflict . . . ." According to the findings, the political branches need to figure out a way to work these issues out, because the courts aren't helping:
Past efforts to call upon the judicial branch to define the constitutional limits of the war powers of the executive and legislative branches of government have generally failed because courts, for the most part, have declined jurisdiction on the grounds that the issues involved are "political questions" or that the plaintiffs lack standing.
Tuesday, May 13, 2014
Frontline airs the first of its two-part series United States of Secrets tonight. The documentary examines NSA secret surveillance programs developed in the wake of the 9/11 attacks. There's a clip at the link above, and another here, Inside the NSA the Day After 9/11.
Thursday, April 24, 2014
The Second Circuit ruled earlier this week that the government must release a redacted version of an Office of Legal Counsel memo outlining the government's legal authority to conduct targeted killings. The case, New York Times v. Department of Justice, is a FOIA case seeking the OLC memo, and not a legal challenge to the targeted killing program itself. The court said that the government had released so much information about its legal justification--including the white paper that the government leaked to the media last year--that the government couldn't really claim that the legal justification was still secret.
We posted on the white paper here, with links to earlier posts (and to the white paper itself), and most recently on legal challenges to the targeted killing program here.
Saturday, April 5, 2014
Judge Rosemary M. Collyer (D.D.C.) yesterday dismissed a civil damages claim against government officials for their roles in authorizing the targeted killing of Anwar Al-Aulaqi, his son, and Samir Khan. Judge Collyer wrote in Al-Aulaqi v. Panetta that "special factors" counseled against the Bivens claim.
We've covered Al-Aulaqi's claims extensively (sometimes Al-Awlaki, sometimes Al-Awlaqi), both pre-killing and post-killing, brought by his father, Nasser. Here's our post on Judge Bates's ruling dismissing Nasser's case to stop the killing.
The ruling adds to a body of lower-court cases limiting civil damage remedies against government officials for constitutional violations for actions related to the military, intelligence, and terrorism. Indeed, these cases give government officials a free pass against civil damages claims for any action even loosely related to these areas, even with no showing by the government that the claims raise special factors counseling against a remedy (as this case illustrates--see below).
Nasser Al-Aulaqi brought this claim on behalf of his son Anwar and grandson Abdulrahman, along with Sarah Khan, who brought the claim on behalf of her son Samir. Anwar was designated for targeting; Abdulrahman and Samir were not (they were bystanders in Anwar's targeted killing and another targeted killing). All three were U.S. citizens.
Nasser and Sarah sued government officials in their personal capacity under Bivens for Fourth and Fifth Amendment violations (among others). The officials moved to dismiss, arguing that the complaint failed to state a claim, that special factors counseled against a Bivens remedy, and that they enjoyed qualified immunity.
Judge Collyer ruled that special factors counseled against a Bivens remedy. Citing Doe v. Rumsfeld, Lebron v. Rumsfeld, and Vance v. Rumsfeld, she wrote that military decisions get a pass, and that Bivens ought not be extended to them:
In this delicate area of warmaking, national security, and foreign relations, the judiciary has an exceedingly limited role. This Court is not equipped to qustion, and does not make a finding concerning, Defendants' actions in dealing with AQAP generally or Awar Al-Aulaqi in particular. Its role is much more modest: only to ensure that the circumstances of the exercise of war powers against a specifically-targeted U.S. citizen overseas do not call for the recognition of a new area of Bivens relief.
Here, Congress and the Executive have acted in concert, pursuant to their Constitutional authorities to provide for national defense and to regulate the military. The need to hesitate before implying a Bivens claim is particularly clear. Congress enacted the AUMF, authorizing the Executive to use necessary and appropriate military force against al-Qa'ida and affiliated forces. It is the Executive's position that AQAP is affiliated with al-Qa'ida.
. . .
Permitting Plaintiffs to pursue a Bivens remedy under the circumstances of this case would impermissibly draw the Court into "the heart of executive and military planning and deliberation," as the suit would require the Court to examine national security policy and the military chain of command as well as operational combat decisions regarding the designation of targets and how best to counter threats to the United States.
. . .
Plaintiff's Complaint also raises questions regarding foreign policy because Anwar Al-Aulaqi was a dual U.S.-Yemeni citizen who was killed in Yemen. Plaintiff's suit against top U.S. officials for their role in ordering a missile strike against a dual citizen in a foreign country necessarily implicates foreign policy.
Remarkably, the court so concluded without any help of from the government--even after the court ordered the government to help by providing material in camera and ex parte to support the special-factors defense.
The United States filed a Statement of Interest in the case, stating that it might later assert a state secrets defense. Judge Collyer ordered the government to lodge declarations, in camera and ex parte to explain why special factors counseled against a Bivens remedy in the case. The government refused, arguing that the court could resolve the defendants' motion to dismiss on the complaint alone.
Judge Collyer scolded the government for its refusal--and wrote that this made the court's job "unnecessarily difficult"--but still "cobble[d] together enough judicially-noticeable facts from various records" to conclude that special factors counseled against a Bivens remedy. She wrote that without these facts, the court "would have denied the motion to dismiss."
April 5, 2014 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Fifth Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)
Saturday, December 21, 2013
Robert J. Spitzer (SUNY Cortland) recently posted perhaps the most recent comparison of assertions of executive power in the Bush and Obama presidencies coming out of the political science world: Comparing the Constitutional Presidencies of George W. Bush and Barack Obama: War Powers, Signing Statements, Vetoes. As the title suggests, Spitzer compares the presidencies just in three dimensions. But his piece also briefly summarizes the political science literature comparing other dimensions. Here's Spitzer . . .
On war powers:
Nevertheless, in constitutional terms, Bush had the congressional authorization he needed [for the Iraq war]; Obama did not [for Libya]. Ironically, the grotesque scale of, and web of deception surrounding, the Iraqi war suggest that its precedential value for future presidents may be limited, whereas the presidential consequences of Obama's actions--another instance of an intervention without congressional approval, and the first instance of violation of the 60 day limit [in the War Powers Act]--are more likely to encourage future presidents tempted to engage in unilateral military actions.
On signing statements:
Presidents surely have interpretive latitude, especially when legislative language is vague or ambiguous, and therefore open to interpretation. This is nothing new. . . . What presidents may not do, Bush's unitary executive theory notwithstanding, is to rewrite legislation at the point at which a bill is presented for signature through signing statement in what some have called a de facto item veto. As James Pfiffner concluded, "Bush's systematic and expansive use of signing statements constitutes a direct threat to the separation of powers system in the United States." Obama has, to date, skirted, if not walked away from, this ambition, especially after the criticism of his 2009 signing statement of P.L 111-8 [directing that legislation that calls for congressional committee approval of spending decisions by federal agencies is to be treated as "advisory" and "not . . . dependent" on committee approval]. Contrary to the claim of some that Obama has assumed the mantle of a unitary president, his signing statement use to date has been comparable to, or less than that of any predecessor from Reagan on. And Bush II's signing statement use continues to keep him in a class by himself.
On protective return pocket vetoes:
Unlike the other powers discussed in this paper, the Bush and Obama protective returns were nearly identical in form, and both appeared to arise from the bowels of the "deep structure" of the executive bureaucracy rather than from top political aides seeking to expand executive authority. Here is one of the most important, if underappreciated, aspects of executive power accretion: secular bureaucratic power incrementalism. A day may come where a constitutional challenge or political flare-up may drag the protective return pocket veto into the intense lights of the legal or political stage, and where a full airing, and final disposition, of this arcane executive power grab may be vetted and resolved. Absent such a moment, however, the executive's "deep structure" will continue to advance the protective return for every subsequent chief executive.
Monday, November 11, 2013
The Veterans Day Off Bill, reintroduced by Congressperson Bruce Braley of Iowa this year would require employers with more than 50 employees to give any veteran Veterans Day off, with or without pay. The bill includes an exemption for cases in which the day off would negatively impact public health or safety, or cause significant economic or operational disruption.
First, there could be an equality challenge. Nonveterans could challenge the law as a denial of the equal protection component of the Fifth Amendment. Certainly the law would be making a classification between veterans and nonveterans. However, this classification receives receives the lowest level of scrutiny from the courts: the government would have the legitimate interest of "honoring veterans" and a single day off, that could be without pay, would most likely be reasonable. It would be similar to veterans preferences in government employment which have been held constitutional, even though they have a disparate negative impact on women, as in Personnel Administrator of Massachusetts v. Feeney, decided by the United States Supreme Court in 1979.
Second, there could be a challenge to Congressional power to require private employers to allow employees a day off. Requirements that private employers do not practice race or sex discrimination, or comply with wage and hour laws, or provide family medical leave, have all been held constitutional. This law would be similar to those laws, as well as the the federal law protecting employment for those serving in the military, the Uniformed Services Employment and Reemployment Rights Act (USERRA). The Bill does not apply to employees working for state governments where the Eleventh Amendment could serve as a potential bar to lawsuits seeking to vindicate rights.
Lastly, should the United States Supreme Court ever recognize that secular for-profit corporations have a free exercise of religion right under the First Amendment, the future could bring a challenge by the major shareholders of a corporation that sells sequins or makes kitchen cabinets or sells groceries on the basis that the shareholders are Quakers, for example, who have a sincere and deeply held pacifist religious belief that would be burdened by being mandated to support a day off for someone who had participated in the activities of war.
[image: The Afghanistan-Iraq War Memorial in Salem, Oregon, via]
Wednesday, October 9, 2013
Chelsea Manning, convicted as Private Bradley Manning in a controversial military trial for revealing information to WikiLeaks, issued the first statement since her conviction, prompted in part by receiving a peace award. She stated that although her actions may have had pacficist "implications," she does not consider herself a pacifist. Rather, she is a "transparency advocate." The statement also contains specific discussion of gender identity. Manning's two page statement is worth a read, as is the accompanying article in The Guardian (to whom the statement was released) by Ed Pilkington.
Meanwhile in New York City, the latest and most ambitious project of the British public artist Banksy in his self-proclaimed October artist's residency on the streets of New York, alludes to Manning. The street art's references might be somewhat illusive to a casual observer:
But Banksy's site featuring this image (as well as another), also includes an "audio guide." It derives from some of the materials that Manning disclosed. Gothamist has a good explanation (and more photos). The Village Voice has excellent (with continuing) coverage of Banksy's art here and a profile with quoted material here.
Friday, September 6, 2013
Garrett Epps writes over at The Atlantic that the Senate's Syria Resolution contains a huge give-away to the President: congressional recognition of inherent executive authority to use the military to defend the national security interests of the United States--independent of any AUMF.
The give-away comes in the last "Whereas" of the Senate's Syria Resolution. It reads:
Whereas the President has authority under the Constitution to use force in order to defend the national security interests of the United States . . . .
The only problem is it's not true, and it represents a two-century high-water mark in claims of executive power. Having been consulted by the president, Congress is poised to respond by throwing back at him not only the current decision but sweeping new powers he didn't have before.
Sunday, August 18, 2013
Mark Bowden writes in the current issue of The Atlantic about the moral, military, and legal aspects of U.S. drone strikes against alleged terrorists. The article came out just as U.N. Secretary General Ban Ki-Moon criticized the use of armed drones and argued that they must be controlled by international law. We posted most recently on drones here--on the Al-Awlaki case, with links to the leaked DOJ white paper providing the legal justification for drone attacks.
Bowden surveys some of the legal landscape and concludes that drone attacks are legal. But:
Once the "war" on al-Qaeda ends, the justification for targeted killing will become tenuous. Some experts on international law say it will become simply illegal. Indeed, one basis for condemning the drone war has been that the pursuit of al-Qaeda was never a real war in the first place.
He also quotes John Yoo on the relative legality of drone attacks:
I would think if you are a civil libertarian, you ought to be much more upset about the drone than Guantanamo and interrogations. . . . Because I think the ultimate deprivation of liberty would be the government taking away someone's life. But with drone killings, you do not see anything, not as a member of the public. You read reports perhaps of people who are killed by drones, but it happens 3,000 miles away and there are no pictures, there are no remains, there is no debris that anyone in the United States ever sees. It's kind of antiseptic. So it is like a video game; it's like Call of Duty.
Friday, August 9, 2013
President Obama said that he directed his national security team "to review where our counterterrorism efforts and our values come into tension," and "to be more transparent and to pursue reforms of our laws and practices." He said he'd work with Congress to reform Section 215 of the Patriot Act, the statutory authority for the Foreign Intelligence Surveillance Court to order the release of telephone records (and which came under fire with Snowden's release of the FISC order doing just that), and to reform the FISC, in particular, by appointing a civil liberties advocate at the court. He also said he'd work to be more transparent about surveillance and appoint an independent group "to step back and review our capabilities, particularly our surveillance technologies, and . . . how we can maintain the trust of the people . . . ."
As to the legal authority, the administration gave a broad read to the term "relevant" in Section 215--the issue that EPIC pressed in its recent suit challenging the program. That is, the administration takes the position that Section 215's requirement that FISC production orders be supported by "reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation" gives very broad sweep to the FISC's authority. The administration also focused on controls over abuse of the authority under Section 215.
The document argues that the program violates neither the Fourth Amendment nor the First Amendment. As to the Fourth, the document claims that surveillance of telephony metadata doesn't even qualify as a "search" under Smith v. Maryland (1979), and, even if it did, the "search would satisfy the reasonableness standard that the Supreme Court has established in its cases authorizing the Government to conduct large-scale, but minimally intrusive, suspicionless searches" under Maryland v. King (2013).
As to the First Amendment, the document argues that the program authorizes the collection of only metadata, not content. Moreover, it says that as a lawful investigative activity, can't violate the First Amendment, and that there's no chilling of protected speech.
August 9, 2013 in Congressional Authority, Courts and Judging, Executive Authority, First Amendment, Fourth Amendment, News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)
Thursday, July 18, 2013
Judge Rosemary M. Collyer (D.D.C.) earlier this week rejected hunger-striking Guantanamo detainees' suit for an injunction against the government to stop it from force-feeding them. The ruling in Aamer v. Obama is the second recent case coming out of the federal courts rejecting an anti-force-feeding claim. Here's our post on the first.
Judge Collyer, like Judge Kessler in the earlier case, ruled that the court lacked jurisdiction under 28 U.S.C. Sec. 2241(e)(2), which deprives courts of jurisdiction to hear an action related to "any aspect of the detention, transfer, treatment, trial, or conditions of confinement" of an alien detainee at Guantanamo.
Judge Collyer went on to address the merits, too. She wrote that the government is "responsible for taking reasonable steps to guarantee the safety of inmates in their charge," that there is no right to suicide or assisted suicide, and that the government has a legitimate penological interest in preventing suicide. Moreover, she wrote that the government has put controls in place so that the procedure really isn't so bad, and that the government made adjustments to the force-feeding schedule for the Ramadan fast.
July 18, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Fundamental Rights, Habeas Corpus, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)
Nasser al-Awlaki writes in the NYT today that "[t]he Obama administration must answer for its actions and be held accountable" for the targeted killing of his grandson, Abdulrahman. Al-Awlaki is also the father of Anwar al-Awlaki, also targeted and killed in a drone strike.
Al-Awlaki writes just a day before the United States District Court for the District of Columbia will hear oral arguments on the government's motion to dismiss his case (on Friday). [UPDATE: The argument is tomorrow, Friday.] We previously posted on that case here; the Center for Constitutional Rights has its case resource page here. The government argues that the issue is a political question, that special factors counsel against a monetary damages remedy, and that officials enjoy qualified immunity.
Al-Awlaki's earlier suit, to stop the government from killing his son Anwar, was dismissed. That court ruled that al-Awlaki lacked standing and failed to allege a violation of the Alien Tort Statute, and that the case raised non-justiciable political questions.
Here's our post on the DOJ white paper, the administration's analysis (leaked) on why targeted killing of U.S. citizens is legal.
Monday, July 15, 2013
Judge Royce C. Lamberth (D.D.C.) ruled last week in In re Guantanamo Bay Detainee Litigation that Joint Detention Group, or JDG, restrictions on Guantanamo detainees' access to counsel violated the detainees' right to habeas proceedings in federal court. The ruling was the second last week that invoked an increasingly personal challenge to President Obama and his policies on detention at Guantanamo Bay. We posted on the other case, involving forced-feeding, here.
The court struck new and invasive search protocol for detainees before and after they meet with counsel; restrictions on the locations within the facility where certain detainees can meet with counsel; and even the new vans that guards use to transport detainees to meetings with counsel. (The new vans are designed such that detainees have to sit in stress positions while traveling to their meetings with their attorneys.) The court struck the restrictions under Turner v. Safley (1987), which set out factors to balance the interests in prison administration against the prisoners' fundamental rights. In short, the court held that the restrictions had no "valid, rational connection" to the legitimate government interest of security, and that the government could serve that interest in other ways without unduly affecting the prison.
The case is notable for its close oversight of the conditions at Guantanamo that interfere with the detainees' access to their attorneys, and thus their access to habeas. It's also notable for the courts increasingly personal appeals to, and critiques of, President Obama, his announced policies, and the way those policies play on the ground. Judge Lamberth started the opinion with this:
On May 23, 2013, President Obama promised, concerning detainees held at Guantanamo Bay, that "[w]here appropriate, we will bring terrorists to justice in our courts and our military justice system. And we will insist that judicial review be available for every detainee." This matter concerns whether the President's insistence on judicial review may be squared with the actions of his commanders in charge of the military prison at Guantanamo Bay. Currently, it cannot.