Wednesday, July 10, 2013

Federal Judge Urges Halt to Guantanamo Force-Feeding

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

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

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

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

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

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

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

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

SDS

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

Tuesday, July 9, 2013

Senate Judiciary Questions Comey

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

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

SDS

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

Monday, July 8, 2013

EPIC Takes Surveillance Challenge Directly to Supreme Court

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

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

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

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

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

Petition at 18.

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

SDS

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

Friday, June 21, 2013

Sorting Out Fact and Fiction in NSA's Surveillance Program

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

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

SDS

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

Thursday, May 23, 2013

President Obama on Drones, Guantanamo

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

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

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

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

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

1. Near certainty that the terrorist target is present;

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

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

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

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

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

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

SDS

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

Wednesday, May 15, 2013

Force-Feeding at Guantanamo

The ACLU and 19 other organizations sent a letter this week to Secretary of Defense Chuck Hagel opposing the military's force-feeding hunger-striking detainees at Guantanamo Bay.  According to the ACLU, 29 detainees are currently being force-fed.  We previously posted on a ruling by New York's high court upholding the practice of force-feeing in New York prisons.

The military's standard operating procedures (SOP) on fasting and force-feeding changed just recently (published on Al Jazeera), loosening protections against force-feeding.  (The earlier SOP is here.)  Most notably, the recent changes to the SOP charge the military commander of the base, not a medical doctor, with determining who is a hunger striker.

Here's the ACLU's legal case against force-feeding, from this week's coalition letter to Secretary Hagel:

Force-feeding as used in Guantanamo violates Common Article 3 of the four Geneva Conventions of 1949, which bar cruel, humiliating and degrading treatment.  It also could violate the Detainee Treatment Act of 2005, which prohibits the "cruel, inhuman, or degrading treatment" of prisoners "regardless of nationality or physical location."  Indeed, a 2006 joint report submitted by five independent human rights experts of the United Nations Human Rights Council (formerly the U.N. Commission on Human Rights) found that the method of force-feeding then used in Guantanamo, and which appears to remain in effect today, amounted to torture as defined in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which the United States ratified in 1994.  The report asserted that doctors and other health professionals authorizing and participating in force-feeding prisoners were violating the right to health and other human rights, including those guaranteed by the International Covenant on Civil and Political Rights, which the United States ratified in 1992.  Those concerns were reiterated this month by the Office of the UN High Commissioner for Human Rights, the Inter-American Commission on Human Rights, the United Nations Working Group on Arbitrary Detention, and three UN Special Rapporteurs.

While the letter focuses on cruel, inhuman, or degrading treatment, there may be other problems with force-feeding, too.  For example, force-feeding may infringe on hunger-striking detainees' free speech.  But First Amendment claims by hunger-strikers in regular detention in the U.S. have not been successful; Guantanamo Bay detainees would almost certainly face even steeper First Amendment challenges in the courts.  There's also the right to refuse medical treatment.  As Michael Dorf (DorfonLaw.org) argues at jurist.org, "five Justices in [Cruzan v. Dir. Missouri Dep''t of Health] did say that they thought that competent adults have the right to refuse forced feeding, even if death will result."  But that runs up against Washington v. Harper, holding that prison officials could override a prisoner's objection to forcibly being administered medication, assuming it's in the prisoner's medical interest.

Anyway, as Dorf points out, some Guantanamo detainees might have a hard time even bringing a case.  Judge Kessler (D.D.C) dismissed a detainee force-feeding case in 2009, based on the jurisdiction-stripping provision in the Military Commissions Act of 2006.  That provision says,

Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

The difference here is that some of the hunger-strikers now have been cleared for release--the U.S. just can't find a place to send them.  Those detainees are not "determined by the United States to have been properly detained as an enemy combatant or [are] awaiting such determination," and are not barred by 2241(e)(2) from bringing suit.

SDS

May 15, 2013 in Courts and Judging, Current Affairs, First Amendment, Fundamental Rights, Jurisdiction of Federal Courts, Medical Decisions, News, Speech, War Powers | Permalink | Comments (0) | TrackBack (0)

Friday, March 22, 2013

Drone Attacks Outside the Ongoing Conflict Zone

The Obama Administration has given us just a glimpse of its legal analysis authorizing its use of drone attacks on U.S. citizens in a foreign country outside the zone of active hostilities.  And that mere glimpse contains a telling, and deeply troubling, reference to an earlier episode, Nixon's bombing of Cambodia, writes Professor Mary Dudziak (Emory), author of War Time: An Idea, Its History, Its Consequences, in the NYT.

Dudziak points to a citation to a 1970 speech by Department of State Legal Adviser John R. Stevenson in the recently released "white paper" setting out the administration's legal justification for drone attacks.  In that speech, Stevenson argued that the U.S. had authority to take military action in Cambodia in self-defense against North Vietnamese attacks from that country.  Dudziak explains:

Since 1965, "the territory of Cambodia has been used by North Vietnam as a base of military operations," [Stevenson] told the New York City Bar Association.  "It long ago reached a level that would have justified us in taking appropriate measures of self-defense on the territory of Cambodia.  However, except for scattered instances of returning fire across the border, we refrained until April from taking such action in Cambodia."

But there was a problem:

In fact, Nixon had begun his secret bombing of Cambodia more than a year earlier.  (It is not clear whether Mr. Stevenson knew this.)  So the Obama administration's lawyers have cited a statement that was patently false.

Here's the full paragraph from page 4 of the white paper:

The Department has not found any authority for the proposition that when one of the parties to an armed conflict plans and executes operations from a base in a new nation, an operation to engage the enemy in that location cannot be part of the original armed conflict, and thus subject to the laws of war governing that conflict, unless the hostilities become sufficiently intense and protracted in the new location.  That does not appear to be the rule of the historical practice, for example, even in a traditional international conflict [i.e., a conflict between nations].  See John R. Stevenson, Legal Adviser, Department of State, United States Military Action in Cambodia: Questions of International Law, Address before the Hammarskjold Forum of the Association of the Bar of the City of New York (May 28, 1970), in 3 The Vietnam War and International Law: The Widening Context 23, 28-30 (Richard A. Falk, ed. 1972) (arguing that in an international armed conflict, if a neutral state has been unable for any reason to prevent violations of its neutrality by the troops of one belligerent using its territory as a base of operations, the other belligerent has historically been justified in attacking those enemy forces in that state).  Particularly in a non-international armed conflict, where terrorist organizations may move their base of operations from one country to another, the determination of whether a particular operation would be part of an ongoing armed conflict would require consideration of the particular facts and circumstances in each case, including the fact that transnational non-state organizations such as al-Qa'ida have no single site serving as their base of operations. [Citation omitted.]

Dudziak argues that the citation to Nixon's bombing of Cambodia illustrates a problem, instead of providing a precedent:

The Cambodia bombing, far from providing a valuable precedent for today's counterterrorism campaign, illustrates the trouble with secrecy: It doesn't work.  If Nixon had gone to Congress or announced the plan publicly, the historian Jeffrey P. Kimball has written, "there would have been an uproad."  But disclosure was ultimately forced upon him when he decided to send ground troops into Cambodia.  A new wave of giant antiwar protests erupted, and Nixon's ability to take further aggressive action became infeasible.

She writes that we expect more, and deserve more, of President Obama.

SDS

 

 

March 22, 2013 in Executive Authority, Foreign Affairs, History, International, News, War Powers | Permalink | Comments (0) | TrackBack (0)

Friday, March 15, 2013

D.C. Circuit Allows FOIA Case for Drone Files to Move Forward

The D.C. Circuit today rejected the CIA's non-response to the ACLU's FOIA request for documents related to the government's drone program and allowed the case to move forward.  Still, the ruling doesn't ensure that anyone will actually receive documents.  That's a question for the district court on remand.

The case, ACLU v. CIA, involves the ACLU's FOIA request for "records pertaining to the use of unmanned aerial vehicles ('UAVs')--commonly referred to as 'drones' . . .--by the CIA and the Armed Forces for the purpose of killing targeted individuals."  The CIA responded with a Glomar response--declining either to confirm or deny the existence of any responsive records.  The CIA claimed that confirming the existence of documents would confirm that it is involved in, or interested in, drone strikes, while denying the existence would confirm the opposite.  According to the CIA, its involvement or interest in drone strikes fell under exceptions to the FOIA.

The D.C. Circuit disagreed.  It ruled that the government had already publicized the targeted-killing-by-drone program, and that even the CIA chief had revealed its existence and the Agency's interest in it.  Because the reasons for withholding the documents wasn't really a reason, in light of these disclosures, the court said that the CIA can't hide behind a Glomar response.  

Moreover, the CIA justified its Glomar response on the ground that it was necessary to keep secret whether the CIA itself was involved in, or interested in, drone strikes.  But the ACLU's request swept more broadly--to any government drone strikes.  And the CIA's Glomar response also swept more broadly--too broadly.

The court also noted that the government appears to have acknowledged that the CIA has some records that could be responsive to the FOIA request.

The court remanded the case to the district court to sort out what documents the CIA has, and which ones, if any, it might have to turn over.  It's not clear that the CIA will ultimately have to turn over any documents.  The court gave specific suggestions to the district court as to how it might evaluate CIA records and determine which ones it has to release.

SDS

March 15, 2013 in Cases and Case Materials, Courts and Judging, News, War Powers | Permalink | Comments (0) | TrackBack (0)

Thursday, March 7, 2013

Administration Won't Use Domestic Drones to Kill Americans, After All

It turns out that the administration won't use drones to kill Americans on U.S. soil after all, according to White House Press Secretary Jay Carney earlier today.  This seems a very strange thing to be relieved about, but this is the level of discussion after AG Eric Holder earlier this week suggested in a letter to Senator Rand Paul that there might be extraordinary circumstances when the White House could order such a strike.  Senator Paul then engaged in a 13-hour talking filibuster, holding up a vote on John Brennan to head the CIA, in protest.

MQ-1_Predator_unmanned_aircraft

In response to a question whether "the president has authority to use a weaponized drone to kill an American not engaged in combat on American soil," Carney simply said "No."  "The president has not and would not use drone strikes against American citizens on American soil," according to Carney.

Josh Gerstein at Politico posted the story here.

SDS

[Picture: Air Force]

March 7, 2013 in Executive Authority, News, War Powers | Permalink | Comments (1) | TrackBack (0)

Wednesday, March 6, 2013

Paul's Filibuster and the Administration's Domestic Drone Authority

Senator Rand Paul started a talking filibuster today on the Senate floor, holding up John Brennan's nomination to head the CIA.  His problem?  The administration's use of drones.  In particular, a reply he received earlier this week from AG Holder in response to his question whether the government could use drones to target and kill U.S. citizens within the United States.  Here's Holder's answer:

The question you have posed is therefore entirely hypothetical, unlikely to occur, and one we hope no President will ever have to confront.  It is possible, I suppose, to imagine an extraordinary circumstance in which it would be necessary and appropriate under the Constitution and applicable laws of the United States for the President to authorize the military to use lethal force within the territory of the United States.  For example, the President could conceivably have no choice but to authorize the military to use such force if necessary to protect the homeland in the circumstances of a catastrophic attack like the ones suffered on December 7, 1941, and September 11, 2001.

Were such an emergency to arise, I would examine the particular facts and circumstances before advising the President on the scope of his authority.

Adam Serwer at Mother Jones was out front in reporting on AG Holder's letter.  Senator Paul's official web-site is posting his hour-by-hour comments on the floor.

SDS

March 6, 2013 in Executive Authority, Fundamental Rights, News, War Powers | Permalink | Comments (0) | TrackBack (0)

Friday, March 1, 2013

Bradley Manning's Statement

Developments in the Bradley Manning case include the news that Manning has pleaded guilty to some charges - - - but not to the charge of aiding the enemy - - - as reported by the NY Times. 

While there is apparently no official copy of Bradley Manning's statement, The Guardian has published a copy of Manning's lengthy statement as transcribed by independent journalist Alexa O'Brien.

Manning mural BrooklynOf particular interest are Manning's statements undermining his intent to aid the enemy and supporting his claim of whistle-blowing, including his choice of recipients for his information.

At this point I decided that it made sense to try to expose the SigAct tables to an American newspaper. I first called my local news paper, The Washington Post, and spoke with a woman saying that she was a reporter. I asked her if the Washington Post would be interested in receiving information that would have enormous value to the American public.

Although we spoke for about five minutes concerning the general nature of what I possessed, I do not believe she took me seriously. She informed me that the Washington Post would possibly be interested, but that such decisions were made only after seeing the information I was referring to and after consideration by senior editors.

I then decided to contact [missed word] the most popular newspaper, The New York Times. I called the public editor number on The New York Times website. The phone rang and was answered by a machine. I went through the menu to the section for news tips. I was routed to an answering machine. I left a message stating I had access to information about Iraq and Afghanistan that I believed was very important. However, despite leaving my Skype phone number and personal email address, I never received a reply from The New York Times.

Such revelations invite an obvious comparison between Bradley Manning's plight and that of Daniel Ellsburg, who revealed The Pentagon Papers and prompted the renowned First Amendment decision in New York Times v. United States (1971).   Another comparison is to a Civil War prosecution, even as courts consider First Amendment claims resisting the government subpoenas of Twitter accounts.

But Bradley Manning's case is proving unique.

RR
[image via]

 

March 1, 2013 in Current Affairs, First Amendment, History, News, Speech, State Secrets, War Powers | Permalink | Comments (0) | TrackBack (0)

Thursday, February 21, 2013

A Drone Court . . . in the Executive Branch?

While many continue talking about a drone court in the judicial branch, Neal Katyal wrote in the NYT in favor of a drone court in the executive branch.  Katyal argues that an executive tribunal comprised of national security experts, with congressional oversight, is a better tailored way to ensure accountability in the administration's use of drone strikes for targeted killings.  The proposal splits the difference--or takes the best of both approaches--between the administration's current policy (which, it says, includes an internal executive branch review by experts, but with no independent oversight) and a full-fledged drone court in the judicial branch.

According to supporters, the drone court would provide a check to the administration's use of drones for targeted killing of Americans overseas, in the spirit of the FISA court.  But ideas so far locate the court in the judiciary.  Katyal sees a problem with that:

There are many reasons a drone court composed of generalist federal judges will not work.  They lack national security expertise, they are not accustomed to ruling on lightning-fast timetables, they are used to being in absolute control, their primary work is on domestic matters and they usually rule on matters after the fact,  not beforehand.

But putting oversight authority in the executive branch, staffed by experts, would solve that problem.  And Katyal says that an executive branch "court" could still be subject to a check--by Congress:

The adjudicator would be a panel of the president's most senior national security advisers, who would issue decisions in writing if at all possible.  Those decisions would later be given to the Congressional intelligence committees for review.  Crucially, the president would be able to overrule this court, and take whatever action he thought appropriate, but would have to explain himself afterward to Congress.

As to explaining to Congress--and shifting gears just slightly--it's now widely reported that the White House is refusing to disclose DOJ memos justifying its targeted killing program.  Instead, to gain bi-partisan support for John Brennan to lead the CIA, the administration is negotiating with Republicans to provide more information on the attacks in Benghazi in order to gain their support for Brennan.

SDS

February 21, 2013 in Congressional Authority, Courts and Judging, News, Procedural Due Process, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Saturday, February 9, 2013

A Targeted Killing Court?

The idea to create a judicial check on the administration's use of targeted killings seems to be gaining some momentum, according to several sources, including WaPo and NYT.  According to the reports, the idea is to create a secret court, like the FISA court, to provide a measure of process before the government kills a person by drone attack.  There is some concern that a court could act quickly enough, however.  Senate Intelligence Committee Chairman Senator Diane Feinstein said she and others may explore the idea of a special court.

SDS

February 9, 2013 in Congressional Authority, Executive Authority, News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Thursday, February 7, 2013

DOJ Releases Memos on Drone Attacks to Senate Committee

The Justice Department today released a series of legal memos outlining the case for the administration's use of drone attacks to the Senate Intelligence Committee, according to WaPo.  But the memos are (inexplicably) not for public consumption.

The release came just days after the leak of a DOJ white paper outlining the legal case for drone attacks on Americans overseas, and just hours before John Brennan's confirmation hearing before the Committee to be CIA director.  Brennan defended the attacks in his testimony.

SDS

February 7, 2013 in Congressional Authority, Executive Authority, News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 5, 2013

DOJ White Paper Says Why Drone Attacks on Americans Are Constitutional

A Department of Justice white paper leaked to NBC gives the more detailed version of the administration's legal case for drone attacks against overseas Americans associated with al-Qa'ida.  (Note that the white paper is unsigned and undated; it is not an OLC memo.  It is titled simply "Department of Justice White Paper.")  Michael Isikoff wrote on the white paper here.  The leak is significant, because the administration has steadfastly refused to release a formal legal justification for the program.  Just last month, the administration successfully defended against a FOIA claim in federal court seeking legal justification for the program.)

According to the white paper, the president has constitutional authority to order drone attacks and is not prohibited by due process.  The paper says that the president has authority to respond to order strikes as part of his authority to defend the country against the imminent threat posed by al Qa'ida and associated forces, including U.S. citizens associated with al Qa'ida, under "the inherent right of the United States to national self defense under international law, Congress's authorization of the use of all necessary and appropriate military force against this enemy, and the existence of an armed conflict with al-Qa'ida under international law." 

According to the paper, due process does not prohibit this:

Were the target of a lethal operation a U.S. citizen who may have rights under the Due Process Clasue and the Fourth Amendment, that individual's citizenship would not immunize him from a lethal operation.  Under the traditional due process balancing analysis of Mathews v. Eldridge, we recognize that there is no private interest more weighty than a person's interest in his life.  But that interest must be balanced against the United States' interest in forestalling the threat of violence and death to other Americans that arise from an individual who is a senior operational leader of al-Q'aida or an associated of al-Q'aida and who is engaged in plotting against the United States.

Instead, the white paper sets out a three-part test for targeted killing of a U.S. citizen who is outside the United States and who is "an operational leader continually planning attacks against U.S. persons and interests":

(1) where an informed, high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States;

(2) where a capture operation would be infeasible--and where those conducting the operation continue to monitor whether capture becomes infeasible; and

(3) where such an operation would be conducted consistent with applicable law of war principles.

The paper says that "[i]n these circumstances, the 'realities' of the conflict and the weight of the government's interest in protecting its citizens from an imminent atack are such that the Constitution would not require the government to provide further process to such a U.S. citizen before using lethal force."

The paper, however, goes on to define "imminent" quite broadly (and surprisingly): "the condition that an operational leader present an 'imminent' threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future."  The paper also goes on at length as to why this isn't unlawful murder. 

It mentions as part of the justification that "under the circumstances described in this paper, there exists no appropriate judicial forum to evaluate these constitutional considerations."

SDS

February 5, 2013 in Executive Authority, Foreign Affairs, Fundamental Rights, News, Procedural Due Process, War Powers | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 23, 2013

Ban on Women in Combat to be Lifted

Reputable news sources are reporting the Department of Defense will abandon the ban on women serving in combat; CNN has one of the fullest reports.

The official announcement from the Pentagon should be forthcoming on Thursday.

In November, a complaint in Hegar v. Panetta was filed in the Northern District Court of California, arguing that the policy offended the equal protection component of the Fifth Amendment.  More about the case is available from the ACLU.

800px-Flickr_-_The_U.S._Army_-_Female_flag_officers_honor_first_woman_four-star
ConLawProfs (and students) often encounter the gendered combat exclusion in discussions of Rotsker v. Goldberg (1981) in which the Justice Rehnquist's Court upheld male-only registration for the draft finding women were not "similarly situated" to men because women were not eligible for combat.

RR
[image via]

January 23, 2013 in Equal Protection, Fifth Amendment, Gender, War Powers | Permalink | Comments (0) | TrackBack (0)

Friday, January 4, 2013

President Obama's Signing Statement on NDAA

President Obama signed the National Defense Authorization Act for FY 2013 this week and, just as he did on last year's NDAA, issued a signing statement objecting to several provisions on separation-of-powers grounds.  In characteristic language, the President said that he will implement those provisions "to avoid a constitutional conflict."  This means, largely, that the administration will ignore them.  But it's unlikely that the administration will act contrary to all of them.

Perhaps the most notable provisions restrict the President's use of funds to transfer detainees out of Guantanamo Bay--either to the U.S. for criminal trials in regular Article III courts, or to other countries--or to house detainees in the U.S.  Last year's NDAA also contained similar restrictions.  These provisions--Sections 1022, 1027, and 1028--are designed to prevent the President from closing Guantanamo and detaining suspected terrorists in the United States; they effectively foiled the President's plans last year to close Guantanamo.

But another provision, Section 1025, new this year, similarly restricts the President's use of funds to transfer detainees out of the detention facility in Parwan, Afghanistan.  The President wrote,

That facility is located within the territory of a foreign sovereign in the midst of an armed conflict.  Decisions regarding the disposition of detainees captured on foreign battlefields have traditionally been based upon the judgment of experienced military commanders and national security professionals without unwarranted interference by Members of Congress.  Section 1025 threatens to upend that tradition, and could interfere with my ability as Commander in Chief to make time-sensitive determinations about the appropriate disposition of detainees in an active area of hostilities. 

The President also objected to provisions interfering with his authority to conduct foreign relations and supervise the executive branch.  As to the latter, Sections 827 and 828 enhance whistleblower protection for executive branch contractors.  The President wrote, "I will interpret those sections consistent with my authority to direct the heads of executive departments to supervise, control, and correct employees' communications with Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential."

Section 1034 requires the President to "transmit to the congressional defense committees a report by the Commander of the United States Strategic Command, without change, detailing whether the recommended reduction would create a strategic imbalance or degrade deterrence and extended deterrence between the total number of nuclear weapons of the United States and the total number of nuclear weapons of the Russian Federation."  President Obama wrote, "section 1034 would require a subordinate to submit materials directly to the Congress without change, and thereby obstructs the traditional chain of command."

SDS

January 4, 2013 in Congressional Authority, Executive Authority, News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 20, 2012

Daily Read: Reporting the MSK Trial at Guantanamo

In an excerpt published in Slate this morning, from his e-book, Camp Justice, journalist Mattathias Schwartz writes compellingly of covering the ongoing trial United States v. Khalid Sheikh Mohammed, et al.  We most recently discussed Khalid Sheikh Mohammed (KSM), the so-called "mastermind" of 9-11 and the onlgoing legal proceedings, when KSM was arraigned.  

Camp JusticeRecall that whether or not KSM would have a trial - - - and where - - - were hotly contested matters.  Now, Schwartz states that although the KSM trial at Guantanamo is an “open” and “public” proceeding [his quotes], accepting the Pentagon’s “invitation” to cover the proceedings, meant signing the 13-page Media Ground Rules document:

Among other things, I agreed not to disclose any Protected Information. The definition of Protected Information makes ample use of the word includes and sets no upper limit on what Protected Information might be.

The geographical restraints also limit reportial opportunities:

For the most part, News Media Representatives are confined to a few acres of Guantánamo, an area known as Camp Justice. Cut off from the town and the detention camps, Camp Justice is carved up into a jigsaw of designated zones by every conceivable type of wall: interlocking traffic barriers, chest-high, made of orange plastic; chains hanging between yellow stanchions; retractable fabric bands stretched airport-style between flimsier black stanchions; chain-link fences veiled in black tarps and topped with spools of concertina wire; chain-link blocks wrapped in green tarps and filled with rubble; “no photography” signs; “restricted area” signs; gates that swing on hinges; gates that pop up from the ground.

And then there is the trial itself, with the imposition of a 40 second sound delay.

This first hand journalistic account provides a useful context for any constitutional analysis of a "public trial," as well as for the ongoing discussions of national security and constitutionalism.

RR

November 20, 2012 in Criminal Procedure, Current Affairs, First Amendment, Foreign Affairs, Habeas Corpus, War Powers | Permalink | Comments (0) | TrackBack (0)

Thursday, November 15, 2012

D.C. District Says Habeas (Still) Doesn't Extend to Bagram

Chief Judge Royce C. Lamberth (D.D.C.) ruled today in Amantullah v. Obama that a Bagram detainee does not enjoy the privilege of habeas corpus, despite new evidence that wasn't before the D.C. Circuit when it similarly ruled in Al Maqaleh v. Gates.  This ruling comes on the heels of a series of like rulings in the D.C. Disrict and shows that the courts aren't open to efforts to side-step Al Maqaleh.  In short: Habeas does not, and will not, extend to detainees at Bagram.

Here's our post on the D.C. Circuit's Al Maqaleh, with background and links; here's our most recent post on habeas at Bagram.

Amantullah, a Bagram (Afghanistan) detainee, argued that he had new evidence that should alter the jurisdictional analysis in the D.C. Circuit's Al Maqaleh case, holding that habeas doesn't extend to Bagram.  He argued several points:

  • The commencement of full-blown civilian trials of Afghan detainees at Bagram" "belies any previously articulated claim that proximity to the battlefield renders Article III judicial review impracticable."
  • The government intends to detain him indefinitely.
  • The government's new procedures, under the Detainee Review Board, are only marginally better than its procedures under the old system, but they're still flawed.
  • His own DRB found him eligible for release.
  • The government is using Bagram to evade judicial review.

The court didn't buy it.  Judge Lamberth wrote that the new evidence didn't alter the Boumediene factor analysis, and that under Al Maqaleh Amentullah's petition must be denied.

Amentullah's most compelling new evidence may have been his claim that his DRB found him eligible for release.  Here's what the court had to say about that:

But this is irrelevant to the Boumediene analysis.  As Judge Bates noted [in his most recent ruling], "whether a detainee has been cleared for release is irrelevant to whether a petitioner may be detained unlawfully."

Op. at 15.

SDS

November 15, 2012 in Cases and Case Materials, Habeas Corpus, News, Opinion Analysis, War Powers | Permalink | Comments (0) | TrackBack (0)

Friday, November 9, 2012

Seventh Circuit Rejects Torture Claim Against Rumsfeld

The en banc Seventh Circuit this week ruled in Vance v. Rumsfeld that two American military contractors had no cause of action against former Defense Secretary Donald Rumsfeld for torture.  The ruling was expected: the court previously vacated the three-judge panel ruling allowing the case to move forward; oral arguments suggested that the full court was hostile to the plaintiffs' claims; and the ruling aligns with similar (but distinguishable and less sweeping) rulings in the Fourth and D.C. Circuits.  We posted last on the case, with links to an earlier post, here.

The ruling ends the plaintiffs' case and effectively creates absolute immunity against such claims for military personnel and their civilian commanders--at least in the Seventh Circuit.  Given similar rulings in the Fourth and D.C. Circuits--and no circuit going the other way--the case almost surely will not attract the attention of the Supreme Court.  (Even if the Court took it up, it would almost certainly affirm the Seventh Circuit's ruling, given its trend with Bivens actions.)  The case also extended the no-supervisory-liability rule for Bivens claims (affirmed in Iqbal), holding that Secretary Rumsfeld's alleged authorization of torture, even if true, was simply too attenuated from the actions of those who actually tortured the plaintiffs.  

The case involved two American military contractors who claimed that they were detained and tortured by military authorities in Iraq.  They sued Secretary Rumsfeld under Bivens based on his alleged authorization of torture techniques.  

The en banc Seventh Circuit reversed a three-judge panel and held that Bivens did not offer a remedy to the plaintiffs.  Chief Judge Easterbrook, writing for the court, set the tone early in his opinion, expressing hostility to "creating new Bivens claims":

[The Supreme Court] has not created another [Bivens] remedy during the last 32 years--though it has reversed more than a dozen appellate decisions that had created new actions for damages.  Whatever presumption in favor of a Bivens-like remedy may once have existed has long since been abrogated.  The Supreme Court never created or even favorably mentioned the possibility of a non-statutory right of action for damages against military personnel, and it has twice held that it would be inappropriate to create such a claim for damges.  The Court has never created or even favorably mentioned a non-statutory right of action for damages on account of conduct that occurred outside the borders of the United States.  Yet plaintiffs propose a novel damages remedy against military personnel who acted in a foreign nation--and in a combat zone, no less.

Op. at 9.  Chief Judge Easterbrook wrote that "special factors" counseled against a Bivens remedy, in particular the courts' relative inability to assess the merits of military policies and decisions.  Chief Judge Easterbrook also mentioned that Congress declined to create a statutory remedy, suggesting that it didn't want plaintiffs suing military personnel or their superiors, and that Congress created two administrative paths to remedies but that the plaintiffs did not pursue them.  "But Congress has not authorized awards of damages against soldiers and their superiors, and creating a right of action in common-law fashion would intrude inapropriately into the military command structure."  Op. at 17.  

Note that the ruling (Part III) extends to "soldiers and their superiors," even though this case was only against Secretary Rumsfeld.

Chief Judge Easterbrook also wrote that Secretary Rumsfeld's authorization of torture was too attenuated from the actions of those who actually tortured the plaintiffs to survive the no-supervisor-liability rule for Bivens claims.  The plaintiffs sought to navigate this rule by alleging that Secretary Rumsfeld personally authorized torture--i.e., that he wasn't vicariously liable, but was rather directly responsible.  But Chief Judge Easterbrook wrote that Iqbal requires that a defendant "wants the unconstitutional or illegal conduct to occur."  Op. at 19.  That, he said, the plaintiffs did not allege.

Judge Wood concurred in the judgment only but wrote separately to emphasize that the alleged actions were torture, and could not hide behind the euphamism of enhanced interrogation techniques.  Judge Wood also disagreed with the majority insofar as its opinion (Part III) would insulate military personnel (and not merely the Secretary of Defense) from Bivens liability.  

Judges Hamilton, Rovner, and Williams all wrote a separate dissent and all joined each others' dissents, emphasizing different points.  Judge Hamilton pointed out that the ruling gives more rights to aliens (under the Torture Victim Protection Act) than U.S. citizens and explained in great detail why U.S. law, in fact, assumes that the plaintiffs should have had a Bivens claim.  Judge Rovner argued that the plaintiffs pleaded sufficiently specific facts related to Secretary Rumsfeld's direct responsibility to survive the pleading standards set in Iqbal and Twombley.  And Judge Williams emphasized the remarkable scope of the majority's opinion.  "No case from our highest court or our sister circuits has approached such a sweeping conclusion."  Op. at 73.

SDS

November 9, 2012 in Cases and Case Materials, Courts and Judging, Fundamental Rights, Jurisdiction of Federal Courts, News, Opinion Analysis, Recent Cases, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)