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)

Monday, October 22, 2012

Court Rejects Bagram Detainees' Habeas Claims

Judge John D. Bates (D.D.C.) dismissed the habeas corpus claims of detainees at Bagram Airfield (Afghanistan) last week in Al Maqaleh v. Gates.  The ruling is the latest chapter in the detainees' quest to challenge their detentions by way of habeas in federal court, just as Guantanamo detainees won the right to challenge their detention by way of habeas in Boumediene v. Bush.  The detainees may appeal, but their chances seem slim, at best, especially given the history of the case.

Recall that Judge Bates originally ruled that Bagram detainees enjoyed the privilege of habeas in 2009.  Judge Bates wrote that with technology the courts could hear Bagram detainees' habeas claims just as easily as they could hear Guananamo detainees' claims, and that habeas claims wouldn't unduly disrupt the government's prosecution of the war.  But the D.C. Circuit reversed, saying that Bagram was fundamentally different than Guantanamo.  The D.C. Circuit ruled that Bagram was in an active war zone, that the government didn't have the kind of control over Bagram that it had over Guantanamo, and that habeas claims risked interfering with the government's prosecution of the war.

This latest case arose when the same Bagram detainees argued that certain developments at Bagram undermined the D.C. Circuit's ruling.  In particular, the Bagram detainees argued that new evidence showed that the government intends to stay at Bagram indefinitely; that recent criminal trials at Bagram showed that practical obstacles to litigation are far less serious than the D.C. Circuit believed; that the government was attempting to avoid habeas jurisdiction by detaining prisoners at Bagram; and that procedures used to determine the detainees' status are unacceptable.

Judge Bates rejected these claims, in short disagreeing with the detainees' interpretation of their new evidence, or saying that their "new" evidence wasn't new at all--that it was fully available to the D.C. Circuit when the D.C. Circuit issued its earlier ruling.

Judge Bates also rejected the habeas claim in a companion case brought by a minor, Hamidullah v. Obama.  Hamidullah argued that his age set him apart from the others, because habeas is "somewhat more robust" for minors.  Judge Bates ruled that he failed to support this argument.

The case likely marks the end of the line for Bagram detainees.  Even if they appeal, given the D.C. Circuit's ruling and Judge Bates's most recent ruling, they're likely to lose.

SDS

October 22, 2012 in Cases and Case Materials, Executive Authority, Habeas Corpus, Jurisdiction of Federal Courts, News, Opinion Analysis, War Powers | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 16, 2012

D.C. Circuit Vacates Hamdan's Conviction for "Material Support for Terrorism"

A unanimous three-judge panel of the D.C. Circuit today in Hamdan v. U.S. reversed the judgment of the Court of Military Commission Review and directed that Salim Ahmed Hamdan's conviction for "material support for terrorism" be vacated.  The ruling clears Hamdan, who already served time (66 months minus credit for time already served at Guantanamo) and has been released, of this conviction.

Hamdan here is the same Hamdan who successfully challenged the government's authority to try him by military commission in Hamdan v. Rumsfeld.  After Congress passed the Military Commissions Act of 2006 and expanded the list of crimes for which a person could be tried by military commission, the government re-charged Hamdan with conspiracy and material support for terrorism.  Hamdan was acquitted of conspiracy, but convicted of five specifications of material support for terrorism.  He was sentenced to 66 months, but credited for served for most of that sentence, and released in Yemen in 2008.

The D.C. Circuit ruled that Hamdan's case was not moot (even though he already served time and was released in 2008 in Yemen) and that the MCA, which specifically made "material support for terrorism" a crime triable in a military commission, did not apply (in order to avoid ex post facto problems).  This left the court to determine whether the government had authority to try Hamdan for "material support for terrorism" under 10 U.S.C. Sec. 821, which authorizes the government to try persons by military commission for violations of the "law of war." 

In short, the court ruled that the international law of war at the time did not proscribe "material support for terrorism" and that the government therefore lacked authority to try Hamdan for that crime by military commission.  The court wrote that

neither the major conventions on the law of war nor prominent modern international tribunals nor leading international-law experts have identified material support for terrorism as a war crime.  Perhaps most telling, before this case, no person has ever been tried by an international-law war crimes tribunal for material support of terrorism.

Op. at 25.  The court said that international law leaves "material support for terrorism" to domestic law (even if international law does establish some other forms of terrorism as war crimes), and domestic law didn't outlaw it until the 2006 MCA--after Hamdan's actions.

Judge Ginsburg joined the court's opinion but wrote separately to "explain the unfortunate state of . . . precedent" that saved the case from mootness.

Only Judge Kavanaugh, the author of the court's opinion, joined footnote 6, which explained why Congress had authority to make "material support for terrorism" a war crime, and why it is appropriate to address that question in the first place.  Judge Kavanaugh wrote that Congress's war powers are not confined by international law, and therefore even if international law did not define "material support for terrorism" as a war crime, Congress could.

SDS

October 16, 2012 in Cases and Case Materials, Congressional Authority, Courts and Judging, Jurisdiction of Federal Courts, Mootness, News, Opinion Analysis, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 9, 2012

Daily Read: Bowden on Obama on binLaden's Possible Article III Trial

9780802120342In the just-published book The Finish: The Killing of Osama bin Laden by Mark Bowden apparently argues that

in the unlikely event that bin Laden surrendered, Obama saw an opportunity to resurrect the idea of a criminal trial, which Attorney General Eric Holder had planned for Khalid Sheikh Mohammed. This time, the president tells Bowden, he was prepared to bring bin Laden back and put him on trial in a federal court. “We worked through the legal and political issues that would have been involved, and Congress and the desire to send him to Guantánamo, and to not try him, and Article III.” Obama continues: “I mean, we had worked through a whole bunch of those scenarios. But, frankly, my belief was if we had captured him, that I would be in a pretty strong position, politically, here, to argue that displaying due process and rule of law would be our best weapon against al-Qaeda, in preventing him from appearing as a martyr.”

Obama's representations, given in an interview with Bowden, present an interesting - - - and perhaps unlikely - - - counterfactual.  Over at Lawfare, Wells Bennett observes that "it seems a safe bet that congressional resistance to a civilian prosecution would have been extreme, at least as heated as the resistance to the civilian prosecution of the 9/11 co-conspirators."

RR

October 9, 2012 in Books, Courts and Judging, Current Affairs, Executive Authority, Foreign Affairs, International, Jurisdiction of Federal Courts, News, War Powers | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 18, 2012

Appeals Judge Stays District Court Injunction on NDAA Detention Authority

Charlie Savage at the NYT reports that Judge Raymond J. Lohier of the Second Circuit granted an interim stay of district Judge Katherine Forrest's permanent injunction against the use of the detention authority in the National Defense Authorization Act by the Obama administration.  Our post on Judge Forrest's injunction, along with background, is here.

The stay means that Judge Forrest's injunction does not prevent the government from acting under its detention authority in the NDAA, until a panel of the Second Circuit hears the case, scheduled for September 28.

This is a set-back for the plaintiffs in the case and other opponents of the NDAA's detention authority--but only a minor, maybe temporary one: everyone expected that the Second Circuit would have the next say on this case, whatever Judge Forrest ruled, and that the Supreme Court may have the final say.

SDS

September 18, 2012 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Opinion Analysis, War Powers | Permalink | Comments (0) | TrackBack (0)

Thursday, September 13, 2012

Court Permanently Enjoins NDAA Detention Authority

Judge Katherine B. Forrest (SDNY) ruled in Hedges v. Obama that the detention authority in Section 1021 of the National Defense Authorization Act violated free speech and free association and was unconstitutionally vague.  Judge Forrest issued a permanent injunction against its enforcement.

The ruling comes nearly four months after Judge Forrest issued a temporary injunction in the same case.  The ruling means that the government cannot use Section 1021 as authority for military detention--at least in the Southern District, if not beyond--and it warns the government strongly against using the AUMF instead.  Judge Forrest wrote that the AUMF never authorized the kind of detention authorized in Section 1021--that Section 1021 is a new and different kind of detention authority--undermining the government's claim that the AUMF allowed this all along.  According to Judge Forrest, it didn't.  And still doesn't.  The ruling thus not only strikes Section 1021; it also strikes at the government's sweeping theory of detention under the AUMF itself.  Needless to say, the ruling is a huge victory for opponents of limitless and military detention without trial.

Recall that the plaintiffs in the case, a group of writers, journalists, and activists, sued the government, arguing that Section 1021 violated the First Amendment.  That Section provides:

(a) In General. Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the [AUMF] includes the authority of the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.

(b) Covered Persons.  A covered person under this section is any person as follows

. . .

(2) A person who was part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.

(c) Disposition Under the Law of War.  The disposition of a person under the law of war as described under subsection (a) may include the following:

(1) Detention under the law of war without trial until the end of hostilities authorized by the [AUMF].

. . .

(d) Construction.  Nothing in this section is intended to limit or expand the authority of the President or the scope of the [AUMF].

The plaintiffs argued that the language was pliable and vague enough that the government could use Section 1021(b)(2) to detain them as "covered persons."

Judge Forrest agreed.  She ruled that the government had done nothing since the preliminary injunction to better or more clearly define vague terms in that subsection, and that it had done very little to assure her that the plaintiffs in this case wouldn't be subject to detention under its authority.  Here are some key points from the ruling:

  • Standing.  Judge Forrest rejected the government's claim that the plaintiffs lacked standing, particularly becuase the government had done almost nothing to persuade her that the plaintiffs might not be subject to detention under Section 1021 in violation of the First Amendment.  Since the preliminary injunction, the government only issued a highly qualified statement that said that the plaintiffs, based solely on their independent activities described in their affidavits and testimony, wouldn't be subject to detention.  For Judge Forrest, this wasn't enough.  The highly qualified statement left the door wide enough open for prosecution of protected activities that the plaintiffs still had standing.
  • AUMF Authority.  Judge Forrest categorically rejected the government's repeated claim in this litigation (and elsewhere) that Section 1021 only codified authority that it already enjoyed pursuant to the AUMF.  Judge Forrest was clear that the authorities differed--and that Section 1021 added to authority under the AUMF, that the AUMF didn't go so far as to authority detention of those "substantially or directly supporting" "associated forces."  She wrote that the government itself extended its own authority under the AUMF to resemble something like the authority codified in Section 1021, but that the AUMF itself (without the government's subsequent gloss) does not grant the same authority as Section 1021.  (The AUMF authorizes "all necessary and appropriate force against those . . . [who the President determines] planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons . . . ."  Compare that language to the language of Section 1021(b)(2), above.)
  • Alternative Use of AUMF.  Related to that last point, Judge Forrest issued a strong statement warning the government against using the "substantially or directly supporting" theory as the basis of any detention.  She wrote,

If, following issuance of this permanent injunctive relief, the Government detains individuals under theories of "substantially or directly supporting" associated forces, as set forth in Section 1021(b)(2), and a contempt action is brought before this Court, the Government will bear a heavy burden indeed.

Op. at 14.

  • Habeas.  Judge Forrest categorically rejected the government's claim that habeas would ensure that detainees under Section 1021 would get their day in court.  She said that if only habeas review were available to U.S. citizens detained within the U.S., core constitutional rights (like the right to a jury trial in a criminal case) would be eliminated.

SDS

September 13, 2012 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, First Amendment, Mootness, News, Opinion Analysis, Speech, War Powers | Permalink | Comments (0) | TrackBack (0)

Friday, August 31, 2012

DOJ Closes Torture Investigations, Declines to Prosecute

Attorney General Eric Holder announced yesterday that the Justice Department will not pursue criminal charges in the two cases--the only two, and the last two--that it investigated involving torture of detainees in U.S. custody.  The announcement means that no U.S. official, employee, or service member will face criminal charges for torture.

This announcement, along with the courts' now widely adopted view that civil suits for torture are barred by either the state secrets privilege or by "special factors" counseling against such suits (under Bivens), means that no U.S. official, employee, or service member is likely to face any judicial accountability for torture.

Recall that the Justice Department in 2009 tasked Assistant U.S. Attorney John Durham of the District of Connecticut with an expanded investigation into whether federal laws were violated in connection with the interrogations of specific detainees at overseas locations.  But AG Holder said that the Department wouldn't prosecute anyone who acted in good faith and within the scope of legal guidance by the OLC.  In June 2011, Durham recommended opening full criminal investigations into only two cases.  The announcement today means that those investigations are now closed--without prosecutions.

SDS

August 31, 2012 in Executive Authority, News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Fordham Discussion of the Constitutionality of "Targeted Killings"

Friday, August 17, 2012

Court Dismisses Operation Flex Challenge on State Secrets Privilege

Judge Cormac J. Carney (C.D. Cal.) this week dismissed a case brought by several Muslims challenging an FBI surveillance program on the government's assertion of the state secrets privilege.  (Thanks to emptywheel.net for links to the opinions below.)

The ruling, along with a companion ruling on the plaintiffs' FISA claim, terminates all but a sliver of the case.  It also illustrates what a powerful weapon the state secrets privilege can be--protecting an indiscriminate surveillance program that, as described by the plaintiffs, even the judge called "disturbing."  At the end of the day, Judge Carney dismissed the entire case (aside from the FISA claim, discussed below and dismissed in part on other grounds) on the government's own claim, based on a sealed declaration, that its defense would necessarily reveal state secrets.

The rulings in Fazaga v. FBI arose out of the plaintiffs' challenge to the FBI's "Operation Flex" program.  According to the complaint, the FBI engaged a civilian, Craig Monteilh, to conduct indiscriminate surveillance on Muslims in Southern California.  The surveillance resulted in hundreds of hours of video and thousands of hours of audio recordings from the mosques, homes, businesses, and associations of hundreds of Muslims.  But it didn't result in a single criminal charge.

The plaintiffs sued the FBI and its officers under several constitutional and statutory theories, including FISA.  The government moved to dismiss, arguing that its defense necessarily required disclosure of information that would harm national security--that is, state secrets--and the court agreed.  Judge Carney explained:

Here, Plaintiffs' claims are predicated on their core allegation that Defendants engaged in an indiscriminate investigation, surveillance, and collection of information of Plaintiffs and the putative class because they are Muslim. . . .  [T]he Court is persuaded that privileged information provides essential evidence for Defendants' full and effective defense against Plaintiffs' claims--namely, showing that Defendants' purported "dragnet" investigations were not indiscriminate schemes to target Muslims, but were properly predicated and focused. . . .  [T]he Court is [also] convinced that the privileged and nonprivileged information are inextricably intertwined, such that litigating the instant case to judgment on the merits would present an unacceptable risk of disclosing state secrets.

Op. at 31, 33 (emphasis in original).

Judge Carney's ruling is thorough and thoughtful--explaining the Totten bar and the Reynolds privilege; navigating between and synthesizing recent rulings coming out of the Ninth Circuit (Jeppesen Dataplan) and the Fourth  Circuit (El-Masri); reviewing the government's confidential supporting affidavit and memorandum; checking the government's assertion against the government's own standards and processes for asserting the privilege; and explaining in broad terms just what the kind of information might be disclosed in the litigation.  In other words, the ruling seems modest, balanced, and reasonable.

But still there's this: Judge Carney dismissed the entire case because the government's defense would have required revealing information that would harm national security, based only on the government's own say so.  The dramatic result creates a perverse incentive for the government to overreach in its surveillance programs, with the knowledge and comfort that it can successfully shut down an entire case simply by showing that any defense of it would reveal state secrets.  

In the companion ruling, Judge Carney dismissed the plaintiffs' FISA claim against the government, but not the individual defendants.  Judge Carney relied on the Ninth Circuit's recent ruling that FISA's civil damages provision did not unequivocally waive sovereign immunity.  But Judge Carney also said that nothing in the civil damages provision stops the suit against the individual defendants.  And the government didn't assert the state secrets privilege over the FISA part of the case.  

As a result, the plaintiffs' FISA claim against the individual defendants appears to go on.  We might expect a government assertion of the state secrets privilege over this remaining part of the case now.  If so, it could face a hurdle: The Northern District of California ruled in In re Nat'l Sec. Agency Telecomms. Records Litig., 564 F. Supp. 2d 1109, 1120 (2008) that FISA preempts the state secrets privilege with respect to a FISA claim.  While the court cited and discussed the case (in rehearsing the plaintiffs' argument), it's not clear that it would agree with it, or not.

SDS

August 17, 2012 in Cases and Case Materials, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, State Secrets, War Powers | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 8, 2012

Ninth Circuit Says No Waiver of Sovereign Immunity in Case Challenging TSP

In the latest and perhaps last chapter of the Al-Haramain case, the Ninth Circuit ruled that the government did not unequivocally waive sovereign immunity through the Foreign Intelligence Surveillance Act civil liability provision, ending the plaintiffs' case challenging the government's terrorist surveillance program.

As the court said, "[t]his case effectively brings to an end the plaintiffs' ongoing attempts to hold the Executive Branch responsible for intercepting telephone conversations without judicial authorization."  Op. at 8784.

Recall that the plaintiffs sued under the FISA's civil liability provision for damages resulting from the government's surveillance of them through the TSP.  Most recently, the district court ruled that the state secrets privilege did not foreclose the plaintiffs' suit--that "FISA preempts or displaces the state secrets privilege . . . in cases within the reach of its provisions"--and that the government implicitly waived sovereign immunity through FISA.  The district court ruling would have allowed the case to move forward.

But the Ninth Circuit stopped it.  The court ruled that the government did not unequivocally waive sovereign immunity through the FISA civil damages provision, and therefore the plaintiffs could not sue for damages from the government.

The FISA civil damages provision, 50 U.S.C. Sec. 1810, reads,

An aggrieved person . . . who has been subjected to an electronic surveillance or about whom information obtained by electronic surveillance of such person has been disclosed or used in violation of section 1809 of this title shall have a cause of action against any person who committed such violation . . . .

For the court, the key missing phrase was "the United States" (as in "against the United States" or "the United States shall be liable")--a mainstay of statutes in which the government unequivocally waived sovereign immunity.  Without such an unequivocal waiver, the government cannot be sued for damages.

Even with the government off the hook, though, the plaintiffs still could have proceeded against FBI Director Mueller, another defendant in the action (and a "person" under 50 U.S.C. Sec. 1810).  But the court said that the plaintiffs "never vigorously pursued its claim against Mueller" and dismissed it.  Op. at 8797.

The case almost certainly puts an end to the plaintiffs' litigation efforts to hold the government responsible for the TSP.

SDS

August 8, 2012 in Cases and Case Materials, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, State Secrets, War Powers | Permalink | Comments (1) | TrackBack (0)

Wednesday, July 18, 2012

Suit Seeks Damages for Targeted Killing

The ACLU and the Center for Constitutional Rights filed suit in the D.C. District on behalf of relatives of victims of the government's targeted killing program.  The plaintiffs, parents of Samir Khan and Anwar al-Aulaqi and grandfather of Abdulrahman al-Aulaqi (Anwar's son), seek money damages against high-level government officials for authorizing targeted killings in violations of the Fourth and Fifth Amendments and the Bill of Attainder Clause.

The case comes 19 months after Judge Bates (D.D.C.) dismissed an earlier suit by Anwar al-Aulaqi's father, seeking to stop the government from killing his son in the first place.  Judge Bates ruled that al-Aulaqi's father lacked standing and failed to allege a violation of the Alien Tort Statute, and that the case raised non-justiciable political questions.  (Judge Bates didn't rule on the government's state secrets claim.)

The case also comes on the heels of a couple of dismissed torture suits against high-level officials--Doe v. Rumsfeld (rejected because special factors counseled against a Bivens remedy) and Lebron v. Rumsfeld (same, and cert. denied).

All this is to say that the case faces some hurdles--political question, state secrets, Bivens special factors, and qualified immunity, to name a few.

The plaintiffs in the most recent case argue that the targeted killing were illegal under the laws of war, because the plaintiffs were not engaged in activities that presented a concrete, specific, and imminent threat of death of serious physical injury; because something short of lethal force could have been used to neutralize any threat that they posed; because they were not directly participating in hostilities; because the government failed to take steps to avoid harm to bystanders; and because the killings didn't meet the requirements of distinction and proportionality.

We covered the government's likely justification for targeted killing here, here, here, and here (among other places, linked in these posts).  We still don't have a complete legal justification from the government for the targeted killing program.

SDS

July 18, 2012 in Cases and Case Materials, Due Process (Substantive), Fifth Amendment, Fourth Amendment, Jurisdiction of Federal Courts, News, Political Question Doctrine, Procedural Due Process, Recent Cases, War Powers | Permalink | Comments (0) | TrackBack (0)

Friday, June 15, 2012

D.C. Circuit Rejects Torture Suit Against Rumsfeld

A three-judge panel of the D.C. Circuit today rejected a U.S. citizen's Bivens action against former Defense Secretary Donald Rumsfeld for developing, authorizing, and implementing policies that led to his torture while in U.S. custody in Iraq.  The panel, following an earlier similar ruling from the Fourth Circuit, Lebron v. Rumsfeld, held that special factors counseled against a Bivens remedy--special factors "pertaining to military, intelligence, and national security."

The ruling comes on the heels of the Supreme Court's rejection of the plaintiffs' cert. petition in Lebron and while a similar suit is now pending before the en banc Seventh Circuit.  (A three-judge panel of the Seventh Circuit earlier ruled that the plaintiffs in that case did have a Bivens remedy against Rumsfeld.)

The case means that U.S. citizens won't have a civil damage action for constitutional violations against U.S. officials in the D.C. Circuit, even when the violations resulted from torture while in U.S. custody.  With two circuit rulings now on the books--this case, Joe Doe v. Rumsfeld, and Lebron--and with a Seventh Circuit ruling against the plaintiffs now all but certain, and with the Supreme Court's rejection of cert. in Lebron, it now seems all but certain that other circuits faced with the question will follow suit, and that therefore U.S. citizens won't have a civil damage action for constitutional violations against U.S. officials anywhere.

The case also gives extraordinary authority to the executive to evade suits for detention and mistreatment--even torture--of U.S. citizens.  Congress, of course, could change this by authorizing such suits.  But don't look for that to happen anytime soon--or ever.

The D.C. Circuit ruling closely follows the Fourth Circuit's earlier ruling.  That is, the court today ruled that the "special factors" of military, intelligence, and national security foreclose a civil damage remedy for constitutional violations by U.S. citizens.  Here's the court's special factor analysis:

In his complaint, Doe challenges the development and implementation of numerous military policies and decisions.  The complaint would require a court to delve into the military's policies regarding the designation of detainees as "security internees" or "enemy combatants," as well as policies governing interrogation techniques.

Doe's allegations against Secretary Rumsfeld implicate the military chain of command and the discretion Secretary Rumsfeld and other top officials gave to [military] agents to detain and question potential enemy combatants.  The allegations raise questions regarding Secretary Rumsfeld's personal control over the treatment and release of specific detainees.  Litigation of Doe's case would require testimony from top military officials as well as forces on the ground, which would detract focus, resources, and personnel from the mission in Iraq.  And . . . allowing such an action would hinder our troops from acting decisively in our nation's interest for fear of judicial review of every detention and interrogation.

Op. at 10-11.

The court also found persuasive--another "special factor" counseling against a Bivens remedy--that Congress did not authorize such suits under the Detainee Treatment Act, or any other statute.  

Because the court ruled against Doe on Bivens, it did not rule on Rumsfeld's defense of qualified immunity.

SDS

June 15, 2012 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Executive Authority, Fundamental Rights, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 13, 2012

Court Declines Review in Padilla's Torture Case

The Supreme Court on Monday declined to review an earlier Fourth Circuit ruling rejecting Jose Padilla's civil case against former Defense Secretary Donald Rumsfeld and others for torture.  The move leaves the Fourth Circuit ruling untouched and will almost certainly influence the outcome in a similar case now before the full Seventh Circuit.  The move also lends further legitimacy to the Fourth Circuit's approach--that separation-of-powers principles can be a "special factor" counseling against a civil damage remedy in federal court--or, in short, that the executive has something close to a trump card to shut down litigation against executive officers for torture of individuals while detained for reasons that the executive says are related to national security or terrorism.

The case, Lebron v. Rumsfeld, arose out of Jose Padilla's detention and torture.  Padilla filed a Bivens claim against Rumsfeld and others for violations of his constitutional rights.  The Fourth Circuit ruled that special factors counseled against a Bivens remedy and that Padilla had other forms of relief (i.e., habeas).  As to special factors, the court said that separation-of-powers principles counseled against a Bivens remedy--in particular, that military matters like this are the province of the political branches, and that courts lack expertise and risk upsetting the military command structure and intelligence-gathering activities.

The Fourth Circuit ruling is in tension with similar recent rulings by the Seventh Circuit and two district courts.  The Seventh Circuit case, Vance v. Rumsfeld, was vacated and is now on appeal to the full Seventh Circuit.  The Court's rejection of Lebron will almost certainly influence the outcome of Vance (as if the outcome needed any influencing) and other cases by U.S. citizens alleging constitutional violations against executive officials related to national security, terror, intelligence, and the military.

The Court's rejection also lends further legitimacy to the Fourth Circuit approach, which was an aggressively pro-government, anti-plaintiff approach.  The Fourth Circuit reasoning all but gives the executive a trump card to shut down constitutional litigation against executive officials anytime the government says that the case is related to national security, terror, intelligence, and the military.  This approach gives the executive nearly complete control over this kind of litigation, takes the courts nearly entirely out of it, and sharply curtails plaintiffs' remedies for constitutional violations while in custody for anything that the executive says is related national security, terror, intelligence, and the military.

While the Court's rejection of Padilla's cert. petition is certainly not a ruling on the merits, the rejection signals a constriction of Bivens actions--a signal that the full Seventh Circuit will surely read and apply in the Vance case.

Congress, of course, could change this by authorizing suits for individuals like Padilla (or Vance and Ertel in the Seventh Circuit) for constitutional violations against executive officials.  But don't look for that to happen anytime soon.

The next chapter in this saga will come when the full Seventh Circuit issues its ruling in Vance v. Rumsfeld.  Especially now, in light of the Court's rejection of Padilla's cert. petition, look for the court to reverse the three-judge panel and to reject Vance's Bivens claim.  The only interesting aspect of the Seventh Circuit ruling will be how closely the court follows the Fourth Circuit's reasoning.

SDS

June 13, 2012 in Cases and Case Materials, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Recent Cases, Separation of Powers, Supreme Court (US), War Powers | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 22, 2012

Court Says Detention Authority Violates First Amendment

Judge Katherine B. Forrest (SDNY) ruled last week that the detention authority in the National Defense Authorization Act likely violates free speech.  Judge Forrest granted the plaintiffs' motion for a preliminary injunction in Hedges v. Obama and thus enjoined enforcement of Section 1021.

The case is notable in that the government could easily have side-stepped the whole thing: It simply could have taken the position that the plaintiffs, based only on their affidavits and testimony, did not fall within Section 1021.  This would have taken away the plaintiffs' standing (as Judge Forrest noted) and undermined the suit.  (The government need not have said anything about whether the plaintiffs would have been covered by Section 1021 if additional evidence arose.)  But it refused, suggesting that it keeps open the possibility that Section 1021 could apply to a remarkably wide swath of individuals, notwithstanding the President's efforts to limit it upon signing the NDAA.  More on this below.

The ruling is the first against the controversial detention authority in the NDAA.  The section at issue, Section 1021, defines a detainable person broadly (and vaguely, as it turns out) and apparently authorizes indefinite detention.  The Section, titled Affirmation of Authority of the Armed Forces of the United States to Detain Covered Persons Pursuant to the Authorization for Use of Military Force, provides:

(a) In General.  Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the [AUMF] includes the authority of the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.

(b) Covered Persons.  A covered person under this section is any person as follows

. . .

(2) A person who was part of or substantially supported al-qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.

(c) Disposition Under the Law of War.  The disposition of a person under the law of war as described under subsection (a) may include the following:

(1) Detention under the law of war without trial until the end of hostilities authorized by the [AUMF].

. . .

(d) Construction.  Nothing in this section is intended to limit or expand the authority of the President or the scope of the [AUMF].

But President Obama, upon signing the NDAA, issued a signing statement that said that Section 1021 did nothing to existing government detention authority under the AUMF and that the Section was therefore unnecessary.  In short, according to the President, Section 1021 changed nothing.  As to indefinite detention, the President wrote: "I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens.  Indeed, I believe that doing so would break with our most important traditions and values as a Nation.  My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable laws."

Moreover, while the White House issued a policy directive that included procedures for detention under Section 1022 (relating to military custody of foreign al-Qaeda terrorists), it issued no such directive on Section 1021--further suggesting that, in its view, nothing changed.

A group of writers, reporters, and activists brought suit, claiming Section 1021 could be interpreted to include them based on their reporting and writing on terrorist groups, including al-Qaeda, and terrorist activities; that they feared detention under Section 1021; and that Section 1021 chilled their further speech.  They said that Section 1021 was overbroad and vague in violation of the First Amendment.

Judge Forrest agreed.  In a lenghty and careful ruling, she wrote that the plaintiffs had standing, and that Section 1021 likely violated the First Amendment based on its overbreadth and vagueness.  

The ruling was based as much on the govenrment's stubborn position that it couldn't rule out detaining the plaintiffs based on their affidavits and testimony as it was based on the law.  The government refused to say that the plaintiffs wouldn't be detained under Section 1021 based on their affidavits and testimony, even though it also said that the plaintiffs' fears of detention were unreasonable.  And in a remarkable set of exchanges, reproduced in the opinion (at pages 31 to 34), government lawyers were unable to define phrases like "substantially support" or "directly support," or to give examples, or to assure the court that these plaintiffs, based on their affidavits and testimony alone, would not be subject to detention under Section 1021.

Outside the government's inability to define terms, give examples, or say whether the plaintiffs would be detainable, the court was also concerned about the lack of mens rea in Section 1021--an authority that it viewed as criminal-like, because of the potential for physical detention.  The problem is that a person could violate Section 1021 without intending to, even without knowing.  This, it said in addition to the government's inability to define key terms, rendered the Section unconstitutionally vague, in violation of due process.  

The court said the government's position was strongest on the definition of "associated forces"--a phrase that the government said is rooted in the laws of war.  But even so, "that does not resolve plaintiffs' concerns since they each testified to activities with or involving individuals or organizations that are 'associated forces' as defined by the Government."  Op. at 55-56.  The plaintiffs had the better of the case on "substantially," "direct," and "support."

If the government maintains its positions, keeping its options fully wide open under Section 1021, it's hard to see how an appeals could could rule any differently in this case.

SDS

May 22, 2012 in Cases and Case Materials, Congressional Authority, Courts and Judging, First Amendment, Fundamental Rights, Jurisdiction of Federal Courts, Music, Opinion Analysis, Standing, War Powers | Permalink | Comments (0) | TrackBack (0)

Sunday, May 6, 2012

Guantanamo Military Commission Arraignments

The arraignments by military commission on Saturday of Khalid Sheikh Mohammed and four others at Guantanamo Bay was rocky, at best.  It featured everything from disputes about clothing--both the prosecutors' and the defendants'--to disputes about barriers to defense counsels' ability to communicate and represent their clients.  The New York Times, The Washington Post, and NPR, among many others, reported. 

While the best live play-by-play was provided by Benjamin Wittes and Wells Bennett at Lawfare, you can read the transcripts of Saturday's proceedings for yourself, available here at the Office of Military Commissions web-site.

SDS

May 6, 2012 in Executive Authority, News, War Powers | Permalink | Comments (0) | TrackBack (0)

Drone Strike Kills Al-Quso

The Associated Press reported today that a CIA drone strike killed Fahd al-Quso, "a top al-Qaida leader on the FBI's most wanted list for his role in the 2000 bombing of the USS Cole warship."  According to the report, al-Quso served time in a Yemeni prison for his role in the bombing and was released in 2007.  The CIA carried out the attack with the authorization of the Yemeni government--part of its effort to bring the host country on board with strikes.

The strike comes just a week after President Obama authorized expanded use of drones in Yemen.  The new authority allows the government to identify targets based on their "signatures"--those patterns detected through intelligence that indicate that a target is an operative or otherwise poses a threat against U.S. interests--and not just their "personality."

SDS

May 6, 2012 in Executive Authority, International, News, War Powers | Permalink | Comments (0) | TrackBack (0)

Friday, May 4, 2012

KSM Military Commission Arraignment Tomorrow

Khalid Sheikh Mohammed is scheduled to be arraigned tomorrow along with four others in a military commission at Guantanamo Bay. We covered the Convening Authority's referral of terrorism charges here (with a link to the charge sheets).

The proceedings will be telecast live at the Post Theater at Fort Meade, Maryland; more information is here and here. Wells Bennett and Benjamin Wittes will live-blog on the proceedings at Lawfare.

Chief Prosecutor General Mark Martins told Charlie Savage at the NYT that he's optimistic that the trial will be fair. Benjamin Wittes (Brookings, Lawfare) similarly wrote in yesterday's WaPo that the commission hearings are "nothing like the kangaroo court of human rights groups' caricatures," and that they have "[q]uietly and gradually . . . become a real court."

But military defense attorneys interviewed in Savage's piece don't share this optimism. Savage writes that they say "improvements are exaggerated," and that they intend to ask presiding Judge Colonel James Pohl "to send the capital charges back to the Pentagon for reconsideration because of problems that, they say, have crippled their ability to provide a meaningful defense."

SDS

May 4, 2012 in Executive Authority, News, War Powers | Permalink | Comments (0) | TrackBack (0)

Thursday, May 3, 2012

D.C. Circuit Rejects Guantanamo Detainee Habeas Claim

A three-judge panel of the D.C. Circuit today reissued a ruling rejecting the habeas claim of a detainee at Guantanamo Bay.  The case, Alsabri v. Obama, affirms the lower court's dismissal. 

Here's the court's summary of facts:

Alsabri is a Yemeni citizen who was born and raised in Saudi Arabia.  He lived in Saudi Arabia until he was deported to Yemen in 1998, following an arrest for allegedly harboring an individual wanted for passport forgery.  In Yemen, he associated with veteran jihadist fighters, including members of al Qaeda, and decided to travel to Afghanistan to fight with the Taliban or al Qaeda.  In the summer of 2000, he traveled to Afghanistan by way of Pakistan, assisted by the Taliban and in the company of several men who expressed a desire to become martyrs.  Once in Afghanistan, Alsabri stayed at several guesthouses affiliated with the Taliban and al Qaeda.  He actively sought out and received military training from the Taliban or al Qaeda, and thereafter--with the authorization of one of Osama bin Laden's lieutenants--traveled to the front lines of the Taliban's fight against the Northern Alliance.

The court rejected Alsabri's claim that the lower court erred in finding certain facts and in concluding that he was part of the Taliban, al Qaeda, or associated forces.  It also rejected his claim that the lower court wrongly admitted certain pieces of evidence of his objection.  Finally, it rejected his claims that the district court wrongly limited his discovery, that the court wrongly admitted hearsay evidence, and that the lower court wrongly applied a preponderance-of-evidence standard instead of a clear-and-convincing-evidence standard.

There's really nothing new here, and the case is hardly a surprise.  As the court said in regard to Alsabri's legal arguments: "As is apparent, all of Alsabri's legal arguments are foreclosed by Circuit precedent, a point his counsel forthrightly acknowledges.  As is appropriate, counsel notes his disagreement with our rulings and includes the arguments in order to preserve the issues."  Op. at 22.

SDS

May 3, 2012 in Cases and Case Materials, Executive Authority, Fundamental Rights, Habeas Corpus, News, Opinion Analysis, War Powers | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 2, 2012

Federalist Society Debate on Legal Rationale for Targeted Killing of U.S. Citizens

The Federalist Society recently posted a pod-cast debate on the legal rationale for targeted killings of U.S. citizens, featuring Professors Michael Lewis (Ohio Northern) and Stephen Vladeck (AU/WCL).  Dean Reuter moderated.

The discussion followed on the heels of AG Eric Holder's speech outlining the administration's case for targeted killing.  Lewis opens the discussion by claiming that Holder's criteria for designating a target would be sufficient, if they were mandatory.  Here's the portion of Holder's speech that Lewis referenced:

Let me be clear: an operation using lethal force in a foreign country, targeted against a U.S. citizen who is a senior operational leader of al Qaeda or associated forces, and who is actively engaged in planning to kill Americans, would be lawful at least in the following circumstances: First, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States; second, capture is not feasible; and third, the operation would be conducted in a manner consistent with applicable law of war principles.

Lewis examines each of these and gives his take on "operational" leader of al Qaeda (not just any al Qaeda member, or supporter), "associated forces" (which are allowable targets under the gloss that the courts have put on the AUMF),the government's determination of "imminent threat" (looser than the immediacy that we understand in a domestic law-enforcement sense), the feasibility of capture, and law of war principles--proportionality and necessity (and how these overlap with the other considerations). 

Vladeck agrees that the government could target U.S. citizens under certain circumstances, but questions when and how:  What process should the government use to ensure that Holder's criteria (or others) are satisfied?  Vladeck looks to the due process analysis in Hamdi as a model, arguing that at least these due process procedures--applicable when the government takes a citizen's liberty--should be in place before the government takes a citizen's life.  (Holder himself referenced the balancing test in Mathews v. Eldridge, but did not give a precise formula for the process due before the government targets and kills a citizen.)  Vladeck argues that a FISA-like, ex ante judicial review is a bad idea, because it would lend legitimacy to targeted killings and entrench the government's power.  Instead, Vladeck argues for judicial review and damage claims after the killing ( allowing government officials to assert qualified immunity and even the state secrets privilege)--thus helping to ensure that the government would take care in its decisions.

The two also discuss whether the authority should extend off the "hot battlefield" and issues related to transparency in government decisionmaking. 

Vladeck noted how odd Holder's speech was, given that it said very little and that the government has refused to turn over any formal written legal rationale for the program--because the speech only refocuses attention on this, without settling anything.  (For the same reasons, Brennan's recent speech only adds to the odd-ness.) 

SDS

May 2, 2012 in Executive Authority, News, War Powers | Permalink | Comments (0) | TrackBack (0)

Monday, April 30, 2012

More Justification for Drones

The President's top counter-terrorism advisor, John Brennan, set out the administration's legal and ethical case for the use of drones today at Woodrow Wilson International Center for Scholars.  Brennan's speech comes just under two months after AG Eric Holder stated the case at Northwestern University, just over three months after DOD General Counsel Jeh Johnson argued the administration's case at Yale Law School, and nearly two years after State Department Legal Adviser Harold Koh made the case to the American Society of International Law.  It also comes just over six months after administration sources hinted at the justification in WaPo and the NYT.

We last covered the administration's expanding use of drones in Yemen here.

Brennan's talk echoes Holder's, Jeh's, and Koh's earlier talks, with perhaps more length, but still little detail.  We're still waiting for the administration to release its written legal analysis.  The case by administration officials amounts to little more than "trust us" on its processes for identifying targets that pose a threat to trigger national self-defense.  This falls far short for an authority that the administration used just last year to target and kill a U.S. citizen.

Here's what Brennan said today:

[A]s matter of domestic law, the Constitution empowers the President to protect the nation from any imminent threat of attack.  The Authorization for Use of Military Force--the AUMF--passed by Congress after the September 11th attacks authorizes the president "to use all necessary and appropriate force" against those nations, organizations and individuals responsible for 9/11.  There is nothing in the AUMF that restricts the use of military force against al-Qa'ida to Afghanistan.

As a matter of international law, the United States is in an armed conflict with al-Qa'ida, the Taliban, and associated forces, in response to the 9/11 attacks, and we may also use force consistent with our inherent right of national self-defense.  There is nothing in international law that bans the use of remotely piloted aircraft for this purpose or that prohibits us from using lethal force against our enemies outside of an active battlefield, at least when the country involved consents or is unable or unwilling to take action against the threat.

Second, targeted strikes are ethical.  Without question, the ability to target a specific individual--from hundreds or thousands of miles away--raises profound questions.  Here, I think it's useful to consider such strikes against the basic principles of the law of war that govern the use of force.

Targeted strikes confrom to the principle of necessity--the requirement that the target have definite military value. . . .

Targeted strikes conform to the principle of distinction--the idea that only military objectives may be intentionally targeted and that civilians are protected from being intentionally targeted. . . .

Targeted strikes confrom to the principle of proportionality--the notion that the anticipated collateral damage of an action cannot be excessive in relation to the anticipated military advantage. . . .

Brennan also touched on the administration's internal checks and processes:

This leads me to the final point I want to discuss today--the rigorous standards and process of review to which we hold ourselves today when considering and authorizing strikes against a specific member of al-Qa'ida outside the "hot" battlefield of Afghanistan.  What I hope to do is to give you a general sense, in broad terms, of the high bar we require ourselves to meet when making these profound decisions today.  That includes not only whether a specific member of al-Qa'ida can legally be pursued with lethal force, but also whether he should be. . . .

If our counterterrorism professionals assess, for example, that a suspected member of al-Qa'ida poses such a threat to the United States as to warrant lethal action, they may raise that individual's name for consideration.  The proposal will go through a careful review and, as appropriate, will be evaluated by the very most senior officials in our government for decision.

First and foremost, the individual must be a legitimate target under the law. . . .

Of course, the law only establishes the outer limits of the authority in which counterterrorism professionals can operate.  Even if we determine that it is lawful to pursue the terrorist in question with lethal force, it doesn't necessarily mean we should. . . .

As a result, we have to be strategic. . . .

For example, when considering lethal force we ask ourselves whether the individual poses a significant threat to U.S. interests. . . .  I am not referring to some hypothetical threat--the mere possibility that a member of al-Qa'ida might try to attack us at some point in the future.  A significant threat might be posed by an individual who is an operational leader of al-Qa'ida or one of its associated forces.  Or perhaps the individual is himself an operative . . . .  Or perhaps the individual possesses unique operational skills that are being leveraged in a planned attack. . . . .

SDS

April 30, 2012 in Executive Authority, News, War Powers | Permalink | Comments (0) | TrackBack (0)