Sunday, October 9, 2011
Sources close to the process that resulted in a yet-to-be-disclosed OLC memo authorizing the targeted killing of Anwar al Awlaki have revealed more and more information about what's in that memo, between last week's story in WaPo and today's story in the NYT. And according to the source or sources, the legal justification seems pretty close to the justification that State Department Legal Adviser Harold Koh gave in his 2010 speech to the American Society of International Law, which we covered and analyzed in May 2010. Koh relied heavily on the right of self defense under international law and on the AUMF; he made only little mention of the assassination ban under long-standing executive order and the Due Process Clause. See our May 2010 analysis for more on those sources.
But if we have some little hint of the administration's legal justification, we don't yet have much information on the process, except this sentence in the NYT story today:
The deliberations to craft the memo included meetings in the White House Situation Room involving top lawyers for the Pentagon, State Department, National Security Council and intelligence agencies.
Now Members of Congress are calling on the Justice Department to release the memo, or at least non-classified portions of it, according to WaPo. The administration hasn't responded to congressional or media requests for information.
Monday, October 3, 2011
Philip Alston (NYU) recently posted his now-even-more-timely article The CIA and Targeted Killings Beyond Borders late last month on SSRN. In it, Alston argues that there's no effective check on CIA targeted killings, and that this undermines the international rule of law. From the abstract:
The CIA's internal control mechanisms, including its Inspector-General, have had no discernible impact; executive control mechanisms have either not been activated at all or have ignored the issue; congressional oversight has given a "free pass" to the CIA in this area; judicial review has been effectively precluded; and external oversight has been reduced to media coverage which is all too often dependent on information leaked by the CIA itself. As a result, there is no meaningful domestic accountability for a burgeoning program of international killing. This in turn means that the United States cannot possibly satisfy its obligations under international law to ensure accountability for its use of lethal force, either under IHRL or IHL. The result is the steady undermining of the international rule of law, and the setting of legal precedents which will inevitably come back to haunt the United States before long when invoked by other states with highly problematic agendas.
Monday, September 26, 2011
A sharply divided 3-judge panel of the Fourth Circuit ruled last week in a pair of cases that a group of Iraqi citizens could not sue U.S. military contractors in tort for torture in Abu Ghraib prison and other locations throughout Iraq.
The court ruled in Al Shimari v. CACI Int'l and Al Quraishi v. L-3 Services, Inc. that federal interests preempted the plaintiffs' claims and dismissed the cases. But there was no preempting federal statute; instead the court relied on federal "interests" in interrogating detainees on a battlefield. Judge Niemeyer explained in an opinion joined by Judge Shedd:
[W]e too conclude that this case implicates important and uniquely federal interests. The potential liability under state law of military contractors for actions taken in connection with U.S. military operations overseas would similarly affect the availability and costs of using contract workers in conjunction with military operations. In this case, that uniquely federal interest was especially important in view of the recognized shortage of military personnel and the need for assistance in interrogating detainees at Abu Ghraib prison. Not only would potential tort liability against such contractors affect military costs and efficiencies and contractors' availability, it would also present the possibility that military commanders could be hauled into civilian courts for the purpose of evaluating and differentiating between military and contractor decisions. That effort could become extensive if contractor employees and the military worked side by side in questioning detainees under military control, as the complaint alleges in this case. Moreover, such interference with uniquely federal interests would be aggravated by the prison's location within the war zone. Finally, potential liability under state tort law would undermine the flexibility that military necessity requires in determining the methods for gathering intelligence.
. . .
In addition to the specific adverse impacts on the uniquely federal interests of interrogating detainees in foreign battlefields, a broader and perhaps more significant conflict with federal interests would arise from allowing tort law generally to apply to foreign battlefields.
Al Shimari at 8-10. In ruling the plaintiffs' claims preempted, the court followed the lead of the D.C. Circuit in Saleh v. Titan Corp., a 2009 case holding that where a civilian contractor is integrated into combat activities over which the military maintains authority, tort claims against the contractor are preempted.
Judge Neimeyer wrote separately to say that he would have dismissed the case under the political question doctrine and derivative absolute immunity, too.
Judge King wrote a lengthy dissent. Judge King said that the court lacked jurisdiction over this interlocutory appeal, a position he explains in his dissenting opinion in Al Quraishi, and that, if the court had jurisdiction, preemption didn't apply to bar the plaintiffs' claims.
In Al Quraishi, a case with similar facts, the divided panel (Judge King, dissenting) ruled that the court had jurisdiction over the contractor's interlocutory appeal of the district court's denial of its motion to dismiss.
September 26, 2011 in Cases and Case Materials, Foreign Affairs, International, Jurisdiction of Federal Courts, News, Opinion Analysis, Preemption, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)
Wednesday, September 7, 2011
A three-judge panel of the D.C. Circuit ruled this week in Khan v. Obama that Guantanamo detainee Shawali Khan is lawfully detained under the Authorization for Use of Military Force. The court upheld the lower court's denial of habeas relief for Khan based on its finding that "it is more likely than not that Khan was 'part of' HIG," Hezb-i-Islami Gulbuddin, an associated force of al Qaeda and the Taliban.
The government based its case on Army intelligence collectors' declarations based on their interviews with three Afghan informants and (scant) corroborating evidence, including heavily redacted intelligence reports. (The lower court described one as "perhaps the most redacted report in history.") The courts nevertheless rejected Khan's arguments that he was not part of HIG at the time of his capture in late 2002 and that HIG was not an associated force of al Qaeda or the Taliban at that time. The lower court found, and the appeals court affirmed, that the preponderance of the evidence showed that Khan was "part of" HIG, and that HIG was an associated force of al Qaeda and the Taliban.
Khan has been held at Guantanamo since early 2003. He filed his habeas case in federal court soon after the Supreme Court ruled in Boumediene v. Bush (2008) that the privilege of habeas extends to Guantanamo detainees. He will presumably receive periodic review now under President Obama's March 2011 Executive Order establishing the periodic review process for Guantanamo detainees. But the standard for period review is high: Khan will have to show, with little help and against the weight of the government, that his detention is not "necessary to protect against a significant threat to the security of the United States." If he can't so show, he'll apparently be subject to detention as long as U.S. forces are fighting al Qaeda and the Taliban--potentially indefinitely.
Wednesday, August 17, 2011
A three-judge panel of the Sixth Circuit ruled Tuesday that a conviction against an Airborne infantryman under the Military Extraterritorial Jurisdiction Act did not violate separation of powers. The conviction stands.
The case, U.S. v. Green, arises out of a gruesome and horrific multiple rape and multiple murder of Iraqi civilians committed by Green and two colleagues in Iraq. The Army charged Green's colleagues under the UCMJ, but the Army discharged Green (for a personality disorder). The government then charged and convicted him using the MEJA, a law that permits the government to prosecute former members of the military in Article III courts for crimes committed overseas while they were in the military. (The MEJA thus closes a loophole for former military who commit crimes overseas: They can't be charged under the UCMJ, but they can't be charged under U.S. criminal law, either; MEJA allows the government to prosecute. You might ask why the Iraqi authorities couldn't charge Green: Because Paul Bremer's Coalition Provisional Authority Order Number 17 says that coalition forces "shall be immune from the Iraqi legal process.")
Green argued that his conviction was unconstitutional, because MEJA violated the separation of powers and the nondelegation doctrine (among other things). The Sixth Circuit disagreed. It said that MEJA certainly expanded executive branch power, but not at the expense of any other branch. MEJA is no different than, say, any new criminal law that Congress might enact.
The ruling is utterly unremarkable and unsurprising. But the government's position contrasts starkly with its position in the Seventh Circuit's recent decision in Vance v. Rumsfeld. In Vance, the Seventh Circuit ruled that a Bivens claim for overseas torture by U.S. citizens against Donald Rumsfeld can move forward, despite the government's vigorous arguments that separation-of-powers considerations prohibit a Bivens remedy, because courts have no business poking their noses around issues of national security, foreign policy, war-making, and the like. As the Seventh Circuit noted, the government's extreme position in that case would also mean that someone like Green couldn't be on the receiving end of a Bivens claim (even if his victims were U.S. citizens).
The separation-of-powers concern in Vance, of course, was different than in Green. The government argued in Vance that the courts' involvement in such matters intruded upon executive authority. The government had no such concern in Green, apparently: It ran to the courts, using MEJA, to prosecute Green, not at all worried that such a prosecution would inappropriately mire the courts in national security concerns (as in Vance). A double standard? You decide. But it does seem that the government would have a hard time squaring its prosecution of Green with its position in Vance.
[Image: Francisco de Goya, Desastre de la Guerra, Wikimedia Commons]
August 17, 2011 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Foreign Affairs, International, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)
Monday, August 8, 2011
A divided three-judge panel of the Seventh Circuit ruled on Monday in Vance v. Rumsfeld that a Bivens suit by two Americans alleging that former Secretary of Defense Donald Rumsfeld authorized their torture can move forward.
If the case sounds familiar, that's because it is: Just last week, Judge Gwin (D.D.C.) ruled in Doe v. Rumsfeld that a nearly identical suit can move forward. (The plaintiffs in the suits alleged similar torture at the same site, Camp Cropper, the U.S. military prison in Iraq.) The key difference between these cases and the D.C. Circuit's rejection of a torture claim against Rumsfeld in June: The plaintiffs here are U.S. citizens; the plaintiffs in the D.C. Circuit case, Arkan v. Rumsfeld, were aliens. (The D.C. Circuit ruled that it wasn't clearly established in 2004, the time of the actions there, that the Fifth and Eighth Amendments applied to aliens detained abroad; Rumsfeld thus had qualified immunity.)
Judge Hamilton's opinion in Vance, joined by Judge Evans, tracked Judge Gwin's reasoning, but with over 80 pages of detail. The meaty opinion seems carefully tailored to withstand any appeal.
In short, the court ruled that the plaintiffs sufficiently pleaded their allegations that Secretary Rumsfeld authorized treatment that violated the Fifth Amendment's Due Process Clause (substantive due process)--and that he reasonably should have known it. The court thus ruled that the plaintiffs pleaded facts sufficient to satisfy the pleading standard in Ashcroft v. Iqbal and that Rumsfeld did not qualify for immunity. The court also ruled that there was no reasonable alternative way for the plaintiffs to bring their claims and that there were no special factors counselling against a Bivens remedy. In particular, the court rejected the defendants' separation-of-powers arguments--like those in Doe--that courts don't have any business in cases dealing with national security and foreign affairs, especially in times of war. Here's a flavor of what the court said on that point:
The unprecedented breadth of defendants' argument should not be overlooked. The defendants contend that a Bivens remedy should not be available to U.S. citizens for any constitutional wrong, including torture and even cold-blooded murder, if the wrong occurs in a war zone. The defendants' theory would apply to any soldier or federal official, from the very top of the chain of command to the very bottom. We disagree and conclude that the plaintiffs may proceed with their Bivens claims.
Op. at 43.
Judge Minion wrote in dissent that the court improperly extended Bivens to this case--a case in which "United States citizens alleg[ed] torture while held in an American military prison in an active war zone." Op. at 81.
This makes two cases in two weeks--one district court, one circuit court--allowing very similar torture suits to move forward against Rumsfeld. We'll watch for appeals.
[Image: Anonymous, Execution, Wikimedia Commons]
August 8, 2011 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Fifth Amendment, Fundamental Rights, International, Jurisdiction of Federal Courts, News, Opinion Analysis, Recent Cases, War Powers | Permalink | Comments (0) | TrackBack (0)
Wednesday, August 3, 2011
Judge James S. Gwin (D.D.C.) ruled this week in Doe v. Rumsfeld that a U.S. citizen's Bivens suit against former Secretary of Defense Donald Rumsfeld can move forward beyond the pleadings. In so ruling, Judge Gwin also flatly rejected some of the kinds of claims we've grown accustomed to by the government in cases arising out of its anti-terrorism programs--most especially a separation-of-powers claim that the courts have no business poking their noses in foreign affairs and national security.
The ruling comes on Rumsfeld's motion to dismiss the plaintiff's complaint. The plaintiff, a U.S. citizen and civilian employee once deployed with a Marine intelligence unit in Iraq, alleged that Rumsfeld authorized his torture at overseas prisons operated by the United States and denied him fair process to challenge his designation and detention. He brought a Bivens claim for violations of substantive due process, procedural due process, and access to the courts and sought monetary damages.
Rumsfeld argued that the plaintiff's claim amounted to an unwarranted expansion of Bivens--that Bivens did not contemplate this kind of monetary damages claim, and that special factors counseled against recognizing the plaintiff's Bivens claim here--in particular, the separation-of-powers argument that this case raised foreign affairs, national security, and war-time issues uniquely within the bailiwick of the political branches, and that the courts have no expertise in these areas.
The court disagreed. Judge Gwin cited the Supreme Court's relatively recent and not-so-recent forays into foreign affairs, national security, and war-time issues--cases in which the government made arguments very similar to those Rumsfeld made here--and ruled that courts do, in fact, sometimes get involved in these issues. Moreover, Judge Gwin noted that the plaintiff was detained on his way out of Iraq, after he left the field of battle, when he could no longer offer low-level aid to insurgents (as the government alleged). Judge Gwin also rejected Rusmfeld's related "real world consequences" of allowing a Bivens remedy here, that the threat of liability would impede military decisionmaking; that proceeding with the case would involve sensitive information, distracting discovery, and testimony by soldiers that would disrupt the military's efforts; and that the action would "embroil the judiciary in war-related decisions" that are complicated to litigate.
Judge Gwin also rejected Rumsfeld's qualified immunity defense. Judge Gwin wrote that the plaintiff pleaded sufficient facts to show that Rumsfeld approved of policies that led to his torture, in violation of substantive due process. (He was careful to write that this was not a respondeat superior claim in violation of Ashcroft v. Iqbal. Instead, it was a direct claim for authorizing torture.) But Judge Gwin wrote that the plaintiff did not plead sufficient facts to show that Rumsfeld directed his shoddy process in violation of procedural due process and the right of access to the judiciary. He thus dismissed these two claims.
The ruling means that the plaintiff jumped one of his most significant hurdles--getting past the pleadings on his torture claim against Rumsfeld--especially after the Supreme Court clarified the high pleading standard in Iqbal and especially given a very recent ruling by the D.C. Circuit in a very similar case. Just over a month ago, the D.C. Circuit dismissed a Bivens claim against Rumsfeld for torture by an alien detained overseas. Key to the D.C. Circuit's ruling in Arkan v. Rumsfeld was that it wasn't clearly established at the time that the Fifth and Eighth Amendments applied to aliens detained abroad (not our case). But maybe just as key--and more relevant to Doe--the court ruled that prudential considerations--that cases like this against military officials would disrupt the war effort, just like Rumsfeld's argument in Doe--counselled against extending a Bivens remedy.
If the D.C. Circuit applies this same prudential considerations analysis to Doe, this case won't go far.
August 3, 2011 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Executive Authority, Fifth Amendment, Foreign Affairs, Fundamental Rights, International, Jurisdiction of Federal Courts, News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)
Wednesday, June 29, 2011
State Department Legal Adviser Harold Koh on Tuesday gave the administration's case for why U.S. operations in Libya are not "hostilities" under the War Powers Resolution, and therefore why the administration is not violating the WPR in not either gaining congressional authorization or withdrawing U.S. forces after the WPR's 60-day deadline passed. Koh testified along with Louis Fisher and Prof. Peter Spiro (Temple) before the Senate Foreign Relations Committee.
Koh relied on the administration's understanding at the time of enactment of the WPR and subsequent practice to make his case:
In this case, leaders of the current Congress have stressed this very concern in indicating that they do not believe that U.S. military operations in Libya amount to the kind of "hostilities" envisioned by the War Powers Resolution's 60-day pullout provision. The historical practice supports this view. In 1975, Congress expressly invited the Executive Branch to provide its best understanding of the term "hostilities." My predecessor Monroe Leigh and Defense Department General Counsel Martin Hoffmann responded that, as a general matter, the Executive Branch understands the term "to mean a situation in which units of the U.S. armed forces are actively engaged in exchanges of fire with opposing units of hostile forces." . . . In the third-six years since Leigh and Hoffmann provided their analysis, the Executive Branch has repeatedly articulated and applied these foundational understandings.
Testimony, at 6-7. Koh went on to argue that the mission is limited, the exposure of U.S. armed forces is limited, the risk of escalation is limited, and military means are limited. Together, these mean that the operations are not "hostilities" under the WPR, and the President isn't violating the pull-out provision by failing to gain congressional approval and yet continuing the engagement.
Koh urged the Senate to adopt Senate Joint Resolution 20, the Kerry-McCain bill authorizing limited use of U.S. forces in Libya, but only so that the U.S. Government could show a united front--and not because it's constitutionally necessary.
Fisher responded point-by-point to the administration's claims (or "doubletalk") throughout the Libyan debates, including the OLC's conclusion that the operations are not a "war" under the Declaration of War Clause and the administration's conclusion that the operations are not "hostilities" under the WPR.
Spiro found a middle ground, focusing less on the constitutionality of the pull-out provision and ultimately on the political and pragmatics of it:
Does this mean that section 5(b) is unconstitutional? That question may better be left to the court of history. Although presidents may not declare the Act unconstitution, from the Reagan Administration onward they have been careful not to concede the point. They have good cause to avoid the distraction of constitutional confrontation where a more minimalist argument will serve the same end.
On the other hand, Congress has no real need of the provision, lack of respect for which reflects poorly on the institution. Congress has ample tools with which to control presidential deployments of U.S. armed forces. . . . In coming years we may well witness a trend towards greater congressional participation in decisions relating to the use of U.S. armed forces.
In any event, devising a position of the Congress with respect to the operatiosn in Libya should be the primary task at hand. Disputes relating to the War Powers Resolution are likely to distract from that undertaking. I believe we would be having the same sort of discussion today even if the War Powers Resolution had not been enacted. The persistent cloud over the Act underlines the perception of some that Congress is ill-equipped in this realm. Congress would be better served by focusing on other institutional tools for participating in the full spectrum of use-of-force decisions.
Spiro Testimony, at 5.
For some, even many, however, the issue now is less whether the administration has a plausible claim that U.S. operations in Libya are not WPR "hostilities," and more why the President seemed to cherry-pick advice from his legal advisors. There's nothing unconstitutional about this kind of cherry-picking, but it smacks of the kind of decision-making that led to opinions in the Bush administration relating to, among other things, torture.
Friday, June 24, 2011
The House of Representatives voted today on two key measures relating to on-going military operations in Libya. In a rebuff to the administration, the House voted 123 to 295 against House Joint Resolution 68, a measure that would have "authorized" continued, but limited, use of U.S. Armed Forces in Libya (but would have also opposed the use of ground troops there). But the House also voted 180 to 238 against House Resolution 2278, a measure that would have defunded Libyan operations.
The spirited debate on the measures in the House today came just one week after Charlie Savage reported that administration attorneys differed on the President's authority, and that the President seemed to do an end-run around the traditional practice of receiving legal advice (through the OLC) in order to cherry-pick the advice he wanted. The administration's position--that the military actions in Libya are not "hostilities," and that they are therefore not covered by the reporting and withdrawal requirements in the War Powers Resolution--has been hotly controversial, drawing comparisons to practices in the Bush administration that led to advice in the torture memos, e.g.
Monday, June 20, 2011
President Obama has come under attack again for military action in Libya, this time in response to Charlie Savage's report in the New York Times on Friday that he bipassed ordinary processes and selectively adopted legal advice from top administration lawyers on the legality of the action. (We last posted here, when the administration released its report, United States Activities in Libya, briefly outlining its legal position.)
Bruce Ackerman criticized the process in the NYT; Jack Goldsmith criticized it on Lawfare; and Jack Balkin criticized it on Balkinization. The common theme: President Obama sidestepped the OLC, and cherry-picked advice from top administration lawyers, on the question whether the Libyan campaign was a "hostility," thus triggering the War Powers Resolution--and he shouldn't have. (The one publicly available OLC memo on the Libyan campaign carefully avoids the question.)
According to Savage, the acting head of the OLC and chief Pentagon lawyer agreed that U.S. military activities in Libya constituted "hostilities" under the WPR; if so, President Obama would have had to get congressional approval or terminate the activities. But the White House counsel and senior State Department lawyer disagreed: they said that U.S. military activities in Libya were not "hostilities" under the WPR; if so, the WPR wouldn't apply, and President Obama would neither have to gain congressional approval nor terminate the activities. According to Savage, President Obama relied upon the latter advice, not even asking OLC for a formal opinion on the question, forum shopping among top administration lawyers and contravening standard executive branch practice (in which the OLC collects the views of different agencies and lawyers and then arrives at its own view of the best interpretation of the law).
Critics compare the process to the legal shenanigans in the Bush administration that resulted, e.g., in the torture memos.
Nothing requires the President to agree with the legal advice of the OLC, or to seek that Office's advice alone. But through custom and practice, Presidents have turned to the Office for the definitive legal position of the executive branch. President Obama's selective advice-seeking certainly appears to contravene that custom and practice. That (alone) doesn't make the President's action in Libya illegal. (The legality of the action is independent of the advice or process the President relied upon.) But it does raise the suggestion that the President has cherry-picked advice to get the result he wanted--exactly the problem that led to bad legal opinions in the Bush administration, just as President Obama's critics claim.
At the same time, House Speaker John Boehner announced that he will introduce two competing resolutions on Libya, one to authorize continued limited activities (using the language of Senator McCain's resolution in the Senate), and the other to require U.S. withdrawal under the WPR. The move is clearly intended to force the House to adopt a position on Libya and to put House members on record. But that's all it will do, at least for now.
Thursday, June 16, 2011
The Obama administration yesterday released a 32-page report, United States Activities in Libya (link courtesy of Foreign Policy), detailing the government's operations in that country, the administration's legal authorization for those operations, and the administration's communications with Congress. The report comes on the heels of a lawsuit by a bi-partisan group in the House and the White House's Letter from the President on the War Powers Resolution.
Here's what the administration had to say about its legal authority--"Legal Analysis and Administration Support for Bipartisan Resolution," on page 25 of the report:
Given the important U.S. interests served by U.S. military operations in Libya and the limited nature, scope and duration of the anticipated actioins, the President had constitutional authority, as Commander in Chief and Chief Executive and pursuant to his foreign affairs powers, to direct such limited military operations abroad. The President is of the view that the current U.S. military operations in Libya are consistent with the War Powers Resolution and do not under that law require further congressional authorization, because U.S. military operations are distinct from the kind of "hostilities" contemplated by the Resolution's 60 day termination provision. U.S. forces are playing a constrained and supporting role in a multinational coalition, whose operations are both legitimated by and limited to the terms of a United Nations Security Council Resolution that authorizes the use of force solely to protect civilians and civilian populated areas under attack or threat of attack and to enforce a no-fly zone and an arms embargo. U.S. operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve the presence of U.S. ground troops, U.S. casualties or a serious threat thereof, or any significant chance of escalation into a conflict characterized by those factors.
This section goes on to reiterate the administration's strong support for the Senate resolution "that would confirm that both branches are united in their commitment to supporting the aspirations of the Libyan people for political reform and self-government."
House Speaker John Boehner told reporters this morning that the report "didn't answer the question in my letter as to whether the Office of Legal Counsel agrees" that the Libyan operations are consistent with the WPR and do not require further consultation.
Speaker Boehner is right: the report didn't say what the OLC thought about this. Instead, the OLC memo on Libyan operations concluded that the President had constitutional authority to direct the use of force in Libya to protect sufficiently weighty national interests and that the President did not have to obtain prior congressional approval under the Declaration of War Clause (that is, that the Libyan operation was not a "war"). For very similar reasons, the report yesterday concluded that the Libyan operation was not a "hostility" under the WPR.
The OLC memo emphasized that the WPR doesn't detract from the President's war powers, and that the President has powers outside those specifically listed in the WPR to deploy armed forces:
As demonstrated by U.S. military interventions in Somalia, Haiti, Bosnia, and Kosovo, among many other examples, "the President's power to deploy armed forces into situations of actual or indicated hostilities is not restricted to the three categories specifically marked out by the Resolution"--[(1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by an attack on the U.S.].
Memo at 8, n. 1 (quoting Proposed Bosnia Deployment, 19 Op. O.L.C. at 335). Thus the administration's position must be that the Libyan operation is neither a "war" (under the Declaration of War Clause) nor a "hostility" (under the WPR), for the same reasons, but that the President has constitutional authority to direct it.
The administration's position on the WPR resolution may not be the clearest--and Speaker Boehner and others may reasonably disagree with it--but there it is.
Friday, June 3, 2011
The U.S. House of Representatives on Friday passed a resolution (268-145) introduced by Speaker Boehner purporting to limit the use of ground troops in Libya and to require the President to provide justification for and information about U.S. involvement in Libya. We posted on other congressional efforts related to U.S. involvement in Libya and the War Powers Resolution here; we posted on OLC's opinion that the President had authority to order operations in Libya here.
The House resolution says that "[t]he President shall not deploy, establish, or maintain the presence of units and members of the United States Armed Forces on the ground in Libya unless the purpose of the presence is to rescue a member of the Armed Forces from imminent danger." It also "directs" members of the administration to transmit "copies of any official document, record, memo, correspondence, or other communication" relating to communications with Congress or the WPR and Libya. It further directs the President to submit detailed information to the House on a variety of often very specific questions. (Reporting directions have a 14-day deadline.) Finally, it reminds us that Congress has the power of the purse.
Speaker Boehner explained yesterday on the House floor:
This resolution puts the President on notice. He has a chance to get this right. If he doesn't, Congress will exercise its constitutional authority to make it right.
The House adopted Speaker Boehner's resolution over Representative Kucinich's much more aggressive resolution (which would have required U.S. withdrawal from supporting NATO allies in Libya).
Here's the White House response, through a press Q&A with Principal Deputy Press Secretary Josh Earnest:
Q: Josh, clearly--in the House of Representatives there's a vote today. Clearly in both sides of the aisle now there's growing concern about mission creep in Libya, the lack of official notification in accordance with existing American law. What is the President's thought about this vote today and is he concerned about a lack of support of Congress?
A: Well, as you remember, Mike, congressional--the administration believes strongly in the concept of consulting with leaders of Congress. That's why the President himself consulted with congressional leaders before military action in Libya even began. And as this operation has continued, as we've shifted control of this operation to our NATO partners--or the lead of this NATO operation to our partners, we've continued to consult with Congress all along. In fact, in just the last week, there have been three separate congressional briefings that have been convened by this administration's national security team for leaders in Congress to keep them apprised of the progress and the situation there. So clearly--
Q: --not in accordance with the War Powers Act, in terms of official notifications and the 60-day expiration, which happened two weeks ago.
A: It is the view of this administration that we've acted in accordance with the War Powers Act because of this regulation consultation. We've been engaged in that consultation all along--as I mentioned, three separate briefings have been held just this week for members of Congress. We're committed to that moving forward. But in terms of the resolutions that you asked about in your first question, the President--that continued consultation demonstrates why these resolutions are unnecessary and unhelpful.
Tuesday, May 24, 2011
Since President Obama blew by the 60-day restriction in the War Powers Resolution, 50 U.S.C. Sec. 1544(b), on unauthorized troop commitments in Libya on Friday, a spate of legislation has appeared authorizing, de-authorizing, or otherwise expressing the sense of Congress on Libyan operations.
The WPR states:
Within sixty calendar days after a report is submitted or is required to be submitted [on a Presidential commitment of U.S. troops], whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States. . . .
Friday was the 60-day deadline.
In reaction, Rep. Dennis Kucinich yesterday introduced House Concurrent Resolution 51, directing the President, pursuant to Section 5(c) of the WPR, to remove U.S. forces from Libya. Section 5(c), 50 U.S.C. Sec. 1544(c), reads:
Notwithstanding subsection (b) of this section [quoted above], at any time that United States Armed Forces are engaging in hostilities outside the territory of the United States, its possessions and territories without a declaration of war or specific statutory authorization, such forces shall be removed by the President if the Congress so directs by concurrent resolution.
Senator Rand Paul took a different tack in his Senate Joint Resolution 13, "declaring that a state of war exists between the Government of Libya and the Government and people of the United States, and making provisions to prosecute the same." And Senator John McCain introduced Senate Resolution 194, "expressing the sense of the Senate on United States military operations in Libya."
Earlier bills include Senator John Cornyn's Senate Resolution 148, calling on the President to report to Congress on matters related to the Libyan operation and calling on the President to seek congressional authorization for the use of force in Libya. Senate Resolution 146 expresses the sense of the Senate that it's not in the vital interest of the U.S. to intervene in Libya and urging others to step up. Other resolutions call on the administration to report to Congress on the Libyan operation and to comply with the WPR.
Indeed, Congress itself has implicitly recognized this presidential authority. The [WPR], a statute Congress described as intended "to fulfill the intent of the framers of the Constitution of the United States," provides that, in the absence of a declaration of war, the President must report to Congress within 48 hours of taking certain actions, including introductions of U.S. forces "into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances." The Resolution further provides that the President generally must terminate such use of force within 60 days (or 90 days for military necessity) unless Congress extends this deadline, declares war, or "enact[s] a specific authorization." As this Office has explained, although the WPR does not itself provide affirmative statutory authority for military operations, the Resolution's "structure . . . recognizes and presupposes the existence of unilateral presidential authority to deploy armed forces" into hostilities or circumstances presenting an imminent risk of hostilities. That structure--requiring a report within 48 hours after the start of hostilities and their termination within 60 days after that--"makes sense only if the President may introduce troops into hostilities or potential hostilities without prior authorization by the Congress.
Memo at 8 (citations omitted).
The memo thus recognizes the limits in the WPR as valid authority for the President. If so, the legislation introduced yesterday seems to say, the President must also recognize these limits in the WPR as restrictions.
Tuesday, May 3, 2011
Owen Fiss (Yale) argues in the Boston Review that President Obama's pickle--caught between his former policy to close Guantanamo and his desire to try KSM and others in Article III courts, on the one hand, and the congressional ban on using appropriated funds to transfer Guantanamo detainees to the U.S., on the other--is of his own creation.
Fiss argues that President Obama's May 2009 speech at the National Archives (in which he announced that some detainees would get Article III trials while others would get military commissions while yet others would get indefinite detention) and his support for the Military Commissions Act of 2009 (which revised military commission procedures, but still fell short of Article III trials) lined up such that "the Guantanamo closure ceased to be of much importance." According to Fiss, President Obama's resistance to extending habeas to detainees at Bagram in the Al Maqaleh litigation only underscores this conclusion.
With a Guantanamo closing all but off the table (by the President's own actions), congressional restriction on the use of appropriated funds to transfer Guantanamo detainees to the U.S. was only the final straw. After the ban,
[t]he options that then remained for Obama were: (a) the continued imprisonment of Khalid Sheikh Mohammed without trial (he had already been incarcerated for more than seven years) or (b) trial before a military commission. Given the alternative options, Obama chose the one that is, in my judgment, the less constitutionally offensive. Sympathy for Obama's choice, however, should not obscure his complicity in constructing the alternatives he confronted.
In truth, there was (is) a third option, the one that the administration adopted: Sign the legislation banning the use of funds for transfer, but issue a signing statement that claims that such a ban unconstitutionally encroaches on a core executive function, and move to overturn it.
This third way is emblamatic of President Obama's approach to so many of these issues--detention, military trial, habeas, state secrets, even signing statements: He's made some constitutionally significant changes to Bush administration positions around the edges on each of these, but in the end the refined positions only result in more-or-less the same policies.
But with regard to KSM and some others, President Obama once seemed truly committed to moving forward in Article III courts. And with regard to Guantanamo, he once seemed truly committed to closing. Sure, his positions and policies may have contributed to a larger political environment in which closing Guantanamo "ceased to be of much importance." (And maybe he could have (should have) spent even more political capital in seeking closure and Article III trials.)
But in the end the congressional ban on transfers was a congressional ban. (And the most recent version came in the eleventh-hour spending bill negotiated between the White House and Congress to avoid a shut-down, presenting President Obama with no practical option but to sign the measure.) The ban entirely foreclosed even any marginal change that President Obama might have made (e.g., an Article III trial for KSM) using his third way.
May 3, 2011 in Congressional Authority, Executive Authority, Foreign Affairs, Fundamental Rights, Habeas Corpus, International, News, Scholarship, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)
Friday, April 29, 2011
President Obama today issued an Executive Order blocking U.S.-based property of certain persons and entities responsible for human rights abuses in Syria.
The EO cites as authority the Constitution, the International Emergency Economic Powers Act (IEEPA) and the National Emergencies Act. It expands the national emergency declared in EO 13338 (May 11, 2004), and relied upon for additional steps taken in EO 13399 (April 25, 2006) and EO 13460 (February 13, 2008), finding that the Syrian Government's human rights abuses "constitute an unusual and extraordinary threat to the national security, foreign policy, and economy of the United States . . . ."
The EO also prohibits donations to persons and entities whose property is blocked under the Order and prohibits transactions or conspiracies to violate the Order.
Section 7 of the Order implements the freeze without prior notice to those in the U.S. whose property is covered. The stated purpose is to capture the property before the owner can transfer it electronically:
For those persons whose property and interests in property are blocked pursuant to this order who might have a constitutional presence in the United States, I find that because of the ability to transfer funds or other assets instantaneously, prior notice to such persons of measures to be taken pursuant to this order would render those measures ineffectual. I therefore determine that for these measures to be effective in addressing the national emergency declared in Executive Order 13338 and expanded in this order, there need be no prior notice of a listing or determination made pursuant to section 1 of this order [which authorizes the blockage of covered property].
The EO also lists three current and former Syrian Government officials by name and two entities by name.
Monday, April 18, 2011
The Supreme Court today denied cert. in Kiyemba v. Obama, the case involving the Chinese Muslims held without lawful cause for seven years at Guantanamo Bay.
The petitioners sought release into the United States. The district court ordered release, but the D.C. Circuit reversed. The Supreme Court first granted cert. on the question whether a district court may order release into the United States where no other remedy is available.
But the Court remanded after learning that other remedies were available--that the government offered, and the petitioners rejected, at least two offers of resettlement. The D.C. Circuit reinstated its original opinion as modified, and the petitioners again sought cert.
The Court today declined to take the case. Justice Breyer issued a statement, joined by Justices Kennedy, Ginsburg, and Sotomayor, concluding:
the lack of any meaningful challenge as to [the appropriateness of the Government's resettlement offers], and the Government's uncontested commitment to continue to work to resettle petitioners transform petitioners' claim. Under present circumstances, I see no Government-imposed obstacle to petitioners' timely release and appropriate resettlement. Accordingly, I join in the Court's denial of certiorari. Should circumstances materially change, however, petitioners may of course raise their original issue (or related issues) again in the lower courts and in this Court.
(The statement appears at the end of today's order list.)
The denial today ends this chapter (and perhaps the entire book) on the Uighurs' judicial challenges to their confinement at Guantanamo Bay.
Thursday, April 14, 2011
The Office of Legal Counsel last week released a memorandum advising that the President has constitutional authority to authorize military operations in Libya. (This obviously isn't a surprise, but it may be worth a look.)
The memo, dated April 1 but released last week, first analyzes the President's constitutional authority to direct the use of military force in Libya and then analyzes whether congressional approval was constitutionally required.
As to the first question, the OLC concluded that the President's authority to direct military force in Libya derived from his Article II authorities as commander in chief and chief executive, his constitutional authority over foreign affairs, and the President's historical exercise of authority without prior congressional approval. The OLC wrote that Congress recognized this authority in the War Powers Resolution (even if the WPR doesn't provide affirmative statutory authority for military operations), which provides for short-term use of force by the President without prior congressional approval.
The OLC wrote that the President could exercise this authority in order to protect sufficiently important national interests. Here, those interests were preserving regional stability and supporting the credibility of the United Nations Security Council (through its Resolution 1973, which imposed a no-fly zone and authorized the use of military force to protect civilians).
As to the second question--congressional power to declare war, the "one possible constitutionally-based limit on this presidential authority to employ military force in defense of important national interests," op. at 8--the OLC concluded that the military commitment here did not amount to a "war" for the purpose of the Declaration of War Clause. It noted that President Obama's commitment of force was limited to airstrikes and associated support missions, with no ground troops, and that the "limited mission" did not "aim at the conquest or occupation of territory." (Quoting Proposed Deployment of United States Armed Forces into Bosnia, 19 Op. OLC at 333.)
Thursday, March 24, 2011
The U.S. District Court for the District of Columbia yesterday released a redacted version of Judge Leon's November 2010 opinion denying habeas relief for Guantanamo detainee Obaydullah. Judge Leon today rejected Obaydullah's motion for reconsideration.
The government argued that Obaydullah was "part of" an al Qaeda "bomb cell" based upon evidence it obtained during a raid of Obaydullah's home and its own pre-raid intelligence. (The government declined to disclose the source of the intelligence.) Evidence included 23 anti-tank mines, a notebook with instructions and wiring diagrams for how to build a remote-control IED, and an automobile that contained dried blood and Taliban propaganda. Information based upon pre-raid intelligence was largely, if not entirely, redacted from Judge Leon's opinion.
Judge Leon ruled that the evidence corroborated pre-raid intelligence and that it was more likely than not that Obaydullah was part of an al Qaeda bomb cell:
However, the combination of the explosives, the notebook instructions and the automobile with dried blood all fit together to corroborate the intelligence sources placing both the petitioner and Bostan at the scene aiding fellow bomb cell members who had been accidentally injured while constructing an IED. Additionally [redacted] serve to further corroborate the credibility of the government's intelligence source linking Obaydullah to the al Qaeda bomb cell. Thus, combining all of this evidence and corroborated intelligence, the mosaic that emerges unmistakenly supports the conclusion that it is more likely than not that petitioner Obaydullah was in fact a member of an al Qaeda bomb cell committed to the destruction of U.S. and Allied forces. As such, he is being lawfully detained under the AUMF and this Court must, and will, therefore DENY his petition for a writ of habeas corpus.
Tuesday, March 8, 2011
As the centenary of international women's day, March 8, arrives, the end of combat restrictions on women in the United States military also seems to be ending.
In Rostker v. Goldberg, 1981, the United States Supreme Court upheld the Congressional decision to exempt women from registration for the military. The challengers argued that the gender classification of the Congressional statute violated equal protection as embodied in the Fifth Amendment's Due Process Clause. The Court opined that the Congressional exempt was not an "accidental by-product of traditional ways of thinking" about women, but instead was permissible because men and women were not similarly situated given the combat restrictions on women. That these combat restrictions were legal (rather than natural) did not seem important to the six Justices in the majority.
Today, according to the United States Department of Defense, a
commission established to study diversity among military leaders is recommending that the Defense Department rescind its policy that prevents women from being assigned to ground combat units below the brigade level.
In a report issued today, the Military Leadership Diversity Commission recommends that the department and the services eliminate combat exclusion policies for women, as well as other “barriers and inconsistencies, to create a level playing field for all qualified service members.”
The Military Leadership Diversity Final Report, From Representation to Inclusion: Diversity Leadership for the 21st-Century Military, considers a range of diversity, including racial and ethnic diversity. The final report, at 162 pages, contains 20 broad recommendations, discussed in the shorter Executive Summary. The exclusion of women from combat is specifically linked to career advancement. The Press Release, dated March 8, provides an interesting connection to International Women's Day.
March 8, 2011 in Cases and Case Materials, Congressional Authority, Current Affairs, Equal Protection, Fifth Amendment, Gender, History, International, News, Race, War Powers | Permalink | Comments (2) | TrackBack (0)
Monday, March 7, 2011
President Obama today issued an executive order providing for "periodic review of individuals detained at Guantanamo Bay Naval Station pursuant to the Authorization for Use of Military Force."
The move suggests that the White House won't achieve its goal to close down Guantanamo anytime soon.
The new periodic review process applies only to those 172 individuals currently detained at Guantanamo and subject to the interagency review process in 2009. Under the process, detainees may present a written or oral statement to the review board, introduce relevant information including written declarations, answer any questions posed by the review board, and call witnesses who are reasonably available. Each detainee gets a "personal representative" and a right to independent counsel (not at government expense).
The EO explicitly grounds authority for the new process in the Authorization for Use of Military Force and explicitly subjects detention at Guantanamo to the Convention Against Torture, Geneva Conventions Common Article 3, the Detainee Treatment Act of 2005, "and other laws relating to the transfer, treatment, and interrogation of individuals detained in armed conflict." It also explicitly recognizes detainees' right to habeas corpus.
The EO sets this standard for continued detention:
Continued law of war detention is warranted for a detainee subject to the periodic review . . . of this order if it is necessary to protect against a significant threat to the security of the United States.