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)

Thursday, April 26, 2012

President Obama Expands Drone Authority in Yemen

President Obama this month authorized expanded use of drones in Yemen, according to reports in the Wall Street Journal and Washington Post.  Under the expanded authority, the CIA and the U.S. Joint Special Operations Command can use drones to fire on targets based only 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.  Prior to the expansion, the CIA and USJSOC only had drone authority in Yemen to fire on targets based on individual identity and close vetting, so-called "personality" strikes.

The administration has yet to provide a comprehensive legal justification for its use of drones in Yemen--which last September killed alleged terrorist Anwar al-Awlaki and, mistakenly, his non-targeted son.  AG Eric Holder gave us all the legal justification we know (on the pre-existing Yemen drone program, not the expanded one) in a speech last month; we covered that speech here

Bruce Ackerman argued in Sunday's Washington Post that expanded drone use in Yemen exceeds congressional authorization under the AUMF.

According to reports, the expanded authority in Yemen still falls a little short of the broader drone authority in Pakistan.

SDS

April 26, 2012 in Executive Authority, News, War Powers | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 4, 2012

Convening Authority Refers KSM Charges to Military Commission

The Convening Authority today referred terrorism charges against Khalid Sheikh Mohammed, Walid Muhammad Salih Mubarak Bin 'Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, and Mustafa Ahmed Adam al Hawsawi to a capital military commission.  Capital charges include conspiracy, attacking civilians, murder in violation of the law of war, hijacking and aircraft, and terrorism.

We last posted on the case--and separation-of-powers issues in the congressional restriction on trying in a regular Article III court--here.  (Recall that the administration originally sought to try these individuals in regular Article III courts; Congress restricted the administration's ability to do that; the administration balked, but ultimately decided to try them by military commission.)

The Office of Military Commission web-site, including electronic case files, is here.

SDS

April 4, 2012 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Friday, March 9, 2012

Holder Talks War Powers

Attorney General Eric Holder earlier this week outlined the administration's legal case for surveillance and intelligence-gathering, trials, and targeted killings to an audience at Northwestern University. Here's the transcript.

In all, Holder's message was that the government approached these decisions with balance and care, making efforts to ensure that its actions comport with U.S. law and international law, and that its efforts are transparent and checked by the other branches, even if only minimally. He also emphasized the government's inter-agency coordination on these and other, related measures. But at the same time, Holder didn't back down from defining sweeping government authority in these areas.

And in the end, a good part of the government's case, especially with regard to targeted killings, amounts to this: Trust us.

As to surveillance and intelligence-gathering, Holder pointed to the administration's on-going efforts under section 702 of the FISA, which authorizes the AG or the DNI to authorize annually, through the FISA court, collection directed at identified categories of foreign intelligence targets without a warrant. Holder said that the executive branch has three checks on this power--an internal check within the executive branch, reporting to Congress and the requirement for reauthorization by Congress, and the FISA court.

As to trying alleged terrorists, Holder made a strong case for executive discretion to try alleged terrorists in a regular Article III court or a military tribunal. How to decide which?

  • "First of all, commissions only have jurisdiction to prosecute individuals who are part of al Qaeda, have engaged in hostilities against the United States or its coalition partners, or who have purposefully and materially supported such hostilities."
  • "Second, our civilian courts cover a much broader set of offenses than the military commissions, which can only prosecute specified offenses, including violations of the laws of war and other offenses traditionally triable by military commission."
  • "Third, there is the issue of international cooperation." Without it, military commissions are tougher.

As to targeted killings of enemies, including American citizen enemies, Holder's speech didn't really have any surprises. He said that a combination of the AUMF and Article II authorities, plus the exectuive's inherent power to protect the nation and self-defense, gave the President power to engage in targeted killings with minimal, and apparently all internal, due process. Holder did say that the administration would respect the counter-veiling values in the constituiton (like due process) and international law. And he elaborated on what we've seen with regard to international law:

The principle of necessity requires that targets have definite military value. The principle of distinction requires that only lawful targets--such as combatants, civilians directly participating in hostilities, and military objectives--may be targeted intentionally. Under the principle of proportionality, the anticipated collateral damage must not be excessive in relation to the anticipated military advantage. Finally, the principle of humanity requires us to use weapons that will not inflict unnecessary suffering.

SDS

March 9, 2012 in Congressional Authority, Executive Authority, News, War Powers | Permalink | Comments (0) | TrackBack (0)

Monday, February 27, 2012

War Powers Resolution Challenge to Libyan Mission Moot

Judge Richard W. Roberts (D.D.C.) on Tuesday dismissed as moot Whitney v. Obama, a civil case seeking a declaration and injunction against President Obama's commitment of U.S. troops to Libya last year.  We previously posted on House Members' claim against the President here (with links to our past posts on the Libyan mission).  (Judge Walton dismissed that case, Kucinich v. Obama, for lack of standing.)

The plaintiff brought the case under the War Powers Resolution.  Judge Roberts declined to address the merits but instead ruled the case moot because the operation ended in 2011:

"[T]he [U.S.] ceased air operations in support of" NATO's Operation Unified Protector on October 31, 2011, and Whitney cites no authority for the proposition that the War Powers Resolution covers the continued presence of peaceful troops.  Because "[t]he clash . . . has subsided, and what occurred during the dispute cannot be undone[,] "the court can grant no meaningful relief[.]"  The declaratory judgment Whitney seeks would constitute an "improper advisory opinion" since no live dispute remains.  Granting injunctive relief likewise would prove ineffectual, as the challenged actions have long since ceased.  Accordingly, Whitney's claims are moot.

Op. at 6-7 (citations omitted).  Judge Roberts also ruled that the action was neither capable of repetition (because there's no reasonable expectation that Whitney will suffer the same alleged violation of the WPR again), nor evading review (because "offensive wars initiated without congressional approval are not in th[is] category[,]" and neither are military missions "inherently short in duration," Campbell v. Clinton, 203 F.3d 19, 34 (D.C. Cir. 2000).

SDS

February 27, 2012 in Cases and Case Materials, Congressional Authority, Executive Authority, Mootness, News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 8, 2012

Oral Arguments in Torture Suit Against Rumsfeld

The en banc Seventh Circuit heard oral argument on Wednesday in Vance v. Rumsfeld, the case by two American military contractors against the former Secretary of Defense (among others) for authorizing their torture while in military detention in Iraq.  We posted on the three-judge panel decision allowing the case to move forward here.  The full Seventh Circuit vacated that decision and took up the case en banc.

The plaintiffs, Vance and Ertel, filed a Bivens claim against Rumsfeld and others, seeking monetary damages and injunctive relief.  The government, on behalf of Rumsfeld, moved to dismiss, arguing that special factors counseled against a Bivens remedy, namely wartime context and the military's ability to do its job without threat of litigation.

The arguments today focused around these themes--all relating to special factors counseling against Bivens except the last one:

Disincentives.  Some on the bench, led by Judge Posner, were concerned that allowing a Bivens claim to move forward here would discourage talented people from considering public service.  Others expressed concern that not allowing a Bivens claim here would give a green light to the military to violate whatever constitutional provisions it likes, with no judicial check.

Separation of Powers.  Some, again led by Judge Posner, argued that Congress was the better branch to provide a remedy, and that the courts should take great caution in crafting a judicial remedy, or in applying Bivens beyond its narrow facts. 

Contractor Status.  Judge Posner pressed the plaintiffs' attorney about the plaintiffs' contractor status, suggesting that this status, equivalent in all but name to active members of the military, creates exactly the same special factors counseling against a Bivens remedy that an active-duty member's claim raises.  And the courts have rejected Bivens for such a military-on-military claim.

Alternative Remedies.  Several on the bench seemed concerned that the plaintiffs hadn't pursued, or hadn't at least tried to pursue, alternative compensation remedies through the Defense Department.

Judge Posner, the most vocal voice on the court against a Bivens damage remedy, was also most vocal about saying that the plaintiffs could get injunctive relief.  Thus one possibility is that the en banc court would dismiss the damage action but allow injunctive relief to move forward.  The problem: Plaintiffs might then face a Lyons-like standing problem.

Another possibility: The en banc court might dodge the thorny question of special factors and instead dismiss the case based on the plaintiffs' failure to pursue alternative remedies.

Oddly, nobody on the bench (or behind the podium) seemed to consider that the qualified immunity doctrine could cover for the discourage-public-service concern--and that qualified immunity might do it in a better way: Allowing the Bivens case to move forward would give the plaintiffs their day in court and only discourage plainly unconstitutional public service, not all public service.

SDS

February 8, 2012 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Foreign Affairs, Jurisdiction of Federal Courts, News, Oral Argument Analysis, War Powers | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 1, 2012

ACLU Sues for Material Authorizing Targeted Killings

The ACLU filed suit on Wednesday against the U.S. government in the Southern District of New York seeking the release of records related to the targeted killings of U.S. citizens overseas.  Recall that the New York Times and two reporters filed a similar suit in December 2011.

The ACLU lawsuit comes after the Departments of Justice and Defense and the CIA rejected or indefinitely delayed their responses to the group's FOIA request for the records.  The complaint alleges,

The press began reporting in early 2010 that Anwar al-Awlaki, a U.S. citizen born in New Mexico, had been placed on CIA and JSOC "kill lists" that authorized his targeted killing.  In the fall of 2011, the media reported on the existence of a legal memorandum drafted by the OLC ("OLC memo") that provided a legal analysis to support al-Awlaki's killing.

The lawsuit comes on the heels of President Obama's YouTube interview in which he acknowledges and defends drone strikes.  Here's Al Jazeera's report on the interview:

 

SDS

February 1, 2012 in Executive Authority, News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 24, 2012

Fourth Circuit Rejects Padilla's Civil Claims

A three-judge panel of the Fourth Circuit yesterday rejected Jose Padilla's civil claims against Donald Rumsfeld and other high-level government officials growing out of his designation as an enemy combatant and his military detention.  The ruling, Lebron v. Rumsfeld, is at least in part in tension with a recent Seventh Circuit ruling (now on appeal to the en banc Seventh Circuit, and discussed below) and two recent district court rulings--one from the Western District of Washington and the other from the District of Columbia.

Padilla sued the officials for constitutional violations under Bivens and for violations of the Religious Freedom Restoration Act.  He sought declarations that his designation and detention were unconstitutional and that the policies that led to his treatment were unconstitutional, an injunction against future designations and detentions, and nominal monetary relief.  The district court rejected his Bivens and RFRA claims, and ruled that he lacked standing for injunctive relief.

The Fourth Circuit affirmed.  The panel applied the two-part framework in Wilkie v. Robbins (2007) and ruled (1) that special factors counseled against a Bivens remedy and (2) that Padilla had alternative forms of relief.  The panel said that separation-of-powers principles counseled against a Bivens remedy, in particular: military matters like this are the province of the political branches, and the courts lack the expertise and risk upsetting the military command structure and intelligence gathering activities.

The panel also said that Padilla had other forms of relief, in particular habeas.

The ruling on special factors and separation of powers is in tension with similar recent rulings by the Seventh Circuit and two district courts.  Thus in Vance v. Rumsfeld a three-judge panel of the Seventh Circuit ruled that separation-of-powers principles like those at issue here did not stand in the way of the plaintiffs' Bivens remedy.  The U.S. District Court for the District of Columbia ruled similarly in Doe v. Rumsfeld.  Both cases involved U.S. citizen plaintiffs (like Padilla)--an important point of distinction for the Seventh Circuit panel, which distinguished Ali v. Rumsfeld (D.C. Cir. 2011) and Arar v. Ashcroft (2d Cir. 2009), both of which rejected Bivens claims of aliens.  (We posted on the cases here.)

The Western District of Washington extended Vance and Doe just last month in Hamad v. Gates.  That court ruled that separation-of-powers principles did not counsel against a Bivens claim of an alien.  The court ruled that alienage didn't matter for the special factor analysis.

The ruling on alternative relief is not so obviously in tension with Vance and Doe.  The plaintiffs in those cases were U.S. citizens detained overseas at Camp Cropper, without available access to habeas.  (Whatever one thinks about the Fourth Circuit's ruling that habeas as a reasonable alternative to a Bivens claim in the Wilkie calculus, the plaintiffs in Vance and Doe didn't even have that.)

The panel ruling in Vance was vacated and is now on appeal to the en banc Seventh Circuit.  Oral arguments are set for February 8.

The Fourth Circuit also ruled that the defendants enjoyed qualified immunity against Padilla's RFRA claim, because it wasn't clearly established that RFRA would apply to military detention.

Finally, the court ruled that Padilla lacked standing on his claim for injunctive relief.  It ruled that Padilla couldn't show that he'd be subject to re-designation or re-detainment, and, in any event, it won't happen for a long time: He's now facing more than 17 years on resentencing in his criminal case.

SDS

 

January 24, 2012 in Cases and Case Materials, Courts and Judging, Executive Authority, Fundamental Rights, Jurisdiction of Federal Courts, News, Opinion Analysis, Recent Cases, Separation of Powers, War Powers | Permalink | Comments (2) | TrackBack (0)

Friday, December 23, 2011

The New York Times Sues the Justice Department for Memos Authorizing Targeted Killing

The New York Times and reporters Charlie Savage and Scott Shane sued the Department of Justice in the Southern District of New York this week to obtain any legal analysis from the Office of Legal Counsel authorizing the government's targeted killing of suspected terrorists.  Courthouse News Service first reported here.

Recall that Savage reported on the government's legal justification for its targeted killing of Anwar al Alwaki, a United States citizen and alleged terrorist living in Yemen.  But Savage relied on a government source, not an OLC memo or other formally released legal advice.  According to Savage's story, the government's legal advice probably closely tracked State Department Legal Adviser Harold Koh's arguments to the American Society of International Law in May 2010.  But still, the government had not released the actual legal advice.

Savage and Shane filed two separate FOIA requests with the Department of Justice for any legal advice that the Department offered to the administration on the legality of, or authority to commit, targeted killings.  The DOJ rejected the requests, citing FOIA Exemption 1 (relating to national defense or foreign policy information classified under EO 13526), Exemption 3 (relating to information protected by statute), and Exemption 5 (relating to privileged information).

The complaint argues that Exemptions 1 and 3 do not apply, because the FOIA request seeks only legal analysis, and "[m]emoranda containing only legal analysis fail to meet the requirements for properly classified materials under Executive Order No. 13526 or other legal authority."  (Para. 55.)  It argues that Exemption 5 doesn't apply, because "[m]emoranda containing legal analysis relied upon by the government constitute final determination of policy by the government and therefore are not deliberative materials."  (Para. 54.)

The complaint also cites the widespread calls for release of any memos--by Members of Congress and former OLC attorneys.

Given the widespread calls for release, the all-but-known legal advice that's in the memo, and the administration's stated commitment to transparency, the government's intransigence doesn't seem to make a lot of sense.  (The government also succeeded in dismissing al Alwaki's father's case on the pleadings--and, alas, could probably succeed in dismissing any similar case on similar grounds--and so there doesn't appear to be a threat that release of any memo now would give up a litigation position later.)  And now, in response to the Times's case, the government may feel like it has to dig in its heels to preserve the vitality of these exemptions in future cases. 

The government should just release the memo publicly--something it should have done months ago, without the threat of a FOIA suit--and move to dismiss the Times's case as moot.

SDS

December 23, 2011 in Cases and Case Materials, Executive Authority, News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 20, 2011

The National Defense Authorization Act

There's quite a bit of confusion and argument about what exactly the National Defense Authorization Act, or NDAA, does.  (The Conference Report is here; the relevant Title, Subtitle D, Counterterrorism, begins on page H8436.)  On one side, detractors claim that it expands government authority to detain aliens and even U.S. citizens.  Glenn Greenwald does a nice job setting out the case at salon.com.  On the other side, supporters say that it only codifies the government's authority under existing law.  Benjamin Wittes and Bobby Chesney carefully make this argument in their thorough examination at lawfare.

It turns out, both sides are right.  In short, the plain language of the NDAA expands detention authority beyond the plain language of the Authorization to Use Military Force, P.L. 107-40, but it only codifies the authority already claimed by President Obama and granted by the D.C. Circuit under the AUMF.  Here are some of the highlights:

  • Indefinite Detention.  Section 1021(c)(1) says that "[t]he disposition of a person under the law of war as described in subsection (a) may include . . . [d]etention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force."  (Emphasis added.)  This is the definition of indefinite detention.  But it's also an authority that President Obama claimed from the early days of the administration.  In fact, the definition of a "covered person" in Section 1021(b)(2) almost exactly tracks the administration's proposed definition of a "detainable person" under the AUMF in its March 13, 2009, filing in a Guantanamo habeas case in the D.C. District.  (More below.)  So while this authority in the NDAA is significant for representing clear congressional support for indefinite detention, and while it's deeply troubling, it also merely reflects the administration's long-standing position.
  • Detainable Persons.  Section 1021(b)(2) says that the government can detain (indefinitely) "[a] person who was a 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."  This is new, and adds to the definition of detainable person under the AUMF (and tracked in Section 1021(b)(1)) that allows detention of "[a] person who planned, authorized, committed, or aided the terrorist attacks that occured on September 11, 2001, or harbored those responsible for those attacks."  Moreover, Section 1022(a) requires military detention for anyone who is "a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda" and anyone who "participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners."  (Section 1022 covers a subset of detainable persons in Section 1021.  U.S. citizens and resident aliens are excepted from the requirement; more below.)  In short, the NDAA authorizes indefinite detention, and in some cases requires military detention, for those who not only participated in the 9/11 attacks or harbored those who did (as under the AUMF), but also for those who currently attack the United States or its partners.  But again, this is an authority that the administration claimed from its early days.  Thus the NDAA tracks almost exactly the adminsitration's proposed definition of a detainable person in Guantanamo habeas cases.  And it seems congruent with the D.C. Circuit's "part of" test--that under the AUMF the government can detain anyone who is "part of forces associated with Al Qaeda or the Taliban."  So here, too, the plain language of the NDAA seems to expand authority beyond the AUMF, but it also seems consistent with the government's long-standing position and the courts' interpretation of the government's authority under the AUMF.
  • Detainability of U.S. Citizens.  Section 1022(b) says that the military detention requirement in Section 1022 does not apply to U.S. citizens and lawful resident aliens for conduct within the United States.  This means that the NDAA does not require the military and indefinite detention of U.S. citizens who are "covered persons" under Section 1022(a)(2) (see above), but it also seems to permit such detention of U.S. citizens.  The Act is deliberately ambiguous on this point and seems to punt to the courts.  But in any event, it doesn't obviously add anything to the administration's position on detention or to what the courts would permit under Hamdi.
  • Guantanamo Transfers.  Section 1027 unequivocally denies funds for transfers of Guantanamo detainees to the United States.  This restriction means that the administration can't transfer detainees for civilian criminal trials.  The administration previously objected to this restriction (among others), even threatening a veto over this and other measures in the bill, but apparently dropped its objection.
  • Civilian Trials.  In addition to the restrictions in Section 1027, which prevent transfers of Guantanamo detainees to the United States for civilian trials (or for any other reason), Section 1029 requires the Attorney General to consult with the Director of National Intelligence and the Secretary of Defense about civilian trials for anyone held under Sections 1021 and 1022, discussed above.

These provisions in the NDAA represent significant and explicit congressional approval of government detention authority.  But they also only represent the administration's long-standing positions, and they're not obviously out of line with the courts' approaches.  In short, the codification of these authorities is significant--because it means that Congress is explicitly signing onto them--but they also only represent the creep of authority claimed by the administration and reflected in the courts under the AUMF.

SDS

December 20, 2011 in Executive Authority, Foreign Affairs, Fundamental Rights, Habeas Corpus, International, News, Separation of Powers, War Powers | Permalink | Comments (5) | TrackBack (0)

Thursday, December 1, 2011

Senate Passes Defense Spending Bill, with Detainee Provisions

The Senate today passed the National Defense Authorization Act for Fiscal Year 2012, S. 1867, with its several provisions dealing with the government's detention authority.  Recall that the Obama Administration previously objected to several detainee-related provisions of the bill and threatened a veto.

Today's Senate vote comes after the Senate earlier this week rejected an amendment proposed by Senator Udall that would have stripped the detainee-related provisions from the bill and another amendment proposed by Senator Feinstein that would have prohibited indefinite military detention of U.S. citizens.

According to The Hill, the Senate vote, 93-7, came after an agreement to include compromise language that simply says that the bill does not alter existing law for the detention of U.S. citizens or anyone captured or arrested in the U.S.  In other words, the compromise maintains the status quo and punts any hard questions to the courts.  It doesn't appear to change anything in the legislation.

In particular, the bill still contains the provisions that the administration objected to: Section 1031, which codifies the government's detention authority recognized by the courts; Section 1032, which mandates military custody for certain terrorism suspects, but not for U.S. citizens and lawful residents (military custody appears to be optional for these); and Sections 1033, 1034, 1035, and 1036, which restrict the government's ability to detain and transfer detainees. 

SDS

December 1, 2011 in Congressional Authority, Executive Authority, News, Separation of Powers, War Powers | Permalink | Comments (4) | TrackBack (0)

Saturday, November 19, 2011

White House Objects to Detainee Provisions in Defense Authorization Bill

The White House on Thursday issued a statement objecting to certain provisions in the National Defense Authorization Act for Fiscal Year 2012, now before the Senate.

The Statement of Administration Policy objects to the detention provisions in S. 1867 as bad policy and as encroaching on executive authority.  In particular:

  • The White House objects to Section 1031 for codifying its detention authorities that the courts have already recognized under the AUMF.  "[F]uture legislative action must ensure that the codification in statute of express military detention authority does not carry unintended consequences that could compromise our ability to protect the American people."
  • The White House "strongly" objects to Section 1032, which would mandate military custody for certain terrorism suspects, but not for U.S. citizens or lawful residents.  "[T]he provision would limit the flexibility of our national security professionals to choose, based on the evidence and the facts and circumstances of each case, which tool for incapacitating dangerous terrorists best serves our national security interests."
  • The White House objects to Sections 1033, 1034, 1035, and 1036 which restrict the transfer of detainees to a foreign country and restrict funds for transferring or detaining them within the U.S.  "The Executive branch must have the flexibility to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers. . . .  [The] ban on the use of funds to construct or modify a detention facility in the United States is an unwise intrusion on the military's ability to transfer its detainees as operational needs dictate. . . .  [And] Section 1035 conflicts with the consensus-based interagency approach to detainee reviews . . . which establishes procedures to ensure that periodict review decisions are informed by the most comprehensive information and the considered views of all relevant agencies.  Section 1036, in addition to imposing onerous requirements, conflicts with procedures for detainee reviews in the field that have been developed based on many years of experience by military officers and the Department of Defense."

The White House concludes with a veto threat.  The Senate takes the measure up again on Monday.

Recall that President Obama issued a signing statement on the current restrictions on detainee transfer, arguing that the restrictions interfered with the President's Article II authority, but stopped short of calling them unconstitutional.

SDS

November 19, 2011 in Congressional Authority, Executive Authority, News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Sunday, November 13, 2011

Cole on Targeted Killing

David Cole (Georgetown) revisits the government's targeted killing of Anwar al Awlaki in a piece titled Killing Our Citizens in the New York Review of Books.  Cole reopens and criticizes the killing, which faded from the mainstream news cycle within about a week of al Awalaki's death.  We covered it most recently here.

Cole takes on the idea that al Awlaki posed an imminent threat:

But al-Awlaki was not on the battlefield.  He was in Yemen.  And he was not even alleged to be a part of al-Qaeda or the Taliban, the two entities against whom Congress authorized the president to use military force in a resolution passed one week after the terrorist attacks of September 11, 2001.  That resolution continues to provide the legal justification for the war on al-Qaeda and the conflict in Afghanistan, but it is limited to those who attacked the US on September 11 and those who harbor them.  Al-Awlaki was not alleged to be part of either group, but instead a leader of AQAP, an organization in Yemen founded in 2009, long after the September 11 attacks.  He has never been tried, much less convicted, for any terrorist crime.

And more: al-Awlaki's case against the government, seeking to stop the government from killing his son, was dismissed based on lack of standing and the political question doctrine.

The part of this episode that ought to worry us most is the secrecy.  We know almost nothing about the legal justification for the killing, or the process through which the White House designated al Awlaki for targeted killing.  As Cole writes:

Secret memos, with or without leaked accounts to The New York Times, are no substitute for legal or democratic process.  As long as the Obama administration insists on the power to kill the people it was elected to represent--and to do so in secret, on the basis of secret legal memos--can we really claim that we live in a democracy ruled by law?

SDS

November 13, 2011 in Executive Authority, Fundamental Rights, News, War Powers | Permalink | Comments (1) | TrackBack (0)

Thursday, October 20, 2011

Members of Congress Lack Standing to Sue Administration Over Libyan Engagement

Judge Reggie B. Walton (D.D.C.) ruled today in Kucinich v. Obama that ten members of the United States House of Representatives lack standing to sue President Obama for violating the War Powers Clause of the Constitution and the War Powers Resolution for the President's commitment of U.S. forces to Libya without explicit congressional consent.  We previously posted on the issue here (OLC memo concluding that the President has authority without congressional consent); here, here, and here (congressional responses to the administration's campaign in Libya); here (administration's answers on claims that it lacks authority without congressional consent); and here (Kucinich's case).

Judge Walton wrote that the group lacked both legislative standing and taxpayer standing.  Legislative standing is foreclosed by Kucinich v. Bush, a similar case from the same court in 2002 by the very same lead plaintiff--a fact not overlooked by Judge Walton, who wrote with some frustration that this case was a waste of the court's time.  Taxpayer standing is foreclosed by basic taxpayer standing principles and the fact that the plaintiffs can't shoehorn it into the narrow exception in Flast v. Cohen.  Judge Walton didn't even get to the administration's argument that this also a nonjusticiable political question.

The ruling is hardly a surprise.  But, as Judge Walton noted, it obviously doesn't mean that Congress lacks a check on the President.  It can still use its power of the purse, its oversight power, the Senate's advice-and-consent power to hold up appointments (a power it's demonstrated some competence wielding), and, ultimately though unlikely, its impeachment power.

SDS

October 20, 2011 in Cases and Case Materials, Congressional Authority, Courts and Judging, Foreign Affairs, News, Opinion Analysis, Separation of Powers, Standing, War Powers | Permalink | Comments (1) | TrackBack (0)

Sunday, October 9, 2011

Justifying Targeted Killing

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.

SDS

October 9, 2011 in Executive Authority, Fifth Amendment, Fundamental Rights, News, Procedural Due Process, War Powers | Permalink | Comments (0) | TrackBack (0)

Monday, October 3, 2011

Alston on Targeted Killings

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.

We post on Judge Bates's dismissal of a case brought by al-Awlaki's father here; we posted on the legality of targeted killings here.

SDS

October 3, 2011 in Executive Authority, Foreign Affairs, International, News, Procedural Due Process, Scholarship, Standing, War Powers | Permalink | Comments (0) | TrackBack (0)

Monday, September 26, 2011

Fourth Circuit: Iraqis' Torture Claims Preempted

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. 

SDS

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

D.C. Circuit: Guantanamo Detainee Lawfully Detained

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.

SDS

September 7, 2011 in Cases and Case Materials, Executive Authority, News, Opinion Analysis, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 17, 2011

Court Upholds Conviction of Former Airborne Infantryman Against Separation of Powers Challenge

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.

Francisco_de_Goya%2C_Desastre_de_la_Guerra_%28Disasters_of_War%29 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.

SDS

[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)