Constitutional Law Prof Blog

Recommendations from President's NSA Surveillance Review Group

The anticipated report  from a panel of presidential advisors - - - Richard Clarke, Michael Morell, Peter Swire, and ConLawProfs Geoffrey Stone and Cass Sunstein - - -  has just been released from The White House.  It contains 46 recommendations, detailed in the Executive Summary and later discussed in the report.

Occuring amidst significant problems, such as the recent federal district judge's opinion casting doubt on the constitutionality of the  collection of metadata from Verizon and the Edward Snowden revelations, the report concludes that the "current storage by the government of bulk meta-data creates potential risks to public trust, personal privacy, and civil liberty."  But the report recognizes that government might need such metadata, and therefore recommends that it be held by "private providers or by a private third party."   The report also recommends a series of changes at NSA, including having the Director be a "Senate-confirmed position" and suggesting that the Director be a civilian (at least next time). 

There is some interesting constitutional analysis and rhetoric in the report.  For example, under "Principles," the first one is "The United States Government must protect, at once, two different forms of security: national security and personal privacy."  How should these interests be balanced?  The report, quite interestingly, says this:

It is tempting to suggest that the underlying goal is to achieve the right “balance” between the two forms of security. The suggestion has an important element of truth. Some tradeoffs are inevitable; we shall explore the question of balance in some detail. But in critical respects, the suggestion is inadequate and misleading.

Some safeguards are not subject to balancing at all. In a free society, public officials should never engage in surveillance in order to punish their political enemies; to restrict freedom of speech or religion; to suppress legitimate criticism and dissent; to help their preferred companies or industries; to provide domestic companies with an unfair competitive advantage; or to benefit or burden members of groups defined in terms of religion, ethnicity, race, or gender. These prohibitions are foundational, and they apply both inside and outside our territorial borders.

The purposes of surveillance must be legitimate. If they are not, no amount of “balancing” can justify surveillance. For this reason, it is exceptionally important to create explicit prohibitions and safeguards, designed to reduce the risk that surveillance will ever be undertaken for illegitimate ends.

Certainly, there is much more to glean and analyze from the 300 plus page report, but some of the reasoning already seems noteworthy.

Daily Quote: Obama on Mandela and "Formal Equality"

At the memorial for former South Africa President Nelson Mandela, United States President Obama's speech including the following observation:

The struggles that follow the victory of formal equality and universal franchise may not be as filled with drama and moral clarity as those that came before, but they are no less important.

A full transcript of Obama's speech is in the Washington Post here.

Video (and transcript) from BBC here.

Nelson Mandela's autobiography Long Walk to Freedom remains the best read about Mandela.

And worth (re)reading on this anniversary of Mandela's signing the South Africa Constitution in 1996, volumes such as The Post-apartheid Constitutions : Perspectives on South Africa's basic law by Penelope Andrews and Stephen Ellman and Constitutional Rights in Two Worlds by Mark Kende. 

Daily Power Point Slides: PRISM, Surveillance, France and the NSA

Many will be considering the new revelations regarding the NSA and France, published in Le Monde today, linked and discussed in this LeMonde editorial, with The Guardian coverage here.

A few Power Point slides are published in Le Monde.   But Journalist Glenn Greenwald and Edward Snowden have also released additional Power Point Slides that are worth a look.  A set of eleven slides have some redactions, but will also seem eerily familiar to anyone who has ever prepared or seen a Power Point presentation:

 

slide 3

 

slide 5

No Standing to Challenge U.S. Funding of Palestinian Authority

Judge Ellen Segal Huvelle (D.D.C.) ruled today in Bernstein v. Kerry that a group of Americans living in Israel lacked standing to challenge the U.S. government's funding of the Palestinian Authority.  Relying heavily on Clapper v. Amnesty International (2013), Judge Huvelle ruled that the plaintiffs' fear of terrorist attacks was not a sufficient injury, that it wasn't fairly traceable to U.S. funding of the Palestinian Authority, and that changing U.S. funding policies wouldn't necessarily reduce their fears.

The ruling means that the case is dismissed.  Judge Huvelle didn't rule on the government's political question defense or its its argument that the plaintiffs had no clear right to relief under the Mandamus Act, the basis for their suit.  

The plaintiffs argued that the government violated laws that barred the use of U.S. funds to support a Palestinian state unless the Secretary of State determined and certified to Congress that the Palestinian Authority and any governing entity of a new Palestinian state satisfied certain requirements to pursue regional peace and to counter terrorism and that funding was in the U.S. interest.  

Judge Huvelle held that the plaintiffs had no support for their view that "subjective emotional response to the possibility of an invasion of a legally-protected interest constitutes an injury-in-fact."  Op. at 6.  Indeed, she wrote that "a host of cases . . . hold the opposite."  Id. (quoting Clapper (a "subjective fear of surveillance does not give rise to standing")).  Judge Huvelle also held that the plaintiffs' "standing canot be based on plaintiffs' interest, common among all citizens, in the government following the law."  Op. at 8.

Judge Huvelle also held that the plaintiffs failed to show causation and redressability.

SDS

D.C. Circuit Strikes Congressional Attempt to Recognize Israeli Sovereignty Over Jerusalem

The D.C. Circuit struck a congressional act that required the State Department to include "Israel" on the passport of any U.S. citizen born in Jerusalem.  The court in Zivotofsky v. Secretary of State ruled that the law interfered with the President's exclusive power to recognize foreign countries.

The case will likely go (back) to the Supreme Court, this time on the merits.  This is a significant separation-of-powers case, with important implications, and even if the Court ultimately agrees with the D.C. Circuit, it'll almost certainly want to put its own stamp on the substantive questions.

The case was on remand, after the Supreme Court ruled last Term that it did not raise a nonjusticiable political question.  We posted on that case here; here's our argument preview in that case.

The problem was that long-standing State Department policy and practice did not recognize Jerusalem as part of Israel.  The Foreign Affairs Manual, the State Department regs, reflected this, saying that passports issued to U.S. citizens born in Jerusalem should use just "Jerusalem" as the place of birth, not "Jerusalem, Israel," or "Israel."

Congress moved to direct the State Department to use "Israel," however, as part of its broader effort in 2002 to change U.S. foreign policy and identify Jerusalem as the capital of Israel.  President Bush signed the larger bill, but issued a signing statement on those portions of the bill, including the portion that required the use of "Israel" on passports of U.S. citizens born in Jerusalem, saying that those portions interfered with the President's foreign affairs powers.

Zivotofsky was born in Jerusalem to U.S. citizens.  His parents sought to designate his place of birth as "Jerusalem, Israel," on his passport, but the State Department refused.  The Zivotofskys sued, and after going up and back to the Supreme Court, the case landed again in the D.C. Circuit.

The D.C. Circuit started with the so-called recognition power--the power to recognize foreign countries.  The court reviewed the original intent, early and later practices, and Supreme Court rulings on the recognition power and found that it belonged to the President alone.  (It found original intent inconclusive, however.)

It said that Congress's attempt to require the use of "Israel" interfered with that power and thus struck the provision.

The court rejected Zivotofsky's argument that Congress has a "passport power" that it properly exercised here.  The court said that, whatever the extent of its passport power, Congress was quite obviously trying to do more than just regulate the contents of passports here: it was trying to set U.S. foreign policy.  The court said that this interfered with the President's power to recognize foreign countries.  

The court also rejected Zivotofsky's argument that the use of "Israel" didn't affect foreign affairs or recognition, because the State Department used the country-of-birth simply to identify the passport holder.  The court said that the State Department said that this would affect foreign affairs, and that it's not the court's place to second-guess the executive branch on this.

(The court also said that President Bush's signing statement was irrelevant to its analysis, and that Zivotofsky's argument that the State Department policy discriminates against supporters of Israel was waived.)

Judge Tatel, concurring, came to the same conclusion, but started with the passport power.  Judge Tatel argued that the passport power, whatever it is, can't interfere with the President's recognition power.

SDS

Oral Arguments in USAID v. Alliance for Open Society, the "Prostitution Pledge"

The Court heard oral arguments today, sans Justice Kagan, in United States Agency for International Development v. Alliance for Open Society International, Inc., involving a First Amendment challenge to a provision of federal funding statute requiring some (but not other) organizations to have an explicit policy opposing sex work. 

 

Courtesan in a Window, 18th C.

The United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (“Leadership Act”), 22 U.S.C. § 7601 et seq. provides: "No funds made available to carry out this chapter, or any amendment made by this chapter, may be used to provide assistance to any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking, except that this subsection shall not apply to the Global Fund to Fight AIDS, Tuberculosis and Malaria, the World Health Organization, the International AIDS Vaccine Initiative or to any United Nations agency"

 

In other words, a NGO must have a "prostitution pledge" - - - actually, an anti-prostitution pledge - - - as a condition of receiving funds, unless it is one of the "grandfathered" NGOs.   The question is whether this pledge is compelled speech and whether any compelled speech is sufficient to distinguish the situation from Rust v. Sullivan.  The Second Circuit had held the provision unconstitutional.

Arguing as Deputy Solicitor General in support of the provision's constitutionality, Sri Srinivasan stressed that the Congressional requirement was "germane" to the government's goal in "partnering" with private organizations.  Justice Scalia, in addition to finding the term "partnering" a "terrible verb," seemed to voice sentiments consistent with his previous conclusions in funding cases that the government can choose to spend its money as it wished. Interestingly, Justice Alito was more troubled, as he expressed in his first comment and question to the Deputy Solicitor General:

JUSTICE ALITO: I'm not aware of any case in which this Court has held that it is permissible for Congress to condition Federal funding on the recipient's expression of agreement with ideas with which the recipient disagrees. I'm not aware of any case in which that kind of compelled speech has been permitted.  And I would be interested in -- and it seems to me like quite a -- a dangerous proposition. I would be interested in whatever limitations you think there might be on that rule, which seems to be the general rule that you're advocating. Other than the requirement of germaneness, is there anything else.

 Alito soon thereafter posed an example mentioned in an amicus brief about the ability of government funding schools, and again, Srinivasan repeated the requirement of "germaneness."  Later, Alito mentioned another example, mixing advocacy of guns and receiving health care, and Srinivasan again answered similarly.

Justice Ginsburg's concerns were similar, with an addition of the question of the recipients as foreign NGOs as a distinguishing feature from precedent as well as a practical issue. 

David Bowker, arguing for Alliance for Open Society and other organizations, attempted to distinguish a funding criteria from mandated speech once the fnding decision had been made, although this led into a discussion of viewpoint discrimination rather than compelled speech.  Later, Bowker brought it back to the distinction based upon Rust v. Sullivan, in  a colloquy with Justice Sotomayor:

MR. BOWKER: And what Rust says, and I – I think we fall back on Rust, which we think is just on all fours with where we are here, and that is what the government cannot do -- and I think this answers your question -- is outside the government program the government cannot control private speech. And it was critical in that case -- Justice Rehnquist, at pages 196 and 197, said, "The doctors there and the public health organizations there are free to engage in their own private speech and their own activities, and they are not required to endorse any viewpoint they don't, in fact, hold." And here -­

It was not until the Government's rebutal that one of the oddest features of the statute was raised, when Sotomayor stated,

JUSTICE SOTOMAYOR: I would have less problem accepting your message if there weren't four major organizations who were exempted from the policy requirement . . .

There seems to be a bit of selection on the government in terms of who it wants to work with. It would seem to me that if you really wanted to protect the U.S., you wouldn't exempt anybody from this.

In his last moments of argument, Srinivasan, responding to Justice Ginsburg, argued that the exemptions made "good sense" given that three of the four have members that are sovereign entities.  Unfortunately, the rationale supporting that fourth entity was not explored.

The hypotheticals and examples raised by the Justices in oral argument showed some concern about just how far Congress could extend a provision similar to the one about prostitution in the Leadership Act.  The distinction between funding and compelled speech doctrines was often obscured, making the outcome uncertain.  More certain is that Justice Kagan's perspective will be sorely missed.

RR
[image via]

Drone Attacks Outside the Ongoing Conflict Zone

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

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

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

But there was a problem:

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

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

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

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

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

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

SDS

 

 

Zimbabweans Overwhelmingly Approve New Constitution

Zimbabweans voted overwhelmingly this weekend to approve a new draft constitution.  Ninety-five percent of voters cast a ballot in favor, according to the Washington Post and others.  We posted earlier here.

Now the document goes to Parliament and the president for approval and signature--ceremonial steps that'll take another 30 days or so.

The text is available here, at COPAC's web-site.

SDS

Daily Read: Congressional Research Service on Leaks of Classified Information

The leak of the DOJ white paper on drone attacks and its publication raise yet again the First Amendment issues surrounding prosecutions for leaks and possibily for publication.

Less than two weeks ago, the Congressional Research Service released its 33 page report, authored by legislative attorney Jennifer Elsea, entitled "Criminal Prohibitions on the Publication of Classified Defense Information." 

 

The report centers wikileaks and Bradley Manning, but also discusses five other pending prosecutions that have received less publicity, including the Administration's attempt to compel New York Times reporter James Risen to testify at the trial of former CIA officer Jeffrey Sterling, who is accused of providing classified information to Mr. Risen that formed the basis of part of Risen's book, State of War: The Secret History of the CIA and the Bush Administration.

The report considers the statutory frameworks, problems such as jurisdiction and extradition, other legislative proposals, and - - - in six pages - - - the constitutional issues.  While brief, the First Amendment discussion is nevertheless a good review and a good reminder that the law is deeply unsettled even with respect to classified information.

RR
[image via]

 

Daily Read: Academic Freedom and Controversial Programs

ConLawProfs often appear on controversial panels and law schools often present controversial programming.  Are there limits?

Policitical Science Professor (and Chair of the Department) Paisley Currah (pictured) of Brooklyn College has been embroiled in a "firestorm" of late.  As Professor Currah writes in The Chronicle of Higher Education:

Last month the political-science department at Brooklyn College, which I chair, was asked to either cosponsor or endorse a panel discussion on the boycott, divestment, and sanctions (BDS) movement organized by a student group, Students for Justice in Palestine. We decided to cosponsor the event, which is to take place on Thursday and to feature the philosopher Judith Butler and the Palestinian-rights activist Omar Barghouti. The BDS movement advocates using nonviolent means to pressure Israel to withdraw from Palestinian territories. Our decision landed us in a firestorm.

The flames of the firestorm have been fanned by controversial LawProf Alan Dershowitz as well as a letter signed NYC officials with (somewhat) veiled threats of reducing government funding.  The NYT weighed in on the matter, comparing it to Chuck Hagel's nomination for secretary of defense, and the Center for Constitutional Rights has also highlighted the controversy. As Professor Currah concludes:

The damage wrought by this controversy, however, could be long-lasting, and the lesson for other colleges is, I think, instructive. Many people have written letters and signed petitions in support of the principle of academic freedom, and my colleagues and I appreciate those efforts. But what we have learned at Brooklyn College is that supporting the principle of academic freedom is one thing; exercising that freedom by organizing or cosponsoring an event on a highly charged subject, like BDS, is another.

For ConLawProfs teaching First Amendment this semester, the underlying facts could be the basis for an excellent class discussion or exercise.  For everyone involved in the academic enterprise, Currah's piece is an important read.

RR

DOJ White Paper Says Why Drone Attacks on Americans Are Constitutional

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

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

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

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

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

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

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

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

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

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

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

SDS

Carol Anne Bond Going Back to the Supreme Court

The Court granted certiorari Friday in Bond v. United States - - - again.

Recall that the first time the Court heard Carol Anne Bond's case, it held that she did indeed have standing to assert a Tenth Amendment argument against her charge for violating 18 U.S.C. § 229(a), enacted by Congress to implement the United States’ treaty obligations under an international arms-control agreement, the Chemical Weapons Convention, that prohibits nation-states from producing, stockpiling, or using chemical weapons.  Bond, a biologist, used her expertise to spread injurious chemicals on the property of her former best friend, after learning that the friend was pregnant by Bond’s husband.   Although Bond was prosecuted in state court, she continued her campaign against her former friend and she was eventually prosecuted in federal court.

On remand, the Third Circuit held that the Chemical Weapons Convention "falls comfortably within the Treaty Power's traditional subject matter limitation" and thus the implementing Act is "within the constitutional powers of the federal government under the Necessary and Proper Clause and the Treaty Power, unless it somehow goes beyond the Convention."  While the Circuit did find the prosecution of Bond puzzling, there was also much puzzlement over the statement in Missouri v. Holland that “[i]f [a] treaty is valid there can be no dispute about the validity of the statute [implementing that treaty] under Article 1, Section 8, as a necessary and proper means to execute the powers of the Government."

It seems the Supreme Court is ready to clarify - - - or attempt to - - - Missouri v. Holland's famous statement. 

RR
[image of Methyldichloroarsine via]

Daily Read: Bradley Manning and Civil War Precedent

Writing about recent developments in the case of Bradley Manning (pictured), New Yorker commentator Amy Davidson considers how the charge of aiding the enemy by releasing information to the press has precedent in a Civil War prosecution - - - and how the possible sentence now is dramatically different.

It's short and worth a read.

RR
[image via]

Daily Read: Bradley Manning's Attorney on C-Span

Some excellent reporting and gathering of materials from C-SPAN on the Bradley Manning case, involving constitutional issues of state secrets, First Amendment, and due process, among others.

Today's daily "read" is the video from an event discussing the Manning case features a very rare appearance by Manning's attorney, David Coombs.   The introduction of Coombs starts at 22:40.  Coombs discusses the "unlawful pretrial punishment motion" regarding Manning's treatment during detention which he describes as "criminal" before the move to Leavenworth, the public attention to the case, whistle-blowing.  He also responds to vetted questions: he lauds the military justice system, including the judges and any possible panel, as educated, open-minded, and fair; discusses his own legal career; generally discusses the relationship between the "press" and an "aiding the enemy" offense; the perils of "trying the case in the press;" and privileged communication between attorney and client.   Interestingly absent is any discussion of Manning's sexuality.

.

 

This is definitey worth a listen!

RR

Daily Read: Reporting the MSK Trial at Guantanamo

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

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

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

The geographical restraints also limit reportial opportunities:

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

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

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

RR

Eleventh Circuit Says Maritime Drug Law Enforcement Act Exceeds Congressional Authority

A three-judge panel of the Eleventh Circuit ruled in U.S. v. Ballaizac-Hurtado that Congress lacks authority to enact the Maritime Drug Law Enforcement Act.  The ruling reverses four convictions of defendants who were charged under the Act for drug crimes that occurred in Panama.  

The ruling could strike a blow at federal enforcement of extraterritorial drug crimes not committed on the high seas.  (The court distinguished those cases, because Congress has independent authority to restrict conduct on the high seas.)  While the ruling is limited to the facts of the case (i.e., outside the U.S., but not on the high seas), it's easy to see how it could apply to other, similar cases.  That means for now--unless and until the government appeals and wins--federal criminal charges under the Act for drug trafficking outside the U.S., but not on the high seas, won't stand in the Eleventh Circuit.

The court held that Congress lacked authority to enact the Act as applied to the defendants under its power to "define and punish . . . Offenses against the Law of Nations."  Art. I, Sec. 8, cl. 10.  The problem: The Clause authorizes Congress to "define and punish" offenses that are recognized under customary international law; and drug trafficking is not one of them.  The court reviewed the history (or lack of history) of the law of international drug trafficking from the founding period through today and concluded that there simply was no customary international law prohibiting drug trafficking.  Instead, "unlike genocide, the international community has addressed drug trafficking at the domestic, instead of international, level."  Op. at 21.

As to any treaties on drug trafficking, the court said that certain affected States simply ignore them, making their obligations "not a matter of mutual legal obligation under customary international law."  The court explained:

The practice of these specially affected States evidences that drug trafficking is not yet considered a violation of customary international law.  Governments corrupted by the interests of drug traffickers are not simply unable to prosecute drug traffickers, but are often unwilling to do so because their economies are dependent upon the drug trade.  The persistent failure of these specially affected States to comply with their treaty obligations suggests that they view the curtailment of drug trafficking as an aspirational goal, not a matter of mutual legal obligation under customary international law.

Op. at 20.  (As the court explained, "[t]reaties may constitute evidence of customary international law, but 'will only constitute sufficient proof of a norm of customary international law if an overwhelming majority of States have ratified the treat, and those States uniformly and consistently act in accordance with its principles.'"  Op. at 18, quoting Flores v. S. Peru Copper Corp., 414 F.3d 233 (2d Cir. 2003).)

The court also ruled that the power to "define . . . Offenses against the Law of Nations" didn't stretch congressional authority any, because to "define" simply means to re-state, not to re-define or to create.  For example, the Clause doesn't give Congress power to re-define "piracy" as including "murder" and thus expand its authority by way of mere definition.  Instead, to "define" authorizes Congress only to codify existing customary international law--as it actually exists.  The court looked to the text, history, and structure of the Clause to arrive at this conclusion, and, in particular, the limited power of the federal government.

SDS

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

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

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

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

RR

Carol Anne Bond on Remand: Conviction Upheld by Third Circuit

Last June, in an unanimous opinion in Bond v. United States, the United States Supreme Court reversed the Third Circuit and found that Carol Anne Bond had standing to argue that the statute exceeded Congressional power and was inconsistent with the Tenth Amendment.

In an opinion today on remand, the Third Circuit reached the merits and again ruled against Bond.  Recall that Bond was convicted for a violation of 18 U.S.C. § 229(a), the Chemical Weapons Convention Implementation Act, enacted by Congress to implement the United States’ treaty obligations under an international arms-control agreement that prohibits nation-states from producing, stockpiling, or using chemical weapons.  Bond, a biologist, used her expertise to spread injurious chemicals on the property of her former best friend, after learning that the friend was pregnant by Bond’s husband.   Although Bond was prosecuted in state court, she continued her campaign against her former friend and she was eventually prosecuted in federal court.

Bond urged the Third Circuit to "set aside as inapplicable the landmark decision Missouri v. Holland, 252 U.S. 416 (1920), which is sometimes cited for the proposition that the Tenth Amendment has no bearing on Congress‟s ability to legislate in furtherance of the Treaty Power in Article II, § 2 of the Constitution."  Bond argued that "legal trends since the Supreme Court‟s 1920 decision in Holland make it clear that the Tenth Amendment should not be treated as irrelevant when examining the validity of treaty-implementing legislation."  

The Third Circuit found that the Chemical Weapons Convention "falls comfortably within the Treaty Power's traditional subject matter limitation" and thus the implementing Act is "within the constitutional powers of the federal government under the Necessary and Proper Clause and the Treaty Power, unless it somehow goes beyond the Convention."  Bond did argue that the Act exceeded the Convention, but the panel found this argument without merit.  However, the panel did remark that Bond's prosecution seems a questionable exercise of prosecutorial discretion," stating in footnote 20:

The decision to use the Act – a statute designed to implement a chemical weapons treaty – to deal with a jilted spouse's revenge on her rival is, to be polite, a puzzling use of the federal government's power.

 

Concurring, Judge Rendell also remarked on the odd "fact pattern":

No one would question a prosecution under the Act if the defendant were a deranged person who scattered potassium dichromate and 10-chloro-10H-phenoxarsine, the chemicals which Ms. Bond used, on the seats of the New York subway cars. While that defendant could be punished under state law, applying the Act there would not offend our sensibilities.

But he added, "The judgment call to prosecute Ms. Bond under a chemical weapons statute rather than allowing state authorities to process the case is one that we question. But we see that every day in drug cases. Perhaps lured by the perception of easier convictions and tougher sentences, prosecutors opt to proceed federally."

Obviously, however, this "puzzling" or pragmatic use of federal law has cost the federal government much time, money, and energy in litigating this case.

Judge Ambro, however, was not so worried about the prosecution of Bond, but wrote separately "to urge the Supreme Court to provide a clarifying explanation of its statement in Missouri v. Holland that “[i]f [a] treaty is valid there can be no dispute about the validity of the statute [implementing that treaty] under Article 1, Section 8, as a necessary and proper means to execute the powers of the Government."  This "most important sentence in this most important case about the constitutional law of foreign affairs" can be read as providing a "blank check" to Congress. 

RR
[image: colored chemicals via]

Passport Dispute Does Not Raise Political Question

The Supreme Court ruled on Monday in Zivotofsky v. Clinton that the political question doctrine does not bar judicial review of the constitutionality of a federal statute that requires the Secretary of State to designate "Israel" as the country of birth for a U.S. citizen born in Jerusalem who requests such designation.  We previewed the case here, and we reviewed the oral argument here.

The ruling dodges the significant underlying separation-of-powers question over which branch has authority to designate the country of birth on a U.S. passport--at least for now.  The Court remanded the case for consideration of this issue; it is sure to return.

The case pits State Department regs forbidding the designation of Israel as the country of birth for a U.S. citizen born in Jerusalem against a federal statute that requires such designation--in short, whether the President or Congress has authority to specify the country of birth on a U.S. passport for a U.S. citizen born in Jerusalem.  Here, this power also implicates U.S. foreign policy, because the designation would be seen as taking sides in the Israeli-Palistinian conflict.  Complicating things, President George W. Bush issued a signing statement on the legislation, Section 214(d) of the Foreign Relations Authorization Act, saying that it unconstitutionally interferes with the President's foreign affairs powers.  (The constitutionality of the signing statement, however, wasn't before the Court.)

The D.C. Circuit ruled that the case raised a nonjusticiable political question--the President's authority to recognize foreign sovereigns--and affirmed its dismissal.

The Supreme Court reversed.  Chief Justice Roberts wrote for the Court that the case merely involved the constitutionality of a federal statute--"a familiar judicial exercise"--and did not require the courts to intervene in or to set foreign policy.  This didn't make the case easy, but it did make it appropriate for judicial review.  The Court remanded the case to get the lower courts' best thinking on the merits before the case inevitably comes back to it.

Justice Sotomayor wrote a concurrence joined in part by Justice Breyer, and Justice Alito wrote a concurrence.  Justice Breyer was the lone dissenter, arguing that the case was a political question because it may well require the Court to evaluate foreign policy considerations, because there are no strong reasons for judicial review, and because the political branches can work it out on their own.

The ruling sends the case back to the lower courts for consideration on the merits.  But this important separation-of-powers case is almost certain to come back to the high Court.

SDS

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