Constitutional Law Prof Blog

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

Separation of Powers and Passports, Foreign Affairs

The Supreme Court heard oral arguments yesterday in MBZ (Zivotofsky) v. Clinton, the case testing whether Congress or the President or both have the power to designate (or not) the place of birth on a U.S. passport.  We previewed the argument here.

The separation-of-power issue in the case is obvious: When Congress enacts a law in direct opposition to the President's practice (which, in turn, is driven by the President's foreign policy), who wins?  But the case may turn on a more basic question: Separation of powers about what?

The plaintiffs in the case argued that the case is merely about passports, and not foreign policy.  They said that the case can be decided easily under Justice Jackson's three-part framework in the steel-seizure case, Youngstown Sheet & Tube Co. v. Sawyer: When Congress acts pursuant to its own authority, as here, the President's power is at its lowest ebb.  The plaintiffs translated this as a kind of congressional veto over executive power--that when Congress and the President clash, Congress wins.

But more: The plaintiffs seemed to argue that even if the passport power implicates foreign affairs, Congress has a "shared" power with the President over foreign affairs.  This leaves little exclusive power to the President over foreign affairs--an approach to executive authority over foreign affairs that Justice Kennedy called "crabbed."  Others on the bench also signalled difficulties with this position; for example, Justice Sotomayor showed how it would "hobbl[] the President with respect to situations that occur frequently [in foreign affairs]," like changes in governments and changes in sovereignty.  Justice Scalia put perhaps the finest point on all this:

Mr. Lewin, you're--it seems to me you are not arguing for a co-equal congressional power, you are arguing for a superior congressional power.  You are saying whatever Congress says, the President has to comply with.  Now, that's quite different from saying that they both have authority in the field. 

Transcript, 10-11.

There was an even more basic problem with the plaintiff's approach, though.  That is: What exactly is Congress's authority over passports, and where does it come from?  The plaintiffs didn't have a great answer for that question (from Justice Kagan).

But even with these problems with the plaintiffs' approach--its all-or-nothing nature, its rigidity, and its lack of textual support--the argument was by no means one-sided.  The government similarly dug in its heels on its position on executive authority in foreign affairs: The President has exclusive authority, leaving no room for Congress.  But it's not obvious that such expansive authority here derives from the text--the government only has the reception clause (its power to receive ambassadors) and its historical gloss on that power.  And the government's theory didn't adequately address how it squares with Congress's power of the purse, its advice-and-consent power over appointments, and its oversight authority--whether those quite clear congressional authorities could in effect override the President's execution of the foreign affairs power.  (The government said that a congressional act defunding a foreign affairs policy might raise constitutional problems, but it didn't say why.  This is exactly what the government faced with congressional defunding of transportation of Guantanamo detainees to the mainland for criminal trials in Article III courts.  The Obama administration balked, but only a little, and basically acquiesced in that act of congressional control over a foreign affairs matter.)

Moreover, the Court was quick to recognize that the government's aggressive position on the political question doctrine--that the issue here is textually delegated to the President alone, and therefore the courts shouldn't intervene--answers the underlying merits question.  That is, to decide that the Constitution gives the power to the President  for the purpose of the political question doctrine is also to decide that the Constitution gives the power to the President for the purpose of actualizing the power.  This didn't seem to sit well.

Some on the bench floated intermediate positions.  On the merits, both Congress and the President probably have some power over place-of-birth designation on passports, but that that power might be very different.  The President may have some power by way of recognition, derived from the reception clause; but Congress, too, may have power by way of appropriations, appointments, and oversight.  On the political question doctrine, this case could well be a "political question" (or otherwise nonjusticiable) for that very reason--that both political branches have some power, but that their powers are different, and that the courts should let them work it out (as they do in so many issues).  These intermediate positions offer a more moderate and appealing view of shared power than the extreme views of either side in the case, and they keep the Court well away from delving into the underlying foreign policy itself--something that many on the Court seemed concerned about.

SDS

Argument Preview: Foreign Affairs and Separation of Powers

The Supreme Court will hear arguments on Monday in MBZ (Zivotofsky) v. Clinton, a case that on its face tests whether Congress or the President has authority to name the place of birth on a U.S. passport--but it's likely about much more.

The case arose when two U.S. citizens living in Israel sought a passport for their child, born in Jerusalem, with a place of birth as "Jerusalem, Israel."  Embassy officials agreed to designate the place of birth "Jerusalem," but refused to designate "Israel."  The officials' refusal was based on long-standing U.S. policy not to recognize Jerusalem as part of Israel and U.S. State Department regulations that prohibit the designation of "Israel" as the country of birth for any U.S. citizen born in Jerusalem.

The parents sued.  They pointed to the Foreign Relations Authorization Act, Fiscal Year 2003, that requires the Secretary of State to designate "Israel" as the country of birth for any U.S. citizens born in Jerusalem who so requests.  But President Bush issued a signing statement on the Act that claimed that this provision was unconstitutional and said that the executive branch would decline to enforce it.

The case thus pits the President against Congress on the question of which branch has authority over the birthplace on the passport.

The lower courts dismissed the case, holding that it raised a nonjusticiable political question.  The Zivotofskys appeal that ruling.  But the Supreme Court also directed the parties to argue the merits: whether the Act unconstitutionally infringes upon the President's authority in foreign affairs.

The Zivotofskys argue that the case involves a run-of-the-mine issue relating to passports--the mere designation of a place of birth, which serves identification objectives, not foreign policy objectives.  Thus in their view the case does not involve a political question, and requiring the designation of "Israel" as a country of birth for a U.S. citizen born in Jerusalem is within congressional authority. 

Secretary of State Clinton argues that the President's Article II power to receive Ambassadors includes the power to recognize (or not) foreign sovereigns and the power to designate them (or not) on U.S. passports.  She also argues that this is a political question because of the sensitive foreign policy issues behind the State Department regulation--the kind of issues that are delegated to the President alone under the Constitution.

The fact that the Court directed the parties to brief the merits suggests that it'll say at least something about the merits.  If it does, it seems likely that it'll say something very narrow--dealing only with the extent of the President's authority to receive Ambassadors as against any congressional authority over passports.  But even that narrow ruling could say something broader about the respective roles of the political branches over foreign policy--a much broader question.  This seems to be a narrow, even small, case on the surface, but there are potentially very big issues beneath.

As to presidential signing statements: it seems unlikely that the Court will say anything at all about them: this issue is not squarely before the Court; the parties did not brief it thoroughly; and the Court doesn't have to deal with it to decide the case.

SDS

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

OLC: Congressional Restrictions on Collaboration with Chinese are Unconstitutional

The Office of Legal Counsel opined last month that a provision in an appropriations act that purported to prevent the Office of Science and Technology Policy from using appropriated funds to collaborate with the Chinese was unconstitutional.

Recall that President Obama issued a signing statement on the bill (taking issue with the restrictions on transfer of Guantanamo detainees and restrictions on appointment of presidential advisers), but he wrote nothing about the restrictions on collaborating with the Chinese.  Nothing requires the President to preserve a constitutional objection in a signing statement; and failure to do so certainly doesn't constitute acquiescence to its constitutionality.  Still, the OLC analysis came a little late.  It seems that if Presidents are going to object to the constitutionality of a bill that they nevertheless sign, the better practice is to object early and publicly, in the signing statement, and not only later, through a comparatively less public OLC opinion.

The provision, Section 1340(a) of the Department of Defense and Full-Year Continuing Appropriations Act, 2011, says that

None of the funds made available by this division may be used for . . . [the OSTP] to develop, design, plan, promulgate, implement, or execute a bilateral policy, program, order, or contract of any kind to participate, collaborate, or coordinate bilaterally in any way with China or any Chinese-owned company unless such activities are specifically authorized by a law enacted after the date of enactment of this division.

The OLC wrote that this interferes with the President's exclusive authority to "conduct . . . negotiations with foreign governments."  The memo said that Congress "possess significant Article I powers in the areas of foreign affairs," but that in foreign negotiations "it is imperative that the United States speak with one voice" and that "[t]he Constitution provides that that one voice is the President's."  Op. at 4.

The OLC also wrote that Congress could use its power of the purse to defund OSTP.  But once having appropriated funds, it can't "impair the President's conduct of foreign affairs by imposing restrictions on expenditures that serve diplomatic purposes."  Op. at 6.  The memo said, however, that some restrictions--those on activities "that are neither diplomatic in character nor otherwise within the exclusive constitutional authority of the President"--did not run into the President's Article II powers.

SDS

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

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

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.

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]

Court Rules Torture Claim Against Rumsfeld Can Move Forward

Judge James S. Gwin (D.D.C.) ruled this week in Doe v. Rumsfeld that a U.S. citizen's Bivens suit against former Secretary of Defense Donald Rumsfeld can move forward beyond the pleadings.  In so ruling, Judge Gwin also flatly rejected some of the kinds of claims we've grown accustomed to by the government in cases arising out of its anti-terrorism programs--most especially a separation-of-powers claim that the courts have no business poking their noses in foreign affairs and national security. 

The ruling comes on Rumsfeld's motion to dismiss the plaintiff's complaint.  The plaintiff, a U.S. citizen and civilian employee once deployed with a Marine intelligence unit in Iraq, alleged that Rumsfeld authorized his torture at overseas prisons operated by the United States and denied him fair process to challenge his designation and detention.  He brought a Bivens claim for violations of substantive due process, procedural due process, and access to the courts and sought monetary damages.

Rumsfeld argued that the plaintiff's claim amounted to an unwarranted expansion of Bivens--that Bivens did not contemplate this kind of monetary damages claim, and that special factors counseled against recognizing the plaintiff's Bivens claim here--in particular, the separation-of-powers argument that this case raised foreign affairs, national security, and war-time issues uniquely within the bailiwick of the political branches, and that the courts have no expertise in these areas.

The court disagreed.  Judge Gwin cited the Supreme Court's relatively recent and not-so-recent forays into foreign affairs, national security, and war-time issues--cases in which the government made arguments very similar to those Rumsfeld made here--and ruled that courts do, in fact, sometimes get involved in these issues.  Moreover, Judge Gwin noted that the plaintiff was detained on his way out of Iraq, after he left the field of battle, when he could no longer offer low-level aid to insurgents (as the government alleged).  Judge Gwin also rejected Rusmfeld's related "real world consequences" of allowing a Bivens remedy here, that the threat of liability would impede military decisionmaking; that proceeding with the case would involve sensitive information, distracting discovery, and testimony by soldiers that would disrupt the military's efforts; and that the action would "embroil the judiciary in war-related decisions" that are complicated to litigate.

Judge Gwin also rejected Rumsfeld's qualified immunity defense.  Judge Gwin wrote that the plaintiff pleaded sufficient facts to show that Rumsfeld approved of policies that led to his torture, in violation of substantive due process.  (He was careful to write that this was not a respondeat superior claim in violation of Ashcroft v. Iqbal.  Instead, it was a direct claim for authorizing torture.)  But Judge Gwin wrote that the plaintiff did not plead sufficient facts to show that Rumsfeld directed his shoddy process in violation of procedural due process and the right of access to the judiciary.  He thus dismissed these two claims.

The ruling means that the plaintiff jumped one of his most significant hurdles--getting past the pleadings on his torture claim against Rumsfeld--especially after the Supreme Court clarified the high pleading standard in Iqbal and especially given a very recent ruling by the D.C. Circuit in a very similar case.  Just over a month ago, the D.C. Circuit dismissed a Bivens claim against Rumsfeld for torture by an alien detained overseas.  Key to the D.C. Circuit's ruling in Arkan v. Rumsfeld was that it wasn't clearly established at the time that the Fifth and Eighth Amendments applied to aliens detained abroad (not our case).  But maybe just as key--and more relevant to Doe--the court ruled that prudential considerations--that cases like this against military officials would disrupt the war effort, just like Rumsfeld's argument in Doe--counselled against extending a Bivens remedy. 

If the D.C. Circuit applies this same prudential considerations analysis to Doe, this case won't go far.

SDS

Why U.S. Operations in Libya are not "Hostilities" under the WPR

State Department Legal Adviser Harold Koh on Tuesday gave the administration's case for why U.S. operations in Libya are not "hostilities" under the War Powers Resolution, and therefore why the administration is not violating the WPR in not either gaining congressional authorization or withdrawing U.S. forces after the WPR's 60-day deadline passed.  Koh testified along with Louis Fisher and Prof. Peter Spiro (Temple) before the Senate Foreign Relations Committee.

Koh relied on the administration's understanding at the time of enactment of the WPR and subsequent practice to make his case:

In this case, leaders of the current Congress have stressed this very concern in indicating that they do not believe that U.S. military operations in Libya amount to the kind of "hostilities" envisioned by the War Powers Resolution's 60-day pullout provision.  The historical practice supports this view.  In 1975, Congress expressly invited the Executive Branch to provide its best understanding of the term "hostilities."  My predecessor Monroe Leigh and Defense Department General Counsel Martin Hoffmann responded that, as a general matter, the Executive Branch understands the term "to mean a situation in which units of the U.S. armed forces are actively engaged in exchanges of fire with opposing units of hostile forces." . . .  In the third-six years since Leigh and Hoffmann provided their analysis, the Executive Branch has repeatedly articulated and applied these foundational understandings.

Testimony, at 6-7.  Koh went on to argue that the mission is limited, the exposure of U.S. armed forces is limited, the risk of escalation is limited, and military means are limited.  Together, these mean that the operations are not "hostilities" under the WPR, and the President isn't violating the pull-out provision by failing to gain congressional approval and yet continuing the engagement.

Koh urged the Senate to adopt Senate Joint Resolution 20, the Kerry-McCain bill authorizing limited use of U.S. forces in Libya, but only so that the U.S. Government could show a united front--and not because it's constitutionally necessary.

Fisher responded point-by-point to the administration's claims (or "doubletalk") throughout the Libyan debates, including the OLC's conclusion that the operations are not a "war" under the Declaration of War Clause and the administration's conclusion that the operations are not "hostilities" under the WPR. 

Spiro found a middle ground, focusing less on the constitutionality of the pull-out provision and ultimately  on the political and pragmatics of it:

Does this mean that section 5(b) is unconstitutional?  That question may better be left to the court of history.  Although presidents may not declare the Act unconstitution, from the Reagan Administration onward they have been careful not to concede the point.  They have good cause to avoid the distraction of constitutional confrontation where a more minimalist argument will serve the same end.

On the other hand, Congress has no real need of the provision, lack of respect for which reflects poorly on the institution.  Congress has ample tools with which to control presidential deployments of U.S. armed forces.  . . .  In coming years we may well witness a trend towards greater congressional participation in decisions relating to the use of U.S. armed forces.

In any event, devising a position of the Congress with respect to the operatiosn in Libya should be the primary task at hand.  Disputes relating to the War Powers Resolution are likely to distract from that undertaking.  I believe we would be having the same sort of discussion today even if the War Powers Resolution had not been enacted.  The persistent cloud over the Act underlines the perception of some that Congress is ill-equipped in this realm.  Congress would be better served by focusing on other institutional tools for participating in the full spectrum of use-of-force decisions.

Spiro Testimony, at 5.

For some, even many, however, the issue now is less whether the administration has a plausible claim that U.S. operations in Libya are not WPR "hostilities," and more why the President seemed to cherry-pick advice from his legal advisors.  There's nothing unconstitutional about this kind of cherry-picking, but it smacks of the kind of decision-making that led to opinions in the Bush administration relating to, among other things, torture.

SDS

Indiana Immigration Law (SEA 590) Enjoined by Federal Judge

Indiana has joined several other states, most notably Arizona, in passing statutes intended to regulate immigration.  The Indiana statute, SEA 590 set to become effective July 1, has been partially enjoined by a federal district judge in a 39 page Order

The judge enjoined both provisions challenged by plaintiffs:

• Section 19 of SEA 590, which amends Indiana Code § 35-33-1-1(1), by adding new sections (a)(11)-(a)(13), authorizing state and local law enforcement officers to make a warrantless arrest of a person when the officer has a removal order issued for the person by an immigration court, a detainer or notice of action issued for the person by the United States Department of Homeland Security, or has probable cause to believe the person has been indicted for or convicted of one or more aggravated felonies.
• Section 18 of SEA 590, to be codified as Indiana Code § 34-28-8.2, which creates a new infraction under Indiana law for any person (other than a police officer) who knowingly or intentionally offers or accepts a consular identification card as a valid form of identification for any purpose.

The opinion considers standing issues, as well at the standards for preliminary injunction, but found both sections 19 and 18 unconstitutional and enjoined their enforcement.

As to section 19, the judge found it troubling under both pre-emption and Fourth Amendment principles.  On pre-emption, the judge stated that :

Clearly, it is not the intent or purpose of federal immigration policy to arrest individuals merely because they have at some point had contact with an administrative agency about an immigration matter and received notice to that effect. Authorizing an arrest for nothing more than the receipt of an administrative notification plainly interferes with the federal government’s purpose of keeping those involved in immigration matters apprised of the status of their cases, but not arresting them.

As to the Fourth Amendment issue, the judge noted that the State conceded that "nothing under Indiana law makes criminal the receipt of a removal order, a notice of action or detainer, or a person’s having been indicted for or convicted of an aggravated felony."   Section 19 expressly provides that state and local enforcement officers 'may arrest' individuals for conduct that all parties stipulate and agree is not criminal."   While the State argued that the statute would only be enforced in circumstances in which the officer had a "separate, lawful reason for the arrest," the judge found that construction "fanciful" and would " in effect, read the statute out of existence."  The judge thus found the statute violative of the Fourth Amendment.

On section 18, the judge similarly considered pre-emption, but also an equal protection and due process challenge.   On pre-emption, the treaty power was also implicated, and planitiffs argued that the provision interferes with rights bestowed on foreign nations by treaty as well as with the federal government’s responsibilities for the conduct of foreign relations.  The State rejoined that the statute does not directly conflict with any treaty nor does it impede the federal government’s ability to manage foreign affairs, because Section 18 is merely an "internal regulation outlining acceptable forms of identification within the State of Indiana that does not single out or conflict with any identifiable immigration policy or regulation."  The judge reasoned that the provision targeted "only one form of identification – CIDs issued by foreign governments" and moreover, regulated CIDs "in the broadest possible terms, restricting not just what state agencies may accept as valid identification but prohibiting what identification may be shown and accepted for purely private transactions."   With regard to equal protection, the judge cited United States Dep’t of Agriculture v. Moreno, 413 U.S. 528, 534 (1973), noting that this "targeting" was a "bare desire to harm a politically unpopular group."  Thus, the judge found this provision unconstitutional as well.

The District Court Judge, Sarah Evans Parker (pictured above) was appointed to the bench by president Ronald Regan in 1984; an interesting profile of the judge, with video interviews, appeared earlier this year from Indiana Business Journal. 

RR

House Rejects Support of President on Libya, but Declines to Defund Operations

The House of Representatives voted today on two key measures relating to on-going military operations in Libya.  In a rebuff to the administration, the House voted 123 to 295 against House Joint Resolution 68, a measure that would have "authorized" continued, but limited, use of U.S. Armed Forces in Libya (but would have also opposed the use of ground troops there).  But the House also voted 180 to 238 against House Resolution 2278, a measure that would have defunded Libyan operations.

 The actions, alone or together, only reflect the (mixed) sense of the House on the military operations in Libya; they neither confirm nor restrict the President's authority.

The spirited debate on the measures in the House today came just one week after Charlie Savage reported that administration attorneys differed on the President's authority, and that the President seemed to do an end-run around the traditional practice of receiving legal advice (through the OLC) in order to cherry-pick the advice he wanted.  The administration's position--that the military actions in Libya are not "hostilities," and that they are therefore not covered by the reporting and withdrawal requirements in the War Powers Resolution--has been hotly controversial, drawing comparisons to practices in the Bush administration that led to advice in the torture memos, e.g. 

SDS

A More Constitutional Military

ConLawProf Diane Mazur's recent book published by Oxford University Press, A More Perfect Military: How the Constitution Can Make Our Military Stronger argues that the military has become unmoored from constitutional constraints.   The Court, she argues, has not only engaged in military deference, but in military exceptionalism.

In an interview about the book, Mazur states "the military is most healthy when it respects constitutional values.  Unfortunately, since the end of the Vietnam draft, our civilian branches of government–the President, Congress, and the courts–have been trying to distance the military from the Constitution.  They assume that constitutional values get in the way of military effectiveness, but that’s not true."

Much of her book concerns the constitutional concerns of equality: how should the military deal with sexual minorities and with women within its ranks?   She provides concrete examples, but argues that the Court - - - in cases such as the unanimous opinion in  Rumsfeld v. FAIR (the Solomon Amendment case) - - - has impeded the military from diversifying.

RR

Lawmakers Sue President to Stop Military Operations in Libya

A bipartisan group of House lawmakers led by Rep. Dennis Kucinich (D., Ohio) today sued the President and Secretary of Defense to stop U.S. military operations in Libya.  The complaint in Kucinich v. Obama alleges that the President exceeded his authority under Article II, violated congressional power to declare war under Article I, violated the War Powers Resolution, and misused federal funds in violation of Articles I and II.  The Plaintiffs seek declaratory relief that the President's actions are unconstitutional and injunctive relief to stop the U.S. military operations in Libya.  Here's the press release.  We previously posted on constitutional issues involved in U.S. military efforts in Libya here, here, and here.



In related news, the White House today released a Letter from the President on the War Powers Resolution.  The Letter, which updates Congress on a variety of different engagements, sets out the administration's position on the Libyan campaign--that this isn't a "war."  Check it out:

As I reported on March 21, and at my direction, consistent with a request from the Arab League, and as authorized by the United Nations Security Council . . . U.S. military forces commenced operations on March 29, 2011, to prevent a humanitarian catastrophe and address the threat posed to international peace and security by the crisis in Libya and to protect the people of Libya from the Qadhafi regime. . . .  By April 4 . . . the United States had transferred responsibility for the military operations in Libya to NATO and the U.S. involvement has assumed a supporting role in the coalition's efforts. . . .  With the exception of operations to rescue the crew of a U.S. aircraft on March 21, 2011, the United States has deployed no ground forces to Libya.

 Here's what the complaint says about some of these points, including the U.N. Security Council resolutions, which were a large part of the OLC's analysis on why the President had authority to wage the Libyan campaign:

74.  A U.S. resolution does not abrogate or change the obligation of President Obama to obtain a declaration of war under Article I, Section 8, Clause 11 of the Constitution. 

75.  The Obama administration has denied that the Libyan operations aare at a war and, on March 24, 2011, White House Spokesman Jay Carney stated that the administration had defined these combat operations as "a time-limited, scope-limits military action."

76.  "Time-limited, scope-limited" military actions are not referenced in the U.S. Constitution or the constitutional convention debates.

SDS

Defining Terrorism: Sudha Setty on the War on Terror

The War on Terror obviously requires a definition of "terror" and "terrorism."  Unlike the definitional challenges we discussed yesterday, it is difficult to imagine any Justices of the United States Supreme Court consulting a dictionary to elucidate "terrorism."   Yet perhaps they should.  For, as Professor Sudha Setty (pictured left) argues, the meaning of terrorism is far from clear and there is a "definitional creep" which results in loss of individual rights.

Setty's article, What's in a Name? How Nations Define Terrorism Ten Years After 9/11, forthcoming in University of Pennsylvania Journal of International Law, available on ssrn, compares the definitional quagmire in United States law, as well as in United Nations documents, and in Great Britain and India. 

Setty's article considers the challenges of relying on what she calls "an incomplete and piecemeal definition of terrorism" at the United Nations level in conjunction with the mandate for robust counterterrorism measures in United Nations member states.  The article then examines how the United States, United Kingdom, and India have developed their current legal definitions of terrorism, the application, and the underlying value judgments and policies.  

Without being exhaustive, Setty is comprehensive.  The discussion of the various statutory schemes is excellent and her own analysis cogent.  The comparative approach of the article should be of interest not only to ConLawProfs teaching or writing in the area of comparative constitutional law, but anyone working on US national security issues because of her illuminating comparisons, especially the work of Lord Carlile reviewing the British legislation.

RR

House Resolution on Libya

The U.S. House of Representatives on Friday passed a resolution (268-145) introduced by Speaker Boehner purporting to limit the use of ground troops in Libya and to require the President to provide justification for and information about U.S. involvement in Libya.  We posted on other congressional efforts related to U.S. involvement in Libya and the War Powers Resolution here; we posted on OLC's opinion that the President had authority to order operations in Libya here.

The House resolution says that "[t]he President shall not deploy, establish, or maintain the presence of units and members of the United States Armed Forces on the ground in Libya unless the purpose of the presence is to rescue a member of the Armed Forces from imminent danger."  It also "directs" members of the administration to transmit "copies of any official document, record, memo, correspondence, or other communication" relating to communications with Congress or the WPR and Libya.  It further directs the President to submit detailed information to the House on a variety of often very specific questions.  (Reporting directions have a 14-day deadline.)  Finally, it reminds us that Congress has the power of the purse.

Speaker Boehner explained yesterday on the House floor:

This resolution puts the President on notice.  He has a chance to get this right.  If he doesn't, Congress will exercise its constitutional authority to make it right.

The House adopted Speaker Boehner's resolution over Representative Kucinich's much more aggressive resolution (which would have required U.S. withdrawal from supporting NATO allies in Libya).

Here's the White House response, through a press Q&A with Principal Deputy Press Secretary Josh Earnest:

Q: Josh, clearly--in the House of Representatives there's a vote today.  Clearly in both sides of the aisle now there's growing concern about mission creep in Libya, the lack of official notification in accordance with existing American law.  What is the President's thought about this vote today and is he concerned about a lack of support of Congress?

A: Well, as you remember, Mike, congressional--the administration believes strongly in the concept of consulting with leaders of Congress.  That's why the President himself consulted with congressional leaders before military action in Libya even began.  And as this operation has continued, as we've shifted control of this operation to our NATO partners--or the lead of this NATO operation to our partners, we've continued to consult with Congress all along.  In fact, in just the last week, there have been three separate congressional briefings that have been convened by this administration's national security team for leaders in Congress to keep them apprised of the progress and the situation there.  So clearly--

Q: --not in accordance with the War Powers Act, in terms of official notifications and the 60-day expiration, which happened two weeks ago.

A: It is the view of this administration that we've acted in accordance with the War Powers Act because of this regulation consultation.  We've been engaged in that consultation all along--as I mentioned, three separate briefings have been held just this week for members of Congress.  We're committed to that moving forward.  But in terms of the resolutions that you asked about in your first question, the President--that continued consultation demonstrates why these resolutions are unnecessary and unhelpful.

SDS

Congressional Response to WPR Restriction on Libyan Operations

Since President Obama blew by the 60-day restriction in the War Powers Resolution, 50 U.S.C. Sec. 1544(b), on unauthorized troop commitments in Libya on Friday, a spate of legislation has appeared authorizing, de-authorizing, or otherwise expressing the sense of Congress on Libyan operations.

The WPR states:

Within sixty calendar days after a report is submitted or is required to be submitted [on a Presidential commitment of U.S. troops], whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States. . . .

Friday was the 60-day deadline.

In reaction, Rep. Dennis Kucinich yesterday introduced House Concurrent Resolution 51, directing the President, pursuant to Section 5(c) of the WPR, to remove U.S. forces from Libya.  Section 5(c), 50 U.S.C. Sec. 1544(c), reads:

Notwithstanding subsection (b) of this section [quoted above], at any time that United States Armed Forces are engaging in hostilities outside the territory of the United States, its possessions and territories without a declaration of war or specific statutory authorization, such forces shall be removed by the President if the Congress so directs by concurrent resolution.

Senator Rand Paul took a different tack in his Senate Joint Resolution 13, "declaring that a state of war exists between the Government of Libya and the Government and people of the United States, and making provisions to prosecute the same."  And Senator John McCain introduced Senate Resolution 194, "expressing the sense of the Senate on United States military operations in Libya."

Earlier bills include Senator John Cornyn's Senate Resolution 148, calling on the President to report to Congress on matters related to the Libyan operation and calling on the President to seek congressional authorization for the use of force in Libya.  Senate Resolution 146 expresses the sense of the Senate that it's not in the vital interest of the U.S. to intervene in Libya and urging others to step up.  Other resolutions call on the administration to report to Congress on the Libyan operation and to comply with the WPR.

We posted on the OLC memo concluding that the President had authority to commit U.S. troops to Libya here.  Here's what the OLC had to say about the relevant sections of the WPR:

Indeed, Congress itself has implicitly recognized this presidential authority.  The [WPR], a statute Congress described as intended "to fulfill the intent of the framers of the Constitution of the United States," provides that, in the absence of a declaration of war, the President must report to Congress within 48 hours of taking certain actions, including introductions of U.S. forces "into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances."  The Resolution further provides that the President generally must terminate such use of force within 60 days (or 90 days for military necessity) unless Congress extends this deadline, declares war, or "enact[s] a specific authorization."  As this Office has explained, although the WPR does not itself provide affirmative statutory authority for military operations, the Resolution's "structure . . . recognizes and presupposes the existence of unilateral presidential authority to deploy armed forces" into hostilities or circumstances presenting an imminent risk of hostilities.  That structure--requiring a report within 48 hours after the start of hostilities and their termination within 60 days after that--"makes sense only if the President may introduce troops into hostilities or potential hostilities without prior authorization by the Congress.

Memo at 8 (citations omitted).

The memo thus recognizes the limits in the WPR as valid authority for the President.  If so, the legislation introduced yesterday seems to say, the President must also recognize these limits in the WPR as restrictions.

SDS

President Expands Order Blocking Property of Syrian Officials

President Obama this week expanded his recent executive order blocking the property of certain Syrian officials responsible for human rights abuses in the recent crackdowns against protestors and political activists.  The new EO expands the list of persons whose property is and may be blocked.

The new EO, issued Wednesday, blocks the property of President Al-Assad, VP Al-Shara, PM Safar, the Interior and Defense Ministers, the Head of Syrian Military Intelligence, and the Director of Political Security Directorate.  It also authorizes the Treasury Secretary, in consultation with the Secretary of State, to block property of others determined to have assisted in the crackdowns, including any "senior official of the Government of Syria."  (The earlier EO blocked property of three lower level officials and two groups, the Syrian General Intelligence Directorate and the Islamic Revolutionary Guard Corps, and included an authorization to block property of a narrower group.)

SDS

O Canada: The Election and Torture Worries

The re-election this week in Canada of PM Harper and a decisive victory for his Conservative party was presumably not cause for celebration for Craig Scott, Professor of Law at Osgoode Hall.   Scott's article, Will Canada Be an Open Democracy after May 2?, available on ssrn, posits there is a "threat to open democracy in Canada posed by the nearly pathological extent to which secrecy and manipulation of access to the truth has taken over Ottawa and Parliamentary affairs in Canada" under Harper.  

 

 

Scott's specific concern should be of great interest to US constitutional scholars.  Scott questions the Canadian government's "policy of transferring detainees in Afghanistan to Afghan intelligence services (notably, the National Directorate of Security or NDS) in full knowledge of the torture practices of those agencies and thus of the risks faced by each transferred detainee."

RR

Obama Made His Guantanamo Bed . . .

Owen Fiss (Yale) argues in the Boston Review that President Obama's pickle--caught between his former policy to close Guantanamo and his desire to try KSM and others in Article III courts, on the one hand, and the congressional ban on using appropriated funds to transfer Guantanamo detainees to the U.S., on the other--is of his own creation.

Fiss argues that President Obama's May 2009 speech at the National Archives (in which he announced that some detainees would get Article III trials while others would get military commissions while yet others would get indefinite detention) and his support for the Military Commissions Act of 2009 (which revised military commission procedures, but still fell short of Article III trials) lined up such that "the Guantanamo closure ceased to be of much importance."  According to Fiss, President Obama's resistance to extending habeas to detainees at Bagram in the Al Maqaleh litigation only underscores this conclusion.

With a Guantanamo closing all but off the table (by the President's own actions), congressional restriction on the use of appropriated funds to transfer Guantanamo detainees to the U.S. was only the final straw.  After the ban,

[t]he options that then remained for Obama were: (a) the continued imprisonment of Khalid Sheikh Mohammed without trial (he had already been incarcerated for more than seven years) or (b) trial before a military commission.  Given the alternative options, Obama chose the one that is, in my judgment, the less constitutionally offensive.  Sympathy for Obama's choice, however, should not obscure his complicity in constructing the alternatives he confronted.

In truth, there was (is) a third option, the one that the administration adopted: Sign the legislation banning the use of funds for transfer, but issue a signing statement that claims that such a ban unconstitutionally encroaches on a core executive function, and move to overturn it.

This third way is emblamatic of President Obama's approach to so many of these issues--detention, military trial, habeas, state secrets, even signing statements: He's made some constitutionally significant changes to Bush administration positions around the edges on each of these, but in the end the refined positions only result in more-or-less the same policies.

But with regard to KSM and some others, President Obama once seemed truly committed to moving forward in Article III courts.  And with regard to Guantanamo, he once seemed truly committed to closing.  Sure, his positions and policies may have contributed to a larger political environment in which closing Guantanamo "ceased to be of much importance."  (And maybe he could have (should have) spent even more political capital in seeking closure and Article III trials.) 

But in the end the congressional ban on transfers was a congressional ban.  (And the most recent version came in the eleventh-hour spending bill negotiated between the White House and Congress to avoid a shut-down, presenting President Obama with no practical option but to sign the measure.)  The ban entirely foreclosed even any marginal change that President Obama might have made (e.g., an Article III trial for KSM) using his third way. 

SDS