Constitutional Law Prof Blog

Fifth Circuit Says President Can Impose Vaccine Mandate on Guardmembers, but not Punish Them for Noncompliance

The Fifth Circuit ruled that President Biden likely lacked authority to enforce a federal COVID vaccine mandate on state national guard members who aren't called up for federal service. The ruling gives state governors broad authority to decline to enforce (and thus undermine) certain federal readiness requirements on state national guard members.

The case, Abbott v. Biden, tested the federal government's authority to punish not-called-up state national guard members for failing to comply with the federal COVID vaccine requirement. (Everybody agreed that the federal government could punish national guard members who are called up to federal service. But that wasn't at issue in the case.) Governor Abbott argued that President Biden lacked authority to punish, and that punishment was arbitrary and capricious in violation of the Administrative Procedure Act.

The Fifth Circuit ruled for Abbott. The court said that under the Constitution's militia clauses, the President can impose a vaccine requirement, but the President can't punish not-called-up guard members for noncompliance. The court's analysis turned on the language of the "organizing clause," which says (with emphasis),

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.

The court held that only the states, and not the federal government, could enforce the vaccine mandate against not-called-up guard members, because enforcement is part of "governing." The court said that enforcement is not part of "disciplining" (which would have allowed the federal government to enforce even against not-called-up guard members), because "disciplining" at the founding meant educating and instructing, not enforcing or punishing.

As to the APA issue, the court remanded the case for further consideration of whether federal punishment was arbitrary and capricious in light of Abbott's argument that punishing guard members would undermine the guard's ability to do its job. The court quoted Abbott's argument:

Guardsmen are not mere supplement to the federal military, but a vital part of each State's ability to secure its citizens' property, liberty, and lives--a vitality that is sapped by drumming Guardsmen out of militia service [as punishment for failure to take the vaccine]. The Defendants' failure to weigh those considerations before upending the Texas National Guard's chain of command requires that the Enforcement Memoranda be set aside.

Trump Vetos WPA Resolution on Yemen

Steven D. Schwinn, John Marshall Law School

As expected, President Trump yesterday vetoed Congress's War Powers Act resolution calling for the removal of U.S. armed forces from hostilities in Yemen that haven't been authorized by Congress. We posted here, with additional links and resources, when the House passed it.

The president's veto message mostly objected to the resolution based on policy. But it contained some constitutional complaints, too:

Since 2015, the United States has provided limited support to member countries of the Saudi-led coalition, including intelligence sharing, logistics support, and, until recently, in-flight refueling of non-United States aircraft. All of this support is consistent with the applicable Arms Export Control Act authorities, statutory authorities that permit the Department of Defense to provide logistics support to foreign countries, and the President's constitutional power as Commander in Chief. . . .

S.J. Res. 7 is also dangerous. The Congress should not seek to prohibit certain tactical operations, such as in-flight refueling, or require military engagements to adhere to arbitrary timelines. Doing so would interfere with the President's constitutional authority as Commander in Chief of the Armed Forces, and could endanger our service members by impairing their ability to efficiently and effectively conduct military engagements and to withdraw in an orderly manner at the appropriate time.

House Passes WPA Resolution Ending US Support for Yemen War, Sends to White House (for likely veto)

Steven D. Schwinn, John Marshall Law School

The House today passed a joint resolution under the War Powers Act calling for the removal of U.S. armed forces from hostilities in Yemen that haven't been authorized by Congress. The Senate previously passed the measure.

The House's approval marks the first time that both chambers have approved a resolution under the WPA. President Trump says he'll veto it.

Here's the text of the resolution. Here's a Congressional Research Service report on the history and uses of the WPA, updated just last month.

Section 5(c) of the WPA (50 U.S.C. Sec. 1544(c)) says that "at any time that United States Armed Forces are engaged 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."

Under the resolution passed today,

Congress hereby directs the President to remove United States Armed Forces from hostilities in or affecting the Republic of Yemen, except United States Armed Forces engaged in operations directed at al Qaeda or associated forces, by not later than the date that is 30 days after the date of the enactment of this joint resolution . . . and unless and until a declaration of war or specific authorization for such use of United States Armed Forces has been enacted. For purposes of this resolution, in this section, the term "hostilities" includes in-flight refueling of non-United States aircraft conducting missions as part of the ongoing civil war in Yemen.

That last bit is an acknowledgment that there's some dispute between Congress and the White House as to what constitutes "hostilities," and an effort to clarify. The CRS report talks a little about this starting on page 61.

 

 

D.C. Circuit Validates Forever-War

Steven D. Schwinn, John Marshall Law School

The D.C. Circuit yesterday rejected a habeas claim by a long-time (17 years) Guantanamo detainee who argued that the basis for his detention has "unraveled" and that the conflict that originally authorized his detention has ended. In so ruling, the court affirmed that the 2001 AUMF, along with the 2012 National Defense Authorization Act, remain in force, strong as ever, and continue to authorize his detention.

The claimant, a Yemeni who, according to the government, trained with and fought alongside the Taliban, filed an earlier habeas petition in 2005. The courts rejected that petition, concluding that "the Government's account of Al-Alwi'd Taliban-related activities was supported by a preponderance of the evidence, thereby making Al-Alwi an enemy combatant who could lawfully be detained."

This time, however, he claimed that even if his earlier detention was authorized, the authority for his ongoing detention is stale. The court rejected that argument.

The court ruled first that the "[a]uthority to detain has not unraveled." It said that the AUMF retains its original force so long as "hostilities between the United States and the Taliban and al Qaeda continue." "Both [the AUMF and the National Defense Authorization Act] authorize detention until the end of hostilities. Although hostilities have been ongoing for a considerable amount of time, they have not ended."

The court ruled next that "[a]uthority to detain has not expired." The court said that "termination" is "a political act," and that it hasn't yet occurred. "The Executive Branch represents that armed hostilities between the United States forces and those entities persist."

The ruling underscores that the AUMF will remain in full force until the political branches say that hostilities have ended.

Check it Out: NYT Editorial on Presidential War Powers and the Kaine-Corker AUMF Bill

It concludes:

Congress needs to be more involved in decisions like those about when and where America fights terrorists. But the Kaine-Corker bill would not make Congress take enough responsibility for how these decisions are made and would give presidents too great an ability to keep spreading the war on terrorism.

Check it Out: Chesney and Vladeck on the Corker-Kane AUMF

Check out Profs. Bobby Chesney and Steve Vladeck's National Security Law Podcast on The Corker-Kane AUMF. Here's Chesney's primer at Lawfare, and here's the text.

Full Second Circuit Gives Detainee Suit Against Ashcroft, Mueller a Green Light

The full Second Circuit last week denied en banc review of its June ruling in Turkmen v. Ashcroft. That ruling allowed a civil rights case against former AG Ashcroft and former FBI Director Mueller, among others, by alien detainees held at the Metropolitan Detention Center in New York to go forward. (The June ruling was not a ruling on the merits, however.) The full Second Circuit denied review by a 6-6 vote. (H/t: Joe Dicola.)

The June ruling and the full court's denial of review are victories for the plaintiffs and, more generally, for access to justice. They deal a major blow to the government in defending detainee-abuse suits that arise in domestic, non-military detention facilities. But while the rulings are significant (to say the least), they may be short-lived. That's because the government is sure to appeal to the Supreme Court, and because the Court will almost surely take it.

Second Circuit Keeps Drone Memos Under Wraps

Steven D. Schwinn, John Marshall Law School

The Second Circuit ruled today that plaintiffs are not entitled to certain memos and documents from the Office of Legal Counsel outlining the legal justification for the government's targeted killing (drone) program.

The ruling means that the OLC documents will remain under wraps, and we won't now see (and may never see) the full paper trail for the program.

Recall that the New York Times, Charlie Savage, Scott Shane, and the ACLU sued to obtain OLC memos under FOIA. In the first round of the litigation, the Second Circuit ordered the release of a 2010 OLC memo, because government officials had revealed the contents in public statements and thus waived its right to invoke a FOIA exemption. (The officials' statements revealing the contents came before and soon after the document was released.)

In this second round of litigation, the court today said that the district judge properly withheld the documents, because they contained intelligence information. As to the plaintiffs' argument that the government disclosed the contents of one of these memos, a 2002 memo, the court said that the disclosure came too long after the document (8 years), and that the disclosure might have come up in a different context. The court explained:

However, the passage of a significant interval of time between a protected document and a Government official's subsequent statement discussing the same or a similar topic considered in the document inevitably raises a concern that the context in which the official spoke might be significantly different from the context in which the earlier document was prepared. Even if the content of legal reasoning set forth in one context is somewhat similar to such reasoning that is later explained publicly in another context, such similarity does not necessarily result in waiver. Moreover, ignoring both the differences in context and the passage of a significant interval of time would risk requiring Government officials to consider numerous arguably similar documents prepared long before and then measure their public words very carefully so as not to inadvertently precipitate a waiver of protection for those earlier documents.

The upshot is that we won't get these additional OLC documents and won't learn much or anything more than we already know about the legal justifications for the program.

President Obama Vetoes Defense Authorization Over Guantanamo Closure Restriction

Steven D. Schwinn, John Marshall Law School

President Obama this week vetoed H.R. 1735, the National Defense Authorization Act for Fiscal Year 2016, citing a variety of objections, including the NDAA's restriction on the use of funds to close Guantanamo Bay, to transfer detainees out of Guantanamo Bay, and to house them here in the United States.

In prior years, President Obama signed the NDAA, but issued a signing statement saying that the Guantanamo-closure provisions were unconstitutional.

But this year, he used those provisions--Sections 1031 through 1041 in the bill--along with other objectionable features of the bill, as a reason to veto. Here's what he said about restrictions on closing Guantanamo:

I have repeatedly called upon the Congress to work with my Administration to close the detention facility at Guantanamo Bay, Cuba, and explained why it is imperative that we do so. As I have noted, the continued operation of this facility weakens our national security by draining resources, damaging our relations with key allies and partners, and emboldening violent extremists. Yet in addition to failing to remove unwarranted restrictions on the transfer of detainees, this bill seeks to impose more onerous ones. The executive branch must have the flexibility, with regard to those detainees who remain at Guantanamo, to determine when and where to prosecute them, based on the facts and circumstances of each case and our national security interests, and when and where to transfer them consistent with our national security and our humane treatment policy. Rather than taking steps to bring this chapter of our history to a close, as I have repeatedly called upon the Congress to do, this bill aims to extend it.

At the same time, he said that he supported a provision imposing statutory restrictions on interrogation techniques and limiting techniques to those in the Army Field Manual.

D.C. Circuit to Rehear Judgment Vacating Military Commission Conviction

Steven D. Schwinn, John Marshall Law School

The D.C. Circuit announced that it would rehear en banc a panel's earlier judgment vacating the military commission conviction of Ali Hamza Ahmad Suliman al Bahlul, an alien enemy combatant who one time bragged about his role in the 9/11 attacked.

A panel this past June vacated al Bahlul's conviction for inchoate conspiracy. The panel said that the conviction violated Article III because it was based on "the purely domestic crime" of inchoate conspiracy, which is not an offense under the international law of war.

The panel's summer ruling was a victory for al Bahlul and a blow to the government in conducting military commission trials. But the court's latest ruling gives it a second bite at this apple. The ruling vacates the panel's summer judgment and sets oral argument before the entire court for December 1, 2015.

No Remedy for Torture Victims, Court Reaffirms

Steven D. Schwinn, John Marshall Law School

Judge Ellen Segal Huvelle (D.D.C.) yesterday reaffirmed that torture victims lack a remedy in the federal courts. Judge Huvelle applied circuit precedent and granted the government's motion to dismiss Mohammed Jawad's torture claims against government officials. The ruling ends Jawad's case, unless and until he appeals.

The case is not surprising, given the state of the law, but it is disturbing: it reaffirms (yet again) that torture victims lack a judicial remedy.

Jawad claimed that government officials authorized his torture at Guantanamo Bay, before and after designating him an "enemy combatant" and before releasing him as no longer "legally detainable" after over six years in detention. Jawad claimed that officials violated the Alien Tort Claims Act, the Federal Tort Claims Act, the Torture Victims Protection Act, and the Fifth and Eighth Amendment.

Judge Huvelle rejected all these claims. Judge Huvelle denied Jawad's FTCA claims, because she said that government officials were acting within the scope of their employment--torture, evidently, is within the scope of employment to maintain order and discipline at Guantanamo--and because the government's waiver of immunity under the FTCA doesn't apply outside the United States. Judge Huvelle denied the TVPA claim, because U.S. officials weren't acting under the law of a foreign nation, as required by the TVPA. And she denied Jawad's constitutional claims, because she said that special factors counseled against extending a Bivens remedy.

Judge Huvelle also ruled that Jawad's claims are foreclosed by the Military Commissions Act, which bars non-habeas claims against the government or its agents related to "conditions of confinement of an alien . . . who was properly detained as an enemy combatant . . . ." Judge Huvelle said that the government never disavowed its classification of Jawad as an enemy combatant, even though the government later said that he was no longer legally detainable.

The ruling is hardly a surprise, given circuit precedent and the state of the law. But it is disturbing: It says (yet again) that torture victims don't have a judicial remedy.

D.C. Circuit Vacates Military Commission Conspiracy Conviction

Steven D. Schwinn, John Marshall Law School

The D.C. Circuit today vacated the conspiracy conviction by military commission of Ali Hamza Ahmad Suliman al Bahlul, an alien enemy combatant who one time bragged about his role in the 9/11 attacks. The court said that the conviction for inchoate conspiracy--a charge that's not an offense under the international law of war--violated the Article III power of the judiciary "by authorizing Executive Branch tribunals to try the purely domestic crime . . . ."

The ruling is a victory of Bahlul and a blow to the government in conducting military commissions. In short, the case says that the government's charge in a military commission must be recognized as violation of the international law of war, and that Congress lacks authority to define an otherwise domestic crime as an international law of war in order to vest a military commission with authority to convict for its violation.

But while the ruling is significant, it's almost certainly not the last word on this case that's already gone up and down the judicial hierarchy. In particular: It's gone en banc at the D.C. Circuit before, and seems likely to go en banc again, if not farther, to the Supreme Court.

The court ruled first that Bahlul's structural challenge (that his conviction violated Article III) was not waivable, and that the court could therefore hear it--and to hear it de novo--even though he didn't raise it below.

The court went on to say that while the government could conduct law-of-war military commissions under Ex Parte Quirin, Quirin and its progeny limit the charges to "offenses against the law of war." But the court held that inchoate conspiracy isn't one of those offenses, that even the government agreed that it isn't, and that Congress didn't have power to define it as such: "Congress cannot, pursuant to the Define and Punish Clause, declare an offense to be an international war crime when the international law of war concededly does not." The court held that because conspiracy is only a domestic offense, and not an international law offense, the Bahlul's conviction by military commission (an Article I tribunal, not an Article III court) impermissibly intruded into the Article III role of the courts.

The court rejected the government's arguments that historical practice and the Necessary and Proper Clause (augmenting the Define and Punish Clause) did the trick.

Judge Tatel, concurring, explained why he joined the en banc court when it previously said that the Ex Post Facto Clause did not prevent Congress from granting military commissions jurisdiction over conspiracy, but now joined Judge Rogers in saying that separation-of-powers did:

The answer is the standard of review. The en banc Court came down the way it did, and I voted the way I did, because al Bahlul had forfeited his [previous] ex post facto challenge by failing to raise it before the Commission, so our review was for plain error. Applying that highly deferential standard, the Court concluded that it was "not 'obvious that conspiracy was "not . . . triable by law-of-war commissions" at the time al Bahlul committed his crimes.

But the court reviewed Bahlul's structural challenge de novo. And "[i]n my view, whether Article III prohibits military commissions from trying conspiracy turns on what Ex Parte Quirin says and what Hamdan does not"--that "the law-of-war exception is exclusively international," and does not include domestic crimes.

Judge Henderson wrote a lengthy dissent, arguing that the majority's approach to Congress's power to define the international law of war would restrict Congress to only what the international community has said, and, worse, by the judiciary's reckoning:

My colleagues contend--as a matter of constitutional law, not simply comity--that the Congress cannot authorize military-commission trials unless the international community agrees, jot and tittle, that the offense in question violates the law of war. And the contend of international law is to be determine by--who else?--the Judiciary, with little or no deference to the political branches.

White House Sends AUMF Against ISIS to Congress

The White House today sent its long-awaited authorization for use of military force against ISIS (or ISIL) to Congress. Here's the accompanying letter from the President.

The draft AUMF authorizes the President to use "necessary and appropriate" military force against "ISIL or associated persons or forces." (The draft defines "associated persons or forces" as "individuals and organizations fighting for, on behalf of, or alongside ISIL or any closely-related successor entity in hostilities against the United States or its coalition partners.") The draft has a three-year duration, and specifically excludes the use of U.S. troops in "enduring offensive ground operations," but it contains no geographic restriction on the use of force.

The draft would also revoke the 2002 AUMF against Iraq. However, it does not revoke (or otherwise address) the sweeping 2001 AUMF, although President Obama calls for refinement, and ultimately revocation, in his accompanying letter.

The draft acknowledges that "the United States has taken military action against ISIL" already, and cites "its inherent right of individual and collective self-defense" as authority for that prior action. Last fall, the President cited his Article II powers and the 2001 AUMF as authority for military action against ISIS and the Khorasan Group.

President Obama Signs NDAA, with Reservation

Steven D. Schwinn, The John Marshall Law School

President Obama on Friday signed the FY 2015 National Defense Authorization Act, and, as in prior years, issued a constitutional signing statement on provisions restricting the use of funds to move any detainee out of Guantanamo Bay.

President Obama's signing statement this year is a little different than in prior years: it includes an array of policy objections to Congress's forced maintenance of the detention facility. The constitutional objection is a little more dressed up than in prior years, but the core constitutional objection remains the same:

The executive branch must have the flexibility, with regard to those detainees who remain, to determine when and where to prosecute them, based on the facts and circumstances of each case and our national security interests, and when and where to transfer them consistent with our national security and our humane treatment policy. Under certain circumstances, the provisions concerning detainee transfers in both bills [the NDAA and the Consolidation and Further Continuing Appropriations Act, 2015] would violate constitutional separation of powers principles. In the event that the restrictions on the transfer of detainees operate in a manner that violates constitutional separation of powers principles, my Administration will implement them in a manner that avoids the constitutional conflict.

That means that the administration claims the right to ignore the restrictions when they violate separate of powers.

It's not clear that the changed language of the signing statement this year signals any greater likelihood that the administration will actually ignore the restrictions and move a detainee off the base in violation of the provisions. But President Obama's other actions (on immigration, on Cuba) might suggest that the administration is more willing to do this.

The Supreme Court hasn't ruled on the legal status of a signing statement like this. And even though a signing statement is involved in the Zivotofsky passport case this Term, the Court's not likely to say anything about it.

Daily Read (and Videos): James Risen on James Risen

With the denial of certiorari in James Risen's case by the United States Supreme Court in June 2014, from the Fourth Circuit's divided opinion in United States v. Sterling, the situation of James Risen is in limbo.  In large part, it was Risen's book, State of War that led to his current difficulties because he will not reveal a source. 

Now Risen has a new book, Pay Any Price: Greed, Power, and Endless War, just reviewed in the NYT.  As part of the book promotion - - - but also quite relevant to the case against Risen - - - Risen has made several media appearances of note, with the twist on the book title being that it's James Risen who is prepared to "pay any price" to protect his journalistic integrity (and by implication resist governmental power).

Perhaps the most populist of Risen's appearances is in an extended segment of the television show "60 minutes" including not only James Risen but others.  The segment explains and situates the controversy, including its current status under President Obama.  It also includes statements by General Mike Hayden that he is at least "conflicted" about whether Risen should be pursued for not divulging his source(s), even as Hayden expresses his view that NSA surveillance is "warantless but not unwarranted." 

The entire segment is definitely worth watching:

 

 

 

Springboarding to some extent from General Hayden's remarks is Risen's extensive interview with Amy Goodman on Democracy Now (full video and the helpful transcript is here), in which Risen talks about his arguments in the book and a bit about his own predictament, concluding by saying:

AMY GOODMAN: So, you’re covering the very people who could put you in jail.

JAMES RISEN: Yeah, sometimes, yes. As I said earlier, that’s the only way to deal with this, is to keep going and to keep—the only thing that the government respects is staying aggressive and continuing to investigate what the government is doing. And that’s the only way that we in the journalism industry can kind of force—you know, push the government back against the—to maintain press freedom in the United States.

A third noteworthy appearance by Risen is his interview by Terry Gross on NPR's Fresh Air (audio and transcript available here).  One of the most interesting portions is near the end, with the discussion of the contrast to the celebrated Watergate investigation of Woodward and Bernstein and Risen's solution of a federal shield law for reporters.

For ConLawProfs teaching First Amendment, these "sources" could be well-used.

Daily Videos: "Citizen Four" and Edward Snowden Interviews

With the release of "Citizen Four," the film by Laura Poitras on Friday, two videos are worth a watch.

First, here is a Q&A session with Laura Poitras at the 52nd New York Film Festival on October 10 after a premier of the film.

 

 

Second, here is a "virtual interview" with Edward Snowden from the New Yorker Festival - - - including in the first minute or so the official trailer of the film (also here) and an extended discussion with Snowden:

 

 

President Obama Issues WPR Notices

President Obama sent two letters to Congress yesterday pursuant to the War Powers Resolution notifying it of U.S. military efforts in Iraq and Syria against ISIS and the Khorasan Group.

The first letter outlines "a series of strikes in Syria against elements of al-Qa'ida known as the Khorasan Group." It says that "[t]hese strikes are necessary to defend the United States and our partners and allies against the threat posed by these elements." The letter cites as authority the constitutional Commander-in-Chief, Chief Executive, and foreign relations powers of the presidency, and authority under the 2001 AUMF, the authorization for use of force against those who planned the attacks of September 11 and anyone who helped or harbored them.

The second letter reviews previous military efforts against ISIS in Iraq and outlines the deployment of 475 additional troops to Iraq and the use of U.S. forces "to conduct coordination with Iraqi forces and to provide training, communications support, intelligence support, and other support to select elements of the Iraqi security forces, including Kurdish Peshmerga forces." The letter also says that the President "ordered the U.S. Armed Forces to conduct a systematic campaign of airstrikes and other necessary actions against [ISIS] in Iraq and Syria . . . in coordination with and at the request of the Government of Iraq and in conjuntion with coalition partners." The letter cites the same authority as the first letter, above, along with the 2002 AUMF, the authorization for use of military force against Iraq.

The President has faced plenty of criticism for relying on his inherent constitutional authority and these two AUMFs in authorizing recent strikes. Congress is considering new AUMFs that would specifically authorize his actions. The Hill reports that Senator Levin, chairman of the Armed Services Committee, thinks that Congress will take up the measures after the mid-terms.

Court Releases Memo Outlining Legal Authority for Targeted Killing, Drones

Steven D. Schwinn, John Marshall Law School

The Second Circuit today released a redacted version of the DOJ/OLC memo outlining the government's legal authority for the use of a drone attack to kill Anwar al-Aulaqi (sometimes spelled al-Awlaki).  We've blogged extensively about this issue, including here, on the earlier released white paper outlining the government's authority to conduct the same attack.

The released version does not include the first 11 pages of the memo, presumably including the information that the government passed on to the OLC about al-Awlaki that formed the basis of the analysis.  It's not clear whether that first 11 pages included other material or analysis.  (The released version starts with "II.")  There are other redactions throughout, especially in the portion analyzing the CIA's authority to conduct drone attacks.

The analysis in the memo differs slightly from the analysis in the earlier white paper, but, because of the redactions, it's not clear how much this matters.  Thus, for example, the analysis released today makes a careful distinction between DoD authority and CIA authority to conduct a targeted drone attack.  (The earlier white paper didn't make this clear distinction.)  But it's not entirely clear why or how that distinction is significant, given that much of the CIA analysis is redacted.  The analysis released today is also more fact specific.  (The earlier white paper didn't so clearly limit itself to the facts of one case.) But the memo today redacts the facts, so we don't know them.

Other than those points, the analysis released today doesn't appear to be importantly different than the earlier white paper.

As we've noted, and as others have noted, the analysis leads to the surprising result that the government may be able to kill someone by drone attack more easily than it may detain them (with due process under Hamdi).  Still, we don't know this for sure, because we don't know precisely what processes the government used in killing al-Awlaki: that detail is redacted from the memo.

The memo starts by outlining the statutory prohibition on foreign murder of a U.S. national--the federal provision that outlaws one U.S. national from killing another overseas.  That provision, 18 U.S.C. 1119(b), says that "[a] person who, being a national of the United States, kills or attempts to kill a national of the United States while such national is outside the United States but within the jurisdiction of another country shall be punished as provided under sections 1111, 1112, and 1113."  Section 1111 penalizes "murder," defined as "the unlawful killing of a human being with malice aforethought."  The memo thus centers on whether al-Aulaqi's killing was "unlawful."

The memo says that the killing was not unlawful, because the prohibition includes the "recognized justification" of "public authority"--that is, the government's ability to kill under its public authority.  As to the Defense Department's use of drones, the memo says that (1) the president had executive war powers authorized by Congress under the AUMF, (2) the AUMF authorized the president to use all necessary force against al-Qaida and associated forces (the OLC said that the AUMF included associated forces in an earlier memo), (3) al-Aulaqi was a member of al-Qaida or associated forces (AQAP) who posed a "continued and imminent threat" to the U.S., and (4) the DoD was acting pursuant to statutory authorization in targeting and killing al-Aulaqi.  Moreover, the memo says that al-Aulaqi's killing comports with the laws of war.  That's because DoD "would carry out its operation as part of the non-international armed conflict between the United States and al-Qaida, and thus that on those facts the operation would comply with international law so long as DoD would conduct it in accord with the applicable laws of war that govern targeting in such a conflict."  The memo said that this operation in Yemen is part of that conflict, even though Yemen is not within the area of that conflict.  Finally, the memo says that the method of killing complies with the laws of war--that is, that the targeted drone attack complies with the principle of distinction, it would minimize civilian casualties, and it would not violate prohibitions on "treachery" and "perfidy" (because those "do not categorically preclude the use of stealth or surprise, nor forbid military attacks on identified, individual soldiers or officers . . . and we are not aware of any other law-of-war grounds precluding the use of such tactics.").

The memo drew the same, or very similar, conclusions as to the CIA's use of a drone strike, but that section was largely redacted.

(The memo also said that another murder-abroad statute similarly did not prohibit the strike, and that the War Crimes Act did not prohibit it, because al-Aulaqi was still an active, fighting beligerent, and an allowable target under the laws of war.)

As to Fourth- and Fifth Amendment protections, the memo says that a high-level decision-maker ("the highest officers in the intelligence community") can make a determination to use lethal force and authorize a strike.  (That's about all it said: this portion of the memo is also highly redacted.)

The memo makes clear that this is all context specific: the "facts" given to OLC that form the basis of its analysis are "sufficient" for the Office to form its conclusions, but the memo declines to say whether those facts are also necessary.  (And we don't know them, in any event, because they're redacted.)

 

No Damage Claim for U.S. Citizen Tortured in Africa

Steven D. Schwinn, John Marshall Law School

Judge Emmet G. Sullivan (D.D.C.) on Friday dismissed a case brought by a U.S. citizen against FBI agents for torturing and mistreating him as a terrorist suspect in Africa in violation of his constitutional rights. 

The plaintiff, Amir Meshal, was visiting Somalia in November 2006.  When fighting erupted there, Meshal fled to Kenya.  Upon arrival, he was captured by Kenyan soldiers, detained, and later interrogated repeatedly by FBI agents, who used threats, accusations that Meshal was a terrorist, and physical force to intimidate him.  Later, Meshal was transferred to Somalia, then Ethiopia, where interrogations by FBI agents continued.  Throughout, Meshal was denied outside communication (until U.S. consular officials later gained access to him), access to an attorney, and access to foreign courts.  In all, Meshal was detained abroad for four months.  He was never charged with a crime.

Meshal filed a Bivens suit for damages against the agents, but Judge Sullivan dismissed the case.  Judge Sullivan was highly critical of the U.S. government's treatment of Meshal and of the federal courts' refusal to hear Bivens claims by other U.S. citizens mistreated by government agents.  But he nevertheless concluded that the D.C. Circuit's ruling in Doe, the Fourth Circuit's ruling in Lebron, and the Seventh Circuit's ruling in Vance compelled him to dismiss Meshal's case.  Doe, Lebron, and Vance all also involved U.S. citizens suing government officers for violations of constitutional right in similar circumstances.  The circuit courts all ruled that "special factors" counseled against a Bivens remedy, however, because they all arose in the context of the military and national security.

Given the state of the law, there is no chance of a successful appeal.  But that didn't stop Judge Sullivan from delivering a full-throated condemnation of the agents' actions, the courts' rulings, and Congress's failure to create a remedy for U.S. citizens who are mistreated in these situations:

The facts alleged in this case and the legal questions presented are deeply troubling.  Although Congress has legislated with respect to detainee rights, it has provided no civil remedies for U.S. citizens subject to the appalling mistreatment Mr. Meshal has alleged against officials of his own government.  To deny him a judicial remedy under Bivens raises serious concerns about the separation of powers, the role of the judiciary, and whether our courts have the power to protect our own citizens from constitutional violations by our government when those violations occur abroad.

 

Global Day of Action to Close Guantanamo

Thirty-five human rights groups are holding a "May 23 Global Day of Action to Close Guantanamo and End Indefinite Detention" today, one year after President Obama (again) made the case for closing the detention facility.  Amnesty International's press release is here.

Recent defense authorization acts, called the National Defense Authorization Acts, or NDAAs, restricted the use of funds for transfering detainees from Guantanamo Bay.  We posted on those restrictions, and the White House responses (signing statements) to them, here, here, and here, among other places.  The 2014 NDAA loosened some restrictions on repatriation of detainees, but maintained the restriction on the use of funds to transfer detainees to facilities in the United States.