Wednesday, May 21, 2014

Judge Orders Release of Force-Feeding Videos

Judge Gladys Kessler (D.D.C.) ordered the government to release videos of force-feeding and medical records of Guantanamo detainee Abu Wa'el Dhiab in today's status conference in Dhiab's habeas case.  Recall that Judge Kessler previously entered a temporary restraining order halting force-feedings of Dhiab until today and ordering the government to produce medical records and videotapes

But Judge Kessler's order today didn't address force feedings.  According to Wells Bennet over at Lawfare, that means that force-feedings can resume:

Intriguingly, court and counsel didn't address (so far as I could tell) the TRO's "no force feeding" instruction with respect to Dhiab.  Considering that Judge Kessler's prior ruling limiting the ban until today's date of May 21, it seems the prohibition could dissolve as early as tomorrow.  For her part, Judge Kessler gestured in this direction, by emphasizing both that her prior ruling was meant to preserve the status quo for so long as needed to handle the emergency motion, and that it did not embody a decision regarding preliminary relief.  (The motion for a preliminary injunction, like the larger habeas case, obviously aims to stop Dhiab's force feeding; but the detainee's emergency motion papers did not, strictly speaking, ask the court to take that step.)

May 21, 2014 in Cases and Case Materials, Fundamental Rights, News, War Powers | Permalink | Comments (0) | TrackBack (0)

Government to Reveal Targeted Killing Authority

The Justice Department will release a memo that makes the case that its drone attacks are legal.  The move comes in the wake of a Second Circuit ruling last month ordering the release of a redacted version of the memo, and amid calls in the Senate for the memo's release as that body considers the nomination of David Barron, one of the authors, to a federal appeals court.

Recall that the Department previously leaked a white paper outlining the government's case.  We posted most recently on the legal challenges here.

The Washington Post reports here.

May 21, 2014 in Executive Authority, News, War Powers | Permalink | Comments (1) | TrackBack (0)

Sunday, May 18, 2014

Court Temporarily Stops Force-Feeding at Guantanamo

Judge Gladys Kessler (D.D.C.) on Friday temporarily enjoined the government from force-feeding Abu Wa'el Dhiab, a hunger-striking Guantanamo detainee.  Judge Kessler's order also requires the government to produce medical records and videotapes of Dhiab's "forcible cell extractions" for the purpose of "enteral feedings."  Judge Kessler will preside over a status conference on May 21 to work some of this out.

This isn't the first time Judge Kessler ruled on the case.  In her earlier ruling, on July 10, 2013, she held that 28 U.S.C. Sec. 2241(e)(2) deprived the court of jurisdiction to hear a claim over a Guantanamo detainee's conditions of confinement.  She was also highly critical of force feedings in that ruling, however, and telegraphed her likely ruling on the merits, should it ever come to the merits.

It did come to the merits after the D.C. Circuit ruled that Guantanamo detainees could challenge the conditions of their confinement under 28 U.S.C. 2241(e)(2).  After that ruling, Dhiab's case came back to Judge Kessler, leading to Friday's ruling.

Judge Kessler's ruling is only temporary.  But if this ruling and her prior ruling (in the first round) are any indication, she's almost certain to rule against the practice. 

May 18, 2014 in Cases and Case Materials, Courts and Judging, Fundamental Rights, Jurisdiction of Federal Courts, News, War Powers | Permalink | Comments (0) | TrackBack (0)

Thursday, May 15, 2014

Rethinking War Powers

Senate Majority Leader Harry Reid told Buzzfeed that he's ready to reconsider the Authorization for Use of Military Force.  The AUMF, enacted just days after the 9/11 attacks, has been cited as legal authorization for a wide range of military actions against al Qaeda and individuals and organizations with links to al Qaeda.  Reid's critique isn't new--Members of Congress on both sides have voiced criticism of the broad language in the AUMF in recent years, and have introduced legislation to repeal it--but it may lend some urgency and priority to the issue.

At the same time, Senators Kane, McCain, and King are rethinking Congress's role in war more generally.  They introduced legislation earlier this year to repeal the War Powers Resolution and replace it with a requirement that the President consult with a new Joint Congressional Consultation Committee, comprised of House and Senate leadership and certain committee chairs and ranking  members, "regarding significant matters of foreign policy and national security" and "[b]efore ordering the deployment of members of the Armed Forces into significant armed conflict."  The bill would exempt from the prior consultation requirement certain emergency actions, "[l]imited acts of reprisal against terrorists or states that sponsor terrorism, humanitarian missions, "covert operations," and rescue missions for U.S. citizens overseas.  The bill prescribes a streamlined process for Congress to approve or disapprove of military action in the absence of a declaration of war or authorization for use of military force.  (The Senate has taken no action on the measure.)

According to the findings, the new procedures are necessary because the War Powers Resolution isn't working, and to create "a constructive means by which the judgment of both the President and Congress can be brought to bear when deciding whether the United States should engage in a significant armed conflict . . . ."  According to the findings, the political branches need to figure out a way to work these issues out, because the courts aren't helping:

Past efforts to call upon the judicial branch to define the constitutional limits of the war powers of the executive and legislative branches of government have generally failed because courts, for the most part, have declined jurisdiction on the grounds that the issues involved are "political questions" or that the plaintiffs lack standing.

May 15, 2014 in Congressional Authority, Executive Authority, News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 13, 2014

Frontline's United States of Secrets

Frontline airs the first of its two-part series United States of Secrets tonight.  The documentary examines NSA secret surveillance programs developed in the wake of the 9/11 attacks.  There's a clip at the link above, and another here, Inside the NSA the Day After 9/11.

 

May 13, 2014 in Fourth Amendment, Fundamental Rights, News, War Powers | Permalink | Comments (0) | TrackBack (0)

Thursday, April 24, 2014

Second Circuit Orders Release of Administration's Justification for Targeted Killing

The Second Circuit ruled earlier this week that the government must release a redacted version of an Office of Legal Counsel memo outlining the government's legal authority to conduct targeted killings.  The case, New York Times v. Department of Justice, is a FOIA case seeking the OLC memo, and not a legal challenge to the targeted killing program itself.  The court said that the government had released so much information about its legal justification--including the white paper that the government leaked to the media last year--that the government couldn't really claim that the legal justification was still secret.

We posted on the white paper here, with links to earlier posts (and to the white paper itself), and most recently on legal challenges to the targeted killing program here.

April 24, 2014 in Cases and Case Materials, Executive Authority, News, War Powers | Permalink | Comments (0) | TrackBack (0)

Saturday, April 5, 2014

District Court Rejects Targeted Killing Claim

Judge Rosemary M. Collyer (D.D.C.) yesterday dismissed a civil damages claim against government officials for their roles in authorizing the targeted killing of Anwar Al-Aulaqi, his son, and Samir Khan.  Judge Collyer wrote in Al-Aulaqi v. Panetta that "special factors" counseled against the Bivens claim.

We've covered Al-Aulaqi's claims extensively (sometimes Al-Awlaki, sometimes Al-Awlaqi), both pre-killing and post-killing, brought by his father, Nasser.  Here's our post on Judge Bates's ruling dismissing Nasser's case to stop the killing.

The ruling adds to a body of lower-court cases limiting civil damage remedies against government officials for constitutional violations for actions related to the military, intelligence, and terrorism.  Indeed, these cases give government officials a free pass against civil damages claims for any action even loosely related to these areas, even with no showing by the government that the claims raise special factors counseling against a remedy (as this case illustrates--see below).

Nasser Al-Aulaqi brought this claim on behalf of his son Anwar and grandson Abdulrahman, along with Sarah Khan, who brought the claim on behalf of her son Samir.  Anwar was designated for targeting; Abdulrahman and Samir were not (they were bystanders in Anwar's targeted killing and another targeted killing).  All three were U.S. citizens. 

Nasser and Sarah sued government officials in their personal capacity under Bivens for Fourth and Fifth Amendment violations (among others).  The officials moved to dismiss, arguing that the complaint failed to state a claim, that special factors counseled against a Bivens remedy, and that they enjoyed qualified immunity.  

Judge Collyer ruled that special factors counseled against a Bivens remedy.  Citing Doe v. Rumsfeld, Lebron v. Rumsfeld, and Vance v. Rumsfeld, she wrote that military decisions get a pass, and that Bivens ought not be extended to them:

In this delicate area of warmaking, national security, and foreign relations, the judiciary has an exceedingly limited role.  This Court is not equipped to qustion, and does not make a finding concerning, Defendants' actions in dealing with AQAP generally or Awar Al-Aulaqi in particular.  Its role is much more modest: only to ensure that the circumstances of the exercise of war powers against a specifically-targeted U.S. citizen overseas do not call for the recognition of a new area of Bivens relief.

Here, Congress and the Executive have acted in concert, pursuant to their Constitutional authorities to provide for national defense and to regulate the military.  The need to hesitate before implying a Bivens claim is particularly clear.  Congress enacted the AUMF, authorizing the Executive to use necessary and appropriate military force against al-Qa'ida and affiliated forces.  It is the Executive's position that AQAP is affiliated with al-Qa'ida. 

. . .

Permitting Plaintiffs to pursue a Bivens remedy under the circumstances of this case would impermissibly draw the Court into "the heart of executive and military planning and deliberation," as the suit would require the Court to examine national security policy and the military chain of command as well as operational combat decisions regarding the designation of targets and how best to counter threats to the United States.

. . .

Plaintiff's Complaint also raises questions regarding foreign policy because Anwar Al-Aulaqi was a dual U.S.-Yemeni citizen who was killed in Yemen.  Plaintiff's suit against top U.S. officials for their role in ordering a missile strike against a dual citizen in a foreign country necessarily implicates foreign policy.

Remarkably, the court so concluded without any help of from the government--even after the court ordered the government to help by providing material in camera and ex parte to support the special-factors defense.

The United States filed a Statement of Interest in the case, stating that it might later assert a state secrets defense.  Judge Collyer ordered the government to lodge declarations, in camera and ex parte to explain why special factors counseled against a Bivens remedy in the case.  The government refused, arguing that the court could resolve the defendants' motion to dismiss on the complaint alone.  

Judge Collyer scolded the government for its refusal--and wrote that this made the court's job "unnecessarily difficult"--but still "cobble[d] together enough judicially-noticeable facts from various records" to conclude that special factors counseled against a Bivens remedy.  She wrote that without these facts, the court "would have denied the motion to dismiss."

April 5, 2014 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Fifth Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Saturday, December 21, 2013

Spitzer Compares Bush and Obama

Robert J. Spitzer (SUNY Cortland) recently posted perhaps the most recent comparison of assertions of executive power in the Bush and Obama presidencies coming out of the political science world: Comparing the Constitutional Presidencies of George W. Bush and Barack Obama: War Powers, Signing Statements, Vetoes.  As the title suggests, Spitzer compares the presidencies just in three dimensions.  But his piece also briefly summarizes the political science literature comparing other dimensions.  Here's Spitzer . . .

On war powers:

Nevertheless, in constitutional terms, Bush had the congressional authorization he needed [for the Iraq war]; Obama did not [for Libya].  Ironically, the grotesque scale of, and web of deception surrounding, the Iraqi war suggest that its precedential value for future presidents may be limited, whereas the presidential consequences of Obama's actions--another instance of an intervention without congressional approval, and the first instance of violation of the 60 day limit [in the War Powers Act]--are more likely to encourage future presidents tempted to engage in unilateral military actions.

On signing statements:

Presidents surely have interpretive latitude, especially when legislative language is vague or ambiguous, and therefore open to interpretation.  This is nothing new. . . .  What presidents may not do, Bush's unitary executive theory notwithstanding, is to rewrite legislation at the point at which a bill is presented for signature through signing statement in what some have called a de facto item veto.  As James Pfiffner concluded, "Bush's systematic and expansive use of signing statements constitutes a direct threat to the separation of powers system in the United States."  Obama has, to date, skirted, if not walked away from, this ambition, especially after the criticism of his 2009 signing statement of P.L 111-8 [directing that legislation that calls for congressional committee approval of spending decisions by federal agencies is to be treated as "advisory" and "not . . . dependent" on committee approval].  Contrary to the claim of some that Obama has assumed the mantle of a unitary president, his signing statement use to date has been comparable to, or less than that of any predecessor from Reagan on.  And Bush II's signing statement use continues to keep him in a class by himself.

On protective return pocket vetoes:

Unlike the other powers discussed in this paper, the Bush and Obama protective returns were nearly identical in form, and both appeared to arise from the bowels of the "deep structure" of the executive bureaucracy rather than from top political aides seeking to expand executive authority.  Here is one of the most important, if underappreciated, aspects of executive power accretion: secular bureaucratic power incrementalism.  A day may come where a constitutional challenge or political flare-up may drag the protective return pocket veto into the intense lights of the legal or political stage, and where a full airing, and final disposition, of this arcane executive power grab may be vetted and resolved.  Absent such a moment, however, the executive's "deep structure" will continue to advance the protective return for every subsequent chief executive.

December 21, 2013 in Executive Authority, News, Scholarship, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Monday, November 11, 2013

Should Veterans Have Veterans' Day Off? Constitutional Concerns

The Veterans Day Off Bill, reintroduced by Congressperson Bruce Braley of Iowa this year would require employers with more than 50 employees to give any veteran Veterans Day off, with or without pay.   The bill includes an exemption for cases in which the day off would negatively impact public health or safety, or cause significant economic or operational disruption.

War_Memorial_(Marion_County,_Oregon_scenic_images)_(marD0061)The major concerns about the constitutionality of the bill are twofold.

First, there could be an equality challenge.  Nonveterans could challenge the law as a denial of the equal protection component of the Fifth Amendment.  Certainly the law would be making a classification between veterans and nonveterans.  However, this classification receives receives the lowest level of scrutiny from the courts: the government would have the legitimate interest of "honoring veterans" and a single day off, that could be without pay, would most likely be reasonable.   It would be similar to veterans preferences in government employment which have been held constitutional, even though they have a disparate negative impact on women, as in Personnel Administrator of Massachusetts v. Feeney, decided by the United States Supreme Court in 1979.

Second, there could be a challenge to Congressional power to require private employers to allow employees a day off.  Requirements that private employers do not practice race or sex discrimination, or comply with wage and hour laws, or provide family medical leave, have all been held constitutional.  This law would be similar to those laws, as well as the the federal law protecting employment for those serving in the military, the Uniformed Services Employment and Reemployment Rights Act (USERRA).   The Bill does not apply to employees working for state governments where the Eleventh Amendment could serve as a potential bar to lawsuits seeking to vindicate rights.

Lastly, should the United States Supreme Court ever recognize that secular for-profit corporations have a free exercise of religion right under the First Amendment, the future could bring a challenge by the major shareholders of a corporation that sells sequins or makes kitchen cabinets  or sells groceries on the basis that the shareholders are Quakers, for example, who have a sincere and deeply held pacifist religious belief that would be burdened by being mandated to support a day off for someone who had participated in the activities of war.

[image: The Afghanistan-Iraq War Memorial in Salem, Oregon, via]


November 11, 2013 in Commerce Clause, Current Affairs, Eleventh Amendment, Equal Protection, First Amendment, Free Exercise Clause, War Powers | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 9, 2013

Daily Media: Manning Updates (Including Banksy)

Chelsea Manning, convicted as Private Bradley Manning in a controversial military trial for revealing information to WikiLeaks, issued the first statement since her conviction, prompted in part by receiving a peace award.  She stated that although her actions may have had pacficist "implications," she does not consider herself a pacifist.   Rather, she is a "transparency advocate."  The statement also contains specific discussion of gender identity.   Manning's two page statement is worth a read, as is the accompanying article in The Guardian (to whom the statement was released) by Ed Pilkington.

Meanwhile in New York City, the latest and most ambitious project of the British public artist Banksy in his self-proclaimed October artist's residency on the streets of New York, alludes to Manning.  The street art's references might be somewhat illusive to a casual observer:

Lunjv4am0zva33crsllv
But Banksy's site featuring this image (as well as another), also includes an "audio guide."  It derives from some of the materials that Manning disclosed.  Gothamist has a good explanation (and more photos).  The Village Voice has excellent (with continuing) coverage of Banksy's art here and a profile with quoted material here.

 

October 9, 2013 in Current Affairs, First Amendment, State Secrets, War Powers, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Friday, September 6, 2013

The Syria Resolution's Last Whereas

Garrett Epps writes over at The Atlantic that the Senate's Syria Resolution contains a huge give-away to the President: congressional recognition of inherent executive authority to use the military to defend the national security interests of the United States--independent of any AUMF.

The give-away comes in the last "Whereas" of the Senate's Syria Resolution.  It reads:

Whereas the President has authority under the Constitution to use force in order to defend the national security interests of the United States . . . .

Epps writes,

The only problem is it's not true, and it represents a two-century high-water mark in claims of executive power.  Having been consulted by the president, Congress is poised to respond by throwing back at him not only the current decision but sweeping new powers he didn't have before.

Lawfare has some terrific analysis on the Senate resolution and related issues, including Jack Goldsmith's analysis of that final "Whereas" (quoted in Epps's piece).

SDS

September 6, 2013 in Congressional Authority, Executive Authority, News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Sunday, August 18, 2013

How to Think About Drones

Mark Bowden writes in the current issue of The Atlantic about the moral, military, and legal aspects of U.S. drone strikes against alleged terrorists.  The article came out just as U.N. Secretary General Ban Ki-Moon criticized the use of armed drones and argued that they must be controlled by international law.  We posted most recently on drones here--on the Al-Awlaki case, with links to the leaked DOJ white paper providing the legal justification for drone attacks.

Bowden surveys some of the legal landscape and concludes that drone attacks are legal.  But:

Once the "war" on al-Qaeda ends, the justification for targeted killing will become tenuous.  Some experts on international law say it will become simply illegal.  Indeed, one basis for condemning the drone war has been that the pursuit of al-Qaeda was never a real war in the first place.

He also quotes John Yoo on the relative legality of drone attacks:

I would think if you are a civil libertarian, you ought to be much more upset about the drone than Guantanamo and interrogations. . . .  Because I think the ultimate deprivation of liberty would be the government taking away someone's life.  But with drone killings, you do not see anything, not as a member of the public.  You read reports perhaps of people who are killed by drones, but it happens 3,000 miles away and there are no pictures, there are no remains, there is no debris that anyone in the United States ever sees.  It's kind of antiseptic.  So it is like a video game; it's like Call of Duty.

SDS

August 18, 2013 in Executive Authority, International, News, Procedural Due Process, War Powers | Permalink | Comments (2) | TrackBack (0)

Friday, August 9, 2013

President Opens Up on Surveillance

President Obama today announced a new effort at transparency and oversight in government surveillance programs.  WaPo reports here; here's the transcript.

President Obama said that he directed his national security team "to review where our counterterrorism efforts and our values come into tension," and "to be more transparent and to pursue reforms of our laws and practices."  He said he'd work with Congress to reform Section 215 of the Patriot Act, the statutory authority for the Foreign Intelligence Surveillance Court to order the release of telephone records (and which came under fire with Snowden's release of the FISC order doing just that), and to reform the FISC, in particular, by appointing a civil liberties advocate at the court.  He also said he'd work to be more transparent about surveillance and appoint an independent group "to step back and review our capabilities, particularly our surveillance technologies, and . . . how we can maintain the trust of the people . . . ."

The President also released a Readers Digest version of the legal authority for bulk collection of telephony metadata under Section 215, and an NSA mission statement.

As to the legal authority, the administration gave a broad read to the term "relevant" in Section 215--the issue that EPIC pressed in its recent suit challenging the program.  That is, the administration takes the position that Section 215's requirement that FISC production orders be supported by "reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation" gives very broad sweep to the FISC's authority.  The administration also focused on controls over abuse of the authority under Section 215.

The document argues that the program violates neither the Fourth Amendment nor the First Amendment.  As to the Fourth, the document claims that surveillance of telephony metadata doesn't even qualify as a "search" under Smith v. Maryland (1979), and, even if it did, the "search would satisfy the reasonableness standard that the Supreme Court has established in its cases authorizing the Government to conduct large-scale, but minimally intrusive, suspicionless searches" under Maryland v. King (2013).

As to the First Amendment, the document argues that the program authorizes the collection of only metadata, not content.  Moreover, it says that as a lawful investigative activity, can't violate the First Amendment, and that there's no chilling of protected speech.

SDS

August 9, 2013 in Congressional Authority, Courts and Judging, Executive Authority, First Amendment, Fourth Amendment, News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Thursday, July 18, 2013

Second Judge Rejects Anti-Force-Feeding Case

Judge Rosemary M. Collyer (D.D.C.) earlier this week rejected hunger-striking Guantanamo detainees' suit for an injunction against the government to stop it from force-feeding them.  The ruling in Aamer v. Obama is the second recent case coming out of the federal courts rejecting an anti-force-feeding claim.  Here's our post on the first.

Judge Collyer, like Judge Kessler in the earlier case, ruled that the court lacked jurisdiction under 28 U.S.C. Sec. 2241(e)(2), which deprives courts of jurisdiction to hear an action related to "any aspect of the detention, transfer, treatment, trial, or conditions of confinement" of an alien detainee at Guantanamo.

Judge Collyer went on to address the merits, too.  She wrote that the government is "responsible for taking reasonable steps to guarantee the safety of inmates in their charge," that there is no right to suicide or assisted suicide, and that the government has a legitimate penological interest in preventing suicide.  Moreover, she wrote that the government has put controls in place so that the procedure really isn't so bad, and that the government made adjustments to the force-feeding schedule for the Ramadan fast.

SDS

July 18, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Fundamental Rights, Habeas Corpus, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Al-Awlaki on the Drone That Killed His Grandson

Nasser al-Awlaki writes in the NYT today that "[t]he Obama administration must answer for its actions and be held accountable" for the targeted killing of his grandson, Abdulrahman.  Al-Awlaki is also the father of Anwar al-Awlaki, also targeted and killed in a drone strike.

Al-Awlaki writes just a day before the United States District Court for the District of Columbia will hear oral arguments on the government's motion to dismiss his case (on Friday).  [UPDATE: The argument is tomorrow, Friday.]  We previously posted on that case here; the Center for Constitutional Rights has its case resource page here.  The government argues that the issue is a political question, that special factors counsel against a monetary damages remedy, and that officials enjoy qualified immunity.

Al-Awlaki's earlier suit, to stop the government from killing his son Anwar, was dismissed.  That court ruled that al-Awlaki lacked standing and failed to allege a violation of the Alien Tort Statute, and that the case raised non-justiciable political questions.

Here's our post on the DOJ white paper, the administration's analysis (leaked) on why targeted killing of U.S. citizens is legal.

SDS

July 18, 2013 in Cases and Case Materials, Fundamental Rights, Jurisdiction of Federal Courts, News, War Powers | Permalink | Comments (0) | TrackBack (0)

Monday, July 15, 2013

Judge Strikes Restrictions on Guantanamo Detainees' Access to Counsel

Judge Royce C. Lamberth (D.D.C.) ruled last week in In re Guantanamo Bay Detainee Litigation that Joint Detention Group, or JDG, restrictions on Guantanamo detainees' access to counsel violated the detainees' right to habeas proceedings in federal court.  The ruling was the second last week that invoked an increasingly personal challenge to President Obama and his policies on detention at Guantanamo Bay.  We posted on the other case, involving forced-feeding, here.

The court struck new and invasive search protocol for detainees before and after they meet with counsel; restrictions on the locations within the facility where certain detainees can meet with counsel; and even the new vans that guards use to transport detainees to meetings with counsel.  (The new vans are designed such that detainees have to sit in stress positions while traveling to their meetings with their attorneys.)  The court struck the restrictions under Turner v. Safley (1987), which set out factors to balance the interests in prison administration against the prisoners' fundamental rights.  In short, the court held that the restrictions had no "valid, rational connection" to the legitimate government interest of security, and that the government could serve that interest in other ways without unduly affecting the prison.

The case is notable for its close oversight of the conditions at Guantanamo that interfere with the detainees' access to their attorneys, and thus their access to habeas.  It's also notable for the courts increasingly personal appeals to, and critiques of, President Obama, his announced policies, and the way those policies play on the ground.  Judge Lamberth started the opinion with this:

On May 23, 2013, President Obama promised, concerning detainees held at Guantanamo Bay, that "[w]here appropriate, we will bring terrorists to justice in our courts and our military justice system.  And we will insist that judicial review be available for every detainee."  This matter concerns whether the President's insistence on judicial review may be squared with the actions of his commanders in charge of the military prison at Guantanamo Bay.  Currently, it cannot.

SDS

July 15, 2013 in Cases and Case Materials, Fundamental Rights, Habeas Corpus, News, Opinion Analysis, War Powers | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 10, 2013

Federal Judge Urges Halt to Guantanamo Force-Feeding

Judge Gladys Kessler (D.D.C.) this week reluctantly denied a Guantanamo detainee's plea to stop his force-feeding.  Detainee Jihad Dhiab requested expidited consideration because of the risk that force-feeding during the day will deprive him of the Ramadan fast, which started July 8.  

Dhiab is an 11-year detainee at Guantanamo who has received no habeas or military commission proceeding to determine the merits of his case.  He was cleared for release two years ago.

Judge Kessler wrote that the court lacked jurisdiction to hear Dhiab's petition, because 28 U.S.C. Sec. 2241(e)(2) deprives courts of jurisdiction to hear an action related to "any aspect of the detention, transfer, treatment, trial, or conditions of confinement" of an alien detainee at Guantanamo.  She wrote that "the Court feels just as constrained now, as it felt in 2009, to deny this Petitioner's Application for lack of jurisdiction."

Judge Kessler went on to address the merits, though, and to urge President Obama to stop the force-feeding:

The Court also feels constrained, however, to note that Petitioner has set out in great detail in his papers what appears to be a consensus that force-feeding of prisoners violates Article 7 of the International Covenant on Civil and Political Rights which prohibits torture or cruel, inhumane, and degrading treatment. . . .

Even tough this Court is obligated to dismiss the Application for lack of jurisdiction, and therefore lacks any authority to rule on Petitioner's request, there is an individual who does have the authority to address the issue. . . . 

Article II, Section 2 of the Constitution provides that "[t]he Preisdent shall be the Commander in Chief of the Army and Navy of the United States . . ."  It would seem to follow, therefore, that the President of the United States, as Commander-in-Chief, has the authority--and power--to directly address the issue of force-feeding of the detainees at Guantanamo Bay.

The White House responded at the daily press briefing yesterday that the President doesn't want these detainees to die, and that he maintains his position that Guantanamo should close.

SDS

July 10, 2013 in Cases and Case Materials, Congressional Authority, Habeas Corpus, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 9, 2013

Senate Judiciary Questions Comey

The Senate Judiciary Committee today questioned James Comey, Jr., President Obama's pick to replace Robert Mueller as the head of the FBI.  Comey was a deputy attorney general under President George W. Bush who gained fame after his 2004 confrontation with White House Counsel Alberto Gonzales and Chief of Staff Andrew Card over that administration's secret surveillance program at the hospital bedside of former AG John Ashcroft.  But, as Rick Perlstein argues at The Nation, and as Laura Murphy argues at the Guardian, Comey's record is a little more complicated.

As has been widely reported, Comey today told the Committee that he thought waterboarding was torture.  The Atlantic Wire has a summary of his responses to other, similar issues.  Here's the hearing on c-span.org.

SDS

July 9, 2013 in News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Monday, July 8, 2013

EPIC Takes Surveillance Challenge Directly to Supreme Court

The Electronic Privacy Information Center, or EPIC, today asked the Supreme Court to vacate the order of the Foreign Intelligence Surveillance Court, or FISC, compelling the disclosure of domestic phone records by Verizon.  We previously posted on the FISC order here.

EPIC filed a petition for a writ of mandamus directly with the Supreme Court, bypassing the usual route through the lower courts, because of the unique nature of the FISC order.  EPIC claims that FISC Judge Roger Vinson ordered the disclosure of domestic phone records in violation of the FISC's statutory authority under the Foreign Intelligence Surveillance Act, or FISA.  But EPIC says that under the FISA, the only court that can reverse Judge Vinson's order is the Supreme Court.  Moreover, the order creates exceptional circumstances relating to the invasion of privacy, privileged communications, and the First Amendment that warrant mandamus relief.  Thus, the mandamus petition.

On the merits, EPIC argues that Judge Vinson exceeded his authority under FISA:

[T]he FISC issued an order requiring disclosure of records for all telephone communications "wholly within the United States, including local telephone calls."  The Business Records provision does not enable this type of domestic programmatic surveillance.

Specifically, the statute requires that production orders be supported by "reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation. . . . ."  50 U.S.C. Sec. 1861(b)(2)(A).  It is simply unreasonable to conclude that all telephone records for all Verizon customers in the United States could be relevant to an investigation.  Thus, the FISC simply "ha[d] no judicial power to do what it purport[ed] to do."

Petition at 18.

EPIC also argues that the order violates the separation of powers, insofar as it compels the disclosure of phone records of the judicial and legislative branches to the executive branch.

SDS

July 8, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Friday, June 21, 2013

Sorting Out Fact and Fiction in NSA's Surveillance Program

The Newseum will host a special program NSA Surveillance Leaks: Facts and Fiction on Tuesday, June 25, 2013, at 4:00 p.m., at the Knight TV Studio in Washington, D.C.  More information is here; the program will be streamed live online at newseum.org.  

The program includes an introduction by ABA President Laurel Bellows and a panel of experts on national security law, free speech, and the press.  Harvey Rishikof, chair of the ABA Standing Committee on Law and the National Security Advisory Committee, will moderate.  James Duff, president and CEO of the Freedom Forum and CEO of the Newseum, will deliver welcoming remarks.

SDS

June 21, 2013 in Conferences, Executive Authority, News, Separation of Powers, Speech, War Powers | Permalink | Comments (0) | TrackBack (0)