As Expected, Judge Bates Punts on Rule of Law

/15 Comments/in /by

I almost felt like I was reading Judge John Bates’ ruling on whether or not Valerie Plame could sue those who outed her when I read Judge Bates’ ruling dismissing the suit challenging the government’s ability to assassinate Anwar al-Awlaki with no due process.

He starts by admitting the importance of the issues at hand.

This is a unique and extraordinary case. Both the threshold and merits issues present fundamental questions of separation of powers involving the proper role of the courts in our constitutional structure. Leading Supreme Court decisions from Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), through Justice Jackson’s celebrated concurrence in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), to the more recent cases dealing with Guantanamo detainees have been invoked to guide this Court’s deliberations. Vital considerations of national security and of military and foreign affairs (and hence potentially of state secrets) are at play.

Stark, and perplexing, questions readily come to mind, including the following: How is it that judicial approval is required when the United States decides to target a U.S. citizen overseas for electronic surveillance, but that, according to defendants, judicial scrutiny is prohibited when the United States decides to target a U.S. citizen overseas for death? Can a U.S. citizen — himself or through another — use the U.S. judicial system to vindicate his constitutional rights while simultaneously evading U.S. law enforcement authorities, calling for “jihad against the West,” and engaging in operational planning for an organization that has already carried out numerous terrorist attacks against the United States? Can the Executive order the assassination of a U.S. citizen without first affording him any form of judicial process whatsoever, based on the mere assertion that he is a dangerous member of a terrorist organization? How can the

courts, as plaintiff proposes, make real-time assessments of the nature and severity of alleged threats to national security, determine the imminence of those threats, weigh the benefits and costs of possible diplomatic and military responses, and ultimately decide whether, and under what circumstances, the use of military force against such threats is justified? When would it ever make sense for the United States to disclose in advance to the “target” of contemplated military action the precise standards under which it will take that military action? And how does the evolving AQAP relate to core al Qaeda for purposes of assessing the legality of targeting AQAP (or its principals) under the September 18, 2001 Authorization for the Use of Military Force?

But then he punts entirely on standing grounds.

Although these threshold questions of jurisdiction may seem less significant than the questions posed by the merits of plaintiff’s claims, “[m]uch more than legal niceties are at stake here” — the “constitutional elements of jurisdiction are an essential ingredient of separation and equilibration of powers, restraining the courts from acting at certain times, and even restraining them from acting permanently regarding certain subjects.”

[snip]

Because these questions of justiciability require dismissal of this case at the outset, the serious issues regarding the merits of the alleged authorization of the targeted killing of a U.S. citizen overseas must await another day or another (non-judicial) forum.

But just for good measure, Bates says he would rule in the government’s favor on state secrets, but doesn’t need to.

So, too, defendants have established that the three procedural requirements for invocation of the state secrets privilege — (1) a formal claim of privilege (2) by an appropriate department head (3) after personal consideration — have been satisfied here. See Reynolds, 345 U.S. at 7-8; Jeppesen Dataplan, 614 F.3d at 1080; Defs.’ Mem. at 48-50.[snip]

Under the circumstances, and particularly given both the extraordinary nature of this case and the other clear grounds for resolving it, the Court will not reach defendants’ state secrets privilege claim. That is consistent with the request of the Executive Branch and with the law, and plaintiff does not contest that approach. Indeed, given the nature of the state secrets assessment here based on careful judicial review of classified submissions to which neither plaintiff nor his counsel have access, there is little that plaintiff can offer with respect to this issue.17 But in any event, because plaintiff lacks standing and his claims are non-justiciable, and because the state secrets privilege should not be invoked “more often or extensively than necessary,” see Jeppesen Dataplan, 614 F.3d at 1080, this Court will not reach defendants’ invocation of the state secrets privilege.

It was nice of Bates to save the Obama Administration the embarrassment of invoking state secrets to hide the logic for its tyranny.

All in all, a tremendous victory for unchecked executive powers!

Read more →

Share this entry

John Bellinger: If the War Is Illegal, Just Change the Law

/in , , , /by

John Bellinger has been publicly suggesting the Obama Administration had exceeded the terms of the AUMF for some time. So it is unsurprising that he took the opportunity of a Republican House, the incoming Armed Services Chair’s explicit support for a new AUMF, and the Ghailani verdict to more fully develop his argument in an op-ed. It’s a well-crafted op-ed, such as in the way it avoids explicitly saying the government has been breaking the law in its pursuit of terrorism, when he pretends the only people we’ve been targeting in Pakistan, Yemen, and Somalia are al Qaeda leaders.

The Bush and Obama administrations have relied on this authority to wage the ground war in Afghanistan; to exert lethal force (including drone strikes) against al-Qaeda leaders in Pakistan, Yemen and Somalia; and to detain suspected al-Qaeda and Taliban members in Guantanamo Bay, Cuba, and Afghanistan.

In fact, the targets include a heck of a lot of grunts and many people with terrorist ties, but not direct affiliation with al Qaeda. Oh, and a bunch of civilians, but I guess we’re to assume the government just has bad aim.

Then there’s this game attempt to pretend that everyone will find something to love in the Forever War.

Nearly 10 years after the Sept. 11 attacks, the Obama administration, congressional Republicans and Democrats, and civil liberties groups all have an interest in updating this aging legislation. Republicans should be willing to help the president ensure that combatant commanders and intelligence agencies have ample legal authority to kill or capture terrorists who threaten the United States today. Many Republicans also want to give clearer statutory direction to federal judges regarding who may be detained and for how long. For their part, civil liberties groups and their Democratic supporters in Congress can insist that terrorist suspects who are U.S. nationals receive additional protections before being targeted and that persons detained now or in the future under the laws of war have a right to adequate administrative or judicial review.

As if Republicans weren’t already clamoring for more war and more war powers. As if there would be any doubt that Republicans would answer the “who may be detained and for how long” with any answer but, “Forever War, Baby!” As if dubbing the new AUMF “the al-Awlaki and PETA law”–putting some limits on the targeting of American citizens that presumably already exist–would be enough to entice civil libertarians (whom, Bellinger seems to suggest, only have support among Democrats).

And did you notice how Bellinger slipped in giving intelligence agencies the legal authority to kill terrorists? One of the problems–though Bellinger doesn’t say this explicitly–is that we’re increasingly using non-military personnel to target drones, which raises legal questions about whether they’re not unprivileged combatants in the same way al Qaeda is.

In any case, the lawyer did his work on this op-ed.

But here’s what I find to be the most interesting detail in it:

For at least five years, lawyers in and outside the Bush and Obama administrations have recognized the need to replace this act with a clearer law. The Bush administration chose not to seek an update because it did not want to work with the legislative branch.

Which I translate to read, “Back in 2005, several lawyers in the Bush Administration and I [I’m assuming Comey and Zelikow and Matthew Waxman] told the President he was breaking the law and should ask for an updated AUMF. But in spite of the fact that Congress was at that very moment passing the Detainee Treatment Act, the Bush White House claimed it couldn’t work with Congress to rewrite the AUMF to try to give the war they were already fighting some legal cover.”

Though of course, in 2005, Bush’s lawyers may have been trying to pretty up the fact that their illegal wiretap program–which constituted the use of military powers within the United States against US citizens–some kind of pretty face before it was exposed.

We’ve been fighting the Forever Whoever War since at least 2005. And now this clever lawyer wants to make sure the Forever War is legally sanctioned for the foreseeable future.

Share this entry

We Will Always Be at War against Everyone

/in , , , , /by

As Spencer reported yesterday, the incoming Chair of the House Armed Services Committee Buck McKeon wants to revisit and expand the 2001 AUMF authorizing our war against al Qaeda.

The objective wouldn’t the “drop a new Authorization to Use Military Force, but to reaffirm and strengthen the existing one,” says an aide to McKeon who requested anonymity, “recognizing that the enemy has changed geographically and evolved since 2001.”

I’m thoroughly unsurprised by this. As I pointed out the other day, if we’re going to hold Khalid Sheikh Mohammed solely using the justification of the AUMF, then we’re going to want to make sure that AUMF is designed to last forever; otherwise, KSM would be entitled to get out when–for example–we withdraw from Afghanistan. Frankly, I expect the Administration will be happy to be forced to accept another AUMF, because it’ll get them out of some really terrible arguments they’ve been making as they try to apply the AUMF to detention situations it clearly doesn’t apply to.

But there are two other aspects to a “reaffirmed and strengthened” AUMF. As McKeon’s aide notes, the enemy has changed geographically, moving to Yemen and Somalia. A new AUMF will make it easier to build the new bases in Yemen they’re planning.

The U.S. is preparing for an expanded campaign against al Qaeda in Yemen, mobilizing military and intelligence resources to enable Yemeni and American strikes and drawing up a longer-term proposal to establish Yemeni bases in remote areas where militants operate.

And I would bet that the AUMF is drafted broadly enough to allow drone strikes anywhere the government decides it sees a terrorist.

Which brings us to the most insidious part of a call for a new AUMF: the “homeland.” The AUMF serves or has served as the basis for the government’s expanded powers in the US, to do things like wiretap Americans. Now that the Republicans know all the powers the government might want to use against US persons domestically, do you really think they will resist the opportunity to write those powers into an AUMF (whether through vagueness or specificity), so as to avoid the quadrennial review and debate over the PATRIOT Act (not to mention the oversight currently exercised by DOJ’s Inspector General)? The only matter of suspense, for me, is what role they specify for drones operating domestically…

Remember, John Yoo once wrote an OLC memo claiming that because of the nature of this war the military could operate in the US with no limitations by the Fourth Amendment. That memo remained in effect for seven years. We know where they want to go with this permanent war against terror.

Share this entry

Government Trying to Fudge on Its Claim to Absolute Power

/in , /by

I’m working on a post on the news that DOJ will not charge Jose Rodriguez for destroying the torture tapes. But that’s going to take a while (read the NYT on the news in the meantime).

In the meantime, though, I wanted to point to Adam Serwer’s summary of yesterday’s hearing on the Anwar al-Awlaki suit. The most amusing detail in Adam’s story is that the government only wants to rely on its invocation of State Secrets as a fallback position.

Letter explicitly asked Bates to dismiss the lawsuit on state-secrets grounds only as a last resort.

See?!? They have some shame about their abuse of executive power, even if they’re going to rely on it anyway.

The most important issue, IMO, pertains to standing–I have already suggested that Judge Bates might reject the suit for lack of standing, not least because it’s the easiest way to punt. Adam suggests that Bates was thoroughly uninterested in one of two potential ways to establish standing.

The ACLU/CCR contends they have standing under two criteria, “Next Friend” and “Third Party.” Meeting the standard under “Next Friend” requires the ACLU/CCR to show that the younger al-Awlaki would want to sue but can’t, while “Third Party” demands that the elder al-Awlaki show that he would “suffer a concrete, redressable injury” from the government’s actions. Although Ben Wittes, who was also there, would disagree with me, I think Bates was more sympathetic to “Next Friend” than he was to the “Third Party” question, as he warned the latter could lead to a flood of lawsuits based on government action, and an “unprincipled landscape” in which judges arbitrarily decide standing based on the plaintiffs they’re sympathetic to.

But perhaps the most dramatic part of the hearing appears to have been when Jameel Jaffer stood up and stated that this suit was about whether or not the President can order the assassination of a citizen with no review. I actually differ with Adam’s take on some of this.

There was an exchange at the end of arguments that, beyond the legalese, really crystallized what this case is about. Both sides had offered their final rebuttals, but ACLU attorney Jameel Jaffer stood again and stated that the lawsuit was really about whether the president possesses an “unreviewable authority to order the assassination of an American citizen.” It moved Bates to ask Letter if he wanted to respond.

[DOJ Attorney Douglas] Letter rose and called Jaffer’s statement “absurd” and “ridiculous” but what followed was less convincing. He pointed out that the AUMF limits the president to overseas operations, that al-Awlaki was part of an “officially designated” terrorist group who was “attempting to carry out operations” against Americans.The fact that al-Awlaki had just released a new video calling for Muslims to kill Americans probably weighed on reporters in the courtroom.

Only the first of Letter’s statements is beyond dispute. The other two concern unproven — but not necessarily inaccurate — assumptions of fact that go to the heart of the case: whether or not al-Awlaki is actually an “operational leader” of al-Qaeda in the Arabian Peninsula or simply a vicious hatemonger who justifies and exhorts terrorism against Americans. The government is actually saying that its unilateral determination that the latter two assumptions are accurate that allow the government to deprive al-Awlaki of life without due process.

First, note that Letter’s claim that al-Awlaki was part of an “officially designated” terrorist group is a bunch of baloney. He is now part of that group, at least according to the unproven allegations of the government. But the State Department didn’t get around to designating al Qaeda in the Arabian Peninsula as such until several weeks after they had put al-Awlaki on the JSOC kill list (though he was not yet on the CIA kill list), so the suggestion that the President would only target someone formally designated a terrorist for assassination is a lie.

But the other claim–that the AUMF only covers operations overseas–is even sillier.

Consider: the government has not yet withdrawn the White Paper retroactively authorizing the illegal wiretap program under the AUMF. Thus, DOJ still supports claims that the AUMF authorized the President–any President–to conduct operations (in that case, military operations in the form of NSA wiretapping) in the United States.

Mind you, Tom Daschle has made it clear that Congress specifically refused to grant the President authority to operate in the United States. But so long as DOJ supports that White Paper, they stand by a public claim that the AUMF authorized the President to operate within the US.

So Jaffer is right: there’s nothing about Douglas Letter’s claims that rebut Jaffer’s argument that this is about whether the President can unilaterally assassinate an American citizen. As Adam has shown, simply asserting someone is a member of a terrorist organization does not make the assertion any less unilateral. And Letter’s claims that the AUMF does not authorize operations in the United States seems to ignore DOJ policy that supports just such a claim.

Share this entry

Let the Drones Begin

/in /by

Fresh off exempting Yemen from any sanctions for its use of child soldiers and partly in response to this week’s attempted package bombings, the government appears to be ready to let the CIA start operating drones in Yemen.

Allowing the U.S. military’s Special Operations Command units to operate under the CIA would give the U.S. greater leeway to strike at militants even without the explicit blessing of the Yemeni government. In addition to streamlining the launching of strikes, it would provide deniability to the Yemeni government because the CIA operations would be covert. The White House is already considering adding armed CIA drones to the arsenal against militants in Yemen, mirroring the agency’s Pakistan campaign.

[snip]

Placing military units overseen by the Pentagon under CIA control is unusual but not unprecedented. Units from the Joint Special Operations Command have been temporarily transferred to the CIA in other countries, including Iraq, in recent years in order to get around restrictions placed on military operations.

[snip]

The CIA conducts covert operations based on presidential findings, which can be expanded or altered as needed. Congressional oversight is required but the information is more tightly controlled than for military operations. For example, when the military conducts missions in a friendly country, it operates with the consent of the local government.

An increase in U.S. missile strikes or combat ground operations by American commando forces could test already sensitive relations with Yemen, which U.S. officials believe is too weak to defeat al Qaeda. Such an escalation could prompt Yemeni president Ali Abdullah Saleh to end the training his military receives from U.S. special operations forces.

If Saleh is too weak (or ideologically compromised) to get the job done against al Qaeda, then why are we foisting our special ops training on him and the 50% of his military that are children (though the US insists that no children will go through our training)?

And I wonder what would have happened if we responded to the UnaBomber by dropping bombs throughout Montana?

The WSJ doesn’t say it, but this may well be an effort to evade the AUMF problem limiting the Afghan war on terror to targets who had a hand in 9/11, which AQAP did not. We know Cheney repeatedly chose to do his covert work through JSOC, claiming he didn’t have to brief Congress on the actions. This seems to be the opposite: Obama appears ready to brief Congress (presumably, with the new Intelligence Authorization, the entire intelligence committees). But by running essentially military actions through CIA, you can avoid the whole declare war thing–you just issue and tweak a finding, letting the Commander-in-Chief dictate the terms of the not-war.

Meanwhile, here’s a rather curious detail from our other drone war. Two top Tehrik-i-Taliban figures were reportedly shot. Like with guns, not drones.

Former Tehreek-i-Taliban Pakistan’s (TTP) commander Baitullah Mehsud’s brother Yaqoob Khan has reportedly been shot dead by unidentified men in Mir Ali, North Waziristan.

[snip]

Earlier this week, a key commander of the TTP, Adnan Afridi, is reported to have been shot dead by unknown persons in the Naseerabad area of Rawalpindi.

Maybe these were internal disputes, maybe we didn’t kill these men. But it would be an interesting development if we started targeting individual people, wouldn’t it?

Update: See Spencer’s very good piece on this.

Share this entry