If it weren’t for this line, disdaining what judges do,
But judges should be left to what they know.
I would be convinced that this op-ed from Neal Katyal, arguing against a Drone and/or Targeted Killing Court, was a transparent attempt to curry favor with the man who gets to nominate people for lifetime appointments to federal courts.
Because it strikes me as a dishonest argument, one made by someone who almost surely knows better, repeating the AUMF fallacy.
But there is no true precedent for interposing courts into military decisions about who, what and when to strike militarily. Putting aside the serious constitutional implications of such a proposal, courts are simply not institutionally equipped to play such a role.
While the Bush Administration didn’t read Ted Olson into its worst OLC opinions when he was Solicitor General — and so it’s possible (though unlikely) that Katyal was likewise not read into the June 2010 opinion that authorized the CIA to kill Anwar al-Awlaki during the time he was Acting Solicitor General — he was almost certainly part of the legal strategy to respond to the ACLU/CCR suit hoping to enjoin the President from killing Awlaki unless he represented an imminent threat, which also occurred while he was Acting SG.
Neal Katyal almost certainly knows the CIA was cleared to carry out that killing (though he had left the Administration by the time Awlaki was ultimately killed), and that this was a covert op.
To argue for a star chamber within the Executive Branch, he paints the judges who serve on the FISA Court as generalists who have no clue about national security issues.
There are many reasons a drone court composed of generalist federal judges will not work. They lack national security expertise, they are not accustomed to ruling on lightning-fast timetables, they are used to being in absolute control, their primary work is on domestic matters and they usually rule on matters after the fact, not beforehand.
What reason does the FISA Court give us to think that judges are better than specialists at keeping executive power in check?
The FISA Court includes judges like Thomas Hogan (who has been a District Court judge in DC since Katyal was 12) and is now led by Reggie Walton (who joined DC District back when President Obama was still a State Senator). While they’ve seen their share of DC drug cases, they’ve also presided over some high profile national security cases (both had a part in the Libby case, both have issued key rulings in Gitmo habeas cases). But Katyal thinks they’re just not capable of reviewing whether an American should be killed by his government with no due process.
There’s more that’s laugh out loud funny in Katyal’s op-ed, such as the suggestion that targeted killing of an American (as far as I know, no one is even considering using a FISA process with non-citizens) presents no Constitutional issues.
Even the questions placed before the FISA Court aren’t comparable to what a drone court would face; they involve more traditional constitutional issues — not rapidly developing questions about whether to target an individual for assassination by a drone strike.
And the suggestion that the Executive can be trusted to hand over its own analysis on targeted killing to Congress.
The adjudicator would be a panel of the president’s most senior national security advisers, who would issue decisions in writing if at all possible. Those decisions would later be given to the Congressional intelligence committees for review.
Not to mention that a “court” which the President was free to overrule amounts to any kind of due process.
Crucially, the president would be able to overrule this court, and take whatever action he thought appropriate, but would have to explain himself afterward to Congress.
Mind you. I, like Katyal, think the idea of turning FISA into a Drone and/or Targeted Killing court is terrible. But I’m not arguing that’s because an actual court would infringe too much on the President’s claimed authority to kill Americans at will.
Al-Haramain has submitted its brief for the appellate review on a number of issues related to the government’s illegal wiretapping of the charity. The questions at issue are:
1. Does FISA waive federal sovereign immunity?
2. Does FISA preempt the state secrets privilege?
3. Was plaintiffs’ non-classified evidence sufficient to prove their warrantless electronic surveillance?
4. Did the district court properly award counsel’s full attorney’s fees?
5. Did the district court err in dismissing defendant Mueller in his individual capacity?
Most of the brief will be familiar to those who have followed this case. But this passage–because it comes at the appellate level–is new.
Finally, we note that defendants do not challenge the district court’s ruling that the President lacks inherent power to disregard FISA’s preemption of the state secrets privilege. See 564 F. Supp. 2d at 1121 [ER 108]; supra at 16. Thus, for purposes of this appeal, defendants have forfeited any claim of inherent power to disregard FISA. See, e.g., Independent Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003). More broadly, defendants have abandoned any defense of the TSP’s purported theoretical underpinning that the President may disregard an Act of Congress in the name of national security.
This forfeiture should come as no surprise. Top officials in the Obama administration had conspicuously repudiated the inherent power theory before taking office. See Donald Verrilli (now Solicitor General) et al., Brief for Amici Curiae Center for National Security Studies and the Constitution Project, American Civil Liberties Union v. National Security Agency, 493 F.3d 644 (6th Cir. 2007), 2006 WL 4055623, at *2 & *15 (inherent power theory is “particularly dangerous because it comes at the expense of both Congress’s and the judiciary’s powers to defend the individual liberties of Americans”); Neal Kumar Katyal (now Principal Deputy Solicitor General), Hamdan v. Rumsfeld: The Legal Academy Goes to Practice, 120 HARV. L. REV. 65, 117 (2006) (“overblown assertions” of inherent power “risk lawlessness in the name of national security”); Eric Holder (now Attorney General), Address to American Const. Society (June 13, 2008), http://www.youtube.com/watch?v=6CKycFGJOUs&feature=relmfu (videotape at 3:41–3:52) (“We must utilize and enhance our intelligence collection capabilities to identify and root out terrorists, but we must also comply with the law. We must also comply with FISA.”). [my emphasis]
The passage is not central to the argument except insofar as it notes the government has procedurally given up the theory that they used to initially rationalize the illegal wiretap program. It is, as I said, just a small legal death, limited to this one case, rather than a wholesale repudiation.
Nevertheless, I thought the timing–not just coinciding with the anniversary of 9/11 but also the release of Dick Cheney’s autobiographical novel–rather apt.
And the rhetorical value in citing three of DOJ’s top lawyers dismissing the theory–which the brief repeats by citing Holder’s even more damning call for “a reckoning” in that same ACS speech at the very start of the brief does have value.
“[S]teps taken in the aftermath of 9/11 were both excessive and unlawful. Our government . . . approved secret electronic surveillance of American citizens . . . . These steps were wrong when they were initiated and they are wrong today. We owe the American people a reckoning.” Eric Holder, June 13, 2008
Verilli’s and Katyal’s and Holder’s criticism of inherent power may have just been the rhetorical blatherings of political lawyers then in the political and legal opposition, blatherings not entirely consistent with steps they have taken since they’ve been in positions of authority.
But for the purposes of this legal brief, who better to kill the theory of inherent authority than the Attorney General?
The DC Circuit just overturned a District Court opinion that granted three Bagram detainees who were captured outside of Afghanistan (though the government contests this claim for one of the detainees) the right to a habeas proceeding.
It based its argument on three factors the Supreme Court listed in deciding in Boumediene that detainees at Gitmo did have the right to habeas proceedings.
(1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ.
The Circuit found that the three detainees had actually had a less adequate status determination than the detainees in Boumediene. But it said it had to consider the two other named factors. It found that the US has nowhere near the sovereignty over Bagram that it has in Gitmo.
As the Supreme Court set forth, Guantanamo Bay is “a territory that, while technically not part of the United States, is under the complete and total control of our Government.” 128 S. Ct. at 2262. While it is true that the United States holds a leasehold interest in Bagram, and held a leasehold interest in Guantanamo, the surrounding circumstances are hardly the same. The United States has maintained its total control of Guantanamo Bay for over a century, even in the face of a hostile government maintaining de jure sovereignty over the property. In Bagram, while the United States has options as to duration of the lease agreement, there is no indication of any intent to occupy the base with permanence, nor is there hostility on the part of the “host” country. Therefore, the notion that de facto sovereignty extends to Bagram is no more real than would have been the same claim with respect to Landsberg in the Eisentrager case. While it is certainly realistic to assert that the United States has de facto sovereignty over Guantanamo, the same simply is not true with respect to Bagram.
The Supreme Court expressly stated in Boumediene that at Guantanamo, “[w]hile obligated to abide by the terms of the lease, the United States is, for all practical purposes, answerable to no other sovereign for its acts on the base. Were that not the case, or if the detention facility were located in an active theater of war, arguments that issuing the writ would be ‘impractical or anomalous’ would have more weight.”
And the Circuit placed even more weight on the impracticality of giving detainees at Bagram habeas proceedings.
Afghanistan remains a theater of active military combat. The United States and coalition forces conduct “an ongoing military campaign against al Qaeda, the Taliban regime, and their affiliates and supporters in Afghanistan.” These operations are conducted in part from Bagram Airfield. Bagram has been subject to repeated attacks from the Taliban and al Qaeda, including a March 2009 suicide bombing striking the gates of the facility, and Taliban rocket attacks in June of 2009 resulting in death and injury to United States service members and other personnel.
But we hold that the third factor, that is “the practical obstacles inherent in resolving the prisoner’s entitlement to the writ,” particularly when considered along with the second factor, weighs overwhelmingly in favor of the position of the United States. It is undisputed that Bagram, indeed the entire nation of Afghanistan, remains a theater of war.
And on that basis–effectively the fact that the Administration chooses to bring men into a theater of war to detain them–the Circuit overturned the District decision.
We cannot, consistent with Eisentrager as elucidated by Boumediene, hold that the right to the writ of habeas corpus and the constitutional protections of the Suspension Clause extend to Bagram detention facility in Afghanistan, and we therefore must reverse the decision of the district court denying the motion of the United States to dismiss the petitions.
Now, as the detainees argued, this basically means that the US can avoid any legal obligation to give detainees some kind of legal review by keeping detainees at Bagram or, possibly, taking them there, into a theater of war, so as to deprive them of a right to habeas. Continue reading
Remember how I suggested one of the bright sides of Elena Kagen’s nomination to SCOTUS would make Republican heads explode when they realize Hamdan lawyer Neal Katyal may be Acting Solicitor General?
Well, keep your eye out for splattered fearmonger brains, because Katyal just signed a document as the Acting Solicitor General.
Though perhaps their heads won’t explode.
Because, as Lyle Denniston points out, Katyal’s assumption of the Acting role here significantly diminishes Maher Arar’s chances of getting his suit against the federal government for his rendition to Syria and torture heard by the Supreme Court.
The Supreme Court has not yet scheduled Arar’s case for its initial examination. The Justices are expected to do so, however, before the current Term ends in late June. Justice Sonia Sotomayor, who as a Second Circuit judge had taken part in the lower court’s en banc hearing (but not its decision) has not yet indicated whether she would take part in the case as it proceeds in the Supreme Court. So far, the Court has not issued any orders in the case that would show whether she had opted to take part. Her recusal, however, appears likely.
If the Court were to grant review of the case, it would not be heard and decided until the next Term, starting Oct. 4. Justice John Paul Stevens will no longer be on the Court then, and Kagan, if approved by the Senate, could be on the bench by then.
The Court’s changing membership, and the prospect that Justice Sotomayor would not participate in the Arar case, might not only have an impact on how the Court would rule if it took on the case, but may well influence whether it is willing to grant review at all. If, as expected, the case is put to an initial vote this Term on the question of review, the Justices could be deterred from voting to grant because of the possibility of a 4-4 split were the case to be decided. assuming Sotomayor’s recusal. (Justice Stevens is expected to be on hand for that initial vote.)
If the case were granted, the question would arise whether a new Justice Kagan (assuming Senate confirmation) would take part in the decision. Although she did not sign the U.S. brief filed Wednesday, it seems highly likely that she had participated in internal discussions of the position the government would take in that brief, and thus might feel compelled to disqualify herself from its consideration by the Court. That would raise the prospect of a 4-3 split, with the Court’s four most conservative Justices in the majority. That is a prospect that perhaps could lead those four to vote for review, but could lead the Court’s more liberal Justices to refrain from supporting review. (Both a 4-4 split, without Sotomayor, and a 4-3 split, without Sotomayor and Kagan, would probably result only if Justice Anthony M. Kennedy declined to side with his more conservative colleagues and voted with the more liberal Justices.)
This elaborates on a point that Michael Isikoff already wrote about–the way in which Kagan’s nomination and probable confirmation increases the chances that SCOTUS will back Bush and Obama Administration policies on counterterrorism.
Whatever her merits as the next Supreme Court justice, Elena Kagan’s selection provides a hidden benefit for President Obama’s national-security team: it significantly boosts its chances of prevailing in controversial claims to the court involving the war on terrorism.
The reason: Kagan will inevitably have to recuse herself from an array of cases where she has already signed off on positions staked out by the Obama administration relating to the detention of terror suspects and the reach of executive power. As a result, the seat occupied by Justice John Paul Stevens—the most forceful advocate on the court for curbing presidential power—will be replaced by a justice who, on some major cases over the next few years, won’t be voting at all.
“If you are litigating on behalf of Bagram detainees, the skies just got a lot darker today,” said Ben Wittes, a legal-affairs analyst at the Brookings Institution.
Now, there is an exception to this premise: those cases coming out of the 9th Circuit (which might include the Jeppesen suit, the al-Haramain case, and the Padilla-Yoo suit). If the 9th circuit rules in favor of the plaintiffs in any of these cases, and Kagan’s likely recusal were to create a tie in SCOTUS (assuming Kennedy voted with the liberal judges, which might be even more likely for cases coming through the 9th), that would leave the 9th circuit decision intact.
Nevertheless, none of that is going to help Maher Arar obtain some kind of justice for his kidnapping and torture at the hands of Americans.
Oh, and on whether or not the fearmongers’ heads will explode at Katyal’s involvement? The brief signed by Katyal contends that the torture of Arar is incidental to this suit.
This case does not concern the propriety of torture or whether it should be “countenance[d]” by the courts. Pet. 14. Torture is flatly illegal and the government has repudiated it in the strongest terms. Federal law makes it a criminal offense to engage in torture, to attempt to commit torture, or to conspire to commit torture outside the United States. See 18 U.S.C. 2340A. The President has stated unequivocally that the United States does not engage in torture. See May 21, 2009 Remarks by the President on National Security; cf. Exec. Order No. 13,491, § 3, 74 Fed. Reg. 4894 (Jan. 22, 2009) (directing that individuals detained during armed conflict “shall in all circumstances be treated humanely and shall not be subjected to violence to life and person (including murder of all kinds, mutilation, cruel treatment, and torture)).”
I’m particularly bemused by Katyal’s reliance on Obama’s repudiation of torture. I realize that Obama’s repudiation is somewhat more credible than the many times that Bush claimed we did not torture (though less and less so of late). But it would seem particularly relevant that even while Bush was proclaiming his opposition to torture, detainees in our custody and held overseas at our behest were being tortured during precisely the same time period that Arar was rendered to be tortured in Syria.
Nevertheless, Hamdan attorney and now Acting Solicitor General Neal Katyal says that the issue is not Arar’s torture, but narrow questions of whether Arar can even ask for some relief in the US Courts.