SCOTUS Watch: Orders etc.

In 2015, moreover, the United States rejected a request from Polish prosecutors to facilitate Abu Zubaydah’s testimony under the countries’ bilateral mutual legal-assistance treaty. Nonetheless, the government would permit Abu Zubaydah.

Coverage of the states secret case orals suggests that the government is likely to win, but (as in the past) litigation alone has some value. For instance, even conservatives like Barrett say the "t" word (torture) aloud. And, multiple judges (Breyer, Sotomayor, Gorsuch) also specifically asked about having the GITMO prisoner to testify himself (see also that article).

A letter (cited in the opening) sent to SCOTUS from the Biden Administration clarified the situation to some extent.  [The letter is linked at the article; CNN covers it without providing a link.]  The government, leaving open the right to redact for national security, is willing to let the prisoner write about his experiences using the process (explained) in place.  This all shows how even limited access to lawyers and judicial oversight can provide some checks to the system in place. 

PCSCOTUS: We continue have coverage of the draft chapters of the presidential commission's report.  SCOTUSBlog, which even as a blog specifically geared to SCOTUS has had limited coverage, has a helpful report on the proceedings on Friday.  It is fine to criticize and/or discuss the limited nature of the commission's actions etc.  But, this requires a full accounting of what they are doing.* 

(I also saw an interesting footnote that was reported earlier.  Two conservative members of the commission resigned, including notable "sane" Jack Goldsmith.  Why?  Who knows, but it is a bit weird, and notable. They so far don't want to say why, which you know, is wrong. Note the "do nothing and support status quo" theme of some coverage is a bit off given some of the critical comments referenced in that article alone.) 

Order List: There is no conference this week, so there will be a break from the weekly order lists, but today's was somewhat more notable than usual.  First, beyond the usual odds and ends of some note, the Supreme Court granted two cases involving tribal matters for full review.  They do not seem to be major cases (as if I'd know!), but we shall see.

As noted at that link and by various tweets on Legal Twitter, the Court also by two (by definition) unsigned per curiams -- without any cited dissents (so, you know, without dissent in fact), reversed two lower court cases that denied qualified immunity in abuse of force cases.  This is basically "error correction," something that they supposedly do not really want to do.  And, a few exceptions aside, it usually goes in a conservative way. 

Some comments on Twitter suggested the phrasing might be a flag to additionally restrict qualified immunity cases (e.g., "In one of its summary rulings this morning, #SCOTUS dropped a strong hint that *circuit* precedent may no longer be sufficient to provide “clearly established” law. That would be a *huge* barrier to damages suits against government officers who violate constitutional rights.").

Qualified immunity -- one of the many things that federal legislation can address if there is a will -- has been overused.  Without dealing with the weeds, the basic idea in my view is that people should generally have a broad right to at least try to show abuse occurred.  They might lose.  But, they should at least try.  And, individual actors (like a police officer) still might be protected; the ultimate issue is having some ability to get relief from the government in some fashion.   

Error correction clearly has some intent on clarifying the law though it is done in a rather opaque way.  Various justices last term flagged their concern about giving proper discretion to police and other public officials in certain emergency situations and so forth.  Such and such officer goes to a call where someone is allegedly at risk, and they have to think in the moment. Fine enough.  As applied -- clarified by cases they take for review -- the people can show their actions are acceptable.** 

Miscellaneous Orders: After I wrote this originally, SCOTUS dropped two separate orders.  One allotted order time for various cases where the Solicitor General has time.  Another granted a request by a challenger to speed along the SB8 case (this is not the U.S. case against Texas).  What this means is unclear -- various theories on Legal Twitter.

Book Review: Skimmed: Breastfeeding, Race, and Injustice uses the experience of the first black identical quintuplets to examine this subject.  I first saw it when Melissa Murray (always good for material) flagged in on Twitter.  (As I recall, someone talked about food and the law.)  And, it is appropriate to include here because there is a lot of law, including Supreme Court cases, involved in the mix.  The rest of the book tells their story. 

One thing (though the date is wrong) that is cited is an old Fifth Circuit case that says breastfeeding is an aspect of the constitutional right to privacy.  I am familiar with the case since repeatedly it is cited in string cites when some lower court opinion references privacy cases. As shown here, it has not had much influence as precedent, even as applied to the parties involved apparently.  But, the book's legal discussion includes what "might be," and on that front, it still is important.  

One interesting connection is the involvement of Susie Sharp, who became the first (white) female Chief Justice of the North Carolina Supreme Court.   I have a biography of Susie Sharp.  This book is written by a white woman, but Prof. Murray is not.  

Also, the book makes sure to make some comments about the freedom of choice, but is clearly pro-breastfeeding. In a few spots, perhaps a bit much, since many women very well would want, e.g., a doctor's office to have stuff on the wall supporting both breastfeeding and formula.   Finally, yes, it is wrong to "moo" at people who are nursing.  I apologize, however, for laughing a bit when seeing that.  It's okay to be a bit mean silently.  

A suggestion to include the book as an entry at a new book review website was turned down for the time being because of limited attention.  But, "Books in a Flash" is finally online.  I will mainly contribute "History" books for review and those interested can click the History link here, a few books already up. 

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* Note this line from a criticism (after I wrote this entry) on relying on term limits (which alone isn't enough, besides being a long shot anyway): "Perhaps this result was to be expected from a commission ostensibly created to study Supreme Court expansion."  

If this means "along with other things," sure. As spelled out in the executive order, "reform proposals" (more than expansion being out there) should be addressed.  I'm unsure if that is quite how many take it though. It sort of implies that was the primary reason they are there.  

The linked Slate article says these things -- including the shadow docket which has had a fairly recent uptake -- been "studied to death."  As compared to let's say civil rights when Truman had that studied?  It is upset conservatives (two less now) are on a commission -- apparently you need strong (as compared to weak links like Laurence Tribe) supporters of court expansion for legitimacy, but well conservatives? Surely not. 

The fact the analysis notes the commissioners -- who are criticized as too moderate, wary of change -- pushed back shows maybe we should give them some credit.  

** One of the cases is highlighted in this blog post.

The lower court opinion does not come off as patently unreasonable.  The Supreme Court per curiam -- without full briefing or argument -- decides by examining the facts (not their job really) that the situation on the ground is different from a previous circuit case relied on by the court of appeals.

The blog post reminds us of the George Floyd case.  I'm unsure if that is fair, since this case involves a much more momentary use of force. But, what bothers me yet again here is that the case seems to turn on debatable details that the Supreme Court reached out to "error correct."  

Maybe, the lower court was wrong.  If so, it was far from glaringly so.  The case they cite has multiple similarities to the current case.  The notable difference seems to be that the guy here had a knife on his person. The court of appeals, however, note he also was just shot with a beanbag gun. And, there was reason to judge the knife was not a danger.  

These are FACTUAL questions for a jury to decide.  If the case is so clearly reasonable, that can be judged then.  Consider a call that seems to many to be pretty clear.  A replay very well might determine there is no grounds to overrule.  You still have a chance to try.  It's not for replay office to second guess an agreement among the umpires that the call was at least somewhat open to debate (if that is the rule!).  

The Supreme Court tries less than seventy cases for full argument these days.  Why the hell are they interfering with these marginal cases?  They do not only refuse to change the rules for qualified immunity.  They want to reach out and error correct the hundreds (or more) cases like this, in the process affecting many more. Without argument.  It's wrong.  

SCOTUS: Order Day

We had big news today but there were various other notable things in today's Order List. There were also two oral arguments, involving disclosure laws (current Court worse on this than the Kennedy/Scalia version) and a chance to get the feds to at least partially cover payment to clean-up a toxic waste dump of Guam (170K, no vote for POTUS, only a non-voting delegate in Congress, and maybe a t-shirt). On the former, Barrett was asked to recuse, including by one of the people supporting a court expansion bill.

Okay. Let's deal with some of the other stuff in the Order List.  There was a per curiam without a dissent that was one of those error correction cases that the Supreme Court occasionally takes.  Justice Sotomayor, for one, has flagged that sort of thing as liable to be biased toward prosecution cases. Back in 2016, there was already a clear trend toward that in habeas cases.  This one at any rate flagged what it held to be a mistaken interpretation of being "in custody" in a habeas dispute that below helped the defendant. 

The other written opinion was a dissent by Alito (and Thomas), whose position on the now decades long practice of avoiding taking disputes among states.  He very well might have a point that the Constitution warrants at least minimally substantively taking such cases, one of the jobs of the Supreme Court being to handle disputes among states.  For a different view, see here (I comment too).

The Court did not accept a state challenge to the Biden Administration's change in policy on the "public charge" rule, in part for not going thru the Administrative Procedures Act.  But, in an extended paragraph, it flagged the states still can bring a challenge later on.  So, this might be a red flag that Biden might (like Trump did a few times) get in trouble on APA grounds, which makes it harder to get rid of old policies and/or permanently put in place new ones.   

Separately, SCOTUS wanted to know the Biden Administration's plans regarding a more restricted family planning rule that Trump put in place.  Also, a request for comment in another case (Breyer did not take part -- like Alito in another case, this is likely a financial conflict issue).  

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The big news, which was just a matter of time -- especially on the Barrett Court (Roberts supported the punt in the last 2A case) -- was a case taken on this question: "Whether the State's denial of petitioners' applications for concealed-carry licenses for self-defense violated the Second Amendment." The original question: "Whether   the   Second   Amendment   allows   the   government to prohibit ordinary law-abiding citizens from  carrying  handguns  outside  the  home  for  self-defense."  

I think after ten years that it makes some degree of sense really that the Supreme Court does more than drop a mostly forgotten punt (the eight person Court stun gun case) involving "arms" outside the home.  We can disagree with Heller and all that, but there were loads of lower court rulings -- with some disagreement -- on the general matter of regulating arms (mainly firearms).  A basic job of the Supreme Court is to provide some basic unity, and they are going to eventually decide this general question.

The basic problem for some is going to be the result.  But, another is the people making the decision.  A tainted Supreme Court, especially given on this issue there is a clear shift on liberal/conservative grounds (Roberts more to the center here) based on those new members. As with the campaign disclosure case (where the state might lose on narrow grounds with a different Court), if such a basic question is decided, we need a Court that we have a reason to respect on legitimacy grounds.  

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There were two other interesting grants -- something about the power of a local government to censure (huh) and a state secrets case, but one that feels like a glaring "state is going to win" grant since it involves active CIA goings on. On other facts, there might be hope that the tainted long rule where state secrets are used to deny justice (including in cases where the stuff is not really secret), but not sure this is a good grant there. 

(The case is the first GITMO case SCOTUS took for over a decade and involves "black sites" and torture.  Plus, here too, just how "secret" things are is rather unclear.  The Trump Administration asked for review and the Biden Administration has gone alone so far.  The cover-up has been something of a bipartisan effort though the Obama Administration did make some effort to bring out in the open reports of abuse.)  

ETA: Also, with COVID distancing and all that, even with them all being vaccinated, it was reported only the Chief Justice will show up at Biden's Wednesday address to Congress (saw a reference to only 200 members of Congress showing up too, at least in the chamber itself).  Probably will be a bit weird for him.

Thanks Obama: Eric Holder Edition

Jeter's last home game (the closer even blew a save to give him the chance to have the winning hit) might have overshadowed it, but Holder announced his pending resignation. A few retrospectives suggests he had an overall good term (except on certain "terrorism-related issues") though then there are the assholes. Overall, net advancement of justice.

"If Guantanamo closes, what then?"

GITMO has various problems, including its isolation, so it matters if it closes even if "that could mean a continuation of indefinite detention without a trial." Note too, potshots at "no one caring" aside, how their efforts have been "frustrated by limits that Congress has imposed each year" and it has not just been forgotten about. Good discussion.

"Challenging the Arguments of Bush-Obama ‘War on Terror’ Continuity"

Obama is far from ideal, but it is not just "new boss, same as old boss," [Comey/some overlap] one of those lines that pushes my buttons. Change requires knowing the breadth of the problem. BTW, props for ACS, the liberal answer to the Federalist Society.

"U.S. Formally Admits Killing 4 Americans In Drone Strikes"

President Obama is due to make a big national security speech and useful letter by AG Holder was provided to Congress, including officially stating four Americans (only one "specifically targeted") were killed by drone attacks. The letter makes some good points, including limits and previous explanations. One name on list is news to me. Meanwhile, on GITMO.

Obama On Closing Gitmo: ‘I’m Going To Go Back At This’

,

It is lame simply to blame him for not closing GITMO, but he is part of the problem. The hunger strike was raised in today's press conference. Will anything get done?

Update: See here.  I realize Obama is playing with a bad deck but if he can play with the rules by supporting an invasion in Libya, I think there is room here, including perhaps forcing the point with a certain detainee and seeing what Congress does.  This is one of those special situations like Lincoln at the start of the Civil War.

Dawn Johnsen

She has an extended article in this collection in honor of Justice Stevens and the last ten or so pages on the Obama Administration (see also, here on Libya) is well worth reading alone. Wish she was leading the OLC. Her reference to the 13A / abortion rights was sound too.

The disposition matrix

Sounds creepy (and it is on some level), but as rea notes, if it is going to occur, formalized rules seem better, right? The mix of positions in the comments are standard and my addition follows my standard theme too. Like SSM and PPACA, there is a certain "this again" feel to these discussions. But, the big questions never leave us.

Paying the Price for Circumventing the Civilian Justice System

President Obama and Attorney General Holder began their term with a plan to close the Guantanamo Bay prison and to conduct civilian criminal trials for at least some detainees. When Congress blocked those plans, the Obama Administration worked on mending, not ending, the system of military commissions.

Yeah. Ditto on the article's last comment as to it being better if we just followed the regular rules in the first place. Hard to unring the bell now.

Kill or Capture: The War on Terror and the Soul of the Obama Presidency

A New Yorker article on the title book with a somewhat melodramatic subtitle that is not really met by the book itself cites AG Holder's analysis:

Now, it is an unfortunate but undeniable fact that some of the threats we face come from a small number of United States citizens who have decided to commit violent attacks against their own country from abroad. Based on generations-old legal principles and Supreme Court decisions handed down during World War II, as well as during this current conflict, it’s clear that United States citizenship alone does not make such individuals immune from being targeted.  

But it does mean that the government must take into account all relevant constitutional considerations with respect to United States citizens—even those who are leading efforts to kill innocent Americans. An individual’s interest in making sure that the government does not target him erroneously could not be more significant. Yet it is imperative for the government to counter threats posed by senior operational leaders of al Qaeda, and to protect the innocent people whose lives could be lost in their attacks.

Let me be clear: an operation using lethal force in a foreign country, targeted against a U.S. citizen who is a senior operational leader of al Qaeda or associated forces, and who is actively engaged in planning to kill Americans, would be lawful at least in the following circumstances: First, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States; second, capture is not feasible; and third, the operation would be conducted in a manner consistent with applicable law of war principles.

This sort of thing, along with discussions where the Administration specifically didn't  use lethal force because various legal tests weren't met as applied to various troublesome foreigners in places like Somalia, is fairly reassuring to me.  It turns out that there are rules and restraints, even in the midst of an authorization of force and so forth though you wouldn't know it from certain people.  The reply to this in the article, however, is "It would be difficult to list all of the ways in which Holder’s arguments are disturbing."  Really.  For instance, after all, "the risk of creating political turmoil in Yemen is reason enough to avoid attempting an arrest there," political opposition to trials factored in the decision-making (the book doesn't lead me to think it had a sine qua non effect in any real fashion overall) and some risk of harm (some risk? you mean in isolated areas of Yemen?)  should be acceptable.

On that last point, Congress authorized force against Al Qaeda.  Why should it really be even necessary to risk the life of special forces to avoid the killing of some top operational leader of Al Qaeda?  Why would it be that "disturbing" not to do that?  As to the second concern, given the civil war there is a big factor is advancing the cause of Al Qaeda, putting aside that any decision probably has various factors involved, that isn't really a trivial concern.  Like "well, it might make the leader there look a bit bad, so let's just kill the guy!," isn't quite the deal.

I'm sympathetic to Harold Koh, the liberal professor/activist turned lead legal adviser of the State Department, the department that was most sane in the Bush years.  He was put out there to give a speech to discuss the legality of use of drones [a good summary] and other techniques, noting the authorization of force and the rules of national self-defense.  The latter is well recognized but provide a limited test and Koh argued for a certain degree of risk to the U.S., the book noting he used a "battered wife" rule where the risk need not be then or there, but imminent enough.  Also, the target (let's say Awlaki) has to be senior and directly involved enough.  Rules are somewhat weaker on the traditional battlefield, that is, the Afghan/Pakistani border type situation. 

The book covers various decisions and administration goings on though is not comprehensive -- a lot of focus on Lindsey Graham (who basically turns out to be a false hope) but not too many other political figures. No reference to the attempt by Awlaki's father to go to court to protect his son.  Some emphasis on the attempt to bring KSM to trial in civilian court, something the book basically has blocked by Republican opposition, Democratic weakness and fear of backlash and pragmatic forces in the administration not willing to risk it all though Obama if given his druthers would do it, citing the judge's sentencing statement for Richard Reid:

Here in this court, where we deal with individuals as individuals, and care for individuals as individuals, as human beings we reach out for justice, you are not an enemy combatant. You are a terrorist. You are not a soldier in any war. You are a terrorist. To give you that reference, to call you a soldier gives you far too much stature. Whether it is the officers of government who do it or your attorney who does it, or that happens to be your view, you are a terrorist.

I do wish that would have been what happened.  Basically, and various pathetic Republicans railing against Obama (he led the killing of OBL ... if a Republican was in office, the party would think that alone should guarantee re-election) pissing in their pants about any alleged terrorist being tried in the U.S. ("I'm so scared! keep them away!!!!") didn't help, the nation wasn't mature enough for that sort of thing.  Some want Obama to be above the fray, to be so much better than the nation as a whole, but this is fantasy.  Instead, we have the imperfect system in place and we have to handle the current bunch applying it.

The book is reassuring in the fashion that the current administration applies the rules in a serious and reasonable fashion.  It provides a fairly positive vision (the usual caveats regarding the leanings of the sources) though generally suggests the Obama way is a bit muddled, which seems about appropriate given the messiness of the options.  A brisk read, it is a helpful addition to the literature, providing some details from the inside. The book ends in the early part of 2012, basically in media res, though noting Al Qaeda appears to have been seriously harmed.

But, the "war on terror" or whatever you want to call it has a hydra quality to it.  And, Gitmo is still open ... the final word of the book in fact.  On that front, the book notes the troubling fact that the administration had no good way to deal with captures outside of the traditional battlefield. There, you can put someone in Bagram.  For some, let's say a Somali pirate (not covered in the book), the criminal process is possible.  But, what about someone seized in Somali as some possible terrorist figure?  They managed one capture of such a person and he was nice enough to work with the authorities and he was eventually tried criminally.

Anyway, here's a review from Lawfare, which the book praised as a good source of material.  Let me add that one thing that annoys me is the lack of openness in some ways, though the Koh speech underlines some rules have been publicly discussed.  Jack Goldsmith, e.g., doesn't think it is a problem to release the legal memorandum justifying the Al Awlaki killing.  This moves into the continuance of the state secrets privilege in some blatant ways.  It would be nice also that some more clarity via legislative rules as to capture and international law, but on that front, the book sadly seems accurate that the dark side of politics is the more likely result.

As Ann Romney says, it's hard.  Yeah. 

U.S. names 55 Gitmo prisoners cleared to go

Various blogs I read or have read to my mind have sentiments that do not fairly provide Obama's position on "civil liberties" or more specifically (accurately) national security issues like detention and so forth. This doesn't mean I think the Administration is great on these issues, especially their push for immunity.  But, I still don't like some of the imho slanted (often with a sneer) arguments.  This includes some implication that makes Obama '08 come off as some civil libertarian.  I didn't see it.

There has been to my understanding a move to make public the names of various people detained has been a concern of various litigation for some time and regardless for whatever reason:

The U.S. Government has for the first time issued a public list of Guantanamo prisoners cleared for release or transfer, but who remain at the island prison because of difficulties finding a country willing to take them or because of concerns about sending them to their home countries.

The list shows that 55 (maybe more since some names were left out because of lack of judicial clearance) of 167 still in Gitmo are there because of that reason, Yemen a primary concern given there is no guarantee according to the Administration that people won't just go back to fighting given the state of the country at this time. Sixty eight have been sent back to their countries or some third nation, so the call for resettlement by the ACLU does not mean efforts have not been made.

“Congress has made it impossible for Obama to close Guantanamo,” says Larry Korb, a former assistant secretary of defense under Ronald Reagan.  ”They made it very difficult for him to try people in civilian court.  That has really made it very tough for him to do the things that he would like to do.”

And, the "conflict" at issue here seems to be still ongoing -- that is, the one where force was authorized in 2001 by Congress, Ron Paul voting for it.  So, when people are concerned with "indefinite" detention, what does that necessarily mean?  People are detained in armed conflicts authorized by Congress.  The article references to roadblocks put forth by Congress as does another referenced in a tweet conversation where I also learned about the first article cited.  A lot of blame can be spread around here, Obama's far from great policies at times to the left of his own party in Congress.  The ACLU in that article is cited as putting blame on Congress but noting the buck eventually stops with Obama.  The buck is shared.

It is noted that as compared to 750 detained by Bush that a single person was detained by Obama.  No, his policy has been to kill them.  It is not like the Bush Administration was concerned with trial as such -- GITMO was set up to avoid that sort of thing.  The point of the detention was largely for interrogation. And, there was plenty of killing going on there too -- see Iraq, where Lancet estimated over 100K.* Criticism for Obama's drone policy (drones were around under Bush too)  is valid in some ways, but Iraq and Afghanistan (Obama had his own "surge" there -- no surprise, since he campaigned on it) shows the alternative ways of fighting against the people and groups involved leave something to be desired.

For instance, the operation that targeted Osama bin Laden probably involved "undue risk" to the troops involved, especially when compared with dropping a huge bomb on the house he was living in. The administration seems to be saying it needn't risk an on-the-ground operation when a drone strike will do the trick. (Of course, bombing bin Laden's house would have likely caused civilian casualties, including those of children. )

The problem here is not ultimately Obama in an important sense because the Constitution doesn't just put everything in his hands. Congress authorized military force in 2001 against Al Qaida related groups and if Congress wants, it can declare that conflict over and not authorize funding.  Congress blocked attempts to bring KSM to trial in civilian court; is Obama supposed to go all unilateral and go over its head?  Congress blocked attempts to move people from the middle of nowhere to domestic detention where lawyers and others have easier access and perhaps (being on domestic soil) a clearer case in court (GITMO falls under the Insular Cases type "due process semi-lite" regime).

But, obviously, especially given traditional moves to give executive broad discretion, at least unless you try to bring people into civilian courts or something, Obama has a big role to play here.  Drone attacks are ultimately his responsibility.  They are not "assassinations" unless they do not involve legitimate targets.  OBL, for instance, is someone who can be killed during an armed conflict.  Some civilian deaths could very well be allowable in the process and the way he was killed was particularly yes commendable on that front.  One person kept on harping to me that one of his wives was shot in the leg.  That is the best you got?

Targeting OBL was logical given his importance and similar actions would not be done, thus the use of drone attacks against others even in Pakistan.  The use of drone attacks in the Pakistan/Afghanistan area, a "hot war" zone I would think is hard to see as something illegal.  If we can send troops in, we can bomb people, including more precision bombing than the sort used during WWII.  I don't like it as policy and safeguards might be lacking (human rights officials focus on lack of proper oversight), but that is a lesser thing.  And, in other areas, like Yemen, it would be much harder to send in ground troops.

If we don't like using armed conflict against Al Qaeda, perhaps revoke the authorization.  I personally don't think as a whole the drone strategy was helpful though who knows as to specific cases.  It seems a sort of whack a mole strategy with possible blowback. And, increasing the fighting in Afghanistan (Maddow reported the troop levels have been cut back)  also doesn't appear to have been advisable.  Some involvement with other countries in the Libya civil war was at best questionable and should have required Congress involvement though they themselves play a large part in delegating their powers there, if they were violated. 

But, sadly, this is the mainstream position in D.C. these days.  Just targeting Obama or wondering "what happened to St. Obama who promised a rose garden"  is stupid, especially since he never was really saintly and never promised (all such promises should be taken with a grain of salt anyhow) a rose garden.  And, to the degree he did promise stuff, he did deliver some and Congress blocked him in key ways from doing more.  Again, the net result is some stuff I don't like, but I'm not going to join with the bludgeon approach some prefer either. 

Much props though for all those who stick their necks out and put the Administration and others to the test.  A long lonely fight.

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* [Update]: The perspective of wrong, so to speak, is underlined by a comment made on an interesting Chris Hayes discussion on Sunday that reminded there is a war in Pakistan, against Pakistan. The evidence?  Well, four thousand people were killed since 2006 (note date).  This is serious business, but this is the heart of Al Qaida territory and such, and compare this to the death toll in Iraq.  No, I won't forget the difference.  Even Bush at one point, not in January 2009 at that, spoke about 30K dead. 

To blithely speak of Obama in Glenn Greenwald tones like nothing has changed is aggravating, especially since, let me repeat, I am not a big fan of this approach at all.  Big picture, we can see a united approach, but that sort of thing also misleads, disrespects the actual people harmed. 

Dead Gitmo detainee was cleared for release in 2009

Sigh. On this, GG has some force, though the dissenters are more likely to be "Democrats." As I noted, change of location matters and there is no real way simply to dispose of every resident. They are not all like Latif. For instance, KSM ... just release him or what? But, sometimes, yeah, feels hollow. The defense is but of degree.

"Boumediene Lives to Fight Another Day"

The government had sought to make it more difficult for detainees who lost their habeas cases to continue to see their lawyers and more difficult for those lawyers to advocate for their clients, including by bringing new petitions based, for example, on new information or changed circumstances.

See here and here for a discussion of a recent district ruling in the continuing attempt of Gitmo lawyers to obtain some court access for their clients. The D.C. Court of Appeals, the ultimate authority while the USSC in effect ignores the area, partially because Kagan is recused, leading to likely 4-4 rulings at best even if Kennedy finds some case of overreaching.  The basic right even to bring a petition and the ability to see lawyers concerning the potential needs here (functionally, for those in Gitmo, the second leads from the first) is at stake here. 

Kennedy wrote Boumediene to provide some basic federal judicial oversight, but various D.C. court of appeals judges have little respect for that ruling, applying it in ways many think overly narrow.  Basically, as I have noted in the past, even if you want the President to need to go to court before using drones against people, the result might be more form than substance. Still, there continues to be some protections in place here, limited as they might seem, and the basic right to have lawyers, lawyers who bring their cases to court and to the public's view too puts pressure on the government as well.

This looks to be an important case to the degree it reaffirms the basic principles at place.  As noted in a link, the opinion is well worth reading, clearly and firmly argued.  The opinion reaffirms the fundamental nature of habeas corpus, a check on executive power that goes back to principles set forth in the 13th Century, along with what is needed for it to have much value.  Gitmo defendants aren't going to be able to really bring these things pro se or something.  It cites an interesting case where the USSC protected the right to obtain help from jailhouse inmates, the oral argument here,* and Justice Douglas having a worthwhile concurrence on the need of assistance to defend one's rights, including not only lawyers.

Lawyers are at stake here, but various cases here underline the importance of others as well, including media forces, private organizations and many others. The basic ability to advocate, which includes some access in various respects, follows from this. I would add that this underlines, contra some comments by Glenn Greenwald and the like, something as limited as transporting people from GITMO to domestic maximum security facilities (an Obama proposal blocked on a bipartisan basis) is valuable.  Having people in some facility in Illinois leads to easier access to all. 

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* Good oral argument, including discussing the common law right of layman to assist in petitioning relief (the 1A right to petition was expressly cited and habeas / access to the courts generally is a form of this often ignored aspect of the amendment) with certain exceptions noted. 

Not a BIG Fan, but Welcome to Reality

BTC News et. al. repeatedly railed against Obama's foreign policy and support of big money interests but at some point brings to mind the discussion here, including its more well rounded account of the election of 2008. And, realistically, punishment is impractical. Welcome to the real f-ing world.

NYT Obama Piece of Moment

Many things are depressing, same half true stuff raised each time mixed with the rightful, and it makes reading pretty tiresome. Small circle of topics lead the way here -- same sex marriage, PPACA and Obama's counter-terrorism (sometimes labeled "civil liberties" as if abortion rights etc. is not included there) policy seems to be up on the list. Some coverage of an extended look at Obama's "secret kill list" in the NYT continues the norm.

I made a few comments in two of those links and covered this stuff before.  Don't want to belabor the point, though didn't stop me in the past.  Don't want media articles, with various on the record and off the record sources, to be my primary source of the details though appreciate them all the same.  The Administration, as Jack Goldsmith and others who aren't a bunch of liberal pansies suggest, should release stuff like the legal memorandum (properly redacted) used to justify the killing of an American citizen (you know who I mean) though they had their guy give a speech summarizing things.  The latter suggests why I refuse to buy into the Glenn Greenwald (often with spittle) approach that Obama is useless here.

In an extensive piece Jo Becker and Scott Shane report for The New York Times that Obama has “preserved three major policies – rendition [where prisoners are sent to secretive sites to undergo harsh, often brutal interrogation], military commissions and indefinite detention – that have been targets of human rights groups since the 2001 terrorist attacks.”

The fact is that the Administration has drawn lines here and some of the concern is a result of super-majority efforts like AUMF 2001 (voted by Ron f-ing Paul et. al. -- though, strangely, I'm the only one who seems to know this, given his name keeps on popping up as this great libertarian)  that gives broad discretion.  And, take this quote. That isn't what "rendition" means. 

In law, rendition is a "surrender" or "handing over" of persons or property, particularly from one jurisdiction to another. For criminal suspects, extradition is the most common type of rendition. Rendition can also be seen as the act of handing over, after the request for extradition has taken place.

Extraordinary rendition or rendition without proper procedures and safeguards is the damn problem. But, you know, I'm just an "Obama lover" (more than one person called me that inane term).  Some want Obama to release those in Gitmo or give them civilian trials.  Congress doesn't want to fund the latter, and in various cases, military commissions are appropriate (if done properly).  As to indefinite detention. simply put, putting aside that Congress is hindering the process of detainees, there are a portion that there is in the real world simply no easy way to handle.  Regardless, you are allowed to detain people here until the conflict is over. It isn't over. If you want a damn limit, have Congress pass one.

But, the buck always stops on the person who actually is doing the most (if not enough) in the long run here.  Congress wanted to give him MORE power.  The ACS link quoted GG. Sigh:

Virtually every one of the most far-right neocon Bush officials – including Dick Cheney himself – has spent years now praising Obama for continuing their Terrorism policies which Obama the Senator and Presidential Candidate once so harshly denounced. Every leading GOP candidate except Ron Paul wildly praised Obama for killing U.S. citizen Anwar Awlaki without a shred of due process and for continuing to drop unaccountable bombs on multiple Muslim countries.

Right. That is, other than (see Rachel Maddow) they weren't out there (including father/daughter [not the lesbian one] Cheney) railing against Obama for being too soft.  He has it at both ends, I guess.   What policies are we talking about here? He tried to close GITMO. He tried to have civilian trials.  Obama was never some crystal pure civil libertarian, no matter how many times people put out that strawman.  He set up more rules, denied the "no limits" policy of Yoo/Cheney and so forth.  If Congress et. al. don't want to make him accountable, who's fault is it?  And, does a police who shoots a fleeing suspect within accepted rules have "not a shred of due process"?  Over and over again, b.s.

The tiresome thing is that the policy as a whole can't really be defended.  The problem is multi-fold but to me is largely a matter of policy as an expert quoted in the piece suggested.  It isn't, as Greenwald tweeted as if it was so horrible, that Axelrod is in on the decisions.  Are we not supposed to hope that public opinion serves as a check here?  That's inane.  Do you think politicians don't judge public reaction before they use military force?  Do you think Lincoln didn't?  Did he make public his "kill lists" aka the military targets that would kill Americans, at times civilians? 

LGM (linked above), at least not the tiresome knee-jerk duo, noted:

Jo Becker and Scott Shane’s extensive, extremely useful analysis is not entirely without flaws. There’s a strange bit of Green Laternism where Becker and Shane talk about how Holder and Hillary Clinton wanted to lobby Congress but Obama shut them down — with the implication that this might have made a difference — which is pretty silly. I’d listen to counterfactuals it if the bill passed by a vote or two, but the vote was 90-6; the idea that Clinton and Holder using the BULLY PULPIT could have shifted 54 votes is so implausible as to be self-refuting.

Anyways, there is a lot of power here and there should be more safeguards in place.  It's appreciated the media shines a light.

Tyranny In Action?

The dog squeeze toys are an interesting touch.

Holder Speech on Target Killings etc.

I received a bit of vitriol for partially defending President Obama's authorization of the killing of al-Awlaki, including rejecting the "assassination" tag and some broad "anything goes" tag.

My sentiment is that killing "enemy combatants" (or whatever word is being used now) is authorized by law, judicial precedent and the AUMF 2001 (voted for by the likes of Ron Paul) in particular. "Citizens" are not exempt from this power. This power does not ban specific targeting.  There are various limits to it, including not allowing military force to be used against someone in NJ.  And, ideally, but I don't think it is compelled by current precedent, a citizen should have judicial process of some sort (not that al-Awlaki sought it) before a "kill order" is upheld.

AG Holder spoke about the general issue in a speech along with other stuff.  On that front, I support the release of the legal opinion drafted on targeted strikes with whatever minimal redaction required. Regardless, the speech is appreciated as is this Lawfare analysis of a key portion.

Various people do not appreciate the speech, but as seen by the comments here, there is a certain open ended nature to the criticisms that oversells their case. For instance, one person assumes I support some "war on terror" that was not referenced.  Also, the death penalty is put in the same category as killing people militarily.  This sort of thing just bothers me.  They are not the same thing.  West Wing noted this once and if killing people in our custody for civil crimes is seen as the same thing as killing people in a military conflict for the very reason we cannot get them, well, I'm sorry.  We are simply not on the same page.  They are not the same.  The speech also lists various limits and if people just won't care and will continue talking about unlimited power, it's hard to take it seriously.  Also, some still will argue that this makes opposition to torture of little value, again we have to re-litigate that torture is a unique wrong.

The Lawfare summarizes the rules set forth for targeted killing of citizens, noting that there is some wiggle room, underlining to me the need for a clear legal memorandum on the point and perhaps judicial review:

(i) located abroad rather than in the United States,
(ii) has a senior operational role
(iii) with al Qaeda or an al Qaeda-associated force,
(iv) is involved in plotting focused on the death of Americans in particular,
(v) that threat is “imminent” in the sense that this is the last clear window of opportunity to strike,
(vi) there is no feasible option for capture without undue risk, and
(vii) the strike will comply with the IHL principles of necessity, distinction, proportionality, and humanity.

So, no, the Obama Administration is not saying a citizen can be killed "anywhere" or even that a person could be. I also agree with Holder that the "loaded term" of "assassination" is misplaced here. This is not a matter of me LIKING the use of drones or supporting their use in various cases. Again, this point is treated as basically trivial by some critics, who speak of people like me as "Obama lovers" or those who think Obama can do no wrong etc.  Whatever.  This doesn't change the bottom line. 

Some have argued that the President is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al Qaeda or associated forces.  This is simply not accurate.  “Due process” and “judicial process” are not one and the same, particularly when it comes to national security.  The Constitution guarantees due process, not judicial process.

First, I would note that "due process" also applies to "persons" here, but that citizens should get more protection, including per, e.g. dicta back to the days of The Slaughterhouse Cases, abroad.  Second, in some sense, this must be right -- an obvious case is in the heat of things, including a police chasing a suspect and needing to use lethal force.  A police officer need not first get judicial authorization in each case.  Rules are in place that they must follow and after the fact, redress might be warranted if they are violated.  Authorization is not provided by the people who carry out drone attacks, rules of engagement followed.  Imperfect as they might be, such rules have real teeth in reducing use of force. Oversight also is available and the lack of enough of it is one problem I have with drones. 

Nonetheless, I would probably require more judicial process in this case than offered here, but (as is repeatedly the case) the ideal is not compelled by current precedent. But, you know who DID NOT actually seek judicial process here. And, rules are more lax in "battlefield" conditions, underlining the falsity of open-ended comments about misuse of force, since judicial consent isn't required in the heat of battle etc., even if American citizens are involved. Again, this is not a matter of it being IDEAL to use force.  I also think the AUMF 2001 is woefully overbroad and should be replaced forthwith.  Congress has no interest in so doing.

The current use of force is -- as usual -- is going to lead to excesses but it matters who is in control and what limits are in place.  Over the centuries, the rule of law has put limits on lethal force.  Real effects result even if the result is far from ideal. War remains hell, but if we ignore the various shades of hell out there, why try?  Who cares if Geneva Conventions are in place, since force will still be repeatedly used and many people held in cages for long periods of time?  Continue to press Holder et. al. to go further, but keep some perspective of what the problem truly is.

NDAA Developments

One continuing theme of mine is that criticism of President Obama as little better (or worse) than President Bush just isn't supported by the facts. Some people who should know better have taken their anger or whatever at some of his actions, his inability given various realities or just plain error to lose perspective. I think Obama is a flawed President living in flawed times. That is enough without all the over the top stuff. Are we not supposed to be the reality based community?

The National Defense Authorization Act is an example. An important developments just happened, one that anyone who cares about civil liberties should note while they (like Glenn Greenwald recently did, per usual) sneer at his disrespect for law. As Lawfare, a major resource on such issues, noted:

[T]he Obama Administration issued a policy directive that effectively negates much of the NDAA’s section 1022, the section that purports to require that non-citizens suspected of strong links to terrorism be held in military, rather than civilian, custody. Using a national security rationale, the directive reverses the presumption of military detention that section 1022 had established.

A human rights lawyer noted this along with a Senate bill (credit where credit due, supported by four Republicans) helps "chip way" at the problematic aspects of the NDAA policies involving (so-called) enemy combatant detentions. The former measure:

Drafted in response to concerns that section 1021 of the NDAA authorizes the indefinite military detention of US citizens picked up on US soil, the Due Process Guarantee Act would protect both citizens and lawful permanent residents arrested in the US against being detained indefinitely under a military rationale. It would set a baseline prohibition on indefinite military detention in these cases, allowing it to be used only when Congress explicitly provides for it.

It's nice that four Republicans signed on, but that's but 1/6 of the sponsors. Yet again, one party, with a few exceptions, are on the side of sanity. The fact the Democrats are imperfect is well noted, but perspective warrants keeping that in mind. This is shown by our old friend (and torture supporter; Sen. Franken bluntly says that here) Stephen Bradbury finding (shocker) the bill unconstitutional. Somehow due process protections and setting rules of capture is something Congress does not have the authority or rightful discretion to provide for. The other side really should read the Constitution now and then.

As for President Obama's policy announcement, per Lawfare:

Bottom line: The President has–rightly in my view–read this law virtually out of existence. This is not a breach of faith with Congress, which in negotiations with the administration, so watered the provision down that, as signed, it reasonably lends itself to this reading. In fact, the provision–as Bobby has shown in earlier posts–would actually bear a more aggressive reading than President Obama has given it here.

You know, just like Bush would have done. Now, yes, it is a policy, and President Romney etc. could change it. But, congressional inaction would not have tied his hands there. He still could have under existing law purported to hold citizens, lawful residents and others pursuant to the laws of war or so forth. Wrong or not, the NDAA did not to my understanding do much to add to his power there. As Lawfare noted, it was a bad piece of "symbolism" and in some (not so clear) ways made certain procedures official policy backed by Congress. Not good. Nonetheless, President Obama did something significant here in promotion of civil liberties. Lest we forget it among criticizing those things he did not do. Fair is fair, some people are not.

Meanwhile, some are upset at how President Obama is going after medicinal marijuana dealers in states with permissive laws, after promising not to do so. I have cited this in the past, will forgo linking, but add a comment here pursuant to a somewhat surprising source. "Bill Otis," who provides knee-jerk screeds on a regular basis here, a prosecutor who apparently needs a release valve some place, makes a valid point. President Obama probably honestly made the commitment, but then the excesses of the dealers became too much for him or rather his Justice Department. The article cited after all notes that the more laissez faire approach lasted for two years. It very well might be true that he should have tried harder, but the story to me seems more complicated than some who rail against him as some phony make it out to be.

The times are often depressing and the glass empty sentiments of some are not helping.

Republicans Keep Things Somewhat Interesting

Chris Hayes discussion on Saturday of attack from Gingrich of Romney's business dealings that sounds downright populist suggests as with Ron Paul's criticism of federal power that the field is worth paying attention to even while Huntsman gives up as the only sane alternative to the frontrunner. Gitmo is also discussed.