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Judge Forrest’s Invitation to Congress: Pass the Smith-Amash Amendment

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As I noted yesterday, Judge Katherine Forrest stopped the government from enforcing Section 1021 of last year’s NDAA, because it is having a chilling effect on the First Amendment protected activities of plaintiff’s including Chris Hedges.

There’s an aspect of her ruling that was rather auspiciously timed. Because in addition to enjoining 1021, she invited Congress to fix it.

Accordingly, this Court preliminarily enjoins enforcement of §1021 pending further proceedings in this Court or remedial action by Congress mooting the need for such further proceedings.

As luck would have it, the House is poised to vote today on the Smith-Amash amendment to next year’s NDAA. Their amendment would largely–though perhaps not entirely–“moot the need” for any further proceedings in the Hedges case, because it would eliminate indefinite military detention for those captured in the US.

Reps. Adam Smith (D-Wash.) and Justin Amash [my Rep] are planning to offer an amendment to this year’s defense authorization bill that would guarantee that no one—citizen or otherwise—could be denied a fair trial if captured in the United States. Smith, who is the ranking member of the House Armed Services Committee, will introduce the bill during a hearing Wednesday. Amash has agreed to support it once the defense bill comes to the floor next week, possibly bringing along enough Republican support to ensure its passage in the House.

“The amendment is drafted to prevent the president from indefinitely detaining persons captured on US soil without charge or trial,” said Will Adams, a spokesperson for Amash.

I spoke to Adams last night, and the Amendment is within striking distance of having enough votes to pass–though the House leadership is trying a bunch of stunts to avoid that outcome.

I said passing this Amendment would mostly moot further proceedings. That’s because Forrest issued her injunction covering all the plaintiffs, including people like Brigitta Jonsdottir, who is an Icelandic citizen and has sworn off from traveling to the US because of the NDAA and other Wikileaks related prosecution. Whereas the Smith-Amash amendment would apply to Jonsdottir only if she were in the US; it doesn’t offer any protection to non-citizens outside of the US.

Which means, with her ruling, Forrest has made the Smith-Amash amendment the sensible middle ground (really, it ought to be considered the bare minimum, but even still, before last night it didn’t stand a chance in hell of passing the Senate). That is, it does what most Americans seem to want done to the NDAA, to limit it so it doesn’t apply to them.

In her ruling, Forrest made it clear she tried to offer the government an easy way to help her avoid enjoining this section.

The Court’s attempt to avoid having to deal with the Constitutional aspects of the challenge was by providing the Government with prompt notice in the form of declarations and depositions of the precise conduct in which plaintiffs are involved and which they claim places them in fear of military detention. To put it bluntly, eliminating these plaintiffs’ standing simply by representing that their conduct does not fall within the scope of § 1021 would have been simple. The Government chose not to do so–thereby ensuring standing and requiring this Court to reach the merits of the instant motion.

She also made it clear she’d welcome Congress fixing the problem. Let’s see if they do so today.

Judge Enjoins NDAA Section 1021 because Government Implies Speech May Equal Terrorism

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The Court then asked: Give me an example. Tell me what it means to substantially support associated forces.

Government: I’m not in a position to give specific examples.

Court: Give me one.

Government: I’m not in a position to give one specific example.

When Judge Katherine Forrest asked the government, repeatedly, for both generalized clarification and descriptions specific to plaintiffs like Chris Hedges and Brigitta Jonsdottir explaining the scope of Section 1021 of the NDAA, the government refused to give it. Not only was the government unwilling to reassure that even a Pulitzer Prize winning journalist like Hedges would not be indefinitely detained as “a person who was part of or substantially supported al-Qaeda, the Taliban, or associated forces” if he reported on any number of terrorist groups, but it also refused to explain the meaning of the section generally.

Which is the core reason why Forrest not only ruled that the plaintiffs have standing and the case should go forward, but also enjoined any enforcement of Section 1021. In explaining this, she noted that she was forced by the government’s refusal to give clarification to assume that the government believes First Amendment speech is included in the orbit of “substantially supported” that might be indefinitely held under 1021.

It must be said that it would have been a rather simple matter for the Government to have stated that as to these plaintiffs and the conduct as to which they would testify, that § 1021 did not and would not apply, if indeed it did or would not. That could have eliminated the standing of these plaintiffs and their claims of irreparable harm. Failure to be able to make such a representation given the prior notice of the activities at issue requires this Court to assume that, in fact, the Government takes the position that a wide swath of expressive and associational conduct is in fact encompassed by § 1021.

[snip]

This Court is left then, with the following conundrum: plaintiffs have put forward evidence that § 1021 has in fact chilled their expressive and associational activities; the Government will not represent that such activities are not covered by § 1021; plaintiffs’ activities are constitutionally protected. Given that record and the protections afforded by the First Amendment, this Court finds that plaintiffs have shown a likelihood of succeeding on the merits of a facial challenge to § 1021.

I spent much of the day explaining to people why Obama’s Yemen EO is so troubling. I’ve had to describe all the things that have transpired that have criminalized speech since Obama issued a similar EO in 2010–the decision in Holder v. Humanitarian Law Project, the conviction of Tarek Mehanna, and the charging of Bradley Manning with aiding the enemy.

Now I can point to Forrest’s opinion to show that the proposition that journalists might be prosecuted for material support of terrorism for their First Amendment speech–to the extent it’s an extreme proposition–it is the government’s extreme proposition.

Forrest used the government’s stubbornness against it in one other way, too–to get past the rather high bar on whether to issue a preliminary injunction or not. The decision on whether to issue an injunction or not depends on a lot of things. But ultimately, it requires a balancing test between the hardships imposed on the plaintiff and the defense. And since–Forrest explained–the government repeatedly insisted that Section 1021 does no more or less than what the AUMF already does, then enjoining the enforcement of 1021 would not harm the government at all.

In considering whether to issue a preliminary injunction, the Court must consider, as noted above, “the balance of the hardships between the plaintiff and defendant and issue the injunction only if the balance of the hardships tips in the plaintiff’s favor.” Salinger, 607 F.3d at 80.

The Government’s primary argument in opposition to this motion is that § 1021 is simply an affirmation of the AUMF; that it goes no further, it does nothing more. As is clear from this Opinion, this Court disagrees that that is the effect of § 1021 as currently drafted. However, if the Government’s argument is to be credited in terms of its belief as to the impact of the legislation–which is nil–then the issuance of an injunction should have absolutely no impact on any Governmental activities at all. The AUMF does not have a “sunset” provision: it is still in force and effect. Thus, to the extent the Government believes that the two provisions are co-extensive, enjoining any action under § 1021 should not have any impact on the Government.

While most of Forrest’s ruling involved hoisting the government on its own obstinate petard, she also left a goodie in her ruling for the higher courts that will surely review her decision after the government surely appeals (unless Congress passes a fix to the NDAA tomorrow, as they might). Forrest established the importance of speech by pointing to … Anthony Kennedy’s opinion in Citizens United.

In Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010), Justice Kennedy wrote that “[s]peech is an essential mechanism of democracy, for it is the means that hold officials accountable to the people . . . . The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a pre-condition to enlightened self-government.” Id. at 899. Laws that burden political speech are therefore subject to strict scrutiny. Id. at 898. “The First Amendment protects speech and speaker, and the ideas that flow from each.” Id. at 899.

If corporations can avail themselves of unlimited campaign speech, then mere journalists and activists ought to be able to engage in political speech without being indefinitely detained.

And yet, it took a judge to make that argument to the government.

DOD: Consider Whether We’ve Made Detainees Crazy in Periodical Review

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Section 1023 of the Defense Authorization mandated that the Administration tell Congress how it was implementing Obama’s Executive Order providing periodic review of Gitmo detainees’ continued need to be detained.

SEC. 1023. PROCEDURES FOR PERIODIC DETENTION REVIEW OF INDIVIDUALS DETAINED AT UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA.

(a) PROCEDURES REQUIRED.—Not later than 180 days after the date of the enactment of this Act, the Secretary of Defense shall submit to the appropriate committees of Congress a report setting forth procedures for implementing the periodic review process required by Executive Order No. 13567 for individuals detained at United States Naval Station, Guantanamo Bay, Cuba, pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note).

Here’s the directive complying with that requirement.

I’ll have plenty to say about it. But for the moment, I got hung up on this:

3. STANDARD. Continued law of war detention is warranted for a detainee subject to periodic review if such detention is necessary to protect against a continuing significant threat to the security of the United States. In making that assessment, the PRB may review all relevant materials including information from the final Task Force assessments produced pursuant to Reference (k); the work product of a prior PRB; or any relevant intelligence produced subsequent to either. Application of this standard is specifically not intended to require a re-examination of the underlying materials that supported the work products of either Reference (k) or a prior PRB and is not intended to create a requirement that each PRB conduct a zero-based review of all original source materials concerning a detainee. In assessing whether a detainee continues to meet this standard, the PRB may consider:

[snip]

(6) The detainee’s physical and psychological condition.

We know, of course, that there are a number of people at Gitmo–starting with Abu Zubaydah and Mohammed al-Qahtani–we’ve driven completely insane with our torture and abuse, who we can’t try but also can’t release (not that we’d release either of these two anyway).

But this seems to be a tacit admission that we won’t release people we’ve driven crazy. Because, Freedom!, I guess. So are we now saying that because our treatment has made them insane we will now use that as reason to keep them in custody?

Though maybe once these guys get to be so old they’re having health problems, maybe then we’ll finally release them.

Did Dianne Feinstein’s “Fix” on AUMF Language Actually Authorize Killing American Citizens?

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To explain why it caved on its Defense Authorization veto threat, the Obama Administration had the following to say about the affirmation of detention authority.

Ensuring that we track current law and minimize risks associated with legislating on AUMF:

Made our requested modifications to the provision that codifies military detention authority under the September 2001 Authorization for Use of Military Force.  Though this provision remains unnecessary, the changes ensure that we are merely restating our existing legal authorities and minimize the risk of unnecessary and distracting litigation.

That is, the Administration says its past complaints about the AUMF language have been addressed.

On November 17, when Obama issued his veto threat, the AUMF language said:

Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107-40) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.

COVERED PERSONS–A covered person under this section is any person as follows:

(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.

(2) A person who was part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or who has supported such hostilities in aid of such enemy forces.

[snip]

(d) CONSTRUCTION.–. Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.

The language of the conference bill Obama says he won’t veto says:

Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107-40) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.

COVERED PERSONS–A covered person under this section is any person as follows:

(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.

(2) A person who was part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or who has supported such hostilities in aid of such enemy forces.

[snip]

(d) CONSTRUCTION.–. Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.

If you haven’t figured it out, the specific language relating to the terms of the AUMF remains precisely the same.

In other words, Congress made no substantive changes to the AUMF language between the time the Administration issued its veto threat and the time it withdrew the threat.

And yet, when Obama issued his veto threat, he had this complaint about it.

Section 1031 attempts to expressly codify the detention authority that exists under the Authorization for Use of Military Force (Public Law 107-40) (the “AUMF”).  The authorities granted by the AUMF, including the detention authority, are essential to our ability to protect the American people from the threat posed by al-Qa’ida and its associated forces, and have enabled us to confront the full range of threats this country faces from those organizations and individuals.  Because the authorities codified in this section already exist, the Administration does not believe codification is necessary and poses some risk.  After a decade of settled jurisprudence on detention authority, Congress must be careful not to open a whole new series of legal questions that will distract from our efforts to protect the country.  While the current language minimizes many of those risks, future legislative action must ensure that the codification in statute of express military detention authority does not carry unintended consequences that could compromise our ability to protect the American people.

There are two explanations for why Obama backed off his veto threat on this point, then. First, we know the Administration did make a request regarding the language in the AUMF clause, though before it issued its veto threat.

As I reported last month, the big change between the original language and the Senate bill in this clause was the removal of the language exempting US citizens from indefinite detention. And that was a change made at the request of the Administration.

The initial bill reported by the committee included language expressly precluding “the detention of citizens or lawful resident aliens of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.”  The Administration asked that this language be removed from the bill. [my emphasis]

So maybe Obama backed off his veto threat because the final bill didn’t specifically exempt Americans from indefinite detention.

There’s the one other change made to this section between Obama’s veto threat and and his retraction of that threat today. DiFi’s cop-out language:

(e) AUTHORITIES–Nothing in this section shall be constructed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.

The only thing that changed between Obama’s veto threat and his retraction of his threat–though it was depicted as a sop to civil libertarians worried about indefinite detention–is DiFi’s language.

And while DiFi’s amendment seems somewhat duplicative of the “CONSTRUCTION” language–reiterating Obama’s authority under the Afghan AUMF–it is actually more than that. To some degree, it accomplishes the same thing Mark Udall’s wrong-headed amendment did: not only reaffirm the President’s authority under the Afghan AUMF, but also the Iraq AUMF and “any other statutory or constitutional authority” regarding detention.

(2) The Authorization for Use of Military Force Against Iraq Resolution 2002 (Public Law 107-243).

(3) Any other statutory or constitutional authority for use of military force.

As I’ve noted, the Iraq AUMF has served to generalize Presidential claims to war powers against terrorists who have no ties to al Qaeda since at least 2004.

And while the Afghan AUMF and Hamdi and Quirin were–according to Charlie Savage–the primary bases claimed for the Administration’s authority to kill Anwar al-Awlaki (in spite of the fact that AQAP did not exist, and therefore should not really be included in, the 2001 AUMF), the Administration also relied on two SCOTUS cases approving of the use of “deadly force” to prevent the escape of even unarmed suspects who might pose a “significant threat of death or serious physical injury” to others (even if only to the cop using the deadly force).

It also cited several other Supreme Court precedents, like a 2007 case involving a high-speed chase and a 1985 case involving the shooting of a fleeing suspect, finding that it was constitutional for the police to take actions that put a suspect in serious risk of death in order to curtail an imminent risk to innocent people.

The document’s authors argued that “imminent” risks could include those by an enemy leader who is in the business of attacking the United States whenever possible, even if he is not in the midst of launching an attack at the precise moment he is located.

In other words, by affirming all purportedly existing statutory authority, DiFi’s “fix” not only reaffirmed the AUMF covering a war Obama ended today, but also affirmed the Executive Branch’s authority to use deadly force when ostensibly trying to detain people it claims present a “significant threat of death or serious physical injury.” It affirms language that allows “deadly force” in the name of attempted detention.

In any case, it’s one or the other (or both). Either the AUMF language became acceptable to Obama because it included American citizens in the Afghan AUMF and/or it became acceptable because, among other things, it affirmed the Executive Branch’s authority to use deadly force in the guise of apprehending someone whom the Executive Branch says represents a “significant threat.”

My guess is the correct answer to this “either/or” question is “both.”

So DiFi’s fix, which had the support of many Senators trying to protect civil liberties, probably made the matter worse.

In its more general capitulation on the veto, the Administration stated that the existing bill protects the Administration’s authority to “incapacitate dangerous terrorists.” “Incapacitate dangerous terrorists,” “use of deadly force” with those who present a “significant threat of death or serious physical injury.” No matter how you describe Presidential authority to kill Americans with no due process, the status quo appears undiminished.

Update: I added “among other things” because the statutes the Executive Branch has relied on include a bunch of other things besides just the “deadly use of force.”

Defense Authorization Conference Makes Few Changes to Detainee Provisions

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According to a press release from Senator Levin’s office, the conference on the Defense Authorization has made few changes to the detainee provisions institutionalizing military detention of alleged terrorists.

With regards to Section 1031, which authorized the indefinite detention of alleged terrorists, the conference bill,

Reaffirm[s] the military’s existing authority to detain individuals captured in the course of hostilities conducted pursuant to the Authorization for the Use of Military Force. No change has been made to the Senate version of this provision, which confirms that nothing in the provision may be “construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.”

Section 1032, which mandates presumptive military detention, adds language purporting not to change FBI’s national security authorities (though I don’t understand how that could practically be the case).

Require military detention – subject to a Presidential waiver – for foreign al Qaeda terrorists who attack the United States. This provision specifically exempts United States citizens and lawful resident aliens, authorizes transfer of detainees to civilian custody for trial in civilian court, and leaves it up to the President to establish procedures for determining how and when persons determined to be subject to military custody would be transferred, and to ensure that such determinations do not interfere with ongoing intelligence, surveillance, or interrogation operations. Language added in conference confirms that nothing in the provision may be “construed to affect the existing criminal enforcement and national security authorities of the Federal Bureau of Investigation or any other domestic law enforcement agency with regard to a covered person, regardless whether such covered person is held in military custody.” [my emphasis]

And the conference does change the breathtaking limits on Attorney General authority in the Senate bill I laid out here, apparently adopting the House formulation of requiring the AG to ask permission of the Defense Secretary before the AG does his or her job.

Require the Attorney General to consult with the Secretary of Defense before prosecuting a foreign al Qaeda terrorist who is determined to be covered under the previous section, or any other person who is held in military custody outside the United States, on whether the more appropriate forum for trial is a federal court or a military commission and whether the individual should be held in civilian or military custody pending trial.

It seems to me the language does enough to avoid a veto from the cowardly Obama, but still does terrible damage to both the clarity of national security roles and overall investigative expertise.

Serial Abuser of Executive Branch “Flexibility,” John Brennan, Making Veto Case on Detainee Provisions

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I have already said I think Obama needs to veto the Defense Authorization because of the detainee provisions. And I have argued that the Administration needs to lay the groundwork for doing so right now, preferably by fear-mongering about how much less safe presumptive military detention would make us.

Obama claims he’s still going to veto the Defense Authorization because of these detainee provisions. Good. I think he should. But if he really plans to do so, someone needs to be fear-mongering 24/7 about how much less safe these provisions will make us (and they will).

But I’m dismayed the Administration has chosen John Brennan, of all people, to do so. (h/t Ben Wittes)

The Administration has chosen someone who served as a top CIA executive during the period it developed its torture program to go out and argue the Executive Branch needs “flexibility” in detention to collect intelligence.

And so, what we’ve tried to do in this administration is to maintain as much flexibility as possible. And anything that restricts our flexibility in terms of how we want to detain them, question them, prosecute them is something that counterterrorism professionals and practitioners really are very concerned about.

[snip]

What we want to do is to extract the intelligence from them so that we can keep this country safe. We cannot hamper this effort. It’s been successful to date and this legislation really puts that at risk. [my emphasis]

We let a President have that kind of unrestricted flexibility on how to detain suspected terrorists and he used it to order Brennan’s agency to engage in torture.

But it’s not just with torture that John Brennan has been party to the Executive Branch’s abuse of this kind of unfettered “flexibility” in the past.

As I’ve pointed out, one of the problems (for the Administration) with the AUMF-affirming language in the Senate detainee provisions is that it may circumscribe the Administration’s ability to claim that terrorists with no ties to al Qaeda are legitimate military targets. That broader interpretation, relying on the Iraq AUMF, was implemented in 2004 to authorize things that presumably were already being done with the illegal wiretap program. When that May 2004 opinion was written, John Brennan oversaw the targeting–relying on that expansive definition–for the illegal wiretap program.

And then there’s the Administration’s insistence that no court should be able to review their decisions about who is and is not an enemy under the AUMF and whether those enemies represent an imminent threat. They prevented such a review with Anwar al-Awlaki, in part, by invoking state secrets over the precise terms at issue in the detainee language. Yet after the Administration killed Awlaki, Administration officials spilled state secrets repeatedly, at times solely to boast about the kill. Brennan even provided details covered under state secrets declarations on the record. The Administration’s badly hypocritical approach to secrecy in the case of Awlaki, particularly its failure to prosecute John Brennan for leaking state secrets, makes it clear their state secrets invocation had nothing to do with national security, but instead had to do with remaining free from any oversight–with retaining the maximum “flexibility,” if you will–over precisely the issues at the core of the detainee provisions. And as with torture and illegal wiretapping, John Brennan was at the center of that gross abuse of executive power as well.

There are some superb reasons to veto the Defense Authorization because of the detainee provisions: largely because DOJ has proven best able to interrogate and prosecute terrorists in the last decade. And there are some horrible reasons to do so: to allow the Executive Branch to continue to wield expanded powers with almost no oversight.

John Brennan is, in this Administration at least, the personification of all the horrible reasons.

Update: The AP reports the Administration is conducting a “full court press” to get changes to the bill. But look at what they point to to justify their “flexibility:”

The administration insists that the military, law enforcement and intelligence agents need flexibility in prosecuting the war on terror. Obama points to his administration’s successes in eliminating Osama bin Laden and al-Qaida figure Anwar al-Awlaki. Republicans counter that their efforts are necessary to respond to an evolving, post-Sept. 11 threat, and that Obama has failed to produce a consistent policy on handling terror suspects. [my emphasis]

Frankly, they’d probably be able to assassinate Awlaki under the new bill. But it’s telling they point to it–based as it is on their ability to interpret the AUMF in secrecy and with no oversight–as their justification for “flexibility.”

Why the Iraq AUMF Still Matters

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The big headline that came out of yesterday’s American Bar Association National Security panels is that DOD General Counsel Jeh Johnson and CIA General Counsel Stephen Preston warned that US citizens could be targeted as military targets if the Executive Branch deemed them to be enemies.

U.S. citizens are legitimate military targets when they take up arms with al-Qaida, top national security lawyers in the Obama administration said Thursday.

[snip]

Johnson said only the executive branch, not the courts, is equipped to make military battlefield targeting decisions about who qualifies as an enemy.

We knew that. Still, it’s useful to have the Constitutional Lawyer President’s top aides reconfirm that’s how they function.

But I want to point to a few other data points from yesterday’s panels (thanks to Daphne Eviatar for her great live-tweeting).

First, Johnson also said (in the context of discussions on cyberspace, I think),

Jeh Johnson: interrupting the enemy’s ability to communicate is a traditionally military activity.

Sure, it is not news that the government (or its British allies) have hacked terrorist “communications,” as when they replaced the AQAP propaganda website, “Insight,” with a cupcake recipe (never mind whether it’s effective to delay the publication of something like this for just one week).

But note what formula Johnson is using: they’ve justified blocking speech by calling it the communication of the enemy. And then apparently using Jack Goldsmith’s formulation, they have said the AUMF gives them war powers that trump existing domestic law, interrupting enemy communications is a traditional war power, and therefore the government can block the communications of anyone under one of our active AUMFs.

Johnson also scoffed at the distinction between the battlefield and the non-battlefield.

Jeh Johnson: the limits of “battlefield v. Non battlefield is a distinction that is growing stale.” But then, it’s not a global war. ?

Again, this kind of argument gets used in OLC opinions to authorize the government targeting “enemies” in our own country. On the question of “interrupting enemy communication,” for example, it would seem to rationalize shutting down US based servers.

Then, later in the day Marty Lederman (who of course has written OLC opinions broadly interpreting AUMF authorities based on the earlier Jack Goldsmith ones) acknowledged that Americans aren’t even allowed to know everyone the US considers an enemy.

Lederman: b/c of classification, “we’re in armed conflicts with some groups the American public doesn’t know we’re in armed conflict with.”

Now, as I’ve noted, one of the innovations with the Defense Authorization passed yesterday is a requirement that the Executive Branch actually brief Congress on who we’re at war with, which I take to suggest that Congress doesn’t yet necessarily know everyone who we’re in “armed conflict” with.

Which brings us to how Jack Goldsmith defined the “terrorists” whom the government could wiretap without a warrant.

the authority to intercept the content of international communications “for which, based on the factual and practical considerations of everyday life on which reasonable and prudent persons act, there are reasonable grounds to believe … [that] a party to such communication is a group engaged in international terrorism, or activities in preparation therefor, or any agent of such a group,” as long as that group is al Qaeda, an affiliate of al Qaeda or another international terrorist group that the President has determined both (a) is in armed conflict with the United States and (b) poses a threat of hostile actions within the United States;

It’s possible the definition of our enemy has expanded still further since the time Goldsmith wrote this in 2004. Note Mark Udall’s ominous invocation of “Any other statutory or constitutional authority for use of military force” that the Administration might use to authorize detaining someone. But we know that, at a minimum, the Executive Branch used the invocations of terrorists in the Iraq AUMF–which are much more generalized than the already vague definition of terrorist in the 9/11 AUMF–to say the President could use war powers against people he calls terrorists who have nothing to do with 9/11 or al Qaeda.

So consider what this legal house of cards is built on. Largely because the Bush Administration sent Ibn Sheikh al-Libi to our Egyptian allies to torture, it got to include terrorism language in an AUMF against a country that had no tie to terrorism. It then used that language on terrorism to justify ignoring domestic laws like FISA. Given Lederman’s language, we can assume the Administration is still using the Iraq AUMF in the same way Goldsmith did. And yet, in spite of the fact that the war is ending, we refuse to repeal the AUMF used to authorize this big power grab.

Ayotte’s Pro-Torture Amendment Referred to Conference

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Update: Adam Serwer informs me that I misunderstood what happened in the colloquy where this was discussed. Ayotte’s pro-torture amendment was withdrawn.

I apologize for my error.

As Jeff Kaye laid out here, Kelly Ayotte submitted an amendment to the Defense Authorization that would override Obama’s Executive Order eliminating torture (the language of the amendment is below).

I had thought the amendment would get a vote, be easily defeated, and be history.

But instead, the amendment got referred to the conference that will work out differences between the House and Senate bills.

Now, normally, I’d assume this is a convenient way to get rid of it. But given that the amendment would presumably have been voted down by the Senate, I worry that this effectively keeps it alive to be put in the larger package. Then, members of the House and Senate will vote for the whole package (not wanting to defeat the whole defense authorization). Who knows, maybe they’ll stick it in the classified section of the bill, so none of us will be able to prove that our members of Congress are voting for torture?

Such decisions get made by the sponsor of a bill–in this case, Carl Levin. And they rarely get made without the assent of the Administration.

While it’s not clear what will happen to Ayotte’s amendment–and to our brief efforts to stop torturing–the fact that it won’t be defeated by a upperdown vote bodes ill.

Read more →

It’s the Zenith-Limiting War Declaration, Not the Detainee Restrictions, Obama Wants to Veto

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A bit of a parlor game has broken out over whether Obama really means his veto threat over the detainee provisions of the Defense Authorization. Josh Gerstein weighed in here, including a quote from John McCain accusing the Administration of ratcheting up the stakes.

It’s also clear that, whether for political reasons or due to some complex internal dynamics, the administration seems at this point willing to put up more of a public fight over detainee-related strictures than it has in the past. However, whether that will ultimately translate to a willingness to blow up the defense bill with a veto is unclear. At least some lawmakers seem to view the threats as bluster, in light of the president’s track record.

As McCain said Thursday: “The administration ratcheted up the stakes…with a threat of a veto. I hope they are not serious about it. There is too much in this bill that is important to this Nation’s defense.”

The veto threat is probably tied to the new AUMF language

But I think Gerstein has the dynamic wrong–and his claim that this veto threat represents more public fight than he has shown in the past is flat out wrong. You see, Gerstein’s making the claim based on the assertion that the fight is over the Administration’s authority to move and try detainees as it sees necessary.

In the past three years, President Barack Obama’s administration has been in numerous public skirmishes with Congressional Republicans over legislation intended to limit Obama’s power to release Al Qaeda prisoners, move them to the U.S. and decide where they should face trial.

[snip]

A couple of thoughts on the dust-up: Obama has already signed legislation putting limits on releases of detainees. While officials said at the time that the White House would oppose similar proposals in the future, it is clear that as a practical matter those limits have now become the baseline for those in Congress. [my emphasis]

Gerstein’s right that Obama stopped short of vetoing the Defense Authorization last year, which had those limits, instead issuing a signing statement.

Despite my strong objection to these provisions, which my Administration has consistently opposed, I have signed this Act because of the importance of authorizing appropriations for, among other things, our military activities in 2011.

Nevertheless, my Administration will work with the Congress to seek repeal of these restrictions, will seek to mitigate their effects, and will oppose any attempt to extend or expand them in the future.

And Obama didn’t issue a veto threat on similar restrictions place on DHS funding.

But Obama has issued a veto threat on “detainee and related issues” before–on Buck McKeon’s version of the Defense Authorization in May. That version added a couple of things to last year’s Defense Authorization: More limits on when the government can use civilian courts to try terrorists, limits on the detainee review system beyond what Obama laid out in an Executive Order last year.

And this language:

Congress affirms that—

(1) the United States is engaged in an armed conflict with al-Qaeda, the Taliban, and associated forces and that those entities continue to pose a threat to the United States and its citizens, both domestically and abroad;

(2) the President has the authority to use all necessary and appropriate force during the current armed conflict with al-Qaeda, the Taliban, and associated forces pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 15 1541 note);

(3) the current armed conflict includes nations, organization, and persons who—

(A) are part of, or are substantially supporting, al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners; or

(B) have engaged in hostilities or have directly supported hostilities in aid of a nation, organization, or person described in subparagraph (A); and

(4) the President’s authority pursuant to the Authorization for Use of Military Force (Public Law 3 107–40; 50 U.S.C. 1541 note) includes the authority to detain belligerents, including persons described in paragraph (3), until the termination of hostilities.

The current bill is less harsh on several counts than McKeon’s language: it includes a series of waivers to bypass military detention and lets the Administration write procedures for determining who qualifies as a terrorist. While these loopholes require the Administration to do more paperwork, they still allow it to achieve the status quo if it does use those loopholes.

But it still includes very similar to McKeon’s defining this war.

Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107-40) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.

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Next They’ll Put Gitmo Transfer Prohibitions on USDA Funding

/in , /by

A number of people have commented on the Obama Administration’s statement of opposition to a ban on Department of Homeland Security funding for Gitmo detainee transfers. Here’s Benjamin Wittes:

The administration just issued a Statement of Administration Policy on a DHS appropriations bill (H.R. 2017), which contains a spending restriction similar to one of the Guantanamo transfer restrictions that provoked the administration’s recent veto threat with respect to the McKeon legislation. Yet oddly, this time, there is no veto threat.

[snip]

I can think of two possible explanations beyond mere clerical error: First, and I certainly hope this is not the explanation, perhaps the administration is backing off the veto threat. Second, perhaps the transfer restrictions with respect to domestic civilian trials are only veto-worth in combination with the other (from the administration’s point of view) objectionable features of the McKeon bill but are on their own merely worthy of opposition.

In any event, it’s a little puzzling.

And here’s Josh Gerstein:

The view that Obama suddenlty toughening his line against Congressional efforts to constrain his authority to prosecute and move detainees gathered steam just last week when the administration threatened a veto of the Department of Defense Authorization bill over detainee-related provisions including one that appears to prevent any war-on-terror detainee placed in U.S. military custody from ever being transferred to the U.S.

However, the details of what precise measures or combination of measures would trigger a veto from Obama was unclear in the statement on the latest DoD bill, perhaps deliberately so. The official administration statement on the Homeland Security bill appears to indicate that a simple re-upping of the restrictions Obama signed with some complaints in December won’t be enough by itself to get a bill vetoed.

Now, I frankly agree with Josh that the Defense Authorization was designed, in part, for maximum ambiguity about what might draw a veto.

But I think there’s an even easier two-part explanation for not issuing a veto threat here.

This is the Department of Homeland Security appropriation. DHS doesn’t exactly have primary jurisdiction over detainee affairs. And all this does is reaffirm the status quo (albeit without time limits).

Now, as Daphne Eviatar has pointed out to me via email, the language purports to apply to the DHS appropriation as well as any other act.

SEC. 537

None of the funds appropriated or otherwise made available in this or any other Act may be used to transfer, release, or assist in the transfer or release to or within the United States, its territories, or possessions, including detaining, accepting custody of, or extending immigration benefits to, Khalid Sheikh Mohammed or any other detainee who—

(1) is not a United States citizen or a member of the Armed Forces of the United States; and

(2) is or was held on or after June 24, 2009, at the United States Naval Station, Guantanamo Bay, Cuba, by the Department of Defense. [my emphasis]

So I suppose Congress could argue that this language governs all appropriations bills, including DOD and DOJ appropriations that would actually come into play in detainee affairs. And if so, it would eliminate one of the loopholes the ACLU pointed out in the language in the Defense Authorization for this year, which Obama already signed, which only prohibited the use of DOD funds, but not DOJ funds.

SEC. 1032. PROHIBITION ON THE USE OF FUNDS FOR THE TRANSFER OR RELEASE OF INDIVIDUALS DETAINED AT UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA.

None of the funds authorized to be appropriated by this Act for fiscal year 2011 may be used to transfer, release, or assist in the transfer or release to or within the United States, its territories, or possessions of Khalid Sheikh Mohammed or any other detainee who—

(1) is not a United States citizen or a member of the Armed Forces of the United States; and

(2) is or was held on or after January 20, 2009, at United States Naval Station, Guantanamo Bay, Cuba, by the Department of Defense.

Yet Obama’s opposition to this amendment seems like a repeat of the status quo that already exists, with the White House complaining but not vetoing the restriction.

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