Tag Archives: war on terror

Another Obama Collision With the Constitution

By MICHAEL B. MUKASEY and DAVID B. RIVKIN JR.

President Obama last week sent to Congress a draft resolution regarding an authorization for use of military force, or AUMF, against the terrorist group Islamic State. Although presidents have constitutional power to defend American national-security interests, seeking an AUMF is both constitutional and sound. The measure enables Congress to show its support for military efforts and encourages public approval of them. From the nation’s founding, dozens of AUMFs have been enacted. The 2001 resolution authorizing war against al Qaeda and its affiliates and the 2002 authorization of the Iraq war are only the most recent.

AUMFs also have legal significance. They buttress the president’s powers and, consistent with Supreme Court precedent, provide legal support when such aspects of war-fighting as electronic surveillance, detention of enemy combatants and use of deadly force against American nationals who have joined the enemy are challenged in court.

One can argue whether Congress’s constitutional power to declare war serves principally to distinguish formally among enemies, friends and neutrals, or has broader effect. However, AUMFs have become particularly important in the aftermath of the 9/11 terror attacks, as federal courts have involved themselves to an unprecedented degree in scrutinizing such activities. The relevant judicial decisions often cite the existence of an AUMF.

Despite the benefits of traditional AUMFs, President Obama’s proposal is fundamentally flawed. Attempting to obtain political cover for his strategy to fight Islamic State, also known as ISIS or ISIL, he has asked Congress to ban “enduring offensive ground operations” and to terminate the authorization after three years.

Congress cannot restrain the president’s core constitutional authority to wage war, even when congressionally imposed restrictions are minor—as was true with 2001 legislation that purported to limit the president’s authority to place U.S. armed forces under the command of foreign officers as part of U.N. peacekeeping missions. Congress did not bar the president from placing U.S. troops under foreign command, but merely required that certain procedures be followed in such cases. Even so, the Justice Department’s Office of Legal Counsel correctly concluded that “it is unconstitutional for Congress to place conditions, whether substantive or procedural, on the president’s exercise of his constitutional authority as Commander-in-Chief.”

Every president from Richard Nixon on has maintained that the 1973 War Powers Resolution, requiring that the president notify Congress within 60 days of committing U.S. troops abroad, is unconstitutional. Yet each president also has—voluntarily—complied with it. Except President Obama, who directed U.S. military intervention in Libya and claimed that the 1973 law did not apply because the effort was too limited to be called a “war.” Yet now the Obama AUMF purports to impose major constraints on the president’s commander-in-chief authority—both his own, and his successors’.

The Founders were careful to vest responsibility for waging war in a unitary executive, rather than in a multimember legislature. They made the decision based on their historical knowledge that the unity of command is the prerequisite for military success, and on their own experience during the Revolutionary War—which had been managed by committees of the Continental Congress. James Wilson, among the most learned lawyers of the Founding generation, reasoned that, with a unitary executive “[w]e secure vigor. We well know what numerous executives are. We know there is neither vigor, decision nor responsibility in them.”

The Founders also trusted in the power of political accountability, which is why they decisively rejected an executive branch composed of a president and executive council in favor of the unitary executive branch we now enjoy. In Federalist No. 70, Alexander Hamilton observed that political accountability can exist only if the president cannot shift responsibility for his actions onto others: “It often becomes impossible, amid mutual accusations, to determine on whom the blame of punishment of pernicious measures, ought really to fall.” The public, he concluded, would be “left in suspense about the real author” of bad policy.

If Congress were to limit President Obama’s commander-in-chief power by banning what his resolution calls “enduring offensive combat operations”—whatever that means—Congress would effectively operate as an executive council to Mr. Obama, allowing him to evade accountability for his halfhearted prosecution of war against ISIS. It is bad enough that legislation to tie a president’s hands is being proposed by a president. That it is proposed by this president, who has been so willing to exceed his constitutional authority in domestic affairs—by rewriting immigration laws, anti-narcotics laws, ObamaCare and so on—underscores the administration’s cynicism and its disdain for the Constitution.

If Congress buys into this presidential plan it will set a dangerous precedent that might do lasting damage to the separation of powers. With the two political branches seemingly in accord on joint responsibility for waging war, the federal courts might bless this arrangement, handicapping future presidents.

In recent years, congressional Democrats have been content to accommodate President Obama, whether he chose to enlarge the president’s constitutional prerogatives or diminish them. Congressional Republicans, having chosen to litigate against President Obama when he invaded Congress’s lawmaking authority by rewriting ObamaCare, should display the same principled determination to uphold the president’s constitutional prerogatives. No AUMF is better than one that is constitutionally flawed.

Mr. Mukasey served as U.S. attorney general (2007-09) and as a U.S. district judge for the Southern District of New York (1988-2006). Mr. Rivkin is a constitutional litigator and served in the Justice Department and White House Counsel’s Office in the Reagan and George H.W. Bush administrations.

Source: http://www.wsj.com/articles/michael-b-mukasey-and-david-b-rivkin-jr-another-obama-collision-with-the-constitution-1424391724

Advertisements

Virginia detainee law is dangerously unconstitutional

(Published in The Washington Post, April 27, 2012)

The United States has just lost a key ally in the fight against al-Qaeda terrorists: the residents of Virginia, and state employees in particular.

Virginia’s legislature recently passed a bill that forbids state employees, including police and members of the National Guard, from participating in the investigation, surveillance, detention or arrest of any suspected member of al-Qaeda or its affiliates, if that suspect is a U.S. citizen.

The bill, which Gov. Robert F. McDonnell (R) signed Wednesday, is unconstitutional. It trenches on the federal government’s war powers and violates conditions under which Virginia and other states have received billions of dollars of federal funding. It has dangerous symbolic and practical consequences and undermines the cooperation necessary to disrupt and defeat al-Qaeda plots on our shores.

The basis of this legislation in Virginia and 11 other states (Arizona, Kansas, Maine, Maryland, Missouri, Oklahoma, Rhode Island, Tennessee, Utah, Washington and West Virginia) is a gross misunderstanding or intentional misreading of the detainee provisions in the 2011 National Defense Authorization Act (NDAA).

Some members of the tea party and the Tenth Amendment Center, a conservative group devoted to states’ rights, have joined with the American Civil Liberties Union to monger fear over federal detention authority. Under their contorted reading of the act, federal law requires all U.S. citizens suspected of terrorism to be held in military custody and strips them of all constitutional rights.

But although the NDAA describes military custody as the primary policy option for dealing with captured enemy combatants, the president retains, as is constitutionally proper, discretion to utilize the civilian justice and penal systems. In fact, the NDAA did not change settled law at all. It says that “nothing in this section shall be construed to affect existing law” related to the detention of U.S. citizens captured or arrested in the United States. Furthermore, under the Supreme Court’s post-Sept. 11 rulings, especially Hamdi v. Rumsfeld andBoumediene v. Bush , enemy combatants (regardless of citizenship) may be held for the duration of the hostilities, but anyone in military custody, whether in the United States or Guantanamo, is able to exercise habeas corpus rights to challenge the detention.

Despite these facts, some continue to fight what they see as a federal leviathan that acts extra-constitutionally all the time. But the federal government has the primary role in national security. Although comprehensive detention legislation has proved elusive, the language in the NDAA reflects the considered and constitutionally binding judgment of Congress and the president on an issue over which the federal government properly holds sway.

Since Sept. 11, 2001, al-Qaeda and its affiliates have recruited terrorists in the United States. Under the law of armed conflict — which predates the 2001 attacks — enemy combatants, regardless of citizenship, may be detained for the duration of the hostilities.

Virginia’s new law sends mixed messages to state employees, especially law enforcement officials. Imagine a state trooper pulling over a speeder and finding out through an ID check that the FBI has an alert for the driver as a suspected al-Qaeda operative. What should the trooper do if he knows or suspects the driver is a U.S. citizen? Do his duty and detain the suspect, which violates Virginia law? Or simply write the speeding ticket and send the driver on his way, not telling the FBI or the military, consequences be damned?

Although the federal government has no inherent constitutional right to compel state officials to help in combating al-Qaeda, since 9/11 it has funneled billions of dollars to all states that require fulsome cooperation from state law enforcement authorities. Meanwhile, state National Guard forces, when deployed overseas, are subject to federal control. For these reasons, Virginia’s legislation violates the federal law.

Beyond these practical concerns, Virginia’s legislation, especially if followed by more states, sends a powerful message that delegitimizes not just the military detention of captured enemy combatants but also the entire laws-of-war architecture. Legitimacy of government policies matters a great deal in our democracy. Unfortunately, it already was heavily battered, primarily by the left, during the George W. Bush administration.

The tea party members who are pushing for these state actions may not know that the Obama administration has, after some initial equivocation, endorsed the laws-of-war paradigm and has retained most of the Bush administration’s policies. This extremely positive development provides much-needed bipartisanship in this key area of national policy.

The Virginia legislation, and similar legislation in other states, violate the U.S. Constitution. It has nothing to do with states’ rights. It is a dangerous mistake, perpetrated by groups and people who misunderstand detainee law, including the NDAA, or who, since Sept. 11, have viscerally opposed the laws-of-war paradigm. Whatever their motivations, they are wrong, and their efforts should be strongly opposed.

Virginia’s new law sends mixed messages to state employees, especially law enforcement officials. Imagine a state trooper pulling over a speeder and finding out through an ID check that the FBI has an alert for the driver as a suspected al-Qaeda operative. What should the trooper do if he knows or suspects the driver is a U.S. citizen? Do his duty and detain the suspect, which violates Virginia law? Or simply write the speeding ticket and send the driver on his way, not telling the FBI or the military, consequences be damned?

Although the federal government has no inherent constitutional right to compel state officials to help in combating al-Qaeda, since 9/11 it has funneled billions of dollars to all states that require fulsome cooperation from state law enforcement authorities. Meanwhile, state National Guard forces, when deployed overseas, are subject to federal control. For these reasons, Virginia’s legislation violates the federal law.

Beyond these practical concerns, Virginia’s legislation, especially if followed by more states, sends a powerful message that delegitimizes not just the military detention of captured enemy combatants but also the entire laws-of-war architecture. Legitimacy of government policies matters a great deal in our democracy. Unfortunately, it already was heavily battered, primarily by the left, during the George W. Bush administration.

The tea party members who are pushing for these state actions may not know that the Obama administration has, after some initial equivocation, endorsed the laws-of-war paradigm and has retained most of the Bush administration’s policies. This extremely positive development provides much-needed bipartisanship in this key area of national policy.

The Virginia legislation, and similar legislation in other states, violate the U.S. Constitution. It has nothing to do with states’ rights. It is a dangerous mistake, perpetrated by groups and people who misunderstand detainee law, including the NDAA, or who, since Sept. 11, have viscerally opposed the laws-of-war paradigm. Whatever their motivations, they are wrong, and their efforts should be strongly opposed.

David B. Rivkin Jr. is co-chairman of the Center for Law and Counterterrorism at the Foundation for Defense of Democracies and a partner at Baker Hostetler. He served in the Justice Department during the Reagan and George H.W. Bush administrations and has represented the 26 states that have challenged the constitutionality of the 2010 Affordable Care Act. Charles D. Stimson, senior legal fellow at the Heritage Foundation, was a deputy assistant secretary for detainee affairs at the Defense Department during the George W. Bush administration.

Source: http://www.washingtonpost.com/opinions/virginia-detainee-law-is-dangerously-unconstitutional/2012/04/26/gIQANb8zjT_story.html

War is no place for libel law

(from The Wall Street Journal, June 24, 2010)

A federal court slaps down a novel claim from a Sudanese business bombed by the U.S. in 1998.

BY DAVID B. RIVKIN JR. AND BRUCE D. BROWN

America’s war on terror is being fought on some unlikely fronts. This month, the D.C. Circuit Court of Appeals, in a first-of-its-kind ruling, threw out a libel claim brought by El-Shifa pharmaceutical plant, the Sudanese factory bombed by the Clinton administration in 1998 in response to al Qaeda attacks on the American Embassies in Kenya and Tanzania. The U.S. claimed that the plant was connected to Osama bin Laden and involved in chemical weapons production.

Insisting they are medicine makers and not terrorists, the plant owners initially sued the U.S. government for millions of dollars in damages for destroyed property. With these claims rejected, they advanced a novel legal theory—alleging that U.S. military action, predicated upon the government’s portrayal of them as terrorist supporters, ruined their reputation. Aware that money damages are not available against the federal government for defamation, the plaintiffs asked the courts to declare the statements about them false and force a retraction from the U.S. government.

In the post-9/11 era—where lawfare has become an integral part of warfare—El-Shifa’s defamation suit ought to be taken seriously. The plaintiffs sought to pull the judiciary even more deeply into reviewing government decisions about the use of force that lie at the very core of the president’s constitutional authority.

Sitting as a full court, the D.C. Circuit properly ruled that the case presented a non-justiciable “political question.” Under this venerable doctrine, the courts have no authority to review discretionary policy choices assigned by the Constitution to the government’s political branches. Determining whether the Clinton administration’s statements about the Sudanese factory were true is such an issue, the court ruled, because it would require judges to assess the wisdom of military action, a responsibility vested exclusively with the president. Though the plaintiffs argued that a libel judgment could not impair the president’s national security-related powers, the judges understood that, were they to rule in El-Shifa’s favor, they would violate the separation of powers by contradicting the president’s justification for the attack.

The court could have stopped here. However, recognizing that future libel suits against the federal government might not present “political questions,” a block of concurring judges suggested another compelling way to reject El-Shifa’s suit and other cases like it. The federal government is immune from most tort liability, including defamation, ensuring that individuals cannot sue the government for damages based on alleged libel. Nor can government officials be sued personally for statements made on the job, preventing fear of large judgments from deterring officials from speaking freely about controversial subjects. The concurring judges concluded that because Congress has not authorized defamation lawsuits against the government, El-Shifa owners could not obtain any kind of relief.

The El-Shifa case posed a provocative question: Whether, when damages are off the table, a claim seeking only to correct the record should be permitted in the future. The answer is emphatically no. Turning the courts into mini “truth commissions” would both force the judiciary into conflict with its co-equal branches and hurt free speech.

American libel law, which operates in the context of constitutional protection for free speech that is unique even among the world’s democracies, is built around the sound premise that only those plaintiffs who can prove all the elements of a defamation claim should be compensated. Falsity is but one of those required elements. We have never had a tradition of skipping the other necessary elements of the claim—with the extent of “actual malice” of defendants being the key—even if plaintiffs are only chasing a retraction.

The rules of evidence are designed to produce fairness in court, not “truth” in any abstract sense. In libel cases, particularly where national security is at issue, significant amounts of testimony will not be available because of privileges and claims of state secrets. The El-Shifa suit should be the first and last of its kind. War is no place for libel law.

Messrs. Rivkin and Brown are partners in the Washington, D.C., office of Baker Hostetler. Mr. Rivkin served in the Justice Department under Presidents Reagan and George H.W. Bush.

Source: http://online.wsj.com/article/SB10001424052748704895204575320840303274372.html

The war on terror

Part I:

Part II:

It has been a year since President Obama took office with a promise to close the detainee holding facility at Guantánamo Bay, Cuba. In the wake of decisions to try Khalid Sheikh Mohammad, Umar Farouk Abdulmutallab, and other terrorist detainees in civilian courts, this is an opportune time to assess our progress in the War on Terror.

Brought to you by The Federalist Society the panel discusses what has transpired, what has gone wrong, what has gone right, and what we should expect next. Topics will include detention, surveillance, interrogation, trials, and more. Panelists include Mr. Steven A. Engel of Dechert LLP; Hon. Neal K. Katyal, Principal Deputy Solicitor General for the U.S. Department of Justice; Mr. David B. Rivkin, Jr., Partner at Baker & Hostetler LLP and Co-Chairman for the Center for Law and Counterterrorism; Prof. Stephen I. Vladeck of American University Washington College of Law; and Prof. Neomi Rao of George Mason University School of Law as the moderator.

This event was co-sponsored by The Center for Law and Counterterrorism (A Joint Project of the Foundation for Defense of Democracies and the National Review Institute). Part 2 of 10, please visit The Federalist Society to view the entire series.