Cross-posted at Forbes.com’s WLF contributor page
The Supreme Court this week ruled that a group of American lawyers lack standing to challenge the 2008 law that expanded the U.S. government’s authority to engage in electronic surveillance of overseas aliens suspected of terrorism. To hear the reaction of the ACLU and other civil liberties groups to the decision in Clapper v. Amesty International, one would think that the Supreme Court is abandoning the rule of law and abdicating its responsibility to oversee the activities of the Executive Branch. Nonsense. The Court simply denied a right to sue by individuals who concede that they have no evidence that they have been subjected to surveillance. The decision is consistent with a long line of cases that have insisted on evidence of injury before a suit can go forward, particularly when the suit implicates national security concerns.
At issue are the 2008 amendments to the Foreign Sovereign Immunities Act (FISA). The amendments permit the federal government to engage in overseas surveillance of suspected terrorists under limited circumstances. But such surveillance is permitted under the FISA Amendments (FAA) only after the government has sought and obtained the consent of the FISA Court, a special court established to address national security issues.
On the day that the FAA was enacted, several lawyers and organizations (represented by the ACLU) filed a lawsuit seeking an injunction against surveillance conducted pursuant to the FAA. They alleged that the FAA violated their First and Fourth Amendments rights as well as separation-of-powers principles. Named as defendants were several senior Obama Administration officials, including Attorney General Eric Holder (whose authorization is required before any surveillance may be undertaken under the FAA). Although the law does not permit American citizens to be targeted for surveillance, the plaintiffs expressed a fear that the government would end up overhearing some of their conversations with those foreigners who are being targeted. Continue reading
Amanda McKinzie, a 2012 Judge K.K. Legett Fellow at the Washington Legal Foundation and a student at Texas Tech School of Law.
From the day Congress amended the Foreign Intelligence Surveillance Act of 1978 (FISA) to allow the communications of non-United States persons to be intercepted upon approval by the United States Foreign Intelligence Surveillance Court (FISC), parties have challenged the legislation’s constitutionality. Once such case, Clapper v. Amnesty International USA, recently reached the U.S. Supreme Court. The Court granted the federal government’s petition for certiorari on Monday, May 21, and will decide during the October 2012 term whether those challenging the law have Article III standing to sue.
The amendments to FISA do not permit the government to intercept communications of United States citizens to be intercepted. Despite this prohibition, the Clapper plaintiffs – U.S. attorneys, journalists, and labor, legal, media, and human rights organizations – claim they are fearful of being monitored. They assert that because they frequently communicate with potential international targets, there is a high probability that information they exchange will be intercepted. The plaintiffs further claim that based on this “well-founded fear,” they have expended much time, effort, and money in maintaining the confidentiality of their communications from potential interception. Accordingly, they argue that the future injury of interception coupled with their present expenditures provide standing to sue. Continue reading
Daniel J. Popeo, Chairman and General Counsel, Washington Legal Foundation
Where else but in America would your involvement in numerous terrorist plots earn you both a spot on an international “most wanted” list and the pro bono assistance of legal activists in federal court?
Such is the situation involving Anwar al-Awlaki, a militant Islamist cleric based in Yemen. Al-Awlaki and his “al Qaeda in the Arabian Peninsula” group have been tied to the massacre at Fort Hood, the attempted Christmas Day airplane bombing over Detroit, and last month’s plot to blow up Chicago-bound cargo planes.
Read more at the Washington Examiner: http://www.washingtonexaminer.com/opinion/Daniel-Popeo-Courting-terrorism-108387219.html#ixzz15SKvOxZq
The New York Times weighed in yesterday with this editorial regarding Ashcroft v. Al-Kidd, a tort suit against former U.S. Attorney General John Ashcroft which the Supreme Court recently agreed to review. The Times called Ashcroft’s conduct “outrageous” – the plaintiff accuses Ashcroft of misusing the federal material witness statute – and deemed the Obama Administration’s on-going defense of Ashcroft to be “disturbing” and “repugnant to the Constitution.”
The Times’s editorial apparently is based on a fundamental misunderstanding of the facts of the case. As it notes, Al-Kidd complains that federal prosecutors detained him for 15 days under the material witness statute even though they (allegedly) never intended to call him as a witness in ongoing criminal investigations into terrorist activity by Muslim groups. Even worse, Al-Kidd alleges, federal officials subjected him to inhumane treatment during his 15 days of incarceration. Continue reading
With today’s orders list, the United States Supreme Court today accepted only one new case for review, but it is a rather significant one and a victory of sorts for WLF’s Litigation Division. Ashcroft v. Al-Kidd hails from the High Court’s “favorite” federal circuit, the Ninth Circuit. WLF’s amicus brief was one of only two briefs filed in support of Ashcroft’s petition (the other was by legal historian Wesley MacNeil Oliver of Widener University filed, according to the professor “to correct the lower court’s assumptions about the history of material witness detention”).
WLF filed its brief on behalf of a group of former Attorneys General of the United States: WLF’s Legal Policy Advisory Board Chairman Dick Thornburgh; William P. Barr; Edwin Meese III; Benjamin Civiletti; and Michael Mukasey. Continue reading
In its 1971 Bivens decision, the Supreme Court for the first time recognized the right of an individual to sue federal officials for damages if he believes that the officials violated his constitutional rights. The Court nonetheless has always been hesitant to interpret that right too expansively. Among other limitations, the Court has recognized a qualified immunity defense, under which the plaintiff has no cause of action unless he can demonstrate that the right he asserts was “clearly established” at the time the officials acted.
Unfortunately, the qualified immunity doctrine has not prevented a deluge of damage claims against senior members of the last several Administrations. Although the doctrine was intended to facilitate the dismissal of lawsuits at the pleadings stage (thereby protecting government officials from the burdens of litigation), recent appeals court decisions have made it increasingly hard for officials to win early dismissal. Former Attorney General John Ashcroft, himself the target of numerous claims for damages, has asked the Supreme Court to grant review in one such case, Ashcroft v. Al-Kidd, to consider whether the Court needs to beef up the qualified immunity defense. Continue reading
Last week, the U.S. Supreme Court rejected a First Amendment challenge to the federal law that prohibits the provision of “material support” to groups that have been designated as “foreign terrorist organizations” (FTOs) by the Justice Department. There are 44 such groups, including al Qaeda, Hamas, and Hezbollah.
Human rights groups have been critical of the Court’s decision. They view the law as an obstacle to constructive dialogue between Americans and foreign groups that might be reasoned with and that might eventually become our friends. The authors of an op-ed that ran on June 29 in The New York Times, “Why We Talk to Terrorists,” argue that “to assume that it is invariably wrong to engage any of these groups is a grave mistake,” and that “hindering all informed interaction with terrorist groups will harm both our national security and the prospects for peace in the world’s seemingly intractable conflicts.” Ralph Fertig, the man who spearheaded the legal challenge to the statute, argues that he is being prevented from meeting with Kurdish leaders – whose affiliation with any FTOs is unknown to him – to teach them how to press their human rights claims before the United Nations. Continue reading
An effective amicus brief on behalf of those with first-hand experience of the issues at stake can be a powerful asset to the judiciary. The United States Court of Appeals for the D.C. Circuit decision last week that persons designated as unlawful enemy combatants and detained by the U.S. military at Bagram Air Base in Afghanistan cannot seek habeas review of their detentions demonstrates this point very well.
The result in Maqaleh v. Gates was not a foregone conclusion. The controlling precedent from the Supreme Court was Boumediene v. Bush, 128 S. Ct. 2229 (2008), which held that detainees at Guantanamo Bay could bring habeas petitions. Boumediene announced that three factors should be considered in determining whether habeas will be available to detainees held as unlawful enemy combatants outside of the United States. These factors are: (1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made, (2) the nature of the sites where apprehension and detention took place, and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ of habeas corpus. See Boumediene, 128 S. Ct. at 2259. Continue reading
The U.S. Court of Appeals for the D.C. Circuit issued a highly anticipated decision today on the ability of detainees in military prison at Bagram Air Field in Afghanistan to use the habeus corpus process to challenge their detention in U.S. courts. The case is Maqaleh v. Gates. Judge Sentelle, joined in the opinion by Judges Tatel and Edwards, reversed the District Court decision, and concluded:
For the reasons set forth above, we hold that the jurisdiction of the courts to afford the right to habeas relief and the protection of the suspension Clause does not extend to aliens held in Executive detention in the Bagram detention facility in the Afghan theater of war. We therefore reverse the order of the district court denying the motion for dismissal of the United States and order that the petitions be dismissed or lack of jurisdiction.
The unanimous nature of the ruling was particularly interesting, perhaps even surprising, and makes it less likely that an inevitable effort to seek review in the U.S. Supreme Court will succeed.
Washington Legal Foundation released a Legal Backgrounder today on another D.C. Circuit detainee-related ruling, al-Bihani v. Obama.