Georgetown Security Law Commentary

Scholarship: “The Central Intelligence Agency's 'Family Jewels': Legal Then? Legal Now?”

“The Central Intelligence Agency's 'Family Jewels': Legal Then? Legal Now?” Indiana Law Journal, Vol. 84, p. 637, 2009 Daniel L. Pines.

Scholarship: “Our Nation Unhinged: The Human Consequences of the War on Terror”

“Our Nation Unhinged: The Human Consequences of the War on Terror” (University of California Press, May 2009) by Peter Jan Honigsberg (University of San Francisco School of Law.

Merging the NSC and the HSC: A Legal Footnote

By: Justin Rubin, Senior Counsel, Legal Affairs Department of the Project on National Security Reform

Last Tuesday, the President announced the merger of the staffs of the National Security Council (NSC) and Homeland Security Council (HSC) within one National Security Staff.  The President, however, did not merge the Councils themselves, instead maintaining them as two separate entities.  The public discussion, and comments from White House aides, indicate that the President took this step because he could not legally merge the two Councils without a new Congressional enactment.  A close legal analysis, however, makes clear that the President has ample authority to merge the two entities without Congressional approval.  

The President’s decision comes after a 60-day review of the current structures of the HSC and NSC and whether the integration of those bodies would enhance our nation’s security.  Though the President concluded after the review that merging the HSC and NSC staffs would more effectively integrate the instruments of national power, in contrast to many people’s expectations, he decided not to abolish the HSC.  In fact, the White House pledged to maintain the HSC "as the principle venue for interagency deliberations on issues that affect the security of the homeland."  Though the President’s decision to merge the two staffs is a much-needed and welcome change, maintaining two separate Councils reflects a specific choice to preserve a distinct body for advising the President on threats to the homeland such as terrorism, natural disasters, health-related crises and weapons of mass destruction.

The confusion over the merger’s legality was highlighted by Spencer Hsu’s article in last Wednesday’s Washington Post, attributing to unnamed White House aides two reasons for maintaining the HSC:  "Doing so will improve state and local officials' access to the White House and does not require an act of Congress." While the first may be true – it is essential that state and local officials have sufficient access to the White House homeland security coordination body – the second, which implies that the further integration of the Councils requires statutory authorization, is not.  The President does have the authority to merge the Councils and his decision not to merge them should be viewed in that light.

The National Security Council and Homeland Security Council were created by the National Security Act of 1947 and the Homeland Security Act of 2002, respectively.  The acts establish the Councils, set their membership, make them responsible for advising the President on interagency coordination, and create two separate staffs reporting to two separate Executive Secretaries. Merging the two Councils, as the President’s actions demonstrate, requires two unique legal decisions: whether to merge the two Councils’ staff and whether to merge the two Councils, which both currently exist in statute. Contrary to the view expressed in Spencer Hsu’s article and elsewhere, the President has the legal authority to do both.

First, the President has clear legal authority to merge the Council staffs.  While the statutes create separate NSC and HSC staffs reporting to statutorily created NSC and HSC Executive Secretaries, the laws do not require that the staffs, or the Executive Secretaries, be different. The President, therefore, can merge the Councils’ staffs into one staff by dual-hatting one individual as both the NSC and HSC Executive Secretary and require that the staff serve as a single unit reporting to that one individual.  This requires no legal change.

Second, despite claims that merging the HSC and NSC would require an act of Congress, the President has multiple means to effect a de facto merger of the two Councils without a statutory change.  Firstly, the Homeland Security Act gives the President the authority to "convene joint meetings of the Homeland Security Council and the National Security Council with participation by members of either Council or as the President may otherwise direct." 6 U.S.C. 496. This statute gives the President both the authority to call joint meetings and to choose who shall participate in such meetings – a power the President traditionally exercises, but does not statutorily have.  As a result, using this authority, the President could merge the two Councils by designating all future NSC and HSC meetings as joint meetings.

A second option for merging the Councils would be to call meetings of only one of them.  While the Councils are tasked with advising the President, neither the National Security Act nor the Homeland Security Act requires the President to call meetings of either. This reflects the limits of congressional authority: Congress has no Constitutional authority to require the President to listen to specific individuals’ or Councils’ advice.  In fact, even President Truman, who signed the NSC into existence, questioned the constitutionality of the NSC on such grounds.  See Cody M. Brown, The National Security Council: A Legal History of the President’s Most Powerful Advisors, Project on National Security Reform 10 (2008). As a result, had President Obama so desired, he could have merged the Councils by placing traditional homeland security issues within the jurisdiction of the NSC and inviting department heads, such as the Secretaries of Homeland Security and Transportation, to relevant meetings of the NSC as he is empowered to do by the National Security Act of 1947.  This approach would merely require not calling meetings of the HSC, clearly within the President’s constitutional and statutory authority, and would, in effect, merge the Councils.

It is curious that White House aides would cite the need for Congressional action as a reason for the President’s decision to merge the Council staffs, but not the Councils themselves.  The President has ample authority, given to him by the Constitution and the Congress to merge the NSC and HSC.  Though we do not know, beyond the statements attributed to White House aides, whether this was a real concern, it should not have been.  While many policy and political arguments exist for keeping separate Councils – including enabling state and local officials’ to access the White House, maintaining a forum focused purely on homeland security issues, allowing the President and future presidents greater flexibility in deciding how to use the NSC and the HSC, and, potentially, avoiding a political fight with those in Congress who oppose merger – the need for an act of Congress is not one of them. 

Rubin’s views are not necessarily representative of PNSR’s.

Scholarship: "Combatants and the Combat Zone", “The Detention of Civilians in Armed Conflict”

"Combatants and the Combat Zone"  (University of Richmond Law Review, forthcoming) by Mary Ellen O'Connell (Notre Dame Law School).  This article discusses President George W. Bush's claim of wartime privileges to kill without warning and detain without trial those suspected of association with terrorist organizations. These claims were made in the face of contrary international law. Under international law, a war or armed conflict is characterized by organized armed groups engaged in intense, armed hostilities. To meet these criteria, such groups are associated with territory. In addition to the concept of armed conflict, the concept of conflict zone is important. Killing combatants or detaining them without trial may be permissible when done in a zone of actual armed hostilities. Outside such a zone, however, authorities must attempt to arrest a suspect and only target to kill those who pose an immediate lethal threat and refuse to surrender. 

"The Detention of Civilians in Armed Conflict" (American Journal of International Law, forthcoming) by Ryan Goodman (Harvard Law; NYU Law). In the armed conflict between the United States and Al Qaeda, the legality of the government’s detention scheme has been mired in confusion. The lack of clarity is especially acute with respect to the substantive criteria for defining who may be detained. A crucial determinant of the lawfulness of the scheme is whether international humanitarian law (IHL) permits the preventive detention of civilians, or particular groups of civilians. Part I maps the contemporary IHL regime, discussing features that pertain to detention of particular individuals in armed conflict. Part II analyzes conceptual errors involving U.S. detention law and practice. And, part III examines the humanitarian and security implications of the types of errors made by proponents and opponents of U.S. detention policy.  HT to National Security Advisors.

Scholarship: "National Security Fact Deference"

"National Security Fact Deference" (Virginia Law Review, 2009) by Robert Chesney (Wake Forest University School of Law).  Judges frequently defer to the executive branch regarding disputed questions of fact in cases involving national security, but they do not frequently offer a coherent justification for doing so. This article tries to alleviate this uncertainty, in hopes of shifting the practice of national security fact deference onto more defensible grounds. Because national security considerations for the most part are sensitive to the circumstances of particular cases, we cannot and should not pursue a single model for resolving fact deference claims.  However, the article offers some theoretical insights on the motivations of judicial deference to the executive. By providing a coherent theoretical justification for supporting such claims in limited circumstances, these insights will help to identify and curb unwarranted claims.

Why the Obama administration is right not to argue Al-Marri in the Supreme Court

Today, the Obama administration unsealed the criminal indictment of Ali Al-Marri, the only man being held in indefinite military detention as an enemy combatant on US soil.  Until yesterday, the case was scheduled to be argued before the Supreme Court, and would have likely answered one of the biggest remaining questions in the War on Terror cases: who exactly is an enemy combatant.  

The administration has requested that the Supreme Court dismiss the pending case, and when the case is dismissed, Al-Marri will be transferred from military detention to the custody of the DOJ, where he will be prosecuted using American standards of justice.  Attorney General Eric Holder said today, "In this administration, we will hold accountable anyone who attempts to do harm to Americans, and we will do so in a manner consistent with our values."  The change from indefinite military detention to criminal prosecution is applauded by many, including Al-Marri’s at the ACLU, but interestingly, the ACLU opposes the administration’s motion to dismiss the pending Supreme Court case.

There are three potential reasons the Obama administration wisely chose not to argue Al-Marri in the Supreme Court.  First, a government win in this historic case would create the wrong legacy for the Obama administration, and losing it wouldn’t be much better. Second, Obama has smartly elected to argue this issue on a record of his own making, not that of the Bush administration.  Third, not arguing the case sends the right message to the world: the Obama administration adheres to the rule of law.

How important is this case? On the surface, it is only about one person – Al-Marri – who is the only person declared an enemy combatant and held in indefinite military detention on US soil.  But the legal issue at stake, who precisely is an enemy combatant, is the lynchpin of not only Al-Marri’s case, but all the War on Terror detention cases, including detainees at Guantanamo.  Moreover, it affects every American citizen, as the law that applies to Al-Marri will apply to us too: if the Supreme Court holds that Al-Marri can be declared an enemy combatant and held indefinitely with minimal due process, here in America, the same will be true for all Americans.

The first reason Obama may have chosen not to argue Al-Marri, is that a Supreme Court opinion in the case, no matter what the outcome is, would be a historic opinion and an early harbinger of Obama’s legacy in this very difficult and contentious intersection of law, war, detention, and civil liberties. Predicting the Supreme Court’s outcome is tricky at best, but if the administration prevailed and the Supreme Court affirmed Al-Marri’s military detention, the victory would have been won by re-arguing the Bush administration’s positions – the very positions against which Obama campaigned. That simply cannot be the legacy he wishes to leave, and arguing this case leaves no other option.  If the government were to lose, well, he will have pursued Bush’s positions, and lost.  Perhaps better for his legacy in the long run, but hardly a desirable outcome.

Second, letting go of this case would permits Obama to take the issue up in the Supreme Court on a record of his own making.  The record in Al-Marri may not have been looked kindly upon by the Justices, who have become understandably skeptical of the Bush administration’s legal positions. The critical issue in the case, the definition of enemy combatant, is pending in many District Court habeas cases, where they will be fully litigated. If it happens that the District Court cases are appealed up to the Supreme Court, then Obama can argue the case on a record he made himself; his administration need not be put in the undesirable position of defending Bush administration policies in the highest court of the land.

Third, and most importantly, not arguing Al-Marri sends the right signal to the world: Obama has broken from the Bush administration, and shown that the new DOJ doesn’t play duck and run in criminal prosecutions, as the Bush administration did in Al-Marri. Putting Al-Marri in a criminal trial demonstrates Obama’s fidelity to the rule of law and the American justice system that he has said he will use for terrorism prosecutions, even if later chooses to hold some other terrorist suspects in military detention

Despite how welcome the Supreme Court’s guidance would be on the definition of enemy combatant to those who follow and litigate the issue, the Obama administration has made the right move. Whether it is because of the legacy arguing this historic case would create, the fact that he will litigate this issue and can argue it in the Supreme Court on merits of his own making, or because he wanted to demonstrate to the world that his administration adheres to the rule of law, today Obama has taken an important step towards a corrected litigation strategy in the War on Terror cases. Change has come to the War on Terror.

Scholarship: Recent publications on deference to the executive during national security crises

"Constitutional Crises" (University of Pennsylvania Law Review, 2009) by Sanford Levinson (University of Texas Law School) Jack M. Balkin (Yale University Law School). This article argues discusses three different types of constitutional crises: (1) when political leaders believe that exigencies require public violation of the constitution; (2) situations where fidelity to constitutional forms leads to ruin or disaster; and (3) situations where publicly articulated disagreements about the Constitution lead political actors to engage in or threaten violent protest. If a central purpose of constitutions is to make politics possible, constitutional crises mark moments when constitutions threaten to fail at this central task. HT to National Security Advisors.

"The Long War, the Federal Courts, and the Necessity/Legality Paradox" (University of Richmond Law Review, 2009) by Stephen I. Vladeck (American University Washington College of Law). This paper is a review of Ben Wittes's book "Law and the Long War: The Future of Justice in the Age of Terror."  The review takes issue with Wittes's criticism of judicial intervention in the war on terror.  First, as a descriptive matter, the courts have been a model of judicial restraint. Second, Wittes suggests that aggressive judicial review is dangerous, because it will lead to the courts having to pass upon programs that may be necessary, albeit illegal. The review argues that Wittes is wrong to conclude that the optimal solution in those situations is for the courts to stay out of such disputes altogether. HT to National Security Advisors.

"A Skeptical View of Deference to the Executive in Times of Crisis" (Israel Law Review) by Fionnuala D. Ni Aolain (University of Minnesota Law School) and Oren Gross (University of Minnesota Law School).  In times of crisis there is an unmistakable tendency in numerous legal systems to allow the Executive  branch to augment and extend its powers. This article casts doubt on the virtues of judicial deference during crises, arguing that across-the-board institutional legal engagement with state action is particularly important in times of crisis. Scholars advocating for exclusive executive supremacy in times of crisis fail to measure the harms that may be caused by inept or illegal state action, not only as experienced by individual victims but to the broader project of discouraging and dissuading the resort to group based violence. HT to National Security Advisors.

Scholarship: "Let the Small Changes Begin: President Obama, Executive Power and Don't Ask Don't Tell"

"Let the Small Changes Begin: President Obama, Executive Power and Don't Ask Don't Tell" by Jackie Gardina (Vermont Law School). Conventional wisdom holds that to avoid the mistakes of the Clinton Administration, President Obama must not push Congress or the military too quickly on reforming Don't Ask Don't Tell.  This article advocates that President Obama should act swiftly and unilaterally to change how the Department of Defense (DoD) implements the policy. It also discusses the historical context of Don't Ask Don't Tell, including recent circuit court decisions.

4th Circuit removes FSIA hurdle to most torture suits

By Sarah Wappett-Kendall, CNSL Research Assistant    

It has long been the rule that the Foreign Sovereign Immunities Act (FSIA) protects not just foreign governments but also their officials from suit in U.S. courts. However, in the recent case of Yousuf v. Samantar, the Fourth Circuit held that the FSIA does not protect individuals from suit under the Torture Victims Protection Act (TVPA). The district court had followed the majority of circuits and had ruled that the FSIA provides immunity to individuals who acted as an “agency or instrumentality” of a foreign state. The Fourth Circuit, however, split with its sister circuits, holding that the statutory construction of the FSIA does not allow it to apply to individuals (and certainly not to individuals who are no longer government officials). It held that common law doctrines of act of state immunity might apply, but deciding cases on the basis of these doctrines introduces more uncertainty and takes far longer because the Executive branch has to weigh in than the simple jurisdictional rule of FSIA. The Fourth Circuit’s view is (1) a better outcome in the instant case; (2) a better reflection of Congress’s intent in drafting the TVPA; and (3) a better protection of separation of powers; but it will encourage more suits against properly immune defendants (such as Belhas and Matar noted below) and force them to litigate on the merits in order to avail themselves of common law immunities such as the act of state doctrine.

Ali Samantar, was the Somali government official in charge of the nation’s armed forces in the 1980s and 1990s as First Vice President, Minister of Defense, and then Prime Minister of the Democratic Republic of Somalia. Plaintiffs allege that the Somali military, under the direction of General Samantar, disregarded the distinction between civilians and rebels and allege a litany of human rights abuses and war crimes including extrajudicial killings, torture, and arbitrary detentions. Plaintiffs brought suit in the Eastern District of Virginia under the TVPA and the ACTA against Samantar, who currently resides in Virginia. The court dismissed the complaint for lack of subject-matter jurisdiction on April 27, 2007. Plaintiffs appealed to the Fourth Circuit.

In considering the TVPA, the majority of courts have reasoned that Congress intended that FSIA should immunize all conduct expressly ratified by foreign governments, even when the challenged conduct is torture or other egregious human rights violations (see example here). FSIA therefore protects Samantar under the majority view, and the district court ruled accordingly when the government of Somalia wrote in support of Samantar claiming that any actions, including all those alleged in the plaintiff’s complaint, fell within the scope of his official duties.

Courts have ruled that individuals acting in their official capacities are also subject to FSIA immunity. However, defendants acting outside their official capacities do not. An official of a foreign government is acting within his official capacity when two conditions are met: (1) the defendant’s actions are lawful according to the laws of defendant’s state (and thus within the scope of his authority), or (2) those actions were authorized by a public admission of that foreign state. Under the majority view, FSIA immunity has largely been up to the defendant’s home government’s decision to ratify conduct or not.

Previous cases have emphasized whether the government in question was willing to ratify the controversial acts of its officers. In two recent cases, Israeli generals were sued under TVPA for ordering bombings against Lebanon and Gaza. In these cases, the Israeli government wrote to the State Department requesting that the suits be dismissed as the generals had been acting in their official capacities and asserting that allowing the suits to proceed would have been akin to suing the State of Israel itself. The U.S. State Department submitted a Statement of Interest (SOI) in Matar (but not Belhas) urging dismissal based on sovereign immunity. Both Belhas and Matar were dismissed based on immunity under FSIA, reflecting the position of the majority of the Circuits. In Yousuf, as in Belhas and Matar, the government of the defendant wrote on his behalf effectively ratifying all of his alleged actions. Without any evidence that the defendant acted in a personal or private capacity or that his actions were unlawful and not authorized by the state, the majority view is that Samantar should receive immunity under FSIA.

The Fourth Circuit, however, took a hard look at the linguistic construction of the FSIA and ruled that it does not afford immunity to individuals. Without analyzing the assessments and conclusions over the statute’s language, the result is that, as Judge Duncan noted in his concurring opinion, Samantar and future defendants will have to rely on “common law immunities that predate the FSIA” such as act or state and head of state immunity. While those potential defendants who would be immune would probably be the same, the change would not likely protect them from having to defend against a suit on the merits. The ratification of an individual’s actions by his home government no longer offers automatic immunity in U.S.courts (at least, in the Fourth Circuit). It would be subject to the opinion of the Executive Branch as articulated by the State Department as to whether act of state or head of state immunity should apply.

This outcome better respects Congressional intent for the TVPA and the ACTA as well as the legal principles of allowing the Executive to guide matters of foreign relations. This arrangement will permit the results in Belhas and Matar but also allow suits against defendants like Samantar to go forward. The trade-off is that, under the Fourth Circuit’s view, properly immune defendants will have to litigate a suit longer before it is dismissed under the common law act/head of state immunity.

Scholarship: "The Espionage Act and National Security Whistleblowing after Garcetti"

"The Espionage Act and National Security Whistleblowing after Garcetti" (American University Law Review) by Stephen I. Vladeck (American University Washington College of Law).  This article discusses whether government employees have a right to disseminate classified national security information if the information pertains to "unlawful secrets."  Because of the broad language of the Espionage Act and the narrow language of certain whistleblower laws, a government employee would enjoy no statutory protection. And because of the Supreme Court's constriction of the First Amendment rights of public employees in Garcetti v. Ceballos, the employee would not be entitled to a constitutional defense, either. The essay discusses the implications of Garcetti for public employee whistleblowers.