National Security Advisors

Detainee litigation continues to put pressure on the administration to make detention policy decisions now rather than in 6 months

[once more, apologies for any formatting issues as I continue to try to get Word's blog posting feature to play nice with Typepad…]

First, an update on the # of GTMO detainees.  It appears the correct current count is 242.  See here, thanks to the most up-to-date data developed by Ben Wittes and the folks at Brookings.

Second, a flurry of opinions and orders by district judges dealing with detainee litigation suggests that the Task Force(s) created by yesterday's executive orders had better work much faster than their 6-month schedule would otherwise allow.  The litigation docket will force hard decisions soon in these and related cases, barring a willingness by these judges (or the detainees) to let the habeas process pause for half a year while the issues are sorted out:

Hamlily v. Obama (D.D.C.) (GTMO); Maqalah v. Gates (D.D.C.) (Bagram)

Notwithstanding yesterday's executive orders, and notwithstanding the fact that the Obama administration has moved successfully to stay GTMO habeas proceedings at least momentarily before one of the judges handling GTMO habeas petitions, other proceedings continue forward, and in doing so they pressure the administration to make tough decisions now regarding the scope of the military detention authority it may wish to defend, rather than waiting for the completion of the "task force" reviews contemplated in yesterday's orders.

Yesterday Judge Bates issued a series of orders in opinion in both GTMO habeas cases and in Maqalah v. Gates, the habeas case that attempts to extend Boumediene to Bagram Airbase.  In Hamlily v. Obama, a GTMO case, Judge Bates invited the Obama administration to revise the government's position on the substantive scope of the government's military detention authority (the Bush administration's position, adopted by Judge Leon in the habeas petitions before him, was that the CSRT definition of "enemy combatant" sufficed).  And in Maqalah, Judge Bates cited his Hamlily order and invited the government to refine its positions re Bagram detention as well. 

The Maqalah order gives the government until the 20^th to decide whether it wants to revise its position, at which point a new briefing schedule would be set up.  Presumably this could give the administration at least two months, maybe three, before it has to put into print its position.  And in Hamlily, any revised position must be submitted  by February 9.  Those Task Force(s) better work fast!

Ahmed v. Bush (D.D.C.) (GTMO)

            Judge Kessler, on the 21^st, set a deadline of January 29^th for both petitioner and the administration to submit a definition of "enemy combatant" in this case.

Zaid v. Bush (D.D.C.) (GTMO)

Meanwhile, in Zaid v. Bush, another GTMO case, Judge Bates rejected the government's position (advanced by the Bush administration) that it need only produce to the petitioner the particular versions of his own statements that the government actually plans to rely on in defending his detention.  Judge Bates disagreed:

A petitioner may assert that he never said what the government claims he did or that he only said what he did because he was coerced. A petitioner making a colorable claim to that effect cannot be denied the best evidence of what he said and the circumstances under which he said it merely because the government -- which has sole possession of that evidence -- thinks that it is too burdensome to locate it. As a first step in this process of basic fairness, then, the government must identify what potentially relevant materials exist.

For these reasons, it is again hereby ORDERED that respondents shall inform the Court, now by not later than 5:00 p.m. on February 4, 2009, whether respondents possess any of the

following materials with regard to the "statements" of petitioner that they have produced:

1. Audio recordings of statements made by petitioner;

2. Video recordings of statements made by petitioner;

3. Transcripts of statements made by petitioner;

4. Contemporaneous notes taken during any interrogation of petitioner; or

5. Records or reports of petitioner's statements made by persons other than the persons who prepared the summaries of petitioner's statements already produced.

Respondents have often replied to this Court's orders with eleventh-hour requests for enlargements of time or explanations why compliance is impossible or ill-advised. Respondents should not expect a sympathetic reception from the Court should they invoke that approach once again.

Taher v. Bush (D.D.C.) (GTMO)

                        Judge Kessler issued an order yesterday requiring that discovery proceed in this GTMO habeas case, with certain disclosures from the government due on Feb. 6.

The hard questions are in the hands of the committees: today’s executive orders re detention, interrogation, and rendition

A brief overview of today's four executive orders follows below (GTMO, detainee policy, interrogation/rendition, Al-Marri).  The long and short of it is that a cabinet-level committee will have 6 months to come up with new policies on detention, interrogation, and transfer; GTMO must be shuttered within one year, one way or another; CIA detention is over; and the government will do its best to resolve Al-Marri's status before it must file a merits brief in that case.

The GTMO closure order:

                This order appears to track the draft version about which I posted earlier.  Please see that earlier post.  Short version: all the expected options are to be used to effect closure in 1 year.

Special Task Force on Detainee Disposition order:

Another order establishes a task force to hash out detention policy not just re GTMO, but more generally for persons "captured or apprehended in connection with armed conflicts and counterterrorism operations."

The Task Force members are the AG, SecDef, SecState, SecHomeland, DNI, D-CIA, CJCS, and whomever else the SG and SecDef jointly might add.  The AG and SecDef in turn may designate personnel from their departments to function as support staff, and they may request staff from other agencies as well.  One person will be the Executive Secretary of the Task Force.

The Task Force will generate its report in 6 months (unless an extension is sought), and there shall be preliminary reports in the meantime. 

The interrogation standards order:

Section 1 revokes EO 13,440 (July 20, 2007), which had addressed the meaning of Common Article 3 as applied to the CIA, among other things.  Section 1 also revokes all orders or regulations inconsistent with this new order, and directs department and agency heads to ensure compliance (and to seek DOJ guidance in case of uncertainty).

Section 3, the title of which states that Common Article 3 provides a "minimum baseline," specifies that any persons detained in any armed conflict shall be treated humanely, not subjected to violence to life and person or to outrages upon personal dignity, whenever in US custody, the effective custody of the US, or a US-controlled facility.  No such person shall be subjected to a technique not authorized or listed in Army Field Manual 2-22.3.  This section expressly forbids reliance upon legal advice relating to interrogation rendered by DOJ between 9/11/01 and 1/20/09.

Section 4 (i) directs CIA to shut down its detention facilities, if any remain, as fast as possible, and not to operate any such facilities in the future; (ii) requires timely notice to the ICRC for any person the U.S. may detain in any armed conflict

Section 5 creates a "Special Interagency Task Force on Interrogation and Transfer Policie," consisting of the AG, the DNI, the SecDef, the SecState, SecHomeland, D-CIA, CJCS, and others to be appointed by the Chair.  Their task "shall be: (i)   to study and evaluate whether the interrogation practices and techniques in Army Field Manual 222.3, when employed by departments or agencies outside the military, provide an appropriate means of acquiring the intelligence necessary to protect the Nation, and, if warranted, to recommend any additional or different guidance for other departments or agencies; and (ii)  to study and evaluate the practices of transferring individuals to other nations in order to ensure that such practices comply with the domestic laws, international obligations, and policies of the United States and do not result in the transfer of individuals to other nations to face torture or otherwise for the purpose, or with the effect, of undermining or circumventing the commitments or obligations of the United States to ensure the humane treatment of individuals in its custody or control."  Logistically, the setup is much the same as the detainee policy task force, with the same deadlines.

The Al-Marri order:

Ali Al-Marri, the sole enemy combatant detained in the U.S. itself, is not within the bounds of the GTMO closure order above.  This order directs the same officers to determine the best disposition of his situation.  SCOTUSblog notes that Al-Marri has agreed to a government request to delay the government's brief for 30-days beyond the current late February deadline.

    

   

[Again, apologies for formatting problems. I continue to try to make Word's auto-blog feature work for me here....]

An overview of the draft GTMO closure order

The ACLU has posted what appears to be the draft executive order, to be issued formally later today, regarding GTMO and the CIA.  See it here.

I reprint and summarize the key passages below.  Note that the draft order holds the door open to prosecution options other than federal criminal prosecution, and in fact appears to leave the door open to non-criminal detention methods.

[From the "findings" section]

In view of the significant concerns raised by these detentions, both within the United States and internationally, prompt and appropriate disposition of the individuals currently detained at Guantánamo and closure of the facility would further the national security and foreign policy interests of the United States and the interests of justice. Merely closing the facility without promptly determining the appropriate disposition of the individuals detained would not adequately serve those interests. To the extent practicable, the prompt and appropriate disposition of the individuals detained at Guantanamo should precede the closure of the detention facilities at Guantanamo. . . .

It is in the interests of the United States that the Administration undertake a prompt and thorough review of the factual and legal bases for the continued detention of all individuals currently held at Guantánamo, and of whether their continued detention is in the national security and foreign policy interests of the United States and in the interests of justice. The unusual circumstances associated with detentions at Guantánamo require a comprehensive interagency review.

Sec. 3. Closure of Detention Facilities at Guantánamo.

The detention facilities at Guantánamo for individuals covered by this order shall be closed as soon as practicable, and no later than one year from the date of this order. If any individuals covered by this order remain in detention at Guantánamo at the time of closure of those detention facilities, they shall be returned to their home country, released, transferred to a third country, or transferred to another United States detention facility in a manner consistent with law and the national security and foreign policy interests of the United States.

Sec. 4. Immediate Review of All Guantánamo Detentions.

 

[This section requires an individual status review to begin immediately, with "full cooperation and participation" from the AG, SecDef, SecState, SecHomeland, DNI, CJCS, and others to be designated by the AG.  The review process specifically will consider or do the following:

 

* Gathering data- the AG will assemble all relevant information the government has on each detainee

 

* Transfer/release - the reviewers will decide for each case whether a transfer/release to another country is feasible

 

* Prosecute in some cases - for those who do not get approved for transfer/release, the reviewers will determine whether the government should pursue a criminal prosecution (and if so, the reviewers are to take steps to make that happen).  The draft language refers to prosecution in an Article III court, but does so in a way that does not foreclose use of other for a:

 

"In accordance with United States law, the cases of individuals detained at Guantánamo not approved for release or transfer shall be evaluated to determine whether the Federal Government should seek to prosecute the detained individuals for any offenses they may have committed, including whether it is feasible to prosecute such individuals before a court established pursuant to Article III of the United States Constitution, and the Review participants shall in turn take the necessary and appropriate steps based on such determinations." (emphasis added)

 

* Other disposition (i.e., detention on other grounds) – here is the catch-all section, which leaves the door open for non-prosecutorial detention:

 

"(4) Determination of Other Disposition. With respect to any individuals currently detained at Guantánamo whose disposition is not achieved under subsections (c)(2) or (c)(3) of this section, the Review shall select lawful means, consistent with the national security and foreign policy interests of the United States and the interests of justice, for the disposition of such individuals. The appropriate authorities shall promptly implement such dispositions."

 

* Moving to the US – the reviewers also are to consider the many issues raised by the prospect of moving the GTMO detainees to facilities in the US, including the possible need for legislation. 

 

Section 6. Humane Standards of Confinement.

 

[SecDef to conduct a review within 30 days to ensure full compliance with Common Article 3 at GTMO]

 

Sec. 7. Military Commissions.

 

            [SecDef to ensure that no charges are sworn or referred to the Military Commission system during the pendency of the review, and that all pending proceedings are "halted."]

 
 

Sec. 8. General Provisions.

 

            [Nothing in this order impacts detention beyond GTMO]

 

Change is coming to GTMO, but is it also coming to domestic military detention?

Several interesting developments, as the press of litigation calendars impels the new administration toward making decisions regarding counterterrorism policy in several spheres. First: Al Marri v. Spagone (S. Ct. No. 08-368) (Petitioner’s Brief). SCOTUSBLOG’s Lyle Denniston has the details as well as a link that will get you to al-Marri’s brief. One of the interesting questions here is whether the Obama administration will move to moot this case, either by repatriating Al Marri to Qatar or by shifting him into the civilian criminal justice system (ala Jose Padilla). At the moment, they have till late February to decide, at which point the respondent’s brief will be due. Second: Draft executive order on GTMO closure. A number of sources are reporting that a draft executive order is in circulation, one that would provide for closure of GTMO as a detention facility within the year. It is not clear whether the draft also specifies what will become of the detainees, thought it sounds as if the draft is likely silent on that point for now. Third: Bostan v. Obama (D.D.C. Jan. 20, 2009). No doubt you have heard by now that military commission proceedings have been stayed for the next 120 days while the new administration sorts out its plans for that process. But what about the ongoing habeas review process for the GTMO detainees? Bostan v. Obama (was v. Bush, of course) is one of the many pending petitions, and as it happened there was a hearing in that case set for this afternoon. Shortly after the inauguration, however, DOJ moved for a two-week continuance (with consent from the detainees), and Judge Walton granted it. The motion explained: 3. The Government is now assessing how it will proceed in the above-captioned Guantanamo Bay detainee habeas corpus cases. Time is needed to make that assessment and determination. Accordingly, the Government requests a short, two-week continuance of tomorrow’s hearing to permit the assessment to move forward without an intervening argument on the first full day of the new Administration as to the Government’s legal and other merits related positions in these cases. The full motion is here: . Apologies for this terrible formatting, by the way. I'm experimenting with using Word to post directly to the blog, from my listserv; not so good so far...

Civilian Contractors and the Limits of Military Jurisdiction

With a big hat tip to CAAFlog (a name that'll make sense in a second), I thought I'd pen a few quick thoughts on a fascinating habeas petition filed last week in the D.C. federal district court by a civilian contractor who is being subjected to court-martial proceedings in Iraq for his alleged role in a fire that took place during maintenance of an unmanned Predator drone. Although the contractor in question was formerly enlisted in the U.S. Air Force, there is no question that he is not currently a member of the U.S. military.

As such, subjecting him to military jurisdiction seems to run right into a long line of Supreme Court decisions suggesting that the Constitution categorically bars the exercise of military jurisdiction over civilians (indeed, this is part of the argument in al Marri). The government will argue, I'm sure, that contractors performing what are effectively military-like functions (such as the maintenance work the petitioner was contracted to perform here) should fall on the other side of that line (especially in light of a 2006 amendment to the UCMJ that supports such a reading), but the Court's most recent pronouncement on the subject -- its 1987 decision in Solorio -- seemed to suggest that form matters much more than function. There, the Court overruled the so-called "service connection" test, holding that servicemembers could be subjected to military jurisdiction for any offense committed while in military service, because the Constitution draws such a bright line between servicemembers and civilians.

Moreover, although these facts seem to present the perfect case for reliance upon the Military Extraterritorial Jurisdiction Act of 2000 ("MEJA"), the Justice Department declined to pursue charges against the petitioner in the civilian courts, sending the case back to the Air Force. Suffice it to say, this should be a really interesting -- and potentially important -- case going forward...

Whither GTMO? Judge Leon orders release of a 6th detainee, while significantly different bills are introduced in the Senate and House….

1. El Gharani v. Bush (D.D.C. Jan. 14, 2008) (GTMO habeas)

Judge Leon has granted habeas to GTMO detainee Mohammed El Gharani.  The opinion is posted here:

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2005cv0429-202

A brief overview of the El Gharani decision:

El Gharani is a citizen of Chad, and a native of Saudi Arabia.  He appears to have left Saudi Arabia in 2001 at the age of 14.  In his account, he traveled to Pakistan for innocuous reasons.  In the government's account, he traveled to Afghanistan, stayed in and trained at al Qaeda facilities, fought at Tora Bora, and was arrested by Pakistani authorities after fleeing from Afghanistan.

Judge Leon observed that the key evidence against El Gharani consisted of inculpatory statements offered by two other detainees whose reliability "has either been directly called into question by Government personnel or has been characterized by Government personnel as undetermined." (slip at 7).   Internal inconsistencies in some of these inculpatory accounts, combined with credibility concerns and a lack of corroborating evidence, prompted Judge Leon to conclude that the government had not met its burden of proof (the preponderance standard).

I believe this brings the overall habeas count to 6 detainees ordered released, and 3 detainees for whom detention was affirmed.  So far all the decision are from Judge Leon, though other judges eventually will be in the mix as well as their habeas proceedings move along. As noted previously, Judge Leon has accepted a broad definition of what counts as grounds for detention in theory, but the pattern of decisions in his cases thusfar demonstrates that he is taking the government's evidentiary burden extremely seriously.   

2. Senate and House Legislation re GTMO Closure

Meanwhile, legislation is moving in both houses to compel the closure of GTMO during 2009.  That itself is uninteresting, since it is clear President Obama will seek closure this year.  What is interesting is the effort in these bills to define the set of options for dealing with the detainees going forward.

The Senate bill is S.147, introduced by Senator Feinstein (with Rockefeller, Wyden, and Whitehouse).  It is posted here.

In relevant part, it provides:

Section 3(b) Detainees- Prior to the date that the President closes the detention facility at Guantanamo Bay, Cuba, as required by subsection (a), each individual detained at such facility shall be treated exclusively through one of the following:

(1) The individual shall be charged with a violation of United States or international law and transferred to a military or Federal civilian detention facility in the United States for further legal proceedings, provided that such a Federal civilian facility or military facility has received the highest security rating available for such a facility.

(2) The individual shall be transferred to an international tribunal operating under the authority of the United Nations that has jurisdiction to hold a trial of such individual.

(3) The individual shall be transferred to the custody of the government of the individual's country of citizenship or a different country, provided that such transfer is consistent with--

(A) the Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984;

(B) all relevant United States law; and

(C) any other international obligation of the United States.

(4) If the Secretary of Defense and Director of National Intelligence determine, jointly, that the individual poses no security threat to the United States and actions cannot be taken under paragraph (1) or (3), the individual shall be released from further detention.

(5) The individual shall be held in accordance with the law of armed conflict

The House bill is HR 374, introduced by Representative Harman (with Conyers, Esho, and Nadler).  It is posted here. 

In relevant part, it provides:

Section 3(b) Detainees- Prior to the date that the President closes the detention facility at Guantanamo Bay, Cuba, as required by subsection (a), each individual detained at such facility shall be treated exclusively through one of the following:

(1) The individual shall be charged with a violation of United States or international law and transferred to a military or Federal civilian detention facility in the United States for further legal proceedings, provided that such a Federal civilian facility or military facility has received the highest security rating available for such a facility.

(2) The individual shall be transferred to an international tribunal operating under the authority of the United Nations that has jurisdiction to hold a trial of such individual.

(3) The individual shall be transferred to the custody of the government of the individual's country of citizenship or a different country, provided that such transfer is consistent with--

(A) the Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984;

(B) all relevant United States law; and

(C) any other international obligation of the United States.

(4) If the Secretary of Defense and Director of National Intelligence determine, jointly, that the individual poses no security threat to the United States and actions cannot be taken under paragraph (1) or (3), the individual shall be released from further detention.

See the difference?  

The Senate bill preserves the option of detention under the law of armed conflict, the House bill does not.   Of course, detention under the law of armed conflict is the basis for current policy.  We can assume, however, that the sponsors of the Senate bill do not intend to endorse the full scope of detention authority the current administration believes that it has under the law of armed conflict. 

So what next?  Perhaps an attempt to clarify S.147 Section 3(b)(5), articulating in a particular way just the conduct or status that would warrant detention under the law of war (e.g., language referring to those who bore arms against the US or its allies in Afghanistan) and specifying that there must be judicial review of that determination (not that this needs specification, given Boumediene).

Note that Judge Leon's rulings in the habeas decisions to date, discussed above, might have the effect of encouraging legislators (and the Obama administration) to give this option serious consideration.  On the other hand, any continuation of military detention in any form no doubt will generate its share of criticism.

Op-ed: Legal Aspects of ‘Operation Cast Lead’ in Gaza

View my op-ed published on JURIST Forum,  Legal Aspects of ‘Operation Cast Lead' in Gaza, where I argue that while self-defense (in the classic model) is the legal basis for Israel's "Operation Cast Lead" against Hamas, the Israel Defense Forces' re-articulation of proportionality and collateral damage in that context is a new development in international law that carries significant risks.

Cross-posted on AIDP Blog.

The Great OLC Document Dump of 2009

Courtesy of a colleague in the know, I came across this website, where DOJ has today posted a whole bunch of heretofore classified or otherwise undisclosed OLC opinions about lots of interesting war-on-terror and war-in-Iraq stuff, including the original November 2001 memo defending the constitutionality of military commissions, the controversial Goldsmith memo on the applicability of the Fourth Geneva Convention in Iraq, and a host of other goodies.

And twenty minutes before the AALS Prawfs (et al.) Happy Hour, to boot!

Lots of food for fodder, methinks.

The Second Circuit addresses National Security Letters, touching along the way on deference to the executive branch

A very interesting decision today by the 2nd Circuit in the long-running litigation involving the FBI’s ability to issue “national security letters” to communication service providers and to direct recipients of such letters not to go public with that information. The panel (Newman, Calabresi, and Sotomayor), in an opinion by Judge Newman, has reinstated the government’s capacity to issue such letters, subject to a novel procedural requirement in which the government must initiate judicial review of the non-disclosure order in the event that the letter recipient wishes to contest the order.

The opinion is posted here. By way of summary, I first outline the statutes in issue, and then provide a brief overview of the holding. Note that certain aspects of the opinion will be of particular interest to those of you who follow the state secrets privilege and other doctrinal areas in which judges confront the question of how to reconcile judicial review with executive expertise and authority in the area of national security.

The statutes:

18 USC 2709 authorizes FBI to issue “national security letters” requesting certain information, subject to a non-disclosure obligation:

That statute states that “A wire or electronic communication service provider shall comply with a request for subscriber information and toll billing records information, or electronic communication transactional records in its custody or possession….”
Such a request must be supported by a certification from an appropriate FBI official to the effect that the “records sought are relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely on the basis of activities protected by the first amendment to the Constitution of the United States.”
Critically, if the official “certifies that otherwise there may result a danger to the national security of the United States, interference with a criminal, counterterrorism, or counterintelligence investigation, interference with diplomatic relations, or danger to the life or physical safety of any person, no wire or electronic communications service provider, or officer, employee, or agent thereof, shall disclose to any person (other than those to whom such disclosure is necessary to comply with the request or an attorney to obtain legal advice or legal assistance with respect to the request) that the Federal Bureau of Investigation has sought or obtained access to information or records under this section.

18 USC 3511 creates a mechanism for challenging requests for information under 2709 and related statutes:

Section 3511(a) states that the “recipient of a request … may, in the United States district court for the district in which that person or entity does business or resides, petition for an order modifying or setting aside the request. The court may modify or set aside the request if compliance would be unreasonable, oppressive, or otherwise unlawful.”

Section 3511(b) similarly authorizes courts to “modify[] or set[] aside a nondisclosure requirement imposed in connection with such a request,” and it also specifies the substantive grounds for granting such relief.

Condensing things a bit, the statute permits the judge to modify or set aside the nondisclosure obligation only “if it finds that there is no reason to believe that disclosure may endanger the national security of the United States, interfere with a criminal, counterterrorism, or counterintelligence investigation, interfere with diplomatic relations, or endanger the life or physical safety of any person.”

In making that determination, however, the judge is directed by the statute to give binding weight to the government’s position subject to a determination of bad faith: “If, at the time of the petition, the Attorney General, Deputy Attorney General, an Assistant Attorney General, or the Director of the Federal Bureau of Investigation, or in the case of a request by a department, agency, or instrumentality of the Federal Government other than the Department of Justice, the head or deputy head of such department, agency, or instrumentality, certifies that disclosure may endanger the national security of the United States or interfere with diplomatic relations, such certification shall be treated as conclusive unless the court finds that the certification was made in bad faith.”

Also note that the statute permits ex parte presentations by the government: “In all proceedings under this section, the court shall, upon request of the government, review ex parte and in camera any government submission or portions thereof, which may include classified information.”

Today’s opinion included the following holdings:

* The “no reason” test permits judges to review the reasonableness of the government’s claim that disclosure would risk one of the enumerated harms (slip at 30)

* The burden is on the government to show that this test has been satisfied, not on the petitioner to disprove it (slip at 31)

* The non-disclosure requirement presents a First Amendment issue, prompting strict scrutiny (the panel disagreed as to whether this might be a scenario in which something weaker than the usual strict scrutiny might apply, but concluded that the point was immaterial here) (slip at 36)

* There is no question that the government has a compelling interest in maintaining secrecy in such cases, as a general proposition; the question instead is the tailoring of the non-disclosure petition process (slip at 37)

* Issue 1: The status quo places the burden on the recipient of a letter to initiate litigation to challenge a non-disclosure order. Is that too restrictive?

Yes (38-42). Though the First Amendment does not require the government to actually initiate such review itself in every one of the tens of thousands of NSLs issued each year, it does require compliance with what the panel describes as a “reciprocal notice” procedure: “The Government could inform each NSL recipient that it should give the Government prompt notice, perhaps within ten days, in the event that the recipient wishes to contest the nondisclosure requirement. Upon receipt of such notice, the Government could be accorded a limited time, perhaps 30 days, to initiate a judicial review proceeding to maintain the nondisclosure requirement, and the proceeding would have to be concluded within a prescribed time, perhaps 60 days. In accordance with the first and second Freedman safeguards, the NSL could inform the recipient that the nondisclosure requirement would remain in effect during the entire interval of the recipient’s decision whether to contest the nondisclosure requirement, the Government’s prompt application to a court, and the court’s prompt adjudication on the merits.” (39) Does that mean the court is construing the statute to contain such a procedural requirement? No, not really. The court seems to be saying that the statute as written is unconstitutional, but that the government can “cure” the defect through voluntary action short of a legislative fix: “We deem it beyond the authority of a court to “interpret” or “revise” the NSL statutes to create the constitutionally required obligation of the Government to initiate judicial review of a nondisclosure requirement. However, the Government might be able to assume such an obligation without additional legislation.” (49)

* Issue 2: The status quo makes the court accept the government’s assertion that disclosure poses an unacceptable risk of harm, except upon a determination that the assertion is made in bad faith. Is that constitutional?

No. This is a complex and important question.

(a) As an initial matter, the panel holds that the government must offer more than a conclusory assertion that disclosure would risk such a harm. “In showing why disclosure would risk an enumerated harm, the Government must at least indicate the nature of the apprehended harm and provide a court with some basis to assure itself (based on in camera presentations where appropriate) that the link between disclosure and risk of harm is substantial. As the Government acknowledges, “Nothing in [subs]ection 3511(b) would require a district court to confine judicial review to the FBI’s necessarily unelaborated public statement about the need for nondisclosure. The provisions in [subs]ections 3511(d) and (e) for ex parte and in camera review provide a ready mechanism for the FBI to provide a more complete explanation of its reasoning, and the court is free to elicit such an explanation as part of the review process.” (45, 48-49)

(b) What about the prerogatives of the executive branch in making such determinations in the national security setting? Note that this is a *very* familiar question from the parallel context of state secrets privilege doctrine. The panel’s statement on this point is typical of what court’s say in that setting, suggesting that judges simultaneously exercise independence and avoid intrusion on executive prerogatives. “We have every confidence that district judges can discharge their review responsibility with faithfulness to First Amendment considerations and without intruding on the prerogative of the Executive Branch to exercise its judgment on matters of national security. Such a judgment is not to be second-guessed, but a court must receive some indication that the judgment has been soundly reached.” (46)

(c) What about the district court’s determination that judges must remain able to balance the risk to national security against their sense of the importance of the petitioner’s First Amendment interests? On this point, the panel held for the government. It wrote that there is no need for such additional balancing under the review system it envisions, stating that “[a] demonstration of a reasonable likelihood of potential harm, related to international terrorism or clandestine intelligence activities, will virtually always outweigh the First Amendment interest in speaking about such a limited and particularized occurrence as the receipt of an NSL and will suffice to maintain the secrecy of the fact of such receipt.” (46-47)

* Issue 3: Must the entire statute be struck because of these flaws, or can they be severed?

Contrary to the district court’s view, they may be severed. The panel therefore reinstates the government’s capacity to issue NSLs under this framework, subject to the rulings noted above. (53)

Call for Papers: 2nd Annual National Security Law Jr. Faculty Workshop

The 2nd Annual National Security Law Junior Faculty Workshop will be held in Austin on March 12 and 13, 2008. The Call for Papers, with all the details, is posted here. A quick word about this event. We did it last year at Wake Forest, and it was quite successful. Basically, the format intersperses paper presentations with blocks of law of war instruction. This keeps everyone fresh, and gives the event a rather different flavor than many other workshops. The only changes this year, aside from location, are (i) we have direct involvement from the ICRC as a co-sponsor, (ii) we're spreading the event out over two days; and (iii) we'll use a discussant for the paper presentations (i.e., someone will comment on your paper for ten minutes or so, and then you'll respond before taking questions and suggestions from the rest of the attendees).