In the spirit of the annual taking stock that accompanies the change of year, I thought I would offer my take on the top ten national security cases and themes to watch in the coming year. The cases (not in any particular order of importance) each have implications for national security policy well beyond the discrete issues presented in the case, and each is worthy of attention over the coming year:
(1) Latif v. Obama
In September a district court in Oregon issued a “very big deal” opinion, holding that the No Fly list redress procedures violated the procedural due process rights of citizens and legal permanent residents. The court ordered – for the first time ever – that the government inform plaintiffs whether or not they remained on the No Fly list, and if so, why. Since then, the government has informed seven of the 13 plaintiffs that they are not on the No Fly List (or at least weren’t as of October 10th when the letter was written) and has provided “notice letters” to the remaining six. The six have been given a chance to respond, and the Department of Homeland Security has committed to making a final No Fly List determination by January 15, consistent with the judge’s scheduling order.
The ACLU, which represents the plaintiffs, claims that the notice “remains inadequate.” So unless the remaining six are all taken off the No Fly List, which seems unlikely, there will almost certainly be further litigation as to whether the revised procedures satisfy procedural due process requirements. The court also has a remaining substantive due process claim to address – namely the argument that, no matter how good the procedures, the placement of plaintiffs on the No Fly List constitutes a deprivation of liberty that cannot be constitutionally justified.
(2) 702 Litigation
Judge King’s ruling in United States v. Mohamud, which declared section 702 of the FISA Amendments Act of 2008 constitutionally sound is now headed for the Ninth Circuit. This was the first ever court to address the constitutionality of section 702; the the issue arose in the context of a post-conviction motion for a new trial, based on the Justice Department’s belated disclosure that some of the evidence had been derived from 702 collection. (Briefing is available here and addresses both the Fourth Amendment and Article III challenge to section 702.)
Another district court is expected to rule on 702’s constitutionality in the coming months (and certainly within the year). The case is U.S. v. Muhtorov, and, unlike the Mohamud case, which involved a motion to vacate a conviction that had already been entered, this challenge arises as a pre-trial challenge to the government’s intended use of evidence derived from 702 collection (a much better posture from the defendant’s perspective). Here is Muhtorov’s opening brief on the merits; the government’s responsive brief; and Muhtorov’s reply brief.
(3) Military Commissions: 9/11 Case
Twelve years and counting since the first military commission charges against Khalid Sheikh Mohammed and four other alleged masterminds of the 9/11 attacks were brought, and the case still trudges along. The latest iteration, pursuant to the 2009 Military Commissions Act, has been underway since April 2012. Among the things to look for in the coming year:
(i) There is the ongoing inquiry into the FBI investigation of defense counsel—an investigation that led to a member of the defense teams being interviewed by the FBI and then sworn to secrecy in a manner that almost certainly impeded on the attorney-client privilege and has led to multiple delays as the court tries to assess what, if any, relief is required.
(ii) One can certainly expect renewed motions stemming from the Senate Intelligence Torture Report. It’s not entirely clear what form these motions will take, but, in addition to renewed claims about tainted evidence, one can expect a claim that detainees and their counsel should now be able to discuss their treatment and detention in an unclassified setting. (See this discussion here.), Another likely claim: given what these detainees have experienced, they should be spared death – an argument persuasively made by Jonathan Hafetz here. (The release of the Senate report has already spurred the presiding judge to, sua sponte, order a review of sealed records to determine what, if any, can now be made public.)
(iii) More broadly, I expect to see renewed discussion, if not action, about the possibility of moving the trials to the United States. President Obama has signaled as of late that he has become serious about closing Guantanamo. But that would require relocation of the trials to the United States as well as a repeal of the statutory bar on moving Guantanamo detainees to the United States – something that is not like to happen soon.
As to whether or not there is an actual trial in the next 12 months, I’m not holding my breath. But then again, one never knows. . .
(4) The Microsoft Litigation
This case, titled In the Matter of a Warrant to Search Certain E-mail Account Controlled and Maintained by Microsoft Corporation, raises a set of novel, and quite fascinating questions regarding the geographic reach of the government’s warrant authority under the Electronic Communications Privacy Act (ECPA). As readers of this blog will know, Microsoft in December moved to quash a warrant requiring it to produce emails stored in a data center in Dublin, Ireland, arguing that the court had no jurisdiction to issue a warrant with extraterritorial reach. The government countered that Microsoft was compelled to produce everything in its custody and control, regardless of where it was stored, and in any event, it was not an extraterritorial search since it was being accessed from within the United States.
Both the magistrate judge and district court have sided with the government, and the case is now before the Second Circuit. Not only have most major U.S.-based telecommunications company and Internet Service Providers filed amicus briefs on Micrsoft’s behalf (i.e., Verizon, AT&T, Apple, Cisco, and Google, to name a few), but so have media outlets, computer scientists, rights groups, and the U.S. Chamber of Commerce, among others. Brad Smith, Microsoft’s General Counsel, has been blogging and publicly speaking and about the case.
All of the briefing, including the amicus briefs can be found here; the government’s brief is due to the Second Circuit in March. I intend to write more about this case in the coming weeks.
(5) al Bahlul
Sometime in the coming months, the D.C. Circuit will hand down the latest ruling in al Bahlul v. United States. The case, now on remand from the en banc court, raises the question as to whether or not military commissions can try detainees for crimes that are not internationally-recognized war crimes (the specific crime at issue is inchoate conspiracy). And while the ruling will not change the current trajectory of the military commissions, given that none of the pending military commission cases have a stand-alone conspiracy charge, it does have important implications for the design of military courts in the future. The key issue is whether Article III permits military trials, without a jury or life-tenured judge, for crimes that are not violations of the international law of war.
The case also raises a less-often-discussed, but important, claim that the military commissions violate the equal protection guarantee of the Fifth Amendment by discriminating against aliens. (Congress did not authorize commission trials of U.S. citizens.) At oral argument, government counsel appears to have conceded that the equal protection clause applied. This is an important concession, given earlier briefing that pointed the D.C. Circuit to prior rulings holding that Guantanamo Bay detainees lacked Fifth Amendment rights. The government responds to the merits by “assuming arguendo” that the equal protection guarantee of the amendment applies, arguing that the Fifth Amendment does not preclude such discrimination against aliens in this context.
(6) Meshal v. Higgenbotham
An important case for anyone (including me) who thinks that rights without remedies can quickly become rights in name only. The case, Meshal v. Higgenbotham, involves the alleged detention and torture of a U.S. citizen in the Horn of Africa in 2007. Although the district court called Meshal’s alleged treatment “appalling (and, candidly, embarrassing)” the court ultimately relied on the holdings of three other circuit courts to conclude that Meshal’s claims should be dismissed. The culprit: “special factors” which make a claim for damage against federal officials (so-called Bivens claims) unavailable in cases involving military matters, national security, and intelligence.
The case is now on appeal before the D.C. Circuit. As Steve writes here:
Meshal is perhaps the “last, best hope” for what are known as “Bivens” claims (where litigants sue federal officers for damages directly under the Constitution) in national security cases because (1) the alleged violations of Meshal’s Fourth and Fifth Amendment rights are at the very core of those few Bivens remedies the Supreme Court has expressly endorsed; and (2) the defendants are not senior military or intelligence officials, but rather federal law enforcement officers–again, the heartland of Bivens.
(7) United States v. Graham
Among the many cases percolating through the courts involving the use of cell site geo-location data, one case to definitely watch is that of United States v. Graham. Argued before the Fourth Circuit in December, the case challenges the government’s warrantless collection of historical cell cite location data for a whopping 221 days. At issue is whether or not the suspect retains a reasonable expectation of privacy in the data even though it had been transmitted to a third party doctrine – the cell phone provider.
The 11th Circuit addressed an analogous issue in United States v. Davis, concluding that the government does need a warrant to collect historical cell site data. (See Jennifer Granick’s discussion of the case here.) And it’s an issue that’s been addressed by the Third Circuit as well. My prediction: A Circuit split, if one develops, will spark Supreme Court review. (See Orin Kerr’s discussion of some related cases here.)
(8) 215 Litigation
Rulings in both ACLU v. Clapper (2d Circuit) and Klayman v. Obama (D.C. Circuit) regarding section 215 telephony metadata program are likely to be issued in the coming months. The cases raise a number of important constitutional and statutory issues, including: (i) the continued vitality of the third party doctrine (also at issue in Graham); (ii) whether the mere collection, rather then use, of the information constitutes a constitutional violation; (iii) whether the word “relevance” in 215 could possibly mean what the government claims – that the data is relevant because it might one day be useful. As Marty writes here, the 2d Circuit at least appears poised to answer the question on statutory grounds only. And while the statutory issues are not as sexy as the Fourth Amendment issues, and can be dealt with by a simple amendment to the statute, they do have broader implications as well. In Marty’s words:
If the FISC were correct that a bulk metadata collection held by NSA is, in its entirety, “relevant” to FBI terrorism investigations because having such a database is “necessary” to permit NSA to be more effective in identifying terrorist connections, then presumably the same would be true under the 2709 relevance standard [for NSLs], which would mean that the FBI could obtain all telephony phone records of everyone in the nation simply by issuing a handful of NSLs, without any FISC involvement at all, and without the minimization requirements of Section 215.
(9) Military Commissions: al-Nashiri
As Marty and Steve have written exhaustively, the case against al-Nashiri raises important questions about both what constitutes the start and characteristics of an armed conflict, and also about the availability of interlocutory review of military commission rulings by Article III courts—an issue that matters to both the fairness and perceived legitimacy of the military commission system. The charges in the case relate primarily to two distinct incidents: (i) the 2000 bombing of the USS Cole; and (ii) the 2002 bombing of the MV Limburg, off the coast of Yemen. The military judge has dismissed the latter set of charges on the grounds that the government had failed to offer pre-trial evidence that the bombing of the MV Limburg was part of the armed conflict with al Qaeda, and that therefore the military commission lacks jurisdiction. The ruling is now on appeal to the Court of Military Commissions Review (CMCR). But the case has been stayed pending an interlocutory appeal challenging the presence of two military officers on the CMCR and is presently pending before the D.C. Circuit. For a discussion of the substantive issues, see these excellent posts by Marty; for a discussion of the jurisdictional issue, see these posts by Steve.
(10) Guantanamo Litigation – End of War
With the combat mission in Afghanistan having ended, Guantanamo detainees are likely to begin challenging the lawfulness of their ongoing detention on the grounds the armed conflict has ended. Marty provides an analysis of this issue here. The few remaining Taliban-connected detainees, if any, appear to have the strongest claims on this front. The vast majority of Al Qaeda-connected detainees face an uphill battle given, among other things, the administration’s theory that the conflicts with both Al Qaeda in the Arabian Peninsula (AQAP) and the Islamic State of Iraq and Syria (ISIS) are continuations of the same conflict with al Qaeda authorized back in 2001. (Although of course, the reasoning is different in these two contexts: AQAP is deemed an “associated force” of Al Qaeda, whereas ISIS has been deemed a successor organization). That said, it is likely that at least some judges will be skeptical of the government’s claim, leading to some interesting judicial opinions regarding the contours of armed conflict and what it means for armed conflict to end (the bookend of the question raised in al-Nashiri about when a conflict begins).
And with that. . . happy new year to all!