On one hand, the Posse Comitatus Act of 1878 generally forbids use of federal armed forces for civilian law enforcement unless a statute specifically authorizes it. Although the Insurrection Act has long been understood to be one such statute, Trump has, quite notably, not invoked it here. On the other hand, the Executive Branch (with a bit of help from the Supreme Court) has long claimed inherent power to use military force unilaterally to “protect federal functions,” including the power to defend federal property and federal personnel from violence. Thus, perhaps the dominant question Trump’s military deployment raises is the shape of the Venn diagram created by these two opposing forces. Are they mutually exclusive? If they overlap, which one prevails? Or put more basically, where does this “protective power” end, and (generally prohibited) law enforcement begin?

In our view, there are three possible answers to this question. On the first view, the protective power can include law enforcement—and overrides the Posse Comitatus Act when it does. On the second, the protective power, as an exercise of Article II authority, cannot be understood to include any typical law enforcement activity—and so such activity is unlawful unless specifically authorized by congressional statute. On the third, the answer is somewhere in between—where the protective power does not generally authorize law enforcement activity, but does when that activity is incidental to the protection of federal property and personnel (such as arresting individuals while they are attacking a federal building).

As we explain in the discussion that follows, we think that there are strong arguments to be made in support of both the second and third options—but not the first. More to the point, we think Congress has been far more clear than is widely believed about what its view is—in a way that calls into at least some question what the Trump administration has thus far used federal military forces for in and around Los Angeles.

1. Protective Power as an Exception to Posse Comitatus

The Posse Comitatus Act itself bars domestic use of the military “to execute the laws” “except in cases and under circumstances expressly authorized by the Constitution or Act of Congress.” Obviously, nothing in the Constitution “expressly authorize[s]” the President to protect federal functions. Instead, such an Article II power is, at best, implicit—derived from some combination of the Vesting Clause and the Take Care Clause.

By itself, that ought to resolve any debate over whether any protection of a federal function is therefore exempted from the Posse Comitatus Act’s ban, whether it involves law enforcement or not. But there is also plenty of Founding-era history supporting the view that Congress, and not the President, would have broad power to define the circumstances in which the military could be used domestically. Indeed, the Insurrection Act itself derives from statutes Congress enacted in 1792 and 1795, both of which reflected the universal understanding at the time that the President could use military force “to execute the laws of the union” only if Congress had specifically authorized him to do so.

And, to its credit, the Department of Justice in the current litigation over the Los Angeles deployments has seemingly embraced this view. As it argued in its very first brief:

“Plaintiffs’ objection based on the Posse Comitatus Act is equally misdirected. Neither the National Guard nor the Marines are engaged in law enforcement. Rather, they are protecting law enforcement, consistent with longstanding practice and the inherent protective power to provide for the safety of federal property and personnel.” (emphasis in original)

(See also the most recent brief at p. 29).

Thus, not only do we find wholly unpersuasive any argument that the protective power overrides the Posse Comitatus Act; we don’t understand that to be the Trump administration’s litigating position, at least thus far.

2. Posse Comitatus as a Law Enforcement Ban

At the other end of the spectrum is the argument that the protective power cannot fairly be understood to include any law enforcement functions—that it does not encompass searches, seizures, arrests, or any other activity similarly characteristic of law enforcement. The Ninth Circuit, for example, has interpreted the Posse Comitatus Act to prohibit any direct participation by the military in actions that “subject civilians to the exercise of military power that is regulatory, proscriptive, or compulsory in nature.” Thus, on this view, even where what might be viewed as law enforcement activity by the military is necessarily incidental to protecting federal buildings or personnel, it is still prohibited without clear congressional authorization.

Congress put at least a thumb on the scale in this direction in 1981—when it enacted what is present-day 10 U.S.C. § 275. Under that provision,

The Secretary of Defense shall prescribe such regulations as may be necessary to ensure that any activity (including the provision of any equipment or facility or the assignment or detail of any personnel) under this chapter does not include or permit direct participation by a member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law.

Although this provision is focused on military support for civilian law enforcement agencies, the authoritative House Report is much clearer on how Congress understood the relationship between the protective power and the Posse Comitatus Act:

Certain military activities, although otherwise prohibited by the Posse Comitatus Act, are permissible if expressly authorized by statute. These permissible military actions are specifically defined and are generally restricted to instances involving civil disorders (10 U.S.C. 331–36), disasters (42 U.S. 4401–84 and 1855), and threats to federal property (see letter from Mary C. Lawton, Office of Legal Counsel, Department of Justice, to Deanne Siemer, General Counsel, Department of Defense, March 24, 1978 at 3; see also United States v. Banks, 539 F.2d 14, 16 (4th Cir. 1976). The other specific and “express” statutory exceptions to Posse Comitatus include: (1) 16 U.S.C. 23 and 16 U.S.C. 78 (protection of federal parks); (2) 18 U.S.C. 112(f) and 1116 (protection of foreign officials, official guests, and other internationally protected persons); (3) 18 U.S.C. 351 (crimes against members of congress); (4) 18 U.S.C. 1751 and 3056 (protection against crimes against the president); (5) 22 U.S.C. 408, and 461-462 (enforcement of the neutrality laws); (6) 42 U.S.C. 1989 (execution of warrants relating to certain violations of the civil rights laws); (7) 42 U.S.C. 3756 (loan of services, equipment, personnel and facilities to LEAA [Law Enforcement Assistance Administration]); (8) 43 U.S.C. 1065 (removal of unlawful enclosures from public lands); and (9) 50 U.S.C. 220 (enforcement of the customs laws).

Thus, § 375 was enacted against a backdrop in which the presumption is that activities are prohibited unless they are statutorily authorized. In a note accompanying the first sentence of the above passage, the House Report rules out any notion of a separate Article II authority in reference to the Posse Comitatus Act. The note states in full: “The statute permits constitutional exceptions. However, there are none.” Thus, Congress’s view appears to be that the protective power is not an “exception” to the Posse Comitatus Act; it is defined in such a way so as to not even implicate it.

Note: The Office of Legal Counsel has relied on the House Report and accompanying Conference Report as authoritative guides for determining the scope of permissible military action and the Posse Comitatus Act.

3. The Hybrid: Law Enforcement Only as Necessarily Incidental to Protection

Although we generally find Congress’s view satisfying, it raises one puzzle: What about the Supreme Court’s decision in In re Neagle, which held that the President did not need statutory authorization to appoint a deputy U.S. marshal to protect a Supreme Court Justice from an attempted assassination? Even if Deputy Neagle wasn’t exercising “law enforcement” authority when he shot and killed David Terry in defense of himself and Justice Field, it would be a very strange result if he had the power to shoot at Terry, but not to arrest and detain him. The point is not that Deputy Neagle had general law enforcement power; it’s that he had those powers that were necessary to discharge his (valid) duty to protect Justice Field.

We think the 1981 amendment can be read consistently with this view. As the 1981 Conference Report noted,

Nothing in this section, however, limits the inherent authority of military personnel to defend themselves or to protect federal property. Nothing in this chapter adversely affects the authority of the attorney general to request assistance from the department of defense under the provisions of 21 U.S.C. 873(b). The limitation posed by this section is only with respect to assistance authorized under any part of this chapter.

[Update: Further to our point, the above passage might be read even more narrowly as an emergency exception. The House Report states: “Nothing in this section, however, changes the existing exceptions to the Posse Comitatus Act which allow military personnel to protect lives and federal property in emergency situations when they are involved in the performance of a lawful activity. For example, under current law, and under this proposal, nothing prohibits an air force pilot operating military aircraft from protecting him or herself from aggressive or destructive acts of a drug violator while on an authorized mission.” (We thank Chris Mirasola for this point.)]

Consistent with this understanding, long-standing Defense Department policies state that it is permissible for the military to engage in at least some law enforcement activity in the protection of federal government functions:

Permissible Direct Assistance. Categories of active participation in direct law enforcement-type activities (e.g., search, seizure, and arrest) that are not restricted by law or DoD policy are …

Federal military commanders have the authority, in extraordinary emergency circumstances where prior authorization by the President is impossible and duly constituted local authorities are unable to control the situation, to engage temporarily in activities that are necessary to quell large-scale, unexpected civil disturbances because:
…
When duly constituted Federal, State, or local authorities are unable or decline to provide adequate protection for Federal property or Federal governmental functions. Federal action, including the use of Federal military forces, is authorized when necessary to protect Federal property or functions. (emphasis added).

The key, in our view, is the bolded language. The question is whether the specific search, seizure, and arrest are “necessary to protect Federal property or functions.” Sending armed troops along with ICE agents on immigration raids can’t possibly meet that test, whereas stationing troops in front of a federal building and authorizing them to arrest those who attack it is. It would also be completely unprecedented to use the protective function to protect enforcement officials – and in a way that entangles the military forces in the very act of law enforcement. The key, in our view, as reflected in both the 1981 enactment of § 275 and the Department of Defense’s own long-standing view, is that law enforcement qua law enforcement is strictly prohibited. Only if the compulsory action is necessary (and incidental) to the protection of federal property or personnel can it be said to have any basis in Article II of the Constitution.

Of course, law enforcement activities can be authorized by other statutes. But we’re not at all persuaded that 10 U.S.C. § 12406 is such a statute. And it would not resolve the use of the Marines. Thus, in our view, the central legal question arising out of the use of military force in and around Los Angeles is not whether the troops are engaged in any “law enforcement-like activities,” but whether those activities are strictly necessary (and incidental) to the protection of federal property and functions. Insofar as they are not, we believe they violate the Posse Comitatus Act.

The post Posse Comitatus Act Meets the President’s “Protective Powers”: What’s Next in <i>Newsom v. Trump</i> appeared first on Just Security.

As events unfold on the ground in LA, and in the lead-up to further anticipated protests this weekend, Just Security and the Reiss Center on Law and Security hosted a YouTube Live event to examine the pressing legal and policy issues at stake.

Show Notes: 

• Watch the full June 12th, 2025 event on YouTube, here.
• Elizabeth Goitein: Senior Director, Liberty & National Security Program, Brennan Center for Justice
• Mary B. McCord: Visiting Professor of Law and Executive Director, Institute for Constitutional Advocacy and Protection, Georgetown Law; Member, Board of Directors, Just Security
• Steve Vladeck: Agnes Williams Sesquicentennial Professor of Federal Courts, Georgetown Law; Executive Editor, Just Security   
• Ryan Goodman: Anne and Joel Ehrenkranz Professor of Law and Faculty Co-Director, Reiss Center on Law and Security, NYU School of Law; Founding Co-Editor-in-Chief, Just Security 
• Just Security’s Civilian-Military Relations coverage.
• Just Security’s Domestic Deployment of the U.S. Military coverage.
• Just Security’s Law Enforcement archives.

The post The Just Security Podcast: The Situation in Los Angeles and the U.S. Military appeared first on Just Security.

That is enough of a dataset from which we can at least begin to try extrapolating broader themes. And one of those themes is a concerted effort on the justices’ part to preserve a meaningful judicial role in checking the executive branch—even in decisions in which the Trump administration may be winning modest procedural victories. What’s more, as the Trump administration has ratcheted up its behavior, the Court has responded in kind—increasingly asserting itself in standing up for the power of the federal courts, one way or the other, to eventually rule on the merits of each of Trump’s allegedly unlawful actions. It may not be everything many who care about checks and balances would have wanted from the Supreme Court, but it has been a striking amount of pushback from a Court that has a majority ideologically sympathetic to the administration.

Considering the decisions as a series, the story of the Trump cases to date can be loosely analogized to the Supreme Court’s iterative response to the Guantánamo cases during the Bush and Obama administrations. In Rasul v. Bush (2004), the Court tentatively asserted a role for federal judiciary—holding that, at least as a matter of statute, the federal courts could hear habeas petitions filed by non-citizens detained as “enemy combatants” at Guantánamo. In the face of mounting reports of torture, other detainee abuses, and efforts by the Bush administration to frustrate judicial review, the justices responded in Hamdan v. Rumsfeld (2006) by not only invalidating the first iteration of military commissions, but by holding that “Common Article 3” of the Geneva Conventions, which guarantees humane treatment to all wartime detainees, applied to the conflict between the United States and al Qaeda. And when Congress and the President together attempted to entirely cut off judicial review in the Military Commissions Act of 2006, the Court responded in Boumediene v. Bush (2008) by holding that the Constitution required meaningful judicial review in Guantánamo habeas cases—only the second time in its history that the Court struck down a jurisdiction-stripping statute.

One can tell a loosely parallel story about the Court’s interventions since January 20th. Consider the cases involving the Alien Enemies Act of 1798 (AEA) and the wrongful removal of Kilmar Armando Abrego Garcia. On April 7, the Court issued a bit of a split decision in Trump v. J.G.G., holding that detainees in the United States have to use habeas petitions to try to challenge their potential removal under the AEA, but that they are entitled to notice and a meaningful opportunity to bring such claims preceding removal. The first part of that ruling was a small but significant win for Trump, but the second part was a seismic reaffirmation of a meaningful judicial role. Later that week, in Abrego Garcia, the Court moved a bit more aggressively—holding, without any dissent, that federal courts could indeed order the government to “facilitate” the release of individuals who have been wrongfully transferred to another country, so long as judges took foreign policy concerns into account. And amidst mounting evidence that the Trump administration was trying to resist both judgments, the Court stepped back in just after midnight on April 19—blocking, at least on a temporary basis, the removal of any more AEA detainees from the Northern District of Texas.

Even away from the immigration context, the Court’s rulings on emergency applications have gone out of their way to preserve a meaningful judicial role. The teacher training grants ruling, for instance, only channels lawsuits challenging certain grant cutoffs into the Court of Federal Claims; it does nothing to make those claims more difficult to prove on the merits. The probationary employees ruling likewise sided with Trump on incredibly narrow procedural grounds (that the organizational plaintiffs who had formed the basis for the preliminary injunction lacked standing)—leaving open the possibility that federal courts would ultimately conclude that the challenged firings were, in fact, unlawful.

The Court is thus not only marking out its terrain, but is also sending a message to the federal judiciary to stay true to the functions of judicial review in policing illegality.

But just as the Guantánamo cases didn’t end with the Boumediene ruling in 2008, so, too, the Trump cases are not going to end with these tentative but emphatic assertions of judicial power. The question now becomes what the courts (and the Supreme Court, specifically) are going to do with that power—especially whether they’re going to settle, one way or the other, the critical merits questions undergirding each of these disputes.

And here, the lesson of the Guantánamo cases is more of a mixed bag. Indeed, 17 years after Boumediene, the Supreme Court has not conducted plenary review of a single additional Guantánamo case—even though a number of critical constitutional questions about the detentions (like, “does the Due Process Clause apply?”) and the military commissions (like, “can they constitutionally try offenses that aren’t international war crimes or that pre-dated 9/11”) remain unanswered. The Court apparently was content, having asserted judicial power in Rasul, Hamdan, and Boumediene, to leave everything else unsettled. Maybe part of that reflected more faith that the Obama administration would treat the detainees humanely (where the administration largely succeeded) and would otherwise try to make the Guantánamo cases go away (where it failed). Maybe it also reflected what Linda Greenhouse called “Gitmo fatigue.” But whatever the reason, the behavior reflected what I dubbed the “passive-aggressive virtues”—“in which the Court as an institution gives the appearance of standing on the sidelines, even as it continually reminds the relevant players of the role that it can—and, if provoked, stands ready to—play.”

It should not take much to persuade you that neither we nor the Court can afford for history to repeat itself this time around. Every day that goes by without judicial rulings on the substantive illegality of what the Trump administration is doing, that illegality is going to continue or expand. Every inch of wiggle room that the courts give to the Trump administration, it’s going to take a hundred yards. And unlike in the early 2010s, when Congress could be trusted to (and did) step in with substantive legislation to address at least some of the open questions and meaningful oversight to rein in executive branch abuses, there is no reason to think that Congress is going to do anything to help defuse the escalating confrontations between the executive branch and the judiciary in these cases.

In that respect, 100 days into the second Trump administration, we find ourselves at what, in retrospect, may come to be a critical inflection point. To date, the federal courts in their entirety have done remarkable work to try to stem the flood of unlawful behavior by the executive branch, and the Supreme Court has (for now) successfully navigated a tightrope—between unnecessarily provoking a confrontation with the executive branch and, as so many other institutions already have, simply bending a knee.

But one need only look at each day’s headlines to see that this center cannot (and will not) hold. Judicial power is not an end unto itself; it is a means for vindicating the rule of law. We can be grateful at how skillfully the courts, and even the Supreme Court, have used that power to those ends over the last 14+ weeks, but the real question is what happens in the next 100 days.

The post The Supreme Court’s Next 100 Days: Understanding the Passive-Aggressive Virtues (and Vices) appeared first on Just Security.

Because the United States hasn’t used the Alien Enemy Act since World War II, there’s a fair amount of misunderstanding out there about what the Act authorizes, when it can be invoked, and what’s supposed to happen even when the statute applies. And as in the Khalil case, there are also tricky questions about where litigation challenging the government’s conduct should be brought. In the post that follows, I take a quick stab at five of the biggest questions raised by these events.

First, what exactly is the Alien Enemies Act, and what is the basis for invoking it here?

As J. Gregory Sidak has written, “The Alien Enemy Act was enacted on July 6, 1798, eleven days after Congress enacted the notorious Alien Act and eight days before it enacted the even more infamous Sedition Act.” Passed during the “quasi-war” with France, the Act was meant to give the President broad authority over potential spies and saboteurs at home during a conflict overseas. Specifically, the significant grant of power came in section 1, codified today at 50 U.S.C. § 21:

[W]henever there shall be a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion shall be perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, . . . all natives, citizens, denizens, or subjects of the hostile nation or government, being males of the age of fourteen years and upwards, who shall be within the United States, and not actually naturalized, shall be liable to be apprehended, restrained, secured and removed, as alien enemies.

The obvious limiting language here is that the authority conferred by the act is meant to be confined to a time of declared war, or any “invasion or predatory incursion . . . by any foreign nation or government.” Enacted at a time when Congress was out of session more than it was in session, it made sense for the legislature to allow for the possibility that the United States might have been invaded (by England, say), and yet an out-of-session Congress wouldn’t have yet had the opportunity to declare war. Indeed, the only invocations of the statute, prior to Friday, had come during the United States’  three biggest declared wars—the War of 1812; the First World War; and the Second World War.

Obviously, the United States is not currently at war with any country—including Venezuela. In his Proclamation, Trump tried to get around this rather glaring defect by referring to Tren de Aragua (TdA) as part of a “hybrid criminal state that is perpetrating an invasion of and predatory incursion into the United States, and which poses a substantial danger to the United States.” (The government’s brief on appeal claims, “TdA also operates as a de facto government in the areas in which it is operating.”) Thus, the proclamation invokes the Alien Enemy Act as a basis for arresting, detaining, and removing “all Venezuelan citizens 14 years of age or older who are members of TdA, are within the United States, and are not actually naturalized or lawful permanent residents of the United States.” In other words, the statute hasn’t been invoked against all Venezuelans in the United States, but only against those who are (1) “members” of TdA ; and (2) neither U.S. citizens nor green card holders (we’ll come back to what membership in TdA means). That might change, of course, especially with DOJ arguing that “TdA [has] become[] indistinguishable from Venezuela.” But at least for the moment, the scope of the group over whom the government is claiming this authority is rather circumscribed. 

Without downplaying the threat that multinational gangs like TdA pose to the United States, it should still be clear that this argument is nonsense. Whatever else might be said about TdA, it is not a “foreign nation or government,” and there is no “foreign nation or government” that is currently undertaking an “invasion or predatory incursion” against the United States. DOJ tries to split the difference by suggesting that TdA is acting at the direction of the “Maduro regime,” but it never actually makes the argument that would have to follow to make the statute even arguably applicable—that the Venezuelan government is responsible for the “invasion or predatory incursion.” The Alien Enemy Act is specific on this point, and TdA just doesn’t fit the bill.

Second, if the statute so obviously doesn’t apply, why is the Trump administration invoking it?

Even though the plain text of the Alien Enemy Act and common sense both militate against the conclusion that the United States is under an “invasion or predatory incursion” from a “foreign nation or government,” Trump’s proclamation asserts, repeatedly, that Trump himself has determined that we are. One argument that the Justice Department is thus already making is that the President’s determinations in this regard are conclusive—and are not subject to judicial review. (The government’s appellate brief puts forward the regrettable argument that one acceptable definition of invasion is “the arrival somewhere of people or things who are not wanted there”—a ludicrously low bar). 

The best support for this argument is the Supreme Court’s only decision analyzing the Alien Enemy Act—its 1948 ruling in Ludecke v. Watkins. There, a group of Germans being detained in the United States under the auspices of the Act brought suit, claiming that, because the war in Europe had ended (and, indeed, Germany as a sovereign nation had ceased to exist), the detention authority conferred by the Act had expired. For a 5-4 majority, Justice Frankfurter rejected that argument. In Frankfurter’s words, 

It is not for us to question a belief by the President that enemy aliens who were justifiably deemed fit subjects for internment during active hostilities do not lose their potency for mischief during the period of confusion and conflict which is characteristic of a state of war even when the guns are silent but the peace of Peace has not come.

So the detentions could continue. (Indeed, from the perspective of the political branches, the war against Germany would not formally end until October 19, 1951.) Thus, the argument goes, President Trump’s determination that we are under invasion from the “hybrid criminal state” TdA represents ought to receive similar deference—if not be categorically unreviewable under the “political question” doctrine. (Nevermind that in that very case, the initial existence of a state of armed conflict was determined by Congress, not the President.)

The government might also point to the Supreme Court’s more recent decision in Zivotofsky v. Kerry, which held that the President has the exclusive constitutional power to recognize foreign countries. There, the question was whether Congress could override consecutive presidents’ determinations that Jerusalem was not part of Israel (the Court said no). Here, it wouldn’t surprise me if Trump were to argue that he has the unreviewable power to proclaim that TdA is, in fact, Venezuela (and Venezuela is TdA).

Third, how viable is this deference/political question argument?

The problem for the government’s deference argument is that it is belied by a lot of (lower-court) case law. The text of the Act itself explicitly suggests that judicial review is available to consider whether an alleged “enemy alien” actually falls within the Act’s purview. As clarified by Justice Bushrod Washington on circuit in the landmark early case of Lockington v. Smith (1817), a court order was not a prerequisite to the executive detention of an alien enemy. But the exercise of judicial review was still robust. (There’s also a significant War of 1812-era ruling on circuit by Chief Justice Marshall, which was unearthed in the 2000s by Gerry Neuman and Charles Hobson, and which, among other things, also stresses the significance of judicial review under the statute.)

To that end, there are a number of reported cases during World War I and during the run up to World War II in which the pattern of judicial review that emerged was focused on whether the individual in question fell within the statute’s definitional scope—i.e., whether they were “natives, citizens, denizens, or subjects of” a country against which Congress had declared war. If the answer was yes, the courts typically held there was little more for them to do. But there was robust review of what might be viewed as the “jurisdictional” facts—of what country the detainee was affiliated with, and whether Congress had declared war against that country.

Indeed, as courts were confronted with hundreds of cases during the Second World War, their review focused extensively on the applicability of the jurisdictional facts, including whether the detainee was connected to a country against which the United States had declared war, and exactly when they were so connected (and when they were arrested). Again and again, lower courts, at least, took a narrow and formalistic approach to when (and to whom) the statute could apply even if they accepted that their role was limited in cases in which the statute’s applicability was clear.

Ludecke isn’t inconsistent with those cases. The detainees before the Supreme Court conceded that they were German; and they conceded that Congress had declared war on Germany. Their argument was only that the war (the statutory condition for their detention) had ended. For the Supreme Court to conclude that this was a particular issue on which it would defer to the political branches did nothing to upend the idea that the statute’s limits were otherwise judicially enforceable. (I wrote about Ludecke in much more depth back in 2006.) Thus, even if the President is entitled to a modicum of deference, it should follow from the judicial precedents arising out of the War of 1812, World War I, and World War II that federal courts can provide meaningful judicial review of whether the statutory condition predicate—an “invasion or predatory incursion” by “a foreign nation or government”—has occurred. (Readers may also be interested in George Mason law professor Ilya Somin’s analysis of the scope of the “political question” doctrine in cases about incursions.)

Outside of the Alien Enemy Act context, the modern Supreme Court has also shown less willingness to categorically defer to the executive branch with regard to the existence of hostilities. Thus, even as the Court in Hamdi v. Rumsfeld blessed the military detention as an “enemy combatant” of a U.S. citizen captured in Afghanistan, Justice O’Connor’s plurality opinion noted that this was based on the Court’s assessment of what was true on the ground, not merely the executive branch’s assertions. In her words, “If the record establishes that United States troops are still involved in active combat in Afghanistan, those detentions are part of the exercise of ‘necessary and appropriate force,’ and therefore are authorized by the [2001 Authorization for the Use of Military Force].” In short, there is a lot of support for the proposition that courts can and should meaningfully scrutinize the President’s assertions about TdA. Even Zivotofsky, which suggests that the President has conclusive power to recognize foreign nations, is fairly read to be focused more on how to resolve a disagreement between Congress and the executive branch (a separation of powers dispute) than on the President’s power to recognize, say, a private company or a remote, uninhabited island as a foreign sovereign. There has to be some factual basis for the President’s assertions, and those facts are, and ought to be, subject to judicial review.

Fourth, what if a court nevertheless defers to the government’s claim that we are being invaded by TdA?

In any event, and as noted above, Trump’s proclamation does not apply to all Venezuelan nationals in the United States. Rather, it applies only to those who are 14 or older; who are neither naturalized citizens of the United States nor lawful permanent residents; and who are “members” of TdA. Critically, the proclamation does nothing to define what it means to be a “member” of TdA. If anything, this invites even more of a judicial role than was the norm during prior invocations of the Alien Enemy Act.

Consider, in this respect, the Guantánamo habeas cases of the late 2000s and early 2010s. After the Supreme Court held that federal courts had to be able to hear those suits, there was a remarkably rich body of case law that emerged respecting both the substantive criteria and procedural rules by which the government had to prove that individual detainees were “part of” al Qaeda and its associated forces—and thus subject to long-term military detention as “enemy combatants.” There’s quite a lot to say about the rules upon which the D.C. district courts and D.C. Circuit ultimately seized (much of which has been said by me). What can’t be denied is that the need to define and police “membership” in a transnational organization as a basis for detention authority provoked a robust judicial response—where the courts provided far more than cursory judicial review, and held the government to a meaningful evidentiary and legal burden, even if commentators like me thought the burdens should’ve been even higher. Strikingly, all of those cases came in a context in which the detainees had less of a settled entitlement to constitutional protections, including due process, than anyone who would be at issue here—for the simple reason that none of the Guantánamo detainees had ever set foot in the United States. Here, in contrast, the authority is being involved against individuals already on U.S. soil.

That may be the most important point here: Even if courts buy, or at least defer to, the transparently cynical argument by the Trump administration that what TdA is doing constitutes an “invasion or predatory incursion” by “a foreign nation or government,” the U.S. government still bears the burden of persuading courts that individual detainees are members of TdA. That’s going to require case-by-case judicial review; and, as ended up happening in the Guantánamo cases, the government is going to lose many of those cases (perhaps even more of these). All of this goes to why, the way the proclamation is written, it  is hard to see how the Alien Enemy Act becomes a meaningful tool for removing large numbers of individuals from the United States. Even if the statute applies to TdA (it doesn’t), it contemplates a meaningful role for the courts in deciding whether the statute applies to individual detainees—a role courts have played during prior wars even when there was no question that the statute had been properly invoked in the first place.

Indeed, one can envision other alleged abuses of the Alien Enemy Act that may give rise to valid lawsuits. One illustrative case from World War II is United States ex rel. von Heymann v. Watkins, in which the Second Circuit held that, even though the detainee at issue was a German national subject to the statute, the government could not use the Act solely for the purpose of detention. Rather, that detention had to be for the purposes of removal. Likewise, although von Heymann had been arrested in Costa Rica and brought to the United States, the Second Circuit suggested that the Act would be inapplicable if the initial arrest had itself been unlawful.

Fifth, okay, but in which courts will this review take place?

As in the Khalil case, the question of which court is the appropriate one to bring these cases is also likely to be a major issue. Saturday’s rulings by Judge Boasberg came in a case brought in Washington, D.C., on behalf of a handful of Venezuelan nationals who, by all accounts, were being detained by U.S. immigration authorities in Texas. As I noted in the context of the Khalil case, the Supreme Court in 2004 held that federal detainees challenging their detention have to name their “immediate custodian” as the respondent, and bring a lawsuit challenging their detention in a district in which that person (and not the federal government, generally) is subject to jurisdiction.

But as I pointed out in my post about Khalil, that 2004 Supreme Court ruling expressly reserved whether the same “immediate custodian” rule applies to immigration cases. And unlike the typical immigration case (in which a non-citizen is seeking to challenge a final order of removal and usually does so in their regional court of appeals), here, the detainees are challenging something else—a process for their removal that is unrelated to the rules governing ordinary immigration cases, and an argument not that they should be released, but that they can’t be removed without ordinary immigration process. Thus, they have at least a non-frivolous argument that they can seek judicial review by means other than habeas petitions—and that, even if they have to use habeas as the vehicle, the immediate custodian rule shouldn’t apply. And even if one of the plaintiffs nevertheless does have to be within the D.C. district court’s jurisdiction for the court to be able to proceed, the fact that plaintiffs are seeking certification of a nationwide class (which Chief Judge Boasberg has temporarily approved) might also give rise to an argument that at least some of the class members are properly bringing suit in D.C.

Candidly, I’m not sure that any of those arguments are going to prevail, so it’s entirely possible that these cases end up in Texas (and, thus, the Fifth Circuit). If anything, though, that’s why the membership issue is so significant. Even if the Fifth Circuit might be more sympathetic to the invasion/predatory incursion argument than any other court in the country (including the Supreme Court), the government will still bear the burden of establishing each individual detainee’s membership in TdA in places those detainees are held (e.g., a Bronx detainee in the Southern District of New York). And if the Guantánamo cases teach any lesson on this very specific point, it’s that having individual cases turn on such a showing can bog things down in a hurry. 

***

I don’t mean to bury the lede; President Trump’s proclamation turns the Alien Enemy Act on its head. And, if left unchecked, it would set an extraordinarily dangerous precedent for using self-serving and counterfactual assertions by the President as a basis for short-circuiting the ordinary processes the law requires before non-citizens can be arrested, detained, and removed from the United States (and have their property seized).

But the Alien Enemy Act itself, and over two centuries of case law interpreting it, make clear just how many checks are built into the statute—not because the statute isn’t such a broad and sweeping grant of authority, but entirely because it is. Yet again, the Trump administration has seized upon a policy initiative that sounds ominous to those less familiar with these details; that will terrify especially those in vulnerable immigrant communities; and that might even lead to the removal of a small number of individuals outside of our normal immigration processes. But so long as courts follow the examples of their predecessors, we may well look back on this episode as a heck of a lot more flash than substance. It won’t be the last.

Editor’s note: This piece is part of the Collection: Just Security’s Coverage of the Trump Administration’s Executive Actions

The post 5 Big Questions in the Alien Enemies Act Litigation appeared first on Just Security.

With so many executive orders, policy changes, and novel actions, it’s easy to wonder, “What just happened?” In this podcast mini-series, we help to answer exactly that question. 

On each episode of “What Just Happened,” we’ll talk with leading experts, from former government officials to professors – the people who understand how government works from the inside and have studied the issues for years. They will explain the legal background and implications of how the Trump administration’s actions affect how the U.S. government operates in Washington, across the country, and around the world.

This is not a political podcast. We are explaining the meaning and consequences of policy changes that may not be immediately apparent. Any opinions expressed are those of the speaker.

Today, we will focus on President Trump’s Executive Orders, Proclamations, and other policy announcements regarding immigration and the border. Joining us is Steve Vladeck. Steve is a professor at Georgetown University Law Center.

This mini-series is co-hosted by David Aaron, Tess Bridgeman, and Ryan Goodman.

• Just Security’s coverage of the Trump administration’s executive actions
• Music: “Broken” by David Bullard from Uppbeat: https://uppbeat.io/t/david-bullard/broken (License code: OSC7K3LCPSGXISVI)

Listen to the episode, with a transcript available, by clicking below.

The post The Just Security Podcast: What Just Happened Series, Trump’s Immigration Executive Orders appeared first on Just Security.

To tell the full story of the Mar-a-Lago classified documents case at this point is … beyond my capabilities (and, I assume, your patience). But we can make a very long story shorter by focusing on these key points:

1. On July 15, Judge Aileen Cannon had dismissed the entire Mar-a-Lago case(involving charges against President-Elect Trump and two co-defendants—Walt Nauta and Carlos De Oliveira) after concluding, more than a little dubiously, that Special Counsel Smith’s appointment had been unconstitutional. As relevant here, this was a final judgment ending the case in the district court (a fact that is going to matter in a minute).
2. The government appealed Cannon’s decision to the Eleventh Circuit, defending the constitutionality of Smith’s appointment.
3. After the election, Special Counsel Smith moved to dismiss the appeal without prejudice solelyas it related to Trump—based on the Justice Department’s internal understanding that sitting presidents (as Trump soon will be) cannot be criminally prosecuted. The Eleventh Circuit agreed, but the appeal as to Nauta and De Oliveira remained (and remains) pending on the appointment issue.[1]
4. Under the Special Counsel regulations, Smith was required to (and last Tuesday, did) transmit to Attorney General Garland a report summarizing the investigations he conducted and the prosecutions he brought. There is, apparently, a separate volume for the January 6 prosecution in D.C. (I’ll call this the “January 6 volume”); and for the Mar-a-Lago prosecution (I’ll call this the “MAL volume”).
5. On Wednesday, Garland suggested, in a letter to the chair and ranking members of the House and Senate judiciary committees, that he is notgoing to publicly release the MAL volume at least so long as the case against Nauta and De Oliveira remains pending (the letter notes his intent to make that volume available to the chairs and ranking members, “for in camera review . . . upon your request and agreement not to release any information from Volume Two publicly”). But he otherwise is planning to publicly release a redacted version of the January 6 volume—consistent with the requirements of the Special Counsel regulations.
6. Last week, Nauta and De Oliveira filed two emergency motions to block the release of both volumes—one in the Eleventh Circuit (as part of the government’s appeal of Cannon’s dismissal) and one with Judge Cannon. They’re also seeking to block the volumes from being shared, even in camera, with the chairs and ranking members of the House and Senate judiciary committees. Even though Garland’s letter stipulates that he won’t publicly release the MAL volume so long as the case against Nauta and De Oliveira remains pending, the co-defendants (and Trump, who has filed as an amicus) have argued that both volumes should be blocked—because they are “inseverable.” DOJ, meanwhile, has represented to the Eleventh Circuit that the January 6 report “does not refer to either [of the co-defendants] or describe the evidence or charges against them.” Thus, the MAL defendants are trying to use the pendency of the case against them as an excuse to block release to the public or the relevant members of Congress not only of the MAL volume (which isn’t going anywhere), but also of the apparently unrelated January 6 volume.[2]
7. Last Tuesday, Judge Cannon granted Nauta’s and De Oliveira’s request to block the release of both volumes—while the Eleventh Circuit decided whether to block the release as part of the federal government’s appeal on the appointment issue.[3] Cannon’s order, which came before the government had even had a chance to respond, enjoined any dissemination of both volumes outside the Department of Justice (including to the chairs and ranking members of the House and Senate judiciary committees) until “three days” (more on this in a moment) after the Eleventh Circuit ruled on the co-defendants’ similar pending request.
8. It’s not at all obvious that Cannon even had jurisdiction to provide that relief. It’s well-settled that a notice of appeal, especially after a final judgment, divests district courts of almost all of their jurisdiction over a dispute. None of the exceptions courts have recognized to this general rule (e.g., to stay or un-stay the ruling under appeal; to aid the appellate court’s consideration of the appeal; or to modify existing injunctions) seem to remotely encompass what Cannon did.[4] In any event, at least initially, the stated justification for the district court’s intervention was solely to ensure that the Eleventh Circuit would have time to consider the matter. That’s now happened because…
9. On Thursday, the Eleventh Circuit denied Nauta’s and De Oliveira’s request to block release of the volumes. In the same order, it declined (correctly, in my view) the government’s invitation to provide additional relief against Cannon—because the government hadn’t yet appealed Cannon’s order. That ruling started the three-day clock on Cannon’s injunction.
10. Under Federal Rule of Civil Procedure 6(a)(1)(C), when a court order gives a time period in days, we “include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.” In other words, Cannon’s injunction, if it’s not modified, will expire (clearing the way for the public release of the January 6 volume) at the end of the day, today(and not, as many assumed, yesterday).
11. On Friday, the government filed a notice of appeal from Cannon’s injunction, asking the Eleventh Circuit to reverse or vacate it.
12. Also on Friday, having lost in the Eleventh Circuit, Nauta and De Oliveira, rather than going to the Supreme Court, went back to Cannon and asked her to extendher Tuesday injunction—to prevent release of the report indefinitely, and to prevent it from being made available, even on an in camera basis, to anyone outside of the Department of Justice, including the chairs and ranking members of the House and Senate judiciary committees.
13. Overnight Friday/very early Saturday morning, the government asked the Eleventh Circuit to consolidate its new appeal (item #11) with its existing appeal of the dismissal of the whole prosecution (item #1)—so that the Special Counsel report dispute can be expeditiously and conclusively resolved by the same panel hearing the appeal in which it ostensibly matters.
14. On Saturday, Cannon ordered the government, in conjunction with Nauta’s and De Oliveira’s request to extend the injunction, to provide additional information about what, exactly, is in the January 6 volume—and how, if at all, it relates to the case against Nauta and De Oliveira. The government complied with that request yesterday, and appears to have filed sealed material supporting its response.

In other words, at least as of a little after 7:00 ET on Monday morning, (1) Cannon’s injunction is still in effect; (2) it is currently set to expire at midnight tonight; (3) Nauta’s and De Oliveira’s request to extend it remains pending before Judge Cannon; and (4) the government’s appeal of the injunction (in its current form) remains pending in the Eleventh Circuit. If your head is spinning, you’re not alone.

The upshot is that there does not appear to be a dispute over whether the MAL volume will be publicly released; it likely won’t be anytime soon. The litigation at this moment is really over the January 6 volume—which doesn’t seem to have any connection to the MAL prosecution. And just to say the quiet part out loud, the urgency here stems from the unspoken but universally held understanding that, if the January 6 volume hasn’t been publicly released by January 20, it won’t be. Thus, the issue here isn’t just that Cannon appears to be exceeding her authority; it’s the possibility that the timing of this emergency appellate jousting might frustrate effective appellate relief from her interventions.

As for where the Supreme Court comes in, there are at least three different paths, depending upon what happens next:

Scenario 1: Cannon does not extend the injunction today. Here, the path to the Court would be for Nauta and De Oliveira to seek emergency relief from the justices—asking them to do what the Eleventh Circuit declined to do on Thursday. Such an ask would be a longshot, but it’s at least a procedurally viable path to getting this dispute before the justices.

Scenario 2: Cannon extends the injunction today, but the Eleventh Circuit quickly stays or vacates it. In this scenario, it likewise stands to reason that Nauta and De Oliveira would ask the justices to put Cannon’s injunction back into effect—by either staying or vacating the Eleventh Circuit’s intervention.

Scenario 3: Cannon extends the injunction, and the Eleventh Circuit doesn’t disturb it. In this scenario, it would be the Justice Department asking the Supreme Court to step in—to stay or vacate Cannon’s injunction presumably after the Eleventh Circuit refused to do so. Critically, in this scenario (unlike the first two, where the timing wouldn’t be as urgent), public release of the Special Counsel’s report, or, at least, the January 6 volume, would very likely depend upon the Supreme Court intervening before next Monday.

Because there are still moving pieces in the lower courts, it’s hard to be confident about which of these scenarios will come to pass. But it seems a decent bet, at least based on the parties’ (and Judge Cannon’s) behavior to this point, that one of them will. And that will thrust the justices right back into the middle of a Trump-prosecution-based emergency dispute—one in which the ability of the public to ever see the contents of the Special Counsel’s report, or at least the January 6 volume, could very well hang in the balance.

– – – – – – – – – – –

[1] Smith has handed the responsibility for the MAL prosecution over to the U.S. Attorney for the Southern District of Florida.

[2] The Justice Department could thus presumably moot Nauta’s and De Oliveira’s objections by dropping the case against them (which it could do by dismissing its appeal of Judge Cannon’s dismissal). At that point, Nauta and De Oliveira would presumably have no standing to object to the release of the Special Counsel’s report. That said, the Department has a strong institutional interest in defending the constitutionality of Special Counsel appointments—an interest that is presumably why it is continuing to pursue the appeal even on the far side of the election (and the likelihood that the prosecution will be dropped under the next administration).

[3] The order also bars the Justice Department from making either volume available, even on an in camera basis, to the chairs and ranking members of the House and Senate judiciary committees

[4] The government hasn’t made much out of the jurisdictional point—perhaps because it doesn’t want to invite litigation over whether this unique fact pattern should provide a new exception to the general rule divesting district courts of jurisdiction in these contexts.

The post Judge Cannon and the Special Counsel’s Report appeared first on Just Security.

What are the opinion’s key takeaways? How might Special Counsel Jack Smith respond to the decision?

Joining the show to unpack the Court’s landmark ruling, and what it means for presidential power and democracy, are leading legal experts Marty Lederman, Mary McCord, and Steve Vladeck.  Just Security’s Co-Editor-in-Chief, Ryan Goodman, co-hosted the discussion.

Marty previously served in the Department of Justice’s Office of Legal Counsel and is a Professor at Georgetown University Law Center. Mary is Executive Director of the Institute for Constitutional Advocacy and Protection (ICAP) and is a Visiting Professor of Law at Georgetown University Law Center. She previously had a long career at the Department of Justice, as a federal prosecutor and later in leadership of the National Security Division. Steve is a Professor at Georgetown University Law Center, and he covers the Supreme Court both for CNN and through his Substack newsletter, “One First.” Marty, Mary, and Steve are all Editors at Just Security.

Listen to the episode by clicking below.

The post The Just Security Podcast: Presidential Immunity After Trump v. United States appeared first on Just Security.

In contrast, no attention has been paid to another provision—section 541—that is welcome and long overdue. It would, for the first time, give servicemembers who have been convicted by courts-martial the same access to direct appellate review by the Supreme Court of their convictions and sentences that all other federal and state criminal defendants (including the handful convicted by the military commissions at Guantánamo) have long enjoyed. It is important that the Senate also approve this provision—and that the inevitable conference committee keep it in the final bill.

Nearly 40 years ago, President Ronald Reagan signed the Military Justice Act of 1983. For the first time, military personnel whose cases had been reviewed by the then U.S. Court of Military Appeals (now the U.S. Court of Appeals for the Armed Forces) were afforded a right to ask for discretionary review by the Supreme Court (as was the government in cases in which military defendants had prevailed). Before then, the only way such an accused could have their case heard by the Justices was by suing in federal district court or the Court of Federal Claims for collateral review of the conviction. The Supreme Court heard a few big cases through this process from time to time, but collateral review is unavailable for any claims that received “full and fair consideration” from the military courts—meaning that, for many servicemembers convicted by courts-martial, no Article III court could review their case.

Enter the 1983 law. The Pentagon was concerned that the military appellate courts might issue a decision that was adverse to the government and the government would have no opportunity to have it reviewed by the Supreme Court. Thus, self-interest led the Defense Department to propose a measure that would, at long last, have afforded both parties at least a chance of obtaining discretionary review by the Supreme Court. The fly in the ointment, however, was that the measure Congress passed in 1983 excluded the many cases in which the highest (civilian) court in the military justice system refused to grant discretionary review. As is true with the U.S. Supreme Court’s docket today, these discretionary petitions for review form the lion’s share of military appeals.

Since the 1983 Military Justice Act took effect, the Supreme Court has received scores of petitions seeking certiorari in military appeals, but it has heard a grand total of 10 appeals from the military courts in 40 years—and only one from a servicemember’s petition (as opposed to a government petition) since 1996. In most cases, the Solicitor General simply files a one-page letter instead of a brief in opposition to the petition, and the Justices typically do not order submission of a government brief. In other words, the current arrangement has not been at all burdensome for the government. And unlike in 1983, when the Supreme Court still had a robust docket of appeals it had to hear, today (and since 1988), it exercises virtually unlimited discretion over its entire docket—so that the justification for limiting its jurisdiction over courts-martial (to limit undue crowding of its mandatory docket) no longer holds water.

Nor has this arrangement been beneficial to virtually all convicted servicemembers. With the Court of Appeals for the Armed Forces agreeing to review only a few dozen cases each year, the typical military appeal ends in the service-branch courts of criminal appeals—intermediate appeals courts staffed by military officers with mere three-year terms of office —and hence limited independence.

There have been repeated efforts to fix this flaw. There is of course no lobby with an interest. And bogus and irrelevant claims have been made that putting military defendants on an equal footing with others would be costly and unnecessary because their cases are often insubstantial or do not satisfy the Supreme Court’s exacting criteria for granting certiorari. The short answer to these claims is that in such cases, the Solicitor General’s office can simply submit a letter instead of a brief, at little or no expense, as it currently does in the small minority of military appeals that are currently eligible for certiorari. Our view is that if a civilian litigant can ask for certiorari, a military one should be able to do so as well—especially when you consider that military personnel literally put their lives on the line for the rest of us.

It has been a lively few years for the U.S. military justice system. In 2018 the Supreme Court decided an important case—Ortiz v. United States—concerning the constitutionality of Congress’s extension of the certiorari jurisdiction to military cases (yes, it is constitutional), and the Court (over a dissent by Justices Samuel Alito and Neil Gorsuch) had kind words to say about the military justice system in general. (Disclosure: One of us was counsel of record for the petitioner in Ortiz.) In addition, spurred by widespread concern over the persistent pattern of sexual assault and related misconduct in the armed forces, Congress dramatically changed the military justice system so that charging decisions in those and a number of other categories of serious crime would be made by independent uniformed lawyers rather than nonlawyer commanders. Those changes, spearheaded by Sen. Kirsten Gillibrand and former Rep. Jackie Speier, among others, brought the military justice system significantly closer to the civilian model with which all Americans are familiar, in which lawyer-prosecutors play a decisive role in case-selection.

The Senate should continue on this path of positive reform by finally fixing the unfair limitation on GI access to the nation’s highest court. There is no valid reason, after 40 years, to continue on the discriminatory, exceedingly parsimonious approach Congress took back in 1983. Senators should strongly support section 541 both as the bill makes its way through the upper chamber and when the NDAA comes up for conference between the two chambers. Over the past 40 years we have learned how the system has failed U.S. servicemembers. The Supreme Court access part of the system is broken, and it’s high time to fix it.

IMAGE: The United States Capitol (via Getty Images) 

The post The House Closed a Key Loophole in Court-Martial Appeals. Will the Senate Follow? appeared first on Just Security.

The Biden-Harris administration has inherited a “forever war” — in reality several different conflicts against distinct enemies — purportedly authorized by the nearly twenty-year old 2001 Authorization for Use of Military Force (2001 AUMF). As Secretary of State nominee Tony Blinken said in his confirmation hearing before the Senate Foreign Relations Committee, it is “long past time” for the executive branch to work with Congress on revisiting existing force authorizations. We agree. But as Blinken also made clear, the politics of getting to yes will be difficult, as past attempts to repeal or replace the 2001 AUMF have made plain. 

Absent congressional action, the executive branch could independently develop a counterterrorism strategy that relies less on the 2001 and 2002 AUMFs. That approach could include commitments to cease reliance on the 2001 AUMF beyond any ongoing operations (and to disclaim reliance on the most extreme interpretations advanced in recent years), to cease reliance on the 2002 AUMF altogether, to avoid overreliance on military force, and to use Article II authority for limited operations only when absolutely necessary to protect against an armed attack or imminent threat of armed attack against the United States. But those steps are not a substitute for repealing and replacing these authorizations — among other things because they leave it to the executive branch to interpret the legal boundaries of its authority to use force. Given this kind of latitude, the Executive is prone at some point to use it. Perhaps the most egregious contemporary example concerns the 2002 AUMF, originally passed to authorize force against Saddam Hussein’s Iraq, which was taken off the shelf over a decade later as part of the purported domestic legal basis for the use of force against ISIL, and even several years after that for strikes against Iran. In short, force authorizations that should be considered a dead letter can end up functioning more as a loaded weapon. 

The political realities and difficult policy decisions involved in truly bringing the “endless war” to a close make it likely that Congress and the executive branch will instead try again to work together to “right-size” U.S. involvement in the sprawling conflicts authorized by the 2001 and 2002 AUMFs rather than simply wrapping them up. If those operations continue, they should be authorized under an up-to-date statute. But, as one of us wrote previously, replacing the 2001 and 2002 AUMFs with a new force authorization also involves enormous risk: “if not tailored appropriately, Congress risks writing an even broader blank check for the President than the 2001 AUMF turned out to be — and hard-wiring a ‘global war on terror’ that has no reasonable prospect of ending.”

If Congress and the executive branch work to craft a new AUMF, the effort should be guided by the following principles that aim to guard against uses Congress did not intend, create temporal boundaries around the conflict, provide transparency to Congress and the American people, and ensure the United States abides by its legal obligations and lives up to its core values:

1. Authorize force against a specific group (or groups) for specific objectives

Any new AUMF must authorize force only against specific, identified, organized armed groups currently engaged in hostilities against the United States. It should also specify the threat to the United States that necessitates the use of military force, the mission objectives that force is authorized to achieve, and the parameters for when the use of force is no longer necessary or appropriate. 

Fundamentally, Congress should not simply bless a list of groups against which the 2001 AUMF has been interpreted to apply in the past. Congress should first take a hard look at whether the use of military force is the “only or best means of effectively and sustainably addressing a serious threat to the United States… or whether a combination of other tools of U.S. power… would be sufficient or more effective” in doing so. The interbranch dialogue fostered by congressional oversight of the matter would itself be productive.

2. Explicitly preclude use of force against countries or organized armed groups other than those specifically named

Any new AUMF must be clear that force is not authorized against any nations, armed groups, or individuals other than those explicitly named in the statute, including any purported “associated forces,” “successor forces,” “co-belligerents,” “affiliates,” “splinter” groups, or other “related” groups or nations. (If an identified  group merely changes its name but remains otherwise the same group, it would continue to be covered.)  This would also be intended to prevent a conflict from spilling into new regions or countries where related groups operate, absent explicit congressional authorization.  

Crucially, there should be no expedited procedures for expanding the authorization over time. Congress should affirmatively vote – using normal procedures – to authorize new armed conflicts or expand existing ones.

3. Sunset after no more than 3 years

At least every other Congress should vote on whether we should continue to be at war, and against whom. Congress may wish to include a reasonable drawdown period once the authorization ends to wind up any ongoing operations. Of course, Congress may vote using normal procedures to reauthorize the use of military force at any point in time.

4. Ending conflicts, not expanding them

A new AUMF should specify that the use of force is permitted only if — and so long as — it is the only feasible option to protect against ongoing hostilities or a grave and present threat of armed attack against the United States. 

To enforce this limitation, any new AUMF should require a joint certification by the Secretaries of Defense and State and the Director of National Intelligence every 6 months as to whether the specific, named group against which force is authorized is still conducting hostilities against the United States, and whether it continues to present a grave and present threat of conducting a substantial armed attack against the United States. A new AUMF should automatically sunset within 6 months of a failure to make such a certification (or at the 3-year sunset already included, whichever is earlier). This is a variation on a smart proposal in section five of Senator Merkley’s 2018 proposed AUMF to sunset the authorization “upon cessation of [the] threat.”

5. Require exercise of the authority be in compliance with all relevant international law

Any new AUMF should require that the authority be used only in a manner that is consistent with all applicable international law, including the law of armed conflict, jus ad bellum, and international human rights law. It should specify that there shall be no return to torture or cruel, inhuman, degrading treatment or punishment. And it should specify that it authorizes only actions that respect the sovereignty of other nations.

6. Transparency and reporting

Any new AUMF should contain reporting requirements that keep Congress and the public currently informed (and at minimum every two months) on the following subjects: 

• where and how many U.S. personnel are deployed pursuant to the authorization; 
• where and what level of hostilities are taking place pursuant to the authorization, including by any partner forces; 
• the status of operations vis-a-vis mission objectives; 
• the estimated scope and duration of future operations in order to meet mission objectives; 
• civilian and combatant casualties associated with the authorized operations (including by any partner forces); 
• the cost of the operations and any other resources involved in supporting them; 
• compliance with law of armed conflict and, as applicable, international human rights law obligations of the United States and any partner forces; 
• any significant legal analyses regarding the scope and legal authority for uses of force pursuant to the authorization; regarding the definition of civilians, enemy armed groups, membership in enemy armed groups, lawful military targets (including individuals and objects), and regarding U.S. legal responsibility for support to partner forces;
• accountability for any violations of U.S. or international law in the course of operations conducted pursuant to the authorization, including use of the UCMJ.

The statute should require that the only portion of the reporting that may be classified is the exact locations of U.S. and partner troops if required for force protection purposes. A classified annex with information beyond that required in the statute may be submitted during any 2-month reporting period. 

The AUMF also should ensure the State Department and Defense Department are jointly responsible for preparing and presenting these reports to Congress.

7. Repeal the 2001 AUMF and the 2002 and 1991 AUMFs Regarding Iraq

To ensure against future abuses of authorizations already on the books, all existing force authorizations must be repealed. 

Photo:  Speaker of the House Nancy Pelosi (D-CA) sits with U.S. President-elect Joe Biden during a meeting that included Vice President-elect Kamala Harris and Senate Democratic Leader Chuck Schumer (D-NY) at the Queen Theater on November 20, 2020 in Wilmington, Delaware.  (Photo by Joe Raedle/Getty Images)

The post Principles for a 2021 Authorization for Use of Military Force appeared first on Just Security.

Statutory provisions and DOD regulations establish three basic principles. They establish (1) the DOD commitment to follow customary international law regarding medical treatment of detainees (principles we outlined in our previous article); (2) medical decisions should be made by medical experts on medical grounds alone (not political ones), and (3) detainees’ medical treatment must be as close as practicable to that of servicemembers. Refusing to offer vaccinations to the detainees while vaccinations continue for servicemembers violates these statutes and policies.

DOD Principles and the Statutory Law that Commit to Follow Customary International Law Regarding Medical Treatment of Detainees

In 2016, Secretary of Defense Ashton Carter issued a Department-wide Memorandum on the “Principles Related to the Protection of Medical Care Provided by Impartial Humanitarian Organizations During Armed Conflicts.” The document is explicitly grounded in the Geneva Conventions and Additional Protocol II, and it begins by affirming that “the protection of medical care during armed conflict is one of the oldest principles in law of war treaties.” It then proceeds to lay out several requirements that follow from this commitment. Part V makes clear, for example, that equity is essential: “The wounded and sick shall receive, to the fullest extent practicable and with the least possible delay, the medical care and attention required by their condition. There shall be no distinction among them founded on any grounds other than medical ones.” Perhaps most important, Part X makes clear that all the principles are to be “interpreted in light of conventional and customary international humanitarian law.” This commitment was recently reaffirmed yet again in DOD Directive 2310.01E, effective September of 2020.

The governing federal statute, section 1299J(b) of the National Defense Authorization Act for Fiscal Year 2021 (NDAA), adds Congress’s affirmation of the commitments in the 2016 memorandum by requiring the Secretary of Defense to ensure that “any other guidance, training, or standard operating procedures relating to the protection of health care during armed conflict, are consistent with the ‘Principles Related to the Protection of Medical Care Provided by Impartial Humanitarian Organizations During Armed Conflicts.’”

DOD Directives and Statutory Law Establishing that Medical Decisions Should be Made by Medical Experts on Medical Grounds Alone

The 2020 NDAA addressed medical care for Guantánamo detainees, making clear that medical decisions should be made based on medical expertise alone. Section 1046(e)(3) states flatly that the Chief Medical Officer at the Guantánamo Bay naval station must provide a standard of care to detainees, defined as “evaluation and treatment that is accepted by medical experts and reflected in peer-reviewed medical literature as the appropriate medical approach for a condition, symptoms, illness, or disease and that is widely used by healthcare professionals.” Certainly the approved COVID vaccines are an “appropriate medical approach” and are “widely used by healthcare professionals.”

DOD Directive 2310.01E, effective September 2020, affirms a broad commitment to treat detainees within the bounds of the Geneva Conventions. It states that, “All detainees will be treated humanely and with respect for their dignity, in accordance with applicable U.S. law and policy and the law of war.” And it notes that humane treatment includes “[a]ppropriate medical care and attention required by the detainee’s condition, to the extent practicable.”

DOD Guidance and Statutory Law Making Clear that Medical Treatment Should Be Guided by Standards Similar to Those Applied to U.S. Military Personnel

Section 750 of the FY2006 NDAA directed the Secretary of Defense to establish a policy on the role of medical professionals in the interrogation of Guantánamo detainees. The Department’s subsequent memo in response states that “medical treatment [for detainees] should be guided by standards similar to those applied to U.S. military personnel.” Section 4.1.2 of the policy elaborates that medical professionals working with detainees “have a duty to protect detainees’ physical and mental health and provide appropriate treatment for disease. To the extent practicable, treatment of detainees should be guided by professional judgments and standards similar to those applied to personnel of the U.S. Armed Forces.”

DoD Instruction 2310.08, which became effective in September 2019, further provides that health care personnel “[w]ill provide health care services for detainees and have a duty to provide appropriate medical care and attention required by the detainee’s condition. To the extent practicable, treatment of detainees should be guided by professional judgments and standards similar to those applied to personnel of the Military Services.”

What This Means for the COVID-19 Vaccine

The aggregation of these statutory provisions and DOD policies shows a requirement for detainee medical treatment to be conducted consistent with international humanitarian law, made in an appropriate medical manner, and applying standards of care similar to those provided to U.S. service members.

With the rollout of the COVID vaccine, we can compare the detainees’ treatment to the Department’s vaccination plan for the rest of the Guantánamo Bay naval station. As of January 12th, approximately 100 people at Guantánamo Bay had received the vaccine and 1,850 were expected to be vaccinated shortly after, out of 6,000 people stationed on the base. By January 25th, medical professionals were vaccinating groups 1a and 1b, according to the base’s hospital.

As a result, it is clear that the detainees, none of whom have been offered the vaccine, have failed to receive a standard of care that matches those provided to U.S. military or civilian personnel at Guantanamo, even though many detainees are older and have medical conditions that put them in a high-risk group.  As the rollout progresses, any continued suspension of vaccinations specifically for detainees moves their medical treatment further away from that of servicemembers at Guantánamo Bay — and thus further away from what the law of armed conflict, other federal law, and DoD policies all require.

The authors thank Mari Dugas for her excellent assistance on this article.

Editor’s note: See also Why Guantánamo Detainees Should Have Access to COVID Vaccines Part I: Law of Armed Conflict and Good Policy

Image: The detainee hospital’s operating room is seen in Camp Delta which is part of the U.S. military detention facility in Guantanamo Bay, Cuba (Joe Raedle/Getty Images)

The post Why Guantánamo Detainees Should Have Access to COVID Vaccines Part II: Federal Law and DoD Policies appeared first on Just Security.