Gavel Grab

Archive for the ‘Court Jurisdiction’ Category

Former Pentagon Counsel Skeptical on Targeted Killing Court

Jeh C. Johnson, the Pentagon’s former top lawyer, expressed skepticism about ideas floated for a kind of national security court that would review government targeted killings of U.S. citizen terror suspects overseas.

He said one of the numerous difficult questions about such a court would be whether its scope extended just to Americans or also to other suspected terrorists, according to a New York Times article. Another question would involve the inevitable accusations that the court served as a “rubber stamp” for targeted killings.

In his speech at Fordham Law School, Johnson also raised questions about judges being used as “top cover” for “death warrants” when the executive branch alone provides secret evidence to them, and especially in situations where fast-changing criteria — such as the assessment of an imminent threat — are involved.

The New York Law Journal also provided coverage of Johnson’s address.

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Denniston: Targeted Killings Court Likely Unconstitutional

At the National Constitution Center, longtime legal journalist Lyle Denniston poses the question, “Would a ‘drone court’ be unconstitutional?”

Denniston sets out to tackle the question in the “Constitution Check” column, given a debate in recent days (see Gavel Grab) over the idea of establishing a special federal court to review government targeted killings of U.S. citizen terror suspects overseas. He examines the Constitution, the concept of separation and powers, and precedent and leans heavily toward an opinion that such a court would not be constitutional:

“No matter how eagerly some policymakers want to put some legal restraints on the Obama administration’s policy of targeted killing by drones in waging war on terrorism, it is a near-certainty that the idea of handing to a civilian court the power to decide who could be killed, and when, would not withstand constitutional scrutiny.

“It would turn judges into functioning adjuncts to the president’s ‘war cabinet,’ and give them a veto power over a policy that, however audacious or questionable, is still a part of the process of waging war.”

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Commentary: Targeted Killings Federal Court Would be a ‘Mistake’

Creating a special federal court to review government targeted killings of U.S. citizen terror suspects overseas would be a “mistake,” former Acting U.S. Solicitor General Neal Katyal, who served under President Obama, argues in an op-ed.

“[T]here is no true precedent for interposing courts into military decisions about who, what and when to strike militarily,” Katyal writes in the New York Times. “Putting aside the serious constitutional implications of such a proposal, courts are simply not institutionally equipped to play such a role.”

Instead he proposes establishment of a “national security court” inside the executive branch as “a better way to balance the demands of secrecy and speed with those of liberty and justice.”

For background about the rising debate over the idea of a special drone court, see Gavel Grab.


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Court-Stripping Bill Debated in Wisconsin

The Wisconsin Supreme Court would be required to directly take up constitutional challenges to state laws and to rule within 150 days under the proposal of a leading Republican legislator. It has sparked controversy from critics who said it would interfere with impartial courts.

The bill drafted by Sen. Michael Ellis, the state Senate president and a Republican, would remove lower courts from these rulings. Ellis said his proposal would streamline the process to review these constitutional challenges.

Democratic Rep. Gary Hebl, a Democrat who belongs to the Assembly’s judiciary committee, protested what he called a power grab, according to an Associated Press article.  “Just because Republicans do not like the results of current litigation does not mean that we should change the rules of the game,” he said. “These are incredibly important decisions that should not be rushed by artificial timelines set by the Legislature.”

Democratic Sen. Fred Risser also was critical. “This bill is telling the Supreme Court what to do and how to do it,” he said. “It eliminates trials and contested cases. That violates, in my opinion, the judicial process all together.”

Wisconsin’s highest court currently has a conservative majority.

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Ex-Judge: New Court to Approve Targeted Killings a ‘Very Bad Idea’

It is “a very bad idea” for federal judges to be asked to monitor and ultimately approve “the killer instincts of our government,” retired U.S. District Judge James Robertson wrote in a Washington Post op-ed.

Judge Robertson addressed an idea that has recently gained a high profile, for creation of a special secret court devoted to “independent judicial review” of targeted administration killing lists, to be carried out through drone strikes (see Gavel Grab). The strikes would be aimed at American citizens who are suspected terrorists overseas.

The judge, who also served on a secret court that reviews federal surveillance orders, said, “U.S. judges have been hard-wired against rendering ‘advisory opinions’ since 1793″ when Chief Justice John Jay answered a question posed by President George Washington. Judge Robertson continued:

“From that letter — itself an advisory opinion — has grown a complex but well-established and understood set of constraints on the federal courts: They are to decide only ‘cases’ or ‘controversies’ that are ‘justiciable’ and ‘ripe’ for decision. Federal courts rule on specific disputes between adversary parties. They do not make or approve policy; that job is reserved to Congress and the executive.”

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Targeted Killings Court Supported by NY Times Editorial

Particularly when American citizens overseas are targeted for killing because they are suspected terrorists, they should be protected by the “fundamental principle” that people can be locked up or executed in America only upon orders by a jury or judge, a New York Times editorial says.

“A growing number of lawmakers and experts are beginning to recognize that some form of judicial review is necessary for these killings, usually by missiles fired from unmanned drones,” the editorial states. It goes on to support the idea of a special court, similar to the Foreign Intelligence Surveillance Court, to engage in such review.

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Debate: Should a Drone Strike Oversight Court Be Created?

The idea of creating a new court to furnish independent review of government-ordered targeted killing of suspected terrorists is getting serious discussion, and legislation for an oversight court may be proposed.

When senators held a recent hearing on President Obama’s nomination of John Brennan to be CIA director, the idea was raised, according to a New York Times article. “Having the executive being the prosecutor, the judge, the jury and the executioner all in one is very contrary to the traditions and the laws of this country,” said Sen. Angus King, an independent from Maine.

Brennan said there had been talks within the Obama administration about whether such a court would be feasible.

The Times reported, “A drone court would face constitutional, political and practical obstacles, and might well prove unworkable, according to several legal scholars and terrorism experts.”

Jameel Jaffer, deputy legal director for the ACLU, said, “There is no reason to create a new court.” The administration could be held accountable more effectively through use of existing courts to weigh challenges to the legality of targeted strikes that have occurred, he contended. Read more

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Targeted Killings Memo Prompts Heightened Scrutiny

NBC News made public a Justice Department memo revealing the Obama administration’s legal reasoning behind targeted killings of U.S. citizens accused of being terror suspects. The report sparked new scrutiny of U.S.-ordered targeted killings and calls for an oversight role by the courts.

“This is a chilling document,” Jameel Jaffer, deputy legal director of the ACLU, told NBC News. “Basically, it argues that the government has the right to carry out the extrajudicial killing of an American citizen. … It recognizes some limits on the authority it sets out, but the limits are elastic and vaguely defined, and it’s easy to see how they could be manipulated.”

A New York Times editorial was headlined, “To Kill an American.” It referred to the armed drone killing of Muslim cleric Anwar al-Awlaki in Yemen (see Gavel Grab) and said about President Obama:

“Going forward, he should submit decisions like this one to review by Congress and the courts. If necessary, Congress could create a special court to handle this sort of sensitive discussion, like the one it created to review wiretapping. This dispute goes to the fundamental nature of our democracy, to the relationship among the branches of government and to their responsibility to the public.”

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Pelosi on Courts: Lawmakers’ Court-Stripping a Danger

House Democratic Leader Nancy Pelosi is warning of the dangers of court-stripping legislation. Such measures “deny Americans the right to challenge the constitutionality of a statute,” Pelosi cautions in a Chicago Tribune op-ed, entitled “Respecting the Constitution and the role of the Supreme Court.”

Justice at Stake, on its website, calls court-stripping measures and actions  a threat to fair and impartial courts. Court-stripping involves “the removal of specific cases, or types of cases, from a court’s jurisdiction,” JAS states. “This prevents courts from playing their vital role in our system of checks and balances—protecting individual rights, and ensuring that other branches of government uphold the law and Constitution.”

Pelosi writes that House Republicans have spearheaded numerous efforts to prohibit federal courts from conducting legal reviews, including reviews of the constitutionality of a law, and passed in 2004 the Marriage Protection Act, which barred U.S. courts from reviewing the constitutionality of the Defense of Marriage Act. She also cites the House twice passing the Pledge Protection Act, which would have outlawed the ability of courts to hear challenges to the Pledge of Allegiance.

Pelosi discussed her concerns about court-stripping in the context of debate over Supreme Court review of the constitutionality of the Affordable Care Act and over President Obama’s recent warnings of the dangers of “judicial activism” by “unelected” judges (see Gavel Grab).


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Oklahoma Asked to Bar Top Court’s Judicial Review of Laws

Oklahoma’s legislature will be asked to consider barring judicial review by the state Supreme Court (photo) of state statutes, and to create a new Oklahoma Ad Hoc Court of Constitutional Review.

State Sen. Ralph Shortey, a Republican, introduced the proposed constitutional amendment to bar judicial review by the state Supreme Court of laws enacted in the state, according to the Gavel to Gavel blog of the National Center for State Courts. You can read earlier Gavel Grab posts to learn about a similar proposal in New Hampshire, and one introduced and later withdrawn in Tennessee.

The bill language does not spell out how the Ad Hoc Court of Constitutional Review would be created or who would belong to it.

“Oklahoma is giving New Hampshire a run for its money for craziest state lawmakers,” legal analyst Andrew Cohen wrote in an Atlantic commentary.

Shortey has introduced other  measures affecting the courts. One would limit to 12 years in office all judges sitting on the state’s top appellate courts, according to Gavel to Gavel . No state judges are currently subject to term limits, the blog reports.

The National Center for State Courts is a JAS partner group.

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