El-Ganayni v. DOE; forthcoming scholarship

1. El-Ganayni v. Dep’t of Energy (3rd Cir. Jan. 11, 2010)

The Third Circuit on Monday upheld dismissal of a suit challenging DOE’s decision to revoke the security clearance of a nuclear scientist from Bettis Labs, a Muslim man who alleged that the revocation was in retaliation for his political views (the plaintiff had been critical of U.S. involvement in Iraq and critical of the FBI), and discriminatory.  Among other things, the court holds:

While we cannot review the merits of the decision to revoke El-Ganayni’s security clearance, Stehney requires us to exercise jurisdiction over El-Ganayni’s constitutional claims and review them to the extent that we can do so without examining the merits of that decision. See Stehney, 101 F.3d at 932 (noting that “to the extent that Stehney seeks review of whether NSA . . . violated her constitutional rights,” she presented a justiciable claim, but emphasizing that there could be no review of the merits of the clearance revocation). See also Makky, 541 F.3d at 213 (reviewing plaintiff’s Title VII claim but stating that the court was powerless to “question the motivation behind the decision” to deny plaintiff a clearance). Thus, the District Court erred in dismissing Counts I and II for lack of jurisdiction. Nevertheless, we will affirm the dismissal of Counts I and II because they fail to state a claim upon which relief can be granted.

We conclude that Count I was properly dismissed because El-Ganayni cannot prevail on his First Amendment claim. The legal framework applicable to that claim would demand from the DOE an explanation of its decision to revoke El-Ganayni’s clearance, and allow a factfinder to weigh the DOE’s arguments in support of that decision. Egan forbids both. Put another way, El-Ganayni’s claim could never be meaningfully litigated; the outcome is pre-ordained. Whatever else happened, the DOE would always prevail because of Egan. In short, we believe that Egan presents an “insuperable bar to relief” on Count I.

Count II fails because the legal framework governing that claim, like the framework governing Count I, would inevitably involve scrutiny of the merits of the DOE’s decision to revoke El-Ganayni’s clearance. Even assuming that El-Ganayni could establish his prima facie case, neither the second nor third steps could proceed without running headlong into Egan. As explained above, neither El-Ganayni nor a court could compel the DOE to offer a “non-discriminatory explanation” for its decision to revoke El-Ganayni’s clearance. The DOE cannot be held to a “burden” to justify the decision to revoke El-Ganayni’s clearance under the McDonnell Douglas-Burdine framework because the DOE has no duty to justify that decision, period. It is beyond judicial review. For similar reasons, El-Ganayni could never establish that the DOE’s national security explanation was a pretext for a discriminatory motive. He could never gather the evidence necessary to prove that claim, and even if he could, no fact finder could be permitted to weigh the merits of the DOE’s decision to decide whether it was a pretext. Egan forbids it. See Brazil, 66 F.3d at 197. Thus, as with Count I, Egan stands as an “insuperable bar” to relief on Count II, and it must be dismissed for failure to state a claim.

[There is also a discussion of DOE’s compliance with the APA…]

The opinion is posted here.

2. Forthcoming Scholarship

“Distributed Denial-of-Service Attacks under Public International Law: State Responsibility in Cyberwar”

The IUP Journal of Cyber Law, Vol. VIII, Nos. 3 & 4, pp. 10-23, August & November 2009

STEFAN KIRCHNER, Institute for Public Law, University of Goettingen
Email: kirchnerlaw@yahoo.com

Distributed Denial-of-Service (DDOS) Attacks are a major weapon of cyberwarfare and are now also used during or before major political and military conflicts, such as the 2008 Russo-Georgian War, the Russian- Estonian political tensions as well as in the Middle East conflict. International Law is based on consensus and therefore naturally slow to react to new developments including this new tool of warfare. The same is true of many states. This raises the question of how to qualify DDoS Attacks under the existing rules of Public International Law. After investigating the legal nature of DDoS Attacks, the question needs to be asked which rules cover such attacks and who can be held responsible for DDoS Attacks, in particular such attacks which are conducted by (potentially paid and/or foreign) hackers on behalf of states.

“Great Power Security”

Chicago Journal of International Law, 2009
U of St. Thomas Legal Studies Research Paper No. 09-10
UC Berkeley Public Law Research Paper No. 1401061

ROBERT J. DELAHUNTY, University of St. Thomas School of Law (Minnesota)
Email: RJDELAHUNTY@stthomas.edu
JOHN YOO, University of California at Berkeley School of Law
Email: YOO@LAW.BERKELEY.EDU

The change of administration in the US may have encouraged the belief that collective security will finally have its day. A conventional wisdom also seems to be emerging among many, if not most, academics in international law that the strengthening of the UN security system would advance international peace and security. Although the twenty-first century has brought radically different security threats from those that existed when the UN Charter was first written, many seem to believe that concentrating authority in the Security Council remains the most effective international legal process for the use of force.

Resurrecting the formal UN Charter rules on the use of force, however, would have the perverse effect of making international peace and security more difficult to achieve. Not only has that system failed in practice, but it is not designed to deal with the changing nature of warfare. The Charter’s use-of-force rules were addressed to the prevention or reduction of armed conflict between states. They are not adequate to deal with the more contemporary problems of civil war, mass violence against civilians at the hands of non-state terrorist groups, the protection of populations from genocide or other atrocities inflicted by their own governments, or the violence that is bred within failed or failing states.

What is needed is a new international legal regime for regulating the use of force by states against the threats of these varying kinds. The overarching goal of this regime should be the maintenance of international peace and stability through the pursuit of global welfare. Unlike the UN Charter system, which is designed to drive the use of force by states close to zero, a reconstructed international legal system should seek to produce the optimal level of force, thus allowing armed interventions for the purpose of preventing catastrophic harms.

The emergence of new great powers (China, the EU, and India, for example) and the re-emergence of older ones (such as Russia) have apparently begun to shift the post-Cold War world from unipolarity to multipolarity. Global peace and security in the future may no longer be underwritten by an (assumedly) “hegemonic” US. Instead, the world may experience a return to the kind of great power politics that was prevalent in Europe before World War I (and arguably, throughout recorded human history). While we would not attempt to forecast how an emerging multipolar world would work, an explicit great power system could well ameliorate the collective action problems that the current UN Charter system exacerbates, and thus could advance global welfare.

Constitutional Rights for Nonresident Aliens

Alec D. Walen (Institute for Philosophy and Public Policy)

Philosophy and Public Policy Quarterly, Vol. 29, No. 3/4, Summer/Fall 2009

I argue that nonresident aliens, in places that are clearly not U.S. territory, should benefit from constitutional rights. This is a matter of mutuality of obligation. The U.S. claims the authority to hold all people accountable for respecting certain laws, such as the law of war as defined in the Military Commissions Act. Accordingly, it must accord them basic legal rights in return. At the same time, I argue, contra Benjamin Wittes, that this would not lead to absurdly opening the courthouse doors, nor does it require abandoning principle to keep the flood of litigation reasonably contained. Not all harms inflicted by the U.S. government can give rise to a lawsuit, and that the distinction between those who should have a right to sue and those who should not can be drawn in a principled way.

The Gentle Humanizer of Humanitarian Law – Antonio Cassese and the Creation of the Customary Law of Non-International Armed Conflicts

Tamás Hoffmann (Corvinus Univ.)

Future Perspectives on International Criminal Justice (Carsten Stahn & Larissa van den Herik eds., forthcoming).

This chapter focuses on the role of Antonio Cassese in the development of the customary law of non-international armed conflicts. Analyzing the situation before the decision of the Appeals Chamber of the ICTY in Tadić, the author submits that there was no general acceptance of a body of customary norms applicable to internal conflicts but the existence of such rules received widespread recognition after the ruling. The central thesis of this paper is that this judgment was opportunistically used by Cassese as a vehicle to ‘humanize’ humanitarian law, i.e. to extend the regulatory framework of international armed conflict to non-international armed conflicts. Following an examination of the process of successful completion of this project, this chapter concludes with the examination of the potential merits and pitfalls of such an endeavour.

“‘Keep Your Friends Close, But Your Enemies Closer:’ Internment of Enemy Aliens in the Present Conflict”

Dartmouth Law Journal, Winter 2010

THEODORE M. COOPERSTEIN, U.S. Attorney’s Office
Email: theodore.cooperstein2@usdoj.gov

United States law, in accordance with customary international law, has since 1798 permitted the internment or restriction of enemy aliens found within the United States during time of international conflict or war. Application of this law and related precedent to the present Long War (or Global War on Terror) permits the detention or restriction of aliens known or suspected of links to foreign terrorist organizations. In light of the United States’ new policy to end detention of combatants in Guantanamo Bay, this statute presents a secure alternative to the complete release of the detainees, or to their introduction into the civilian criminal justice system.

“Obama Positions in the Aftermath of Supreme Court’s Rejection of Bush Detention Policies at Guantanamo”

Military Law and the Law of War Review, Forthcoming
Tulane Public Law Research Paper No. 09-13

EDWARD F. SHERMAN, Tulane University Law School
Email: esherman@law.tulane.edu

The four Supreme Court cases culminating in the 2008 decision in Boumediene v. Bush are a watershed in American jurisprudence as to the separation of powers and vitality of the writ of habeas corpus. The context was the status of persons captured primarily in the US invasions of Afghanistan and Iraq and held at Guantanamo Bay, Cuba. Guantanamo was chosen by the Bush administration in the belief that the writ of habeas corpus could not reach outside the United States. The administration further maintained that the Executive had plenary power over the conduct of war, including capture and treatment of those whom it considered to be “enemy combatants.”

The Supreme Court decisions reflected caution in the exercise of judicial review, but proceeded, in decision after decision, to limit or reject the administration’s positions. The government’s sovereignty-based test for habeas corpus was replaced by a pragmatic case-by-case approach. Further, the Court looked to a full range of sources for the standards to be applied by a court on habeas corpus, recognizing the references in American law to the Geneva Conventions and international law. Thus the Boumediene line of cases strengthened the legal basis for limits on the power of the American government to detain alleged enemy combatants, expanded the availability of the writ of habeas corpus to challenge detention, and affirmed the applicability of the international law of armed conflict.

There are still many unanswered questions. The application of habeas corpus to detainees held indefinitely who are legal residents of the U.S., held at Guantanamo, or held outside the U.S. are pending in the courts and raise significant issues of constitutional and international law. The decision of the Obama administration to continue a number of the measures of the Bush administration, including military commissions, indefinite detention, and secret prisons abroad, raise, despite increased procedural safeguards, the same kind of legal and constitutional objections that the Boumediene cases asserted against Bush policies. Finally, the Obama administration’s struggle to close Guantanamo, with its attendant problems of release of detainees into the U.S., trial of certain detainees in civilian courts, and trial of others before military commissions, pose difficult political and legal issues that will have to be resolved.

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