Obama and the Mootness Doctrine
Note: I'd promised a series this week on Law & Privilege, and that looks to be a two-part series. I'd planned to post Part I today and Part II tomorrow, but I've decided to address this issue while it's still timely. The Law & Privilege series will run tomorrow and Saturday.
Yesterday, President Obama announced that the Department of Justice will appeal a court order in a lawsuit filed by the American Civil Liberties Union to release possibly hundreds of additional photographs believed to document abuse of prisoners at U.S. military facilities. Almost 79% of those voting in an online poll agree with this decision. (Note: Online polls are always questionable as the sample set is self-selected. In this case, the wording of the question is strongly leading.) But many progressives strongly disagree with President Obama's decision.
Indeed, diaries by Cenk Uygar and fflambeau characterize President Obama's decision as a "terrible mistake" or even "illegal." Setting aside the issue of whether it can ever be illegal to file a timely appeal of a court decision, the question remains: Why is President Obama doing this?
Motives stated, and speculated:
President Obama's stated motive is that release of the photos would needlessly endanger our troops in Iraq and Afghanistan. The incidents documented in the photos have already been investigated, and "the individuals who were involved have been identified, and appropriate actions have been taken."
"This is not a situation in which the Pentagon has concealed or sought to justify inappropriate action," President Obama said. "In fact, the most direct consequence of releasing them, I believe, would be to further inflame anti-American opinion and to put our troops in greater danger."
Of course not all of those "involved" have yet been identified in legal proceedings - if by "involved" we include those who ordered the abuse - and certainly those who ordered the abuse have not been prosecuted. And while some of the abuse may have been the misbehavior of the proverbial "few bad apples," McClatchy reported last month that abuse of prisoners was intended, in part, to extract confessions linking Saddam Hussein to Al Qaeda in order to justify the Iraq War. And as Inky99 diaries today, RawStory is reporting that a substantial portion of the evidence described in the 9/11 Commission Report (note: link is to pdf file) was extracted by torture.
Taken together with President Obama's decisions to appeal court orders in other Bush-era cases like Al Haramain (note: link is to 9th Circuit Court order dismissing President Obama's motion for interlocutory appeal), many have speculated that President Obama has other motives in trying to avoid the Bush-era violations of law. Some suggest President Obama lacks political courage, that he's trying to protect the prerogatives of the office he now occupies, that he's caved in to former Vice President Dick Cheney's public relations campaign or the military and CIA, or that he's trying to protect Congressional Democrats who were briefed on Bush-era intelligence activities and did not object to those activities at the time.
Any of those motives is possible, as none of us can see inside President Obama's mind. And given that, I'll suggest another possible motive, one that if true should give progressives reason to hope: it may be that President Obama wants the courts to overrule Bush-era objections, to set legal precedents that will curb future presidents.
That rests on the limits of federal court jurisdiction and the doctrine of mootness.
The Case and Controversy Clause:
Article III, Section 2 of the U.S. Constitution provides:
The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.
The Supreme Court has interpreted this to mean that federal courts cannot issue advisory opinions, that is, that they cannot provide legal opinions in the absence of an actual case or controversy. In response to a letter from President George Washington requesting an advisory opinion, Chief Justice John Jay declined to write one, stating that such an opinion would violate the separation of powers doctrine. In the 1911 case of Muskrat v. United States, the Supreme Court held that an advisory opinion would violate the Case and Controversy Clause.
Thus our federal courts can only decide cases and controversies between actual litigants. Non-cases generally fall into three categories:
- Adverse interests - This is the least common issue, and turns on the word "controversy." The courts have interpreted that word to require two or more parties with adverse legal interests. Thus, for example, a person or corporation could not sue him/her/itself, directly or through a pretextual litigant, simply to get a court opinion ratifying its actions.
- Ripeness - The basic principle here is that "a claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all." Texas v. United States (U.S. Supreme Court, 1998). That is, the federal courts look backward at events that have already occurred, and may not rule on events that have not happened and may never happen.
- Mootness - This is the opposite end of the spectrum from ripeness: the dispute has already been resolved in fact, and the court's opinion would be irrelevant. There is an exception for cases that are "capable of repetition yet evading review," where the dispute is such that it will always be resolved in fact before a court could render a decision (e.g.: Roe v. Wade).
Negotiated settlements moot most disputes.
In terms of President Obama's decisions in Al Haramain back in January, and the ACLU case yesterday, the Mootness Doctrine is important because negotiated settlements will almost always render a case moot. The legal dispute is already resolved in fact - by the settlement - thus a court opinion has no practical significance. Were President Obama to drop the Bush-era defenses, the federal courts could not rule on those defenses.
And that's important if we want to curb a "unitary executive."
For example, while progressives applauded President Obama's executive orders ending Bush-era interrogation tactics, many also correctly warned that these were merely executive orders. Future presidents could reverse those orders, just as President Obama had reversed many Bush-era orders. Those progressives argued - wisely - that we don't want Bush-era tactics to be subject to executive discretion. Indeed, President Bush's claims of wide-ranging executive discretion were and remain one of our principal criticisms.
The same objection would apply were President Obama to waive Bush-era legal defenses on appeal. Were he to comply with the court order and release the photos requested by the ACLU, those photos would come out. But the Bush-era claim that such photos could be withheld on national security grounds would not be resolved. By waiving that claim, President Obama would render the issue moot, and we could (and should!) hear the same warnings we heard after the January executive orders: "This can't be a matter for executive discretion."
A Lesson from Al Haramain:
I cited above the 9th Circuit's February 27th ruling on President Obama's motion for an interlocutory appeal in the Al Haramain case. It's a very short ruling, and here's the full text:
We agree with the district court that the January 5, 2009 order is not appropriate for interlocutory appeal. The government's appeal is DISMISSED for lack of jurisdiction. The government's motion to stay is DENIED as moot.
At the surface this is an example of both ripeness and mootness. The dismissal of President Obama's notice of appeal is because the case is not yet ripe; jurisdiction remains with the trial court until it has issued a final judgment. And because the 9th Circuit refused to permit an interlocutory appeal, the basis for President Obama's motion to stay trial proceedings, the motion to stay is moot.
The more important point, however, is that the courts will not rubber stamp President Obama's assertion of Bush-era defenses. President Obama did not waive the claim that an interlocutory appeal was essential to preserve state secrets. The 9th Circuit Court denied that claim. And by so doing, the 9th Circuit established binding precedent for future such claims within that circuit, and a persuasive precedent for such claims in all federal courts.
The same outcome seems likely in the ACLU case about the release of additional photographs. The president's stated reason for withholding the photos - that their release will endanger U.S. troops - was already addressed in the 2nd Circuit Court's decision of September, 2008:
It is plainly insufficient to claim that releasing documents could reasonably be expected to endanger some unspecified member of a group so vast as to encompass all United States troops, coalition forces, and civilians in Iraq and Afghanistan.
The Bush administration filed a motion for rehearing en banc (by the entire body of the 2nd Circuit) and that motion was denied in March, 2009. President Obama's decision to petition for certiorari may be grounded in a desire for the U.S. Supreme Court to rule on the issue, so future presidents will have no doubt as to whether the state secrets privilege can be used to conceal evidence of misconduct or crimes. It may be that he heard our warnings after the executive orders back in January, and rather than exercising his executive discretion to waive a defense and render the issue moot, President Obama wants to let the courts deny that defense and settle the issue.
Is that speculation? Of course it is. But so are arguments that President Obama is doing this because he's afraid of the military, or Dick Cheney's media blitz, or that he's covering up the complicity of Nancy Pelosi and other Democrats who were briefed during the Bush era. And since we're all speculating, I'll offer a speculation grounded in constitutional doctrine rather than sinister suspicion.
+++++
Happy Thursday!
Comments are closed on this story.