Watch for the new Vandenberg Law website coming soon!
16 Monday Oct 2017
Posted Uncategorized
inWatch for the new Vandenberg Law website coming soon!
12 Thursday Oct 2017
Posted Uncategorized
inPlease stay tuned
11 Monday Jul 2016
Posted Uncategorized
inIt’s been a while since I posted here. Now, I am using it for a more personal purpose than just educating the public on the law. For the last 4 years I have been fighting a rear guard action against censorship on the internet. My main focus has been on the National Public Radio website as it attracts educated, informed readers and it is partially funded by taxpayer dollars.
This morning, out of the blue, I was banned from posting there. I suspect this was done to censor my critiques of Obama’s upcoming speech on the Dallas shootings. This is not the first time I have fought NPR censorship. The last time I succeeded in getting myself and hundreds of other banned posters access to posting again. My reputation was tarnished by it, but I don’t care. Here is the link describing my battles:
http://www.cpb.org/ombudsman/asleep-code-switch
I tend to be passionate about injustice. I also see censorship as the most dangerous tool of government. I fight it at every turn no matter the consequences. If you agree with me, please contact me through this blog or through my firm’s email account. vandenberglaw@gmail.com. I hope that through pressure, NPR will reconsider its opinion on blocking free speech. I hope you will join me. Stay tuned for more posts on first amendment issues.
Sincerely
Chris Vandenberg
11 Saturday May 2013
Posted Uncategorized
inWe have all heard the saying, “you can’t beat city hall” but does anyone ever ask why? Most people probably think it’s because government is corrupt, or that it has so much power that the little guy has no chance. In reality, the problem is that under administrative law, the courts give the government a presumption of being right. In other words, if you want to challenge a law or ordinance or agency decision, you have the burden of proving that the decision was wrong or the law is invalid.
This is because the states are assumed to have “police powers” over all things that the federal government has not reserved for itself. These police powers don’t necessarily mean that the police will be the ones enforcing the rule, it means that the state and local government have the power to regulate that issue. See last week’s post to get a better understanding of burden of proof and police powers. What is relevant here is that “city hall” has an ace up its sleeve.
I will be doing a two-part post on this issue over the next two weeks because I think few people outside of the law understand this and it affects everything we do from what we eat to how our cars are built, to what we do at work. Your house or apartment was built based on a public planning process that is part of the police powers. It controls nearly everything, but the secret is you can challenge it……if you know the law.
So why should you care one way or the other? Well, to apply it to the local Wahkiakum County issues, your interests are probably involved in some sort of litigation right now. Currently the county and the State of Washington’s Department of Ecology are in a fight as to whether cities like Olympia and Vancouver can spread treated sewage sludge (known as bio-solids) on Wahkiakum County fields. If you are a commercial or sport fisherman and are concerned about the increasing numbers of sea lions killing salmon in the Columbia River, your interests are an administrative law case. If you believe that the states should release more hatchery fish, your interests are being argued in court. If you are a Columbia River gill netter being put out of business by new fish and wildlife rules….you’re fighting administrative law. Everything from animal rights to zoning are all admin law and therefore subject to “the presumption.”
So what is this presumption? Well it’s a legal device designed to keep the courts from being inundated by a tsunami of challenges to every administrative decision that someone doesn’t like. It makes it tough to challenge something so that you can’t just do it as delaying or stalling tactic. For agency decisions, you have the requirement of showing that the agency acted arbitrarily and capriciously and was clearly erroneous about their decision based on the record provided to the court. This is why you will see admin law attorneys, meticulously filing documents into the court’s record upon which the judges base their decisions. The judges are only supposed to use what is in the record. They don’t always do that but they are supposed to.
The other interesting thing about administrative law is that there are no juries. In fact, in some cases you may not even get a regular judge, you may get an Administrative Law Judge (ALJ). These ALJ’s only hear administrative cases and usually have years of experience litigating these types of cases. The other thing is you usually don’t have witnesses and testimony made in court. Instead the lawyers prepare briefs and make arguments that apply the facts to the laws and administrative rules. The downside is that you will likely never see an administrative court drama on TV because they just aren’t that exciting. However, they certainly are more important to us all than the most sensational murder case can be because in the murder case, the fate of one person hangs in the balance, but in administrative law, all of our fates are at stake, whether we know it or not.
Next week I will discuss the most famous case in Administrative law, known as the Chevron decision. Trust me, it goes way beyond pumping gas. Until then…..stay tuned.
30 Saturday Mar 2013
Posted Uncategorized
inLast week the Supreme Court of the United States (SCOTUS) ruled that law enforcement officers could not use a drug sniffing dog to randomly walk down streets and sniff out illegal drugs without a valid warrant. The SCOTUS ruling in Florida v. Jardine , found at the following link: http://www.supremecourt.gov/opinions/12pdf/11-564_5426.pdf , upheld a Florida State Supreme Court ruling in a case that suppressed the evidence police used to charge Mr. Jardine.
In this case, a police officer, suspecting Mr. Jardine of being involved in illegal drug production and distribution, approached the front door of Mr. Jardine’s home for the purported excuse of having an informal discussion. Accompanying the officer on his walk to the front porch was the officer’s police dog, trained in drug detection by odor. Even before the officer knocked on the door, the police dog alerted to the smell of drugs. Without knocking the officer left the porch and returned with a valid search warrant for Mr. Jardine’s house based on the evidence of the police dog alert.
At trial in state court the defense argued that the police dog on the porch was an illegal search as a valid search warrant was not issued at the time. The trial court agreed and the state appealed. The battle raged through the state courts and finally was granted certiorari (I discussed this term last week) by SCOTUS. In a 5-4 close decision, the majority ruled that a person has a reasonable right to expect privacy, especially in and directly around the “home”. Here the term used is the “curtilage”, in other words that space around the home which a reasonable person would assume to be private.
Curtilage has hundreds of cases delineating what is and isn’t private. Current rulings allow police to fly over a home at a reasonable height and look into the yard for illegal activity but they can’t climb over a wall to see the same yard. Policed are allowed to look in open windows and observe evidence but they can’t use thermal imaging devices to see through walls without a warrant.
The privacy expectations of the curtilage concept even extend beyond the home. If you are in a hotel room the police need a warrant to search it just like your home or apartment. The same goes for your office space. Even automobiles, never envisioned by the founding fathers who wrote the Constitution, are afforded some privacy rights.
Perhaps the most interesting thing about this case, and the administrative law case I discussed last week, is the way the SCOTUS Justices mix and match on different cases, take this case for example. Conservative Justices Scalia and Thomas agreed with liberal Justices Keegan and Sotomayor that the dog’s search violated the constitutional protections against unreasonable search and seizure. The dissenting opinion was written by conservative Justice Alito with moderate Justice Kennedy and moderate Chief Justice Roberts agreeing and liberal Justice Breyer also joining. This juxtaposition comes on the heels of last week’s Brown v. EPA where nearly all of the liberal and conservative justices joined together in a decision hailed by conservatives. The lone dissenting voice? Conservative Justice Scalia, author of today’s opinion. Weird huh? Forget global climate change as something to be concerned about…….think about judicial opinion swing and the unpredictability accompanied by it. It’s enough to make a constitutional law professor shudder.
So, as of this ruling, the police can not bring a drug sniffing dog onto your porch without a warrant and expect to use the evidence in court to convict you. Ironically, this was not the only drug dog case from Florida heard by the SCOTUS this year. In the case of Florida v. Harris the SCOTUS overturned a Florida Supreme Court ruling which required law enforcement to provide extensive training and effectiveness records for canine drug detecting dogs. Justice Keegan, writing for a unanimous court, allowed a lower standard for certification of the drug detecting dog. The “totality of the circumstances” standard is often used by SCOTUS when they don’t want to lock trial courts into rigid rules. Often what happens is the courts are left confused by such rulings and justice is dealt differently by different judges. Not much of a bright line ruling that sheds confusion here……which is pretty much par for the courts…..err course.
Speaking of confused, I recently read a story where a prosecutor demanded the written statement of the arresting officer in a criminal case he was bringing. The human officers, who had given the credit for the capture of the suspect to their police dog responded that the “officer in question was a dog and unable to give a statement.” Three more times the prosecutor demanded the written statement and finally the police officers sent him what he wanted. On the form in the signature box was a dog’s paw print and the incident description read, “woof woof”. Translation was something to the effect of: stinky bad man run away…..I chase and bite bad man…….bad man surrender. The end.
Who says the police don’t have a sense of humor?
When I was a kid, law enforcement came up with a cute mascot in the same vein as Smokey Bear. The mascot became known as McGruff the Crime Dog. His motto was, “Help take a bite out of crime.” After the Jardine case, perhaps McGruff the crime dog won’t be taking anymore bites out of crime without a warrant….but at least he won’t have to produce his papers upon request.
23 Saturday Mar 2013
Posted Uncategorized
inThe Clean Water Act (CWA) was created during the Nixon presidency after negative public reaction to photographs of the Cuyahoga river in Ohio which caught on fire and burned due to the pollutants in the river. Congress put a provision in the CWA that allowed a private citizen to sue over water pollution. I suspect Congress did this to encourage ordinary citizens to report water quality violations. Later on I will explain the problems this little provision created. For now you should know that Congress passed the CWA and ordered the EPA to make administrative rules to flesh out the framework created by Congress for the CWA.
You need to understand two things about admistrative law:
1) It is boring! Normally reading adminstrative rules out loud is sufficient to strip lead-based paint off of walls. It is unconstitutional to read administative rules to prisoners because it violates the prohibition on cruel and unusual punishment…..you get the picture.
and
2) Administrative rules control most of the things you do in an average day, sometimes in ways you would never believe. The size of a beef steak is actually determined by the Occupational Health and Safety Administration, not because they regulate food, but because they set the limits on the weight of a box of beef steaks that can be lifted by a slaughter plant worker. If the plant wants 100 steaks per box, but the OSHA rules say a worker can lift no more than 80 lbs per box, your steaks are around 0.8 pounds each to meet the regulation. See the effect?
In later posts I will try to jazz up administrative law when I discuss the Chevron case which is seminal in administrative case law history. For now, understand that agencies have incredible power over our lives and are a favorite target of lawyers looking to force some new rule in favor of their clients.
The NEDC sued because the EPA ruled that culverts under logging roads could not be regulated as point source pollution discharges. In other words……the dirty water running out of a culvert after it rains is not like a factory or a sewer treatment plant discharge pipe. The EPA interpreted its rule so that sediment coming from a construction project was pollution but sediment running off a logging road into a culvert was not regulated. If you want to understand why here is a link to the actual case: http://www.supremecourt.gov/opinions/12pdf/11-338_kifl.pdf Be sure to drink some coffee first or you may find yourself nodding off (actually for an attorney this case is more exciting than a roller coaster with more surprises than figuring out what is in my wife’s cooking…..PS if I’m dead tomorrow….it was her tuna piano casserole that got me!)
The Oregon Department of Forestry intervened in the case because they would be harmed by any change in the EPA’s decision. A Federal District Court judge originally ruled against the NEDC who appealed the ruling. The 9th circuit court of appeals (known for its liberal rulings) took the case and reversed in favor of the NEDC. Decker, the head of ODF petitoned to be heard before the SCOTUS and the court granted certiorari (a fancy word meaning the SCOTUS agreed to hear the case).
SCOTUS ruled that the EPA could interpret its regulations as it sees fit. The ruling was a lopsided 7-1 opinion which means that liberal and conservative justices alike were of the same opinion. Oddly enough, the one dissenting voice was conservative justice Antonin Scalia (thus the surprises like my wife’s cooking) I look forward to studying his dissenting opinion to get a better understanding of how he thinks.
This is a huge relief to the timber industry who could have been required to get a National Pollution Discharge Permit and been forced to conduct expensive water quality sampling on every culvert they owned…….which could be in the tens of thousands. The adminstration and testing alone would have cost millions of dollars. Like I said, a huge win for the timber industry and everyone who drives on their logging roads because if I were a timber company who knew that a private citizen could sue over any pollution discharges they observe, I might close my roads to the public to make it harder to sue me……but I like to keep an open mind.
The environmental groups are likely very upset over this ruling because the CWA gives a private right of action to sue over water quality violations. They are then allowed to claim a portion of any settlement recieved by the government for the pollution discharge. Environmental groups have been funding their legal departments for years with these kinds of lawsuits. I’m sure they were only thinking about stopping pollution and not suing over every culvert had the decisions turned in their favor….. but again, I try to keep an open mind about people’s motives.
In future posts I will discuss more adminisrative law cases because many Wahkiakum County residents are involved in natural resource related industries. It seems more and more natural resource decisions such as wildife or forestry management are being decided by lawsuits and not by biologists. That’s why I decided to become an attorney in the first place. To help influence the direction we move by heading off bad court decisions.
I want to end by giving a shout out to the Wahkiakum County Prosecutor, Mr. Dan Bigelow. Last Monday, in his role as county attorney, he made an excellent administrative law argument in King County Superior Court. After the sitting judge had pretty much made clear that Mr. Bigelow only had five minutes to present his brief and that he was not interesed in the economic issues that the brief was predicated upon, Mr. Bigelow gave an impassioned and articulate safe harbor defense that the judge had not ruled out. It was lawyering at its best. When the Audobon Society ruling comes out, I will discuss what safe harbor policies are. For now I will just say…..”Great Job, Dan!”
16 Saturday Mar 2013
Posted Uncategorized
inIf you are like me, law enforcement officers may sometimes seem intimidating even when you know you haven’t done anything wrong. It may be because there are just so many laws out there that you feel you may not know if you violated one. I also think the uniforms just command respect and we are trained from a young age to respect the law.
I think most of us are honest to a fault around police officers. This however may not be the best course of action if there is any chance that you may have violated a law. When I was in law school we watched a video by a law professor who discussed why you should never talk to the police… ever. It opened my eyes and made me reconsider how I interact with law enforcement officers. Here is a link to the you tube video we watched:
I think it is truly worth watching for everyone. I’m not sure I agree with it all but it does give you food for thought.
So what is the proper response to police questioning? Well the 5th amendment to the United States Constitution says in part that no person, “…shall be compelled in any criminal case to be a witness against himself,”. In addition, the 6th amendment provides a criminal suspect with a right to counsel on what today would be described as felony charges.
Now knowing the founding father’s original intent here might be historically interesting, but from a practical standpoint we have to deal with what the US Supreme Court has said on the matter.
Prior to the “Miranda” case, the rules regarding confessions were jumbled and confusing. Police were coercing confessions, or lying and tricking suspects into saying things that incriminated them. Courts were all over the place, some ruling the tactics were fair, others not.
In the case of Miranda v. Arizona, decided by the Supreme Court in 1966, the court attempted to create a simplified structure applicable to in custody interrogations. The court decided that suspects taken into custody needed to be given warnings as to what their constitutional rights were. These resulted in the words we so often hear on police procedural TV programs.
” You have the right to remain silent. Anything you say can be used against you in a court of law. You have the right to the presence of an attorney. If you can not afford an attorney, one will be appointed for you prior to questioning should you so choose.”
So you may think,” well if I’m just talking to he police and I let something slip, it wont be admissible in court because I hadn’t received my Miranda warning.” Well not so fast partner. Miranda only applies if you are in police custody and are being questioned. If you blurt things out without being asked it may be admissible in court. A prosecutor may argue that you waived your Miranda rights by voluntarily making statements. If you do, you make your defense attorney’s job that much harder.
So what should you do if the police approach you and want to speak to you about a crime you may or may not have had some part in. My best advice is to err on the safe side and tell the police nothing. Refusing to speak to the police is your right. If they really want to question you they can get a warrant and arrest you. (they may be able to arrest you without the warrant if they have probable cause but either way you will be in custody which triggers Miranda.)
If they give you a card o sign which acknowledges that you have been read your Miranda Warnings refuse to sign it. The best thing you can do is say forcefully,” I am invoking my right to counsel. ” At that point the police are supposed to stop questioning you and fetch your lawyer. If they continue questioning you don’t say anything else and report it to your attorney when you see him or her.
The Constitution is designed to protect you from your government whether you are guilty or innocent. The prosecution has to prove your guilt beyond a reasonable doubt. You don’t need to help them do that. Keeping quiet until you have proper legal representation is the best thing you can do to keep from going to jail. Remember that!
23 Saturday Feb 2013
Posted Uncategorized
inWith all the political/constitutional issues that have been in the news lately, I haven’t been able to discuss some interesting U.S. Supreme Court rulings that have some impact on the people here in Wahkiakum County, Washington. Seeing as how we live next to the mighty Columbia River and there are residents that have floating homes here, I think it’s time I discussed one of my favorite topics in law school: maritime law.
First a little background that helps explain why this matters. Article 3 of the U.S. Constitution established the Supreme Court of the United States (SCOTUS). The founding fathers believed that the U.S. Government needed a court where issues could be brought that might not get a fair hearing in a state court. Such situations might occur when one state sued another or citizens from different states sued each other. Because one citizen might have an unfair home court advantage the founders figured they should have an impartial “federal court” to hear their grievances.
Article 3. Section 2 of the U.S. Constitution gives SCOTUS original jurisdiction for several types of cases. One of them is jurisdiction over Admiralty (maritime) law. This means that if a court action arises from something that happened on a boat or ship, the federal courts have jurisdiction over it. Unlike an automobile crash that would be brought in the Superior Court in the county, a maritime claim can be moved by a party to federal court where different federal rules apply.
Unlike diversity cases (one citizen from one state sues another citizen from another state) where the federal court must apply state law under the Erie Doctrine (I will explain this in a future post), maritime law is unusual because it requires the case to use specific federal civil procedure rules. In fact, in the rare cases that a maritime case is heard in a state court, the state judge is required to use the federal rules (reverse Erie Doctrine.)
I realize this is technical and probably confusing and you are scratching your head and wondering why any of this is important. Bottom line, if you have injuries while on a navigable body of water (like the Columbia River) you are more likely to end up in federal court than your local court. This is the difference between facing a local Wahkiakum County jury versus a federal jury in Tacoma, WA or Portland, OR.
To add another weird wrinkle you may not even be entitled to a jury of your peers in federal maritime court. The seventh amendment of the Bill of Rights guaranties the parties in cases of civil law a right to a jury to hear their case. Maritime court, however, is considered a court of equity so there is no guarantee you won’t have a bench trial where a judge decides your case and not a jury of your peers. Weird huh?
So why else is maritime law interesting? Well, anything that happens with a boat or ship including: contracts for sale of said ship, crewman injured on a U.S. registered ship or fishing vessel (Jones Act), injuries to dock workers unloading a ship (longshore and harbor workers compensation act), merchants insuring cargoes carried by ships, salvage rules, shipwrecks, marine oil spills…….all of these are the original jurisdiction of federal maritime courts.
So now that you have some understanding of maritime law, lets talk about the recent SCOTUS case of Lozman v. City of Riviera Beach, Florida. This case is so recent that it doesn’t even have a citation number selected yet (known as a slip case.)
This case involved Mr. Lozman who lived in a floating home in the Riviera Beach city marina. After upsetting city officials by opposing a marina redevelopment plan, the city apparently retaliated by assessing fines. When Mr. Lozman refused to pay them, the city placed a lien on his floating home and took him to federal maritime court. There, without a jury, the court found for the city and Mr. Lozman’s floating home was auctioned. Here is the really telling part though. The city bid on the home and when they won the bid, they destroyed the floating home so that no one could oppose their redevelopment plan.
So a homeless Mr. Lozman filed an appeal arguing that the case should not have been in maritime court because his floating home did not meet the definition of “vessel”. The case worked its way through to the SCOTUS which rendered its decision just a few weeks ago.
The opinion, written by Justice Breyer, ruled that Mr Lozman’s floating home did not constitute a vessel and therefore the original maritime court erred when it awarded the lien to the city. From a maritime lawyer’s standpoint this case is amazing. There have been decades of settled law on what kinds of “vessels” meet the maritime definition and this makes a dramatic change. (Proves that a clever lawyer can sometimes get a result that no one expected.)
Prior to this case, a vessel in commerce was defined as an artificial contrivance which floats, was able to move under its own power or be towed from place to place, and could incidentally carry objects such as people or cargo. Mr. Lorenzo’s floating home floated, carried him and his belongings, and had been towed several times before ending up at the Riviera Beach marina. Mr. Lozman’s attorney argued that because the house was moored and connected to utilities such as power and sewer it no longer was a vessel and therefore not covered by maritime law.
Amazingly, the majority of the Supreme Court agreed. The court created a new standard that is very subjective. While agreeing that a log floating in the river isn’t a vessel, (three men in a tub with an oar might be though.) The court adopted a reasonable observer standard where a court would have to ask what a reasonable person would think if presented with the facts. Lawyers love the reasonable observer standard because they get to argue about what is reasonable. I love subjective standards.
So to answer the original question; a houseboat is a boat, a floating boat house is not a boat, and a floating house is not a boat or a house (just ask a bank or insurance company). So do you understand now? No? Good, neither do I, but it gives us attorneys something to argue about in court. Thank you SCOTUS for more billable hours! One thing is obvious. When the SCOTUS sees an injustice caused by how settled law is applied, they are often willing to change the law to avoid future injustice.
Perhaps that is the most important lesson from this case that should be taken to heart by government officials. This case was precipitated by the City of Riviera Beach being spiteful because a citizen was wasn’t letting them have their way. Buying and destroying Mr. Lozman’s home just appears vindictive to most people and a jury under a regular civil trial may see the same thing.
After the SCOTUS ruling Mr. Lozman was quoted as saying he was considering a civil suit for his destroyed home…this time not in maritime court. Perhaps the City of Riviera Beach is going to find out in a very expensive way that you can can be up a creek without a paddle and not be in maritime court.
09 Saturday Feb 2013
Posted Uncategorized
inBack in 2001, just after the September 11 attacks, I remember a debate that raged on talk radio about whether we should be sending troops into Afghanistan in order to find Osama bin Laden and the other Al Qaeda terrorist leaders. Some people argued for turning that country into melted glass (the nuclear option) while other callers suggested that we should show our Christian roots by turning the other cheek and doing nothing. One caller however really struck a nerve with me when she stated that we shouldn’t send troops, but we should just arrest Osama bin Laden.
I’m sure this woman meant well, but really hadn’t thought out the practicality of her suggestion. How do you arrest and prosecute people for terrorist acts when they are hiding in nations that protect the terrorists? You can’t send in police because they would have no jurisdiction to arrest anyone (think about why the California Highway Patrol can’t stop speeding cars in Mexico.) Your other option is to invade the country, overthrow the government, and put in one that will arrest and extradite terrorist suspects as you wish (which is sort of what happened in Afghanistan.) It is an issue facing all the presidents who have been fighting the “war on terror”.
There is, however, a third option. You can send in a raid to kill or capture a terrorist suspect in a non-cooperative country. This is risky because if you send in an armed team and they are captured they can be tried under that country’s laws or even worse, they can be killed. (Think of the failed attempt to rescue the embassy hostages in Iran in 1979.) The unmanned alternative is to send in an armed drone aircraft (known as a UAV or unmanned aerial vehicle.) The drone aircraft can identify the suspect using sophisticated video cameras and then drop a bomb or fire a missile at the suspect with little risk to the UAV pilot sitting back at base.
Obviously, the unmanned drone is preferable in our risk-averse military. This is why drone warfare is becoming more and more popular among military leaders and politicians. How does it work from a legal standpoint? The concept works when you have a foreign suspect operating on a declared battlefield. In this case the President’s authority comes from his Commander-in-Chief powers.
What about a foreign suspect who is in a country not officially declared a battle zone. In this case the military can not act there because it would violate the international rules of war (Geneva Convention.) Just as a military may not target an enemy soldier who is on R and R in a neutral country, our military can not purposely target civilians and non-combatants (which explains why many of the recent drone strikes were operated by the CIA and not the military.) Because the Geneva Convention is a duly enacted treaty, the President can not violate it without the approval of Congress.
Sometimes, however, Congress grants the President authority to do things through legislative actions and the President may interpret some implied power not specifically granted in the legislation. In 2001, Congress approved the Authorization for Use of Military Force (AUMF) to deal with the September 11 attacks. The AUMF granted the president the power to target or capture anyone involved in the planning of 9/11. Subsequent Presidents have interpreted this to mean they may target terrorist suspects around the world, which they have done from Pakistan to Yemen to Somalia (reportedly).
The American people seem to be in favor of such tactics when it comes to foreign combatants, but what do you do when the suspect is a United States citizen who has constitutional due process rights? You can’t arrest him due to impracticability, but you also just can’t kill him right? Well, maybe you can.
This week President Obama released a U.S. Justice Department memo that explains the policy the government uses to determine when drone strikes (targeted killing) of a U.S. citizen is allowed. Because the document is considered secret, only select members of Congress got to see the memo. Fortunately, Congress is notorious for not being able to keep a secret so now the media has a copy. Here is what we know.
The Obama Justice Department will only target a U.S. citizen when they are a member of Al Qaeda or an affiliated group, that can’t be captured through conventional means, and there is an imminent risk of a terrorist attack. Seems pretty cut and dried right? Well, as Jon Stewart pointed out on the Daily Show, the Justice Department has an ambiguous definition of imminent which may not necessarily mean an attack is well…..imminnent.
But beyond the above question of semantics and the constitutional issues of not providing a citizen an impartial trial by his peers, there is the question of the President’s ability to order civilian executions under the powers of the Commander-in-Chief.
As you might have guessed, some members of Congress (and lots of regular citizens) are not very happy about this use of presidential executive power (see my discussion of executive power in my former post.) So can a President legally order the extra-judicial executions of U.S. citizens or anyone else outside of a war zone without a trial? The answer is……it depends.
This question has been vexing constitutional scholars for years. All the way back to the Kennedy administration and the CIA attempts to kill Fidel Castro, the U.S. has wrestled with these issues. After the Frank Church congressional hearings on CIA sponsored assassination attempts, President Gerald Ford instituted an executive order limiting assassinations. He did this to preempt a ban from Congress that would limit presidential authority. You see, an executive order can be modified or reinterpreted by future presidents, but a law passed by congress has less wiggle room.
Presidents since Ford have reinterpreted the executive order to provide flexibility during their administration. President Reagan reinterpreted the ban on assassination to allow attacks in retaliation for terrorist acts. This allowed Reagan to attack the home of Libyan President Muhammar Gaddafi after Libyan linked terror attacks on U.S. citizens in the 1980’s.
The strike on Gaddafi’s home (which may have killed his daughter) likely met the international definition of an assassination attempt, but Congress never questioned the attack. In theory, since the President can redefine what the executive order banning assassination means, then he can make it mean nearly anything. This is the concern many people have about a tyrannical abuse of presidential power.
As I discussed in my executive orders post, a President is most constitutional when he is acting under the express authority of Congress. This is why most presidents try to find some congressional authority for their actions, including drone strikes. President George W. Bush used the AUMF to justify his use of drone strikes. President Obama is depending on the same interpretation. This is why the Justice Department memo limits the drone attacks to members of Al Qaeda because the AUMF limits the use of force to the plotters of the September 11 attacks. (For you conspiracy theory types that are afraid of President Obama ordering drone strikes over U.S. soil; he would need some other justification than the AUMF to do that, so you can probably worry about other things for now.)
On the other hand, when the President is acting where Congress is silent on an issue the legality of an executive interpretation depends on the facts at hand. If you look at the inverse implication of this theory however, if Congress has spoken on the topic in another setting it may be applicable to the question at hand. In this case; has congress enacted other laws that would shed light on whether they intended the AUMF to allow the President to order drone strikes on U.S. citizens?
In the case of FDA v. Brown and Williamson Tobacco, the U.S. Supreme Court held that when Congress speaks on an issue, even in an unrelated area, the court may imply that congress has spoken on the issue in question. In Brown and Williamson, Congress had spoken in favor of tobacco subsidies in an agricultural bill and this was used to preempt an FDA order regulating tobacco. Because of the implied congressional intent, the court found that an executive branch decision was against the will of Congress even though Congress had not spoken to the issue.
Currently the American Civil Liberties Association (ALCU) is suing the U.S. Department of Justice, arguing that the use of drones and other targeted killings of U.S. Citizens is illegal under U.S. law. One way they may make their case is through an application of Brown and Williamson Tobacco. If Congress has spoken on the issue of assassinations then a court may imply that Congress has specifically forbidden assassinations.
In the case of the AUMF, Congress did not specifically approve drone strikes. The Justice Department will likely argue that since Congress is silent on the issue the President may interpret the AUMF to allow for the strikes. If I were representing the ACLU I think I might point out that Congress has approved treaties banning extra-judicial executions by foreign governments. It has even made federal laws, such as the Foreign sovereign Immunity Act (FSIA), which specifically allows sovereign governments to be sued in U.S. courts for allowing or conducting assassinations.
It would seem with an application of Brown and Williamson Tobacco, the ACLU might have the Justice Department caught in its cross-hairs to pardon the pun. By the way, if you are further interested in this topic, here is a URL for a paper that I wrote in law school in 2009 that is about this topic directly. https://vandenberglaw.wordpress.com/wp-content/uploads/2013/02/targeted-killings-of-terrorist-suspects.pdf Feel free to copy the URL into your browser and use it as you see fit (but hopefully not for nefarious purposes.)
I realize that by now your eyes may be crossed by the minutiae of these arguments. Remember, this is what constitutional lawyers do. They often argue about what the meaning of the word is, is. I hope you can excuse our narrow focus when you realize that we do this so that you may maintain your freedoms. Hopefully by officially delineating the constitutional powers available to the president you or your children may never be the target of a drone strike without due process. I leave you with this quote I found while researching my law school paper on targeted killings of terrorist suspects. It came from Thomas Jefferson in a 1789 letter to his friend and colleague James Madison. I hope you find it as ironic as I do in light of today’s discussion.
“[A]ssassination, poison, perjury…all of these were legitimate principles in the dark ages…but exploded and held in just horror in the 18th century.”
P.S. For those of you who have argued that U.S. citizens who have committed terrorist acts have committed treason and therefore should face a firing squad, I would like to remind you. Article 3. Section 3 of the Constitution requires the testimony of two witnesses or a confession, in open court, to convict a citizen of treason. (that’s even more than required to convict someone of murder. Go figure)
01 Saturday Dec 2012
Posted Uncategorized
inMany people have asked me, “Why Wahkiakum County?” After all, I had no family ties and I knew no one here. I only passed through it once before when I was headed to the coast on Highway 4 and I didn’t remember it. So why choose here to start a legal practice?
Well, my wife, Jennifer, says, “Life is what happens when you make other plans.” It’s kind of my motto. I figure the key to being happy in life is the ability to adapt and be flexible. When I took the Bar Exam I had no set-in-stone plans as to what was next. Jennifer was a supervisor at Border’s Books in Salem, Oregon, but in early 2010 that didn’t seem to be a good career path. (Luckily, she left before the company folded in August.)
We happened to find a caretaker position for a bed and breakfast here in the county and proceeded to relocate to the Evergreen State. While waiting for the Bar Exam results I worked as a fisheries observer on the commercial fishing boats of various local fisherman. (I was on one of these boats when Jennifer called me to tell me I had passed the Bar Exam.) It was a great experience and I learned a lot about the local culture.
Mostly what I learned is that small counties are alike wherever you go. In Oregon we lived on a farm in an agricultural dependent county. My neighbors were friendly and you had a sense of freedom. Here I found the same attitude. It helped if you had family ties to the community, but even if you didn’t, if you proved yourself, the locals would come to accept you.
So what about Wahkiakum County do I like? You will not get a traffic ticket for running a red light here. Not because the Sheriff Deputies turn a blind eye but because this county doesn’t have a red light to violate. The biggest crisis on Main Street in the county seat of Cathlamet is that the State wants to remove the only cross walk in town because some bureaucrat says people don’t use it enough. Cathlamet is also brave enough to allow an annual long board skate board competition on the many steep hills in town. I can’t imagine what the city attorney thinks of the liability issues around that but they do it anyway. People say hello to you here even if they don’t know you.
Do I have any concerns starting a practice here in Wahkiakum County? Sure. The population base is only 3,000 residents. There are already six attorneys practicing here. A respected member of the legal community confided that Wahkiakum County is somewhere that you really can’t afford to turn down any business so you have to be a jack of all trades. So that is what I intend to be (flexible, not a jack lawyer). Whatever I do I hope to be a positive influence.
So why Wahkiakum? I say, “Why Not?”