U.N. Human Rights Committee’s Concluding Observations on U.S. Human Rights

As discussed in a prior post, in March 2014, the United Nations’ Human Rights Committee (the Committee) issued a negative evaluation of how the United States of America (U.S.) was implementing and complying with the International Covenant on Civil and Political Rights (ICCPR or Covenant), which is regarded as an important part of the International Bill of Rights. That prior post reviewed the background of the ICCPR and the events leading up to the Committee’s evaluation. Another post looked at the Committee’s recent hearings regarding U.S. human rights.

Now we examine the Committee’s report of concluding observations that resulted from the hearings and all the evidence on that subject.

The Committee’s Concluding Observations[1]

After considering the written materials and the testimony and remarks at the hearing, on March 26, 2014, the Committee adopted its 11-page report (Concluding observations on the fourth report of the United States of America). Given the hostile nature of the Committee members’ comments during the hearing, it is not surprising that the report was very critical of the U.S.[2]

With respect to various topics, the Committee expressed its regrets or concerns about the U.S. record and then made the recommendations outlined below.

Applicability of the Covenant at national level.[3] The U.S. should: “(a) Interpret the Covenant in good faith, in accordance with the ordinary meaning to be given to its terms in their context, including subsequent practice, and in the light of its object and purpose and review its legal position so as to acknowledge the extraterritorial application of the Covenant under certain circumstances . . . .(b) [I]dentify ways to give greater effect to the Covenant at federal, state and local levels, taking into account that the obligations under the Covenant are binding on the State party as a whole. . . . (c) [E]nsure that effective remedies are available for violations of the Covenant, including . . . proposing to the Congress implementing legislation to fill any legislative gaps. . . . [and considering] acceding to the Optional Protocol to the Covenant providing for an individual communication procedure. [4] (d) Strengthen and expand existing mechanisms mandated to monitor the implementation of human rights at federal, state, local and tribal levels . . . . (e) Reconsider its position regarding its reservations and declarations to the Covenant with a view to withdrawing them.”[5]

Accountability for past human rights violations. The U.S. should: “[E]nsure that all cases of unlawful killing, torture or other ill-treatment, unlawful detention, or enforced disappearance are effectively, independently and impartially investigated, that perpetrators, including, in particular, persons in command positions, [6] are prosecuted and sanctioned, and that victims are provided with effective remedies. The responsibility of those who provided legal pretexts for manifestly illegal behavior should also be established. [7] The State party should also consider the full incorporation of the doctrine of ‘command responsibility’ in its criminal law and declassify and make public the report of the Senate Special Committee on Intelligence into the CIA secret detention programme.”

Racial disparities in the criminal justice system and Racial profiling. The U.S. should: “[R]obustly address racial disparities in the criminal justice system . . . [and] effectively combat and eliminate racial profiling by federal, state and local law enforcement officials . . . .”[8]

Death penalty. The U.S. should: “(a) take measures to effectively ensure that the death penalty is not imposed as a result of racial bias; (b) strengthen safeguards against wrongful sentencing to death and subsequent wrongful execution by ensuring inter alia effective legal representation for defendants in death penalty cases, including at the post-conviction stage; (c) ensure that retentionist states [those that maintain the death penalty] provide adequate compensation for the wrongfully convicted; (d) ensure that lethal drugs for executions originate from legal, regulated sources, and are approved by the U.S. Food and Drug Administration (FDA) and that information on the origin and composition of such drugs is made available to individuals scheduled for execution; [9] (e) consider establishing a moratorium on the death penalty at the federal level and engage with retentionist states with a view to achieving a nationwide moratorium;” [f] Consider acceding to on the Second Optional Protocol to the Covenant aiming at the abolition of the death penalty on or before July 11, 2116, the 25th anniversary of its entry into force.

Targeted killing using unmanned aerial vehicles (drones). The U.S. should: “revisit its position regarding legal justifications for the use of deadly force through drone attacks [and] . . . (a) ensure that any use of armed drones complies fully with its obligations under article 6 of the Covenant, including in particular with respect to the principles of precaution, distinction and proportionality in the context of an armed conflict; (b) subject to operational security, disclose the criteria for drone strikes, including the legal basis for specific attacks, the process of target identification and the circumstances in which drones are used; (c) provide for independent supervision and oversight over the specific implementation of regulations governing the use of drone strikes; (d) in armed conflict situations, take all feasible measures to ensure the protection of civilians in specific drone attacks and to track and assess civilian casualties, as well as all necessary precautionary measures in order to avoid such casualties; (e) conduct independent, impartial, prompt and effective investigations of allegations of violations of the right to life and bring to justice those responsible; (f) provide victims or their families with an effective remedy where there has been a violation, including adequate compensation, and establish accountability mechanisms for victims of allegedly unlawful drone attacks who are not compensated by their home governments.”

Gun violence. The U.S. should: “[T]ake all necessary measures to abide by its obligation to effectively protect the right to life. . . . [including] (a) continue its efforts to effectively curb gun violence, including through the continued pursuit of legislation requiring background checks for all private firearm transfers in order to prevent possession of arms by persons recognized as prohibited individuals under federal law . . . ; and (b) review Stand Your Ground Laws to remove far-reaching immunity and ensure strict adherence to the principles of necessity and proportionality when using deadly force in self-defence.”

Excessive use of force by law enforcement officials. The U.S. should: “(a) step up its efforts to prevent the excessive use of force by law enforcement officers by ensuring compliance with the 1990 UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officers; (b) ensure that the new CBP [U.S. Customs and Border Protection] directive on use of deadly force is applied and enforced in practice; and (c) improve reporting of excessive use of force violations and ensure that reported cases of excessive use of force are effectively investigated, alleged perpetrators are prosecuted and, if convicted, punished with appropriate sanctions, that investigations are re-opened when new evidence becomes available, and that victims or their families are provided with adequate compensation.”

Legislation prohibiting torture. The U.S. should: “[E]nact legislation to explicitly prohibit torture, including mental torture, wherever committed and ensure that the law provides for penalties commensurate with the gravity of such acts, whether committed by public officials or other persons acting on behalf of the State, or by private persons. . . . [and] ensure the availability of compensation to victims of torture.”[10]

Non-refoulment [ban on returning persecuted to persecutor]. The U.S. should: “[S]trictly apply the absolute prohibition against refoulement under articles 6 and 7 of the Covenant, [11] continue exercising the utmost care in evaluating diplomatic assurances, and refrain from relying on such assurances where it is not in a position to effectively monitor the treatment of such persons after their . . . return to other countries and take appropriate remedial action when assurances are not fulfilled.”

Trafficking and forced labour. The U.S. should: “[C]ontinue its efforts to combat trafficking in persons, inter alia by strengthening its preventive measures, increasing victim identification and systematically and vigorously investigating allegations of trafficking in persons, prosecuting and punishing those responsible and providing effective remedies to victims, including protection, rehabilitation and compensation. [T]ake all appropriate measures to prevent the criminalization of victims of sex trafficking, including child victims, to the extent that they have been compelled to engage in unlawful activities. [R]eview its laws and regulations to ensure full protection against forced labour for all categories of workers and ensure effective oversight of labour conditions in any temporary visa program. [R]einforce its training activities and provide training to law enforcement and border and immigration officials, . . . [and] other relevant agencies. . . .”

Immigrants. The U.S. should: “review its policies of mandatory detention and deportation of certain categories of immigrants in order to allow for individualized decisions, to take measures ensuring that affected persons have access to legal representation, and to identify ways to facilitate access of undocumented immigrants and immigrants residing lawfully in the U.S. for less than five years and their families to adequate health care, including reproductive health care services.”

Domestic violence. The U.S. should: “[S]trengthen measures to prevent and combat domestic violence, as well as to ensure that law enforcement personnel appropriately respond to acts of domestic violence. [E]nsure that cases of domestic violence are effectively investigated and that perpetrators are prosecuted and sanctioned. [E]nsure remedies for all victims of domestic violence, and take steps to improve the provision of emergency shelter, housing, child care, rehabilitative services and legal representation for women victims of domestic violence. [T]ake measures to assist tribal authorities in their efforts to address domestic violence against Native American women.”

Corporal punishment. The U.S. should: “Take practical steps, including through legislative measures where appropriate, to put an end to corporal punishment in all settings. [E]ncourage non-violent forms of discipline as alternatives to corporal punishment and . . . conduct public information campaigns to raise awareness about its harmful effects. [P]romote the use of alternatives to the application of criminal law to address disciplinary issues in schools.”

Non-consensual psychiatric treatment. The U.S. should: “[E]nsure that non-consensual use of psychiatric medication, electroshock and other restrictive and coercive practices in mental health services is generally prohibited. Non-consensual psychiatric treatment may only be applied, if at all, in exceptional cases as a measure of last resort where absolutely necessary for the benefit of the person concerned provided that he or she is unable to give consent, for the shortest possible time, without any long-term impact, and under independent review. . . . [P]romote psychiatric care aimed at preserving the dignity of patients, both adults and minors.”

Criminalization of homelessness. The U.S. should: “[E]ngage with state and local authorities to: (a) abolish criminalization of homelessness laws and policies at state and local levels; (b) ensure close cooperation between all relevant stakeholders . . . to intensify efforts to find solutions for the homeless in accordance with human rights standards; and (c) offer incentives for decriminalization and implementation of such solutions, including by providing continued financial support to local authorities implementing alternatives to criminalization and withdrawing funding for local authorities criminalizing the homeless.”

Conditions of detention and use of solitary confinement. The U.S. should: “[M]onitor conditions of detention in prisons, including private detention facilities, with a view to ensuring that persons deprived of their liberty be treated in accordance with the requirements of articles 7 and 10 of the Covenant [12] and the UN Standard Minimum Rules for the Treatment of Prisoners. . . . [I]mpose strict limits on the use of solitary confinement, both pretrial and following conviction, in the federal system, as well as nationwide, and abolish the practice in respect of anyone under the age of 18 and prisoners with serious mental illness. . . . [B]ring detention conditions of prisoners on death row in line with international standards.”

Detainees at Guantanamo Bay. The U.S. should: “[E]xpedite the transfer of detainees designated for transfer, including to Yemen, as well as the process of periodic review for Guantánamo detainees, and ensure either their trial or immediate release, and the closure of the Guantánamo facility. [E]nd the system of administrative detention without charge or trial and ensure that any criminal cases against detainees held in Guantánamo and military facilities in Afghanistan are dealt with within the criminal justice system rather than military commissions and that those detainees are afforded the fair trial guarantees enshrined in article 14 of the Covenant.” [13]

NSA surveillance. The U.S. should: “(a) take all necessary measures to ensure that its surveillance activities, both within and outside the [U.S.], conform to its obligations under the Covenant, including article 17; [14] in particular, measures should be taken to ensure that any interference with the right to privacy complies with the principles of legality, proportionality and necessity regardless of the nationality or location of individuals whose communications are under direct surveillance; (b) ensure that any interference with the right to privacy, family, home or correspondence be authorized by laws that (i) are publicly accessible; (ii) contain provisions that ensure that collection of, access to and use of communications data are tailored to specific legitimate aims; (iii) are sufficiently precise specifying in detail the precise circumstances in which any such interference may be permitted; the procedures for authorizing; the categories of persons who may be placed under surveillance; limits on the duration of surveillance; procedures for the use and storage of the data collected; and (iv) provide for effective safeguards against abuse; (c) reform the current system of oversight over surveillance activities to ensure its effectiveness, including by providing for judicial involvement in authorization or monitoring of surveillance measures, and considering to establish strong and independent oversight mandates with a view to prevent abuses; (d) refrain from imposing mandatory retention of data by third parties;(e) ensure that affected persons have access to effective remedies in cases of abuse.”

Juvenile justice and life without parole sentences. The U.S. should: “prohibit and abolish all juvenile life without parole sentences irrespective of the crime committed, as well as all mandatory and non-homicide related sentences of life without parole. . . . [15] ensure that all juveniles are separated from adults during pretrial detention and after sentencing and that juveniles are not transferred to adult courts. . . . [encourage] states that automatically exclude 16 and 17 year olds from juvenile court jurisdictions . . . to change their laws.”

Voting rights. The U.S. should: “ensure that all states reinstate voting rights to felons who have fully served their sentences, provide inmates with information about their voting restoration options and remove or streamline lengthy and cumbersome state voting restoration procedures, as well as review automatic denial of the vote to any imprisoned felon, regardless of the nature of the offence. [T]ake all necessary measures to ensure that voter identification requirements and the new eligibility requirements do not impose excessive burdens on voters resulting in de facto disenfranchisement. [P]rovide . . . full voting rights of residents of Washington, D.C.”

Rights of indigenous people. The U.S. should: “adopt measures to effectively protect sacred areas of indigenous peoples against desecration, contamination and destruction and ensure that consultations are held with the communities that might be adversely affected by State party’s development projects and exploitation of natural resources with a view to obtaining their free, prior and informed consent for the potential project activities.”

Other. The U.S. should: “widely disseminate the Covenant, the text of the . . . [recent U.S. report to the Committee], the written responses that . . . [the U.S.] has provided in response to the list of issues drawn up by the Committee and the present concluding observations so as to increase awareness among the judicial, legislative and administrative authorities, civil society and non-governmental organizations . . . [in the U.S.] as well as the general public.” “[For] its fifth periodic report, . . . continue its practice of broadly consulting with civil society and non-governmental organizations. [P]rovide, within one year, relevant information on its implementation of the Committee’s recommendations regarding accountability for [past human rights violations, gun violence, detainees at Guantanamo Bay and NSA surveillance]. [Submit] its next periodic report . . . [on March 28, 2019 with] specific, up-to-date information on all . . . [the Committee’s] recommendations and on the Covenant as a whole.”

Conclusion

One of the overriding issues in the Committee’s review was the geographical coverage of the entire treaty, whether it applies to U.S. conduct outside the U.S. territory, but where it has jurisdiction. The proper conclusion to this issue, in this blogger’s opinion, is that it does so apply or does have extraterritorial application. This conclusion was succinctly stated by the Committee’s Chairperson, Sir Nigel Rodley, during the hearing as noted in a prior post.

Essentially the same conclusion was reached in an October 2010 memo by Harold Koh, then the U.S. State Department’s Principal Legal Adviser.[16] After what he described as an “exhaustive review,” he stated, “an interpretation of Article 2(1) [of the ICCPR] that is truer to the Covenant’s language, context, object and purpose, negotiating history, and subsequent understandings of other States Parties, as well as the interpretations of other international bodies, would provide that in fact, . . . [a] state incurs obligations to respect Covenant rights — is itself obligated not to violate those rights through its own actions or the actions of its agents– in those circumstances where a state exercises authority or effective control over the person or context at issue.”[17]

Civil society organizations in the U.S. lauded the Committee’s “scathing report” and characterized the review as an opportunity for the Obama Administration to meaningfully improve its human rights legacy. The Electronic Frontier Foundation, among other groups, welcomed the Committee’s explicit recognition of the extraterritorial nature of the State’s obligations and its specific recommendations regarding surveillance, and urged immediate implementation by the United States.

The U.S. press coverage of this important international critique of U.S. human rights was pathetic. I did not find any such coverage in the Washington Post and the Wall Street Journal, two respected national newspapers.

The New York Times, on the other hand, had limited coverage. Before the hearings, the Times published one article on the then likely U.S. rejection of the treaty’s having extraterritorial effect along with the actual text of the contrary opinion on that issue by Harold Koh. Later the Times had an article about the first day of the Committee’s hearings that was primarily about the U.S.’ actual rejection of the treaty’s extraterritoriality with two short paragraphs about other issues. Finally the Times had an exceedingly short article about the Committee’s report that touched only on a few of its issues (drone strikes; the virtual lack of any U.S. investigation and prosecutions for alleged unlawful killings; use of torture and authors of legal memoranda purportedly justifying torture in the so called “war on terror;” and the call for publication of the U.S. Senate’s investigation of the CIA’s secret rendition program (turning over suspects to other countries)).

Finally, the Committee’s critique can be taken as an agenda for change by U.S. human rights advocates. Such change will not happen quickly given the dysfunctionality of the U.S. political system and culture. As President Obama frequently says, change does not come easily.                                                                 —————————————————————–

[1] This summary of the Committee’s concluding observations is based upon the observations themselves plus extensive articles about them in the Guardian, Reuters, Human Rights Watch, Amnesty International, the American Civil Liberties Union and a very short New York Times article.

[2] Before making its criticisms, the Committee noted its “appreciation [for] the many [U.S.] efforts undertaken, and the progress made in protecting civil and political rights.” The Committee then welcomed the U.S. Supreme Court’s abolition of the death penalty for offenders who were under the age of 18 when the crimes were committed (Roper v. Simmons (2005)); the U.S. Supreme Court’s recognition of extraterritorial habeas corpus for aliens detained at Guantanamo Bay (Boumediene v. Bush (2008)); the expansion of rights for such detainees (Presidential Executive Orders 13491 and 13493); and the U.S. President’s support of the U.N. Declaration of the Rights of Indigenous Peoples.

[3] This issue concerned Article 2(1) of the ICCPR, which states, “Each State Party . . . undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” (Emphasis added.)

[4] The Optional Protocol to the ICCPR allows alleged victims of an alleged violation by a State Party of any of the rights set forth in the Covenant to submit a communication of complaint to the Committee, and after it has received a response from that State Party, the Committee shall submit ”its views” [akin to an advisory opinion] on the matter to the alleged victim and State Party.

[5] The U.S. reservations and understandings to its ratification of the treaty were covered in a prior post.

[6] “Persons in command positions” presumably include former President George W. Bush, Vice President Dick Cheney and Secretary of Defense Donald Rumsfeld.

[7] “Those who provided legal pretexts” presumably include John Yoo, Alberto Gonzalez and four other lawyers who in the George W. Bush Administration were authors of legal memoranda justifying the so-called “enhanced interrogation” techniques. At least some of these memoranda are available online. The issue of their legal responsibility for such memoranda has been raised in at least three proceedings. First, under Spain’s previous version of its universal jurisdiction statute, a Spanish court opened a criminal investigation regarding these six lawyers, but later the case was stayed when the Spanish court asked the U.S. for information about any U.S. investigation of such allegations. Second, Mr. Yoo was sued in U.S. federal court for money damages and declaratory relief by an individual who had been arrested and detained for interrogation in a military brig in the U.S. for three and a half years, but the U.S. Court of Appeals for the Ninth Circuit in May 2012 held that Mr. Yoo was entitled to immunity and thus reversed the district court’s denial of Yoo’s dismissal motion. Third, in January 2010, the U.S. Department of Justice’s Office of Professional Responsibility concluded that Yoo and another lawyer had used flawed legal reasoning in these memoranda, but that this had not constituted professional misconduct This issue also has been raised in other contexts. In the midst of all this, Yoo continues vigorously to assert the validity of the memoranda and thus his innocence.

[8] One of the Committee’s concerns that prompted this recommendation was, in the Committee’s words, “surveillance of Muslims undertaken by . . . the New York Police Department (NYPD) in the absence of any suspicion of wrongdoing.” On April 15th (or nearly three weeks after the issuance of the Committee’s report), the NYPD announced that it was terminating this program. This decision was welcomed by Muslim Advocates and the Center for Constitutional Rights of New York City while lamenting that the NYPD did not say it was ending its broad surveillance practices.

[9] There is litigation in U.S. courts over lethal drugs used in executions under death penalty laws. In Oklahoma, for example, a state trial court on March 26, 2014, decided that a state law mandating secrecy for the identity of suppliers of such drugs was unconstitutional. On April 21st the Oklahoma Supreme Court stayed two executions so that the court could resolve “grave constitutional claims.” Since then there has been an unseemly intra-state squabble over whether that court had the power to stay the executions with the Oklahoma Governor vowing to conduct the executions as previously scheduled, a state legislator introducing a resolution to impeach the court’s judges who voted for the stay and the Supreme Court itself on April 23rd vacating the stay.

[10] The U.S. has a criminal torture statute, 18 U.S.C. sec. 2340A. It states, “Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.” (Emphasis added.) Thus, this criminal statute does not apply if the torture occurs in the U.S. In addition, the U.S. has the Torture Victims Protection Act (TVPA) that provides for a civil action for money damages by an “individual” who has been subjected to “torture” against an “individual, who, under actual or apparent authority, or color of law, of any foreign nation” committed the torture. (Emphasis added.) Thus, this statute does not apply if the torture is committed by someone acting under U.S. law.

[11] The ICCPR’s Article 6 bans arbitrary deprivation of life and any derogation from the genocide treaty while its Article 7 bans torture or cruel, inhuman or degrading treatment or punishment.

[12] The ICCPR’s Article 7 bans “torture . . . [and] cruel, inhuman or degrading treatment or punishment while its Article 10 requires all inmates to be “treated with humanity and respect for the dignity of the human person,” separation of accused persons from convicts and juveniles from adults and in facilities whose aims shall be “reformation and social rehabilitation” of inmates.

[13] Article 14 of the ICCPR contains detailed provisions that in the U.S. would be regarded as constitutional criminal due process rights.

[14] Article 17 of the ICCPR says “[e]veryone has the right to the protection of law against . . . arbitrary or unlawful interference with his privacy, family, home or correspondence, . . . [and] unlawful attacks on his honour and reputation.”

[15] The Committee’s report recognized with satisfaction that the U.S. Supreme Court had decided under the U.S. Constitution’s Eighth Amendment’s ban on “cruel and unusual punishment” that (a) sentences of life without parole for juveniles for non-homicide crimes were not permitted (Graham v. Florida (2010)); and (b) mandatory sentences of life without parole for juveniles for homicide were not permitted (Miller v. Alabama (2012)).

[16] Koh is one of the U.S.’ preeminent international lawyers. He has taught at the Yale Law School since 1985 except for his years as the State Department’s Legal Adviser (2009-2013) and as U.S. Assistant Secretary of State for Democracy, Human Rights and Labor (1998-2001). He served as the Dean of the Yale Law School (2004-2009) and returned to Yale in 2013 as the Sterling Professor of International Law. He has received many awards and holds degrees from Harvard University (B.A. and J.D.) and the University of Oxford (B.A. and M.A.)

[17] The Koh memorandum also stated that the contrary 1995 opinion by the Department’s Legal Adviser was “not compelled by either the language or the negotiating history of the Covenant . . . [and] that the 1995 Interpretation is in fact in significant tension with the treaty’s language, context, and object and purpose, as well as with interpretations of importantU.S. allies, the Human Rights Committee and the ICJ [International Court of Justice], and developments in related bodies of law [and, therefore,] was no longer tenable.” Nevertheless, the U.S. continues to rely on the 1995 opinion for its resistance to extraterritorial application of the ICCPR. The Koh memorandum was published by the New York Times along with a discussion of the document a week prior to the Committee’s hearings, and it is safe to assume that copies of same were provided to all the Committee members before the hearings.

The U.S. Constitution’s Interstate Commerce Clause After the Supreme Court’s Decision on the Affordable Care Act

U.S. Supreme Court Justices, 2012

As has been widely reported, the U.S. Supreme Court on June 28, 2012, decided, 5-4, that the Affordable Care Act (ACA) was constitutional under Congress’ constitutional power in Article I, Section 8(1) to “lay and collect taxes.” The Court’s Chief Justice and four of the Court’s Associate Justices also said in separate opinions that this statute was not constitutional under Congress’ constitutional power in Article I, Section 8(3) to “regulate commerce . . . among the several States.” The other four Associate Justices came to the opposite conclusion that the statute was constitutional under this provision.

This post will review what was said about the interstate commerce clause in the four opinions in the case and then analyze the status of that constitutional provision after this decision.

The Supreme Court’s Opinions on the Interstate Commerce Power

Chief Justice John Roberts’ opinion said that the Affordable Care Act was not constitutional under the interstate commerce clause. The same conclusion was reached in the joint dissenting opinion of Associate Justices Kennedy, Scalia, Thomas and Alito, and Associate Justice Thomas added a separate dissent to express an additional reason why he thinks the statute was invalid under this clause.

The opposite result was reached in the opinion by Associate Justice Ginsburg that was joined by Associate Justices Breyer, Sotomayor and Kagan.

All of these opinions are available online.

1. Chief Justice Roberts’ Opinion.

Chief Justice         John Roberts

First, Roberts gave a fair summary of the existing law on the Constitution’s interstate commerce provision. He said, “Our precedents read that to mean that Congress may regulate ‘the channels of interstate commerce,’ ‘persons or things in interstate commerce,’ and ‘those activities that substantially affect interstate commerce.’  The power over activities that substantially affect interstate commerce can be expansive.  That power has been held to authorize federal regulation of such seemingly local matters as a farmer’s decision to grow wheat for himself and his livestock, and a loan shark’s extortionate collections from a neighborhood butcher shop.” For this summary, Roberts cited  Wickard v.  Filburn, 317 U. S. 111 (1942),which previously had been criticized by Justice Scalia, and  Perez v. United States, 402 U. S. 146 (1971). (Roberts Slip Op. at 4-5.)

Roberts emphasized this concession when he said, “[I]t is now well established [by the Supreme Court’s prior cases] that Congress has broad authority under the Clause.  We have recognized, for example, that ‘[t]he power of Congress over interstate commerce is not confined to the regulation of commerce among the states,’ but extends to activities that ‘have a substantial effect on interstate commerce.'”  Moreover, he said, “Congress’s power . . . is not limited to regulation of an activity that by itself substantially affects interstate commerce, but also extends to activities that do so only when aggregated with similar activities of others.” (Id. at 17-18.)For this last point he again cited the Wickard case. (Id.)

Nevertheless, Roberts continued, “As expansive as our cases construing the scope of the commerce power have been, they all have one thing in common: They uniformly describe the power as reaching ‘activity.'” (Id. at 19.) The Affordable Care Act, however, according to Roberts, would require people to do something, i.e., to buy health insurance. Such a requirement, said Roberts, distinguished all of the prior Supreme Court precedents and, therefore, invalidated the statute. (Id. at 18-24.)

2. Associate Justices Kennedy, Scalia, Thomas and Alito’s Dissenting Opinion.

Associate Justice Anthony Kennedy

Although the joint dissenting opinion did not specifically endorse Roberts’ interpretation and conclusion, it implicitly did so. It did not attempt to overrule any of the Supreme Court’s precedents on the interstate commerce clause. Instead, it said the Wikard case, which Scalia previously had criticized, “held that the economic activity of growing wheat, even for one’s own consumption, affected commerce sufficiently that it could be regulated” and “always has been regarded as the ne plus ultra of expansive Commerce Clause jurisprudence. ” (Joint Dissent Slip. Op. at 2-3.) But Wickard and other precedents, according to the dissenters, “involved commercial activity.” The ACA, on the other hand, attempted to regulate economic inactivity, i.e., the failure to buy health insurance, and, therefore, was unconstitutional under the interstate commerce clause. (Id. at 2-12.)

Associate Justice Clarence Thomas

Justice Thomas was a co-author of this joint dissent and, therefore, agreed with all of its contents. His separate dissenting opinion was issued to reiterate his previously expressed view that the Court’s “‘substantial effects’ test under the Commerce Clause is inconsistent with the original understanding of Congress’ powers and with this Court’s early Commerce Clause cases.” (Thomas Slip Op.)

3. Associate Justice Ginsburg’s Opinion.

Associate Justice Ruth Bader Ginsburg

Justice Ginsburg started with her summary of the Supreme Court’s precedents on the interstate commerce clause. She said, “Consistent with the Framers’ intent, we [Supreme Court Justices] have repeatedly emphasized that Congress’ authority under the Commerce Clause is dependent upon ‘practical’ considerations, including ‘actual experience.'” The Court has recognized that Congress has the “power to regulate economic activities ‘that substantially affect interstate commerce'” and regulate “local activities that, viewed in the aggregate, have a substantial impact on interstate commerce.” (Ginsburg Slip Op. at 14-15.)

She added from the Court’s precedents regarding the impact of the Constitution’s Fifth Amendment’s “due process” and implied equal protection clause that the Court repeatedly had said that it owed “a large measure of respect to Congress when it frames and enacts economic and social legislation” and that when “appraising such legislation, we ask only (1) whether Congress had a ‘rational basis’ for concluding that the regulated activity substantially affects interstate commerce, and (2) whether there is a ‘reasonable connection between the regulatory means selected and the asserted ends.'” In addition, Ginsburg stated, “In answering these questions, we presume the statute under review is constitutional and may strike it down only on a ‘plain showing’ that Congress acted irrationally.”  (Id. at 15-16.)

Ginsburg then criticized Roberts’ supposed distinction between the Court’s precedents in this area and the Affordable Care Act. That distinction, she said, had no support in those precedents, and his minor premise–the Affordable Care Act required some people to buy a product (health care) they did not want– was erroneous. (Id. at 18-31.)

The Interstate Commerce Power After the Supreme Court’s Decision

Before the Supreme Court issued its decision in this case, I was concerned that the shrill cries of columnist George Will and two judges on the Court of Appeals for the District of Columbia Circuit that called for the Supreme Court to overrule 75 years of Supreme Court precedents on the scope of the interstate commerce clause would resonate with the five so-called conservative Justices of the Supreme Court. My worries were exacerbated by the initial reports that those five Justices had concluded that the Affordable Care Act did not satisfy their view of what that clause allowed.

When I had read the Court’s opinions, however, I discovered that eight of the nine Justice had not overruled any of those Supreme Court precedents and indeed essentially had endorsed them. Only Justice Thomas called for overruling one subset of those precedents, i.e., those allowing Congress to adopt laws under the interstate commerce clause if there were substantial effects on that commerce from local activities.

Therefore, all of those cases are still good law on the expansive nature of the federal power over such commerce. As an advocate for strong federal powers for the U.S. in the 21st century, I am pleased with this result.

As noted above, five of the current nine Justices believe that all the other Supreme Court precedents over at least the last 75 years can legitimately be distinguished from this case over the validity of the Affordable Care Act on the ground that all of the precedents involved regulation of economic activity whereas this current case involved attempted regulation of economic inactivity. Is this a legitimate distinction?

Justice Ginsburg and three of her colleagues did not think so as previously discussed. I leave it to constitutional scholars to analyze the validity of this purported distinction.

There is also a serious question as to whether Roberts’ opinion on the interstate commerce clause (when coupled with the similar discussion in the joint dissent) together constitute a binding decision of the Court under the doctrine of stare decisis.

  • First, there is no official “Opinion of the Court” on the interstate commerce issue that could be considered as the basis for stare decisis. Roberts’ opinion on this issue is his alone. The similar opinion of the other four Justices (Kennedy, Scalia, Thomas and Alito) is a dissenting opinion that does not express concurrence in Roberts’ opinion on the issue.
  • This careful reading of the opinions, however, may be overcome by section III-C of the Roberts’ opinion on the taxing power issue that states, “The Court today holds that our Constitution protects us from federal regulation under the Commerce Clause so long as we abstain from regulated activity.” This section of the Roberts’ opinion is concurred in by four other Justices (Ginsburg, Breyer, Sotomayor and Kagan), but they disagreed with this interpretation of the commerce clause. (Roberts Slip Op. at 41-42; Ginsburg Slip Op. at 2-36.) And Justice Thomas in his own dissent said, “The joint dissent and Chief Justice Roberts correctly apply our precedents to conclude that the Individual Mandate is beyond the power granted to Congress under the Commerce Clause and the Necessary and Proper Clause.” Perhaps these oddities are merely evidences of plain sloppiness in finishing the opinions in this case.
  • Second and more important, the opinions of Roberts and the four dissenters on the interstate commerce issue might be regarded as dicta and, therefore, not binding on the Court in subsequent cases or on lower federal courts. Since the Affordable Care Act was held to be constitutional on a different ground (the power to tax), then all of the discussion about the interstate commerce clause was not necessary to the decision and, therefore, dicta.
  • Justice Ginsburg was alluding to this principle in her opinion when she said that Roberts’ conclusion that the statute was constitutional under the taxing power should have meant there was “no reason to undertake a Commerce Clause analysis that is not outcome determinative.” (Ginsburg Slip. Op. at 37 n.2.)
  • Roberts responded to this argument in his opinion: “It is only because the Commerce Clause does not authorize such a command [to buy health insurance] that it is necessary to reach the taxing power question. And it is only because we have a duty to construe a statute to save it, if fairly possible, that . . . [the relevant statutory provision] can be interpreted as a tax.  Without deciding the Commerce Clause question, I would find no basis to adopt such a saving construction.” (Roberts Slip Op. at 44-45.)
  • All of this discussion might be regarded as hyper-technical because so long as the Court’s composition remains the same, a majority (five Justices) is clearly on record on the limitation on the commerce clause power expressed in their opinions.

There is also disagreement on the significance of the new limitation on the interstate commerce power announced by Roberts and the four dissenters. Justice Ginsburg’s opinion says that Roberts ‘ opinion on the issue exhibits “scant sense and is stunningly retrogressive” and a “crabbed reading of the Commerce Clause [that] harks back to the era in which the Court routinely thwarted Congress’ efforts to regulate the national economy in the interest of those who labor to sustain it.” (Ginsburg Slip Op. at 2-3, 37.) This view was echoed by George Will and other commentators who said the reading of the commerce clause was an ultimate victory for libertarians and conservatives. However, one of those conservatives–John Yoo— said this reading of the clause “does not put any other federal law in jeopardy and is undermined by its ruling on the tax power” and in fact is “a constitutional road map for architects of the next great expansion of the welfare state.”

I am an agnostic on the question of the significance of the new limitation. I think Justice Ginsburg overstates the fear of horrible consequences because at least four of the Justices who articulated the new limitation also endorsed the 75 years of precedents expanding the scope of the interstate commerce power. Moreover, Chief Justice Roberts in his opinion in the Citizens United case articulated his concept of stare decisis that makes it unlikely that he would countenance such a large-scale overruling of precedents, in my opinion. A lot depends upon who wins the 2012 presidential election and who will be appointed to the Court over the next four years.

It is interesting and somewhat ironic that while the Supreme Court was struggling with legal arguments that would restrict the power of the U.S. federal government to respond to national economic problems, European countries were struggling with how to create a central power or authority to rescue the  European economy and currency from imminent collapse.

Federal Appellate Court Grants Immunity to Author of Legal Memoranda Regarding U.S. Detention and Interrogation of Suspects in the “War on Terrorism”

U.S. Court of Appeals,        9th Circuit
John Yoo

On May 2, 2012, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit in San Francisco unanimously held that John Yoo was immune from civil liability to Jose Padilla (and his mother) for Yoo’s authoring legal memoranda in 2001-2003 for the U.S. Department of Justice regarding the detention and interrogation of U.S. citizens who had been declared to be “enemy combatants.”

This civil case arises out of Padilla’s arrest and detention by U.S. military officials. In May 2002 Padilla was arrested at O’Hare International Airport near Chicago on suspicion of plotting a radiological bomb attack in the U.S. and was detained under a federal material witness arrest warrant until June 9, 2002, when President George W. Bush declared Padilla to be an “enemy combatant.” For the next 3 and a half years Padilla was detained in a military brig where he repeatedly was subjected to sleep deprivation, shakling, stress positions, solitary confinement and administration of psychotropic drugs. In January 2006 he was transferred to a federal civilian detention facility in Miami, Florida, where a federal jury in August 2007 found him guilty of conspiring to kill people and to support overseas terrorism and a federal judge in January 2008 sentenced him to 17.3 years imprisonment. This conviction was affirmed in September 2011 by the U.S. Court of Appeals for the Fourth Circuit, which vacated the 17.3 sentence as too lenient. The case was remanded to the district court where the case awaits the new sentencing.

Jose Padilla

This civil case was commenced by Padilla and his mother in January 2008. The complaint alleged that Yoo, as an attorney in the U.S. Department of Justice’s Office of Legal Counsel, had authored various legal memoranda that provided purported legal justification for Padilla’s detention and interrogation, all in violation of the First, Fourth, Fifth, Sixth and Eighth Amendments to the U.S. Constitution, Article III and the Habeas Suspension and Treason Clauses of the Constitution and a federal statute. The complaint sought nominal damages of one dollar and a declaration that his treatment violated these constitutional and statutory provisions.

After the district court denied Yoo’s motion to dismiss the complaint, he appealed to the Ninth Circuit, which reversed the trial court on the previously mentioned immunity ground.

The Ninth Circuit correctly concluded that this appeal was governed by the U.S. Supreme Court’s 2011 decision, Ashcroft v. al-Kidd, 131 S. Ct. 2974, which held that           “[q]ualifed immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” The alleged right must be “sufficiently clear that every reasonable official would have understood that what he is doing violates that right.”

With this major premise in hand, the Ninth Circuit then concluded that in 2001-2003, when Yoo was at the Department of Justice, it was not clearly established that a U.S. citizen held in military detention as an enemy combatant was entitled to the same constitutional and statutory rights as convicted prisoners and that Padilla’s treatment amounted to torture.

John Yoo himself in an op-ed article in the Wall Street Journal naturally applauded the decision. His resistance to this lawsuit, he said, was “not just to defend the tough decisions that had to be made after 9/11. We fought to protect the nation’s ability to fight and win the war against al Qaeda—and other enemies—in the future.”

Yoo also launched bitter attacks on human rights groups that support lawsuits like the one against him and others who hold opposite opinions on the interrogation tactics. Such groups, he said, seek to “advance their agenda by legally harassing officials, agents and soldiers, and so raise the costs of public service to anyone who does not hew to their extreme, unreasonable views.” Democratic Representative Nancy Pelosi was cited by Yoo as being misleading on the substance of a briefing by the CIA on its interrogation tactics. President Obama, according to Yoo, lacked “backbone” by declaring “the CIA’s interrogation methods to be ‘torture’  before the courts or his own Justice Department had delivered a considered opinion . . . [by launching] an independent counsel to hound CIA agents, even though career prosecutors had already looked into claims of abuse and found no charges appropriate . . . [by trying] to close Guantanamo Bay without any real alternative . . . [by stalling] special military commissions established by President Bush and ratified by Congress, and [by relying] on drones to kill rather than capture al Qaeda leaders for their intelligence.”

The Wall Street Journal, a long-time supporter of Mr. Yoo and the other authors of the legal memoranda in question, also welcomed the Ninth Circuit’s decision. The Journal declared in an editorial that the decision “vindicates the principle that government officials are immune from private litigation for their national-security decisions. The law has long held that executive branch officials can’t be sued for other than criminal acts so they can carry out their duties in the best interests of the country without threat of personal liability.” More vindictively, the Journal said the decision was a “watershed for repudiating sham tort claims whose goal is to intimidate—and perhaps bankrupt—anyone who dares to treat terrorists differently from shoplifters. In a better world, Padilla’s pals at the ACLU and the . . . [Yale Law School] Human Rights Clinic would be hit with sanctions and a bill for Mr. Yoo’s costs.”

The New York Times, on the other hand, criticized this decision. Its editorial acknowledged that the Ninth Circuit followed, as it had to, a U.S. Supreme Court ruling in 2011 that the so-called qualified immunity existed unless “existing precedent” put the claimed right “beyond debate.” This Supreme Court decision, however, had changed the legal standard for such immunity; previously it had required that a reasonable person would have known about the alleged right he allegedly had violated.

According to the New York Times, the Ninth Circuit’s decision this week showed why the new Supreme Court standard was “unworkable.” The newspaper said “the Bush administration manufactured both ‘debates’ — about torture and enemy combatants. . . .  By using the ‘enemy combatant’ category, the Bush administration stirred debate that had not existed about whether rights of an American citizen in custody depend on how he is classified. By coming up with offensive rationalizations for torturing detainees, it dishonestly stirred debate about torture’s definition when what it engaged in plainly included torture.” The Ninth Circuit decision can be used, the Times said, by future administrations “to pull the same stunt as cover for some other outrage.”

In the meantime, as reported in a prior post, Yoo and five other authors of the legal memoranda regarding detention and interrogation of individuals in the so-called war on terrorism are the suspects in a criminal case in Spain under the principle of universal jurisdiction that the trial court had temporarily dismissed or stayed so that the issues could be pursued in the U.S. On March 23, 2012, an appeals court in Spain affirmed the trial court’s decision. However, three of the 17 members of this appellate court dissented on the grounds that the conduct authorized by these memoranda were crimes under international and Spanish law and that the requirements for a Spanish court to defer to  U.S. authorities under Spain’s concept of “subsidiarity” had not been satisfied.

Spain’s Criminal Case Against U.S. Authors of Legal Memoranda Allegedly Justifying Torture

Spain’s National Court (Audiencia Nacional) has three criminal cases on its docket involving allegations of illegal conduct by U.S. officials with respect to U.S. interrogation of foreigners and war crimes. The Spanish court is involved because it has exercised its right under the international law principle of universal jurisdiction for a national court to exercise jurisdiction over such cases even if the crimes did not occur on its territory.

On March 17, 2009, the Spanish Association for the Dignity of Prisoners filed a 98-page criminal complaint in the Spanish court against six officials of the George W. Bush Administration: (i) David Addington (former Counsel to, and Chief of Staff for, former U.S. Vice President Cheney); (ii) Jay S. Bybee (former Assistant Attorney General, Office of Legal Counsel (OLC), U.S. Department of Justice (DOJ)); (iii) Douglas Feith (former Under Secretary of Defense for Policy, U.S. Department of Defense (DOD)); (iv) Alberto R. Gonzales (former Counsel to former U.S. President George W. Bush, and former U.S. Attorney General); (v) William J. Haynes (former General Counsel, DOD); and (vi) John Yoo (former Deputy Assistant Attorney General, OLC, DOJ).

The six officials are alleged to have participated in, or aided and abetted, the torture and other serious abuse of persons detained at U.S. run-facilities at Guantánamo and other overseas locations, all in violation of international law, including violations of the Geneva Conventions and the Convention Against Torture.

On March 28, 2009, Judge Baltasar Garzon decided that the complaint met jurisdictional requirements and opened a preliminary investigation.

On April 16, 2009, Spain’s Attorney General raised objections to the continuance of the case, and the next day, Spain’s Public Prosecutor filed a request that the complaint be dismissed and responsibility for investigating the matter be referred to a different judge. The latter was done on April 23rd with Judge Eloy Velasco being assigned.

On May 4, 2009, Judge Velasco, pursuant to the US-Spain Treaty on Mutual Assistance in Criminal Matters, sent a formal request (Letters Rogatory) to the U.S. asking it to state “whether the facts to which the complaint makes reference are or not now being investigated or prosecuted.”  If there had been an affirmative response to this question, the Spanish court undoubtedly would have closed its investigation.

Nearly two years later, on March 4, 2011, the U.S. finally responded to the Letters Rogatory. It stated that the U.S. had clear jurisdiction over the case and asking that the case be sent to the U.S. for further review and investigation.

On April 13, 2011, Judge Velasco temporarily stayed the case in Spain and transferred the case to the U.S. Department of Justice with a request for the U.S. to indicate the time frame for U.S. action on the complaint.

On April 19, 2011, the Spanish Association for the Dignity of Prisoners filed an appeal of Judge Velasco’s order staying the case. That appeal is still pending.

In summary, the case is still pending in Spain with unresolved issues.

In the meantime, the body responsible for monitoring compliance with the multilateral treaty against torture (the Committee Against Torture or CAT) has severely criticized U.S. treatment of detainees in the so-called “war on terrorism” and the U.S. purported legal justification of such treatment through so-called “enhanced interrogation” techniques.