In a coda to his opinion for the Supreme Court in Boumediene v. Bush, (1) Justice Kennedy offered a curious reflection on judicial review of the government's war powers. In his words, "[b]ecause our Nation's past military conflicts have been of limited duration, it has been possible to leave the outer boundaries of war powers undefined. If, as some fear, terrorism continues to pose dangerous threats to us for years to come, the Court might not have this luxury." (2) As a historical claim, Justice Kennedy's rhetorical flourish is deeply flawed. Up until Vietnam, federal courts routinely reviewed a wide range of questions arising from military operations during wartime, including, among others: the legality of particular maritime captures during the "Quasi-War" with France; the validity of the naval blockade imposed by President Lincoln during the Civil War; the constitutionality of military commissions convened by President Roosevelt to try Nazi saboteurs during World War II; and the propriety of President Truman's seizure of steel mills during the Korean War. (3)
Instead, Justice Kennedy was presumably alluding to the array of decisions that began during the Vietnam War, in which federal courts relied upon a host of justiciability rules--especially Article III standing and the political question doctrine--to avoid settling inter-branch disputes over the constitutionality of particular uses of military force. Between 1965 and 1974, the Supreme Court used every way imaginable to avoid deciding on the merits any fundamental questions about the legality or scope of the Vietnam War, even as public and academic debate on those questions intensified. (4) As one academic commentator has written,
Avoiding decisions on the merits of justiciable Vietnam issues presented by litigants with requisite standing through cryptic silence would be an ignoble abdication of the Court's constitutional responsibilities, whether or not a judgment on the merits would have sustained or invalidated the Government's prosecution of the war. The Court had frequently declared its power and duty to adjudicate federal questions on the merits, but it withheld judgment on the Vietnam cases. The Court was willing to approve the war by silence but would neither confirm nor condemn that result by opinion for or against the Government. Although concealed by the privilege of discretionary review, the Court's apparent failure of courage was inexcusable. (5) The lower federal courts followed suit in similarly Delphic decisions. In dozens of suits, federal judges relied on two different procedural barriers to justify not reaching the merits of a wide range of litigants' challenges to the constitutionality of the war, the draft, and a host of other Vietnam-era measures. (6) In one class of cases, these courts held that the plaintiffs lacked "standing"; they could not prove that the allegedly unlawful government action they sought to challenge injured or would injure them specifically. (7) In another class of cases, courts relied on the "political question" doctrine, holding that the Constitution committed disputes over the scope of whatever authorization Congress had provided for military force in Southeast Asia to the political branches, not to the courts. (8)
The Supreme Court during the same period heard various disputes related to the war, several of which are now part of our constitutional canon and historical consciousness. For example, in New York Times Co. v. United States (9) (the Pentagon Papers case), the Court famously rejected the government's effort to enjoin the New York Times and the Washington Post from printing the Pentagon Papers. (10) In Cohen v. California, (11) the Court threw out the conviction of an anti-war protestor who was prosecuted for wearing a "Fuck the Draft" jacket. (12) In United States v. O'Brien, (13) the Court upheld a federal law that made it a crime to burn a draft card. (14) And in Clay v. United States, (15) the Court threw out the conviction of Muhammad Ali for refusing to report for induction, holding the government failed to demonstrate that Ali's application for conscientious objector status was properly denied. (16)
Every time, however, a litigant sought to contest the substance of U.S. military or paramilitary activities in Southeast Asia, or the means by which soldiers were conscripted to participate in those operations, the Court ducked and declined to review lower court decisions, virtually all of which concluded that such disputes were not justiciable. (17) For a time, the Supreme Court's repeated avoidance provoked dissents from as many as three of the nine Justices, Douglas foremost among them. (18) Those dissents, however, had no visible effect on the Court's majority, which only appeared to harden against intervention as the war dragged on. (19)
Nor did things change in the first years--or decades--after Vietnam. An especially illustrative case in point is Campbell v. Clinton, (20) where three D.C. Circuit judges relied on a combination of Article III standing and the political question doctrine to avoid reaching the merits of a claim that nineteen members of Congress brought challenging the constitutionality of U.S. airstrikes over Kosovo. (21) As Campbell illustrates, from the end of the Vietnam War through September 11th, courts faced with lawsuits challenging overseas military operations consistently relied on the same two doctrines--standing and the political question doctrine--to avoid reaching, let alone resolving, such thorny constitutional questions.
Whatever their merits, the pre-September 11th line of cases Justice Kennedy may have had in mind in Boumediene, such as Campbell, invariably involved separation of powers claims, i.e., that the particular use of military force at issue was unconstitutional insofar as it was not duly authorized by Congress. Since September 11th, however, a number of courts have relied on these justiciability constraints--especially the political question doctrine--to dismiss an ever-expanding array of challenges to U.S. military operations overseas, including claims that such operations violate individual rights under federal statutes, the Constitution, and/or international law. (22)
For example, in Wu Tien Li-Shou v. United States, (23) the U.S. Court of Appeals for the Fourth Circuit threw out a tort suit arising out of the U.S. Navy's allegedly wrongful killing of an innocent Taiwanese fisherman and its intentional destruction of his boat during a counter-piracy operation in the Gulf of Aden. (24) The court concluded that the case presented a non-justiciable political question "[b]ecause allowing this action to proceed would thrust courts into the middle of a sensitive multinational counter-piracy operation and force courts to second-guess the conduct of a military engagement." (25)
Five months later in Shimari v. CACI Premier Technology, Inc., (26) a federal district court also relied on the political question doctrine in dismissing statelaw and Alien Tort Statute claims against private military contractors arising out of the torture of detainees at the Abu Ghraib prison. (27) As Judge Lee concluded in Shimari, the "Defendant was under the 'plenary' and 'direct' control of the military and ... national defense interests are so 'closely intertwined' with the military decisions governing Defendant's conduct, such that a decision on the merits would require this Court to question actual, sensitive judgments made by the military." (28)
In separate decisions, two different courts of appeals also relied on the political question doctrine to dismiss a range of constitutional and statutory claims arising out of the military's allegedly wrongful destruction of a Sudanese pharmaceutical plant in 1998. (29) In the first case, the Federal Circuit held that President Clinton's determination that the plant was "enemy property" was itself unreviewable, so the court could not reach the merits of the plaintiff's takings claim. (30) In the second case, the D.C. Circuit (sitting en banc) threw out the plaintiff's tort claims because "[t]he political question doctrine bars our review of claims that, regardless of how they are styled, call into question the prudence of the political branches in matters of foreign policy or national security constitutionally committed to their discretion." (31)
Despite this rhetoric, an even larger number of courts have rejected arguments, both expressly and implicitly, that similar claims are nonjusticiable. Consider, for example, the D.C. district court's 2014 ruling in Al-Aulaqi v. Panetta, (32) a suit for damages brought on behalf of a U.S. citizen suspected of terrorism who was killed in a drone strike. (33) Although Judge Collyer ultimately granted the defendants' motion to dismiss on the merits, she found that the plaintiffs' claims were justiciable. (34) As she concluded,
The powers granted to the Executive and Congress to wage war and provide for national security do not give them carte blanche to deprive a U.S. citizen of his life without due process and without any judicial review. The interest in avoiding the erroneous deprivation of one's life is uniquely compelling. (35) Even outside the unique context of the targeted killing of a U.S. citizen, there have been a veritable bevy of cases in the past decade in which courts did not balk at reaching the merits of civil lawsuits challenging various aspects of overseas military operations. Some involved habeas suits brought by Guantanamo detainees (36); others involved suits against military contractors for a wide range of torts committed in Iraq (37); others involved claims for damages against senior military officials arising out of the allegedly wrongful detention and treatment of terrorism suspects and innocent civilians alike. (38)...