The Volokh Conspiracy Archive

From Nat'l Inst. of Family & Life Advocates v. James, decided today by Judge Joseph Bianco, joined by Judges Eunice Lee and Alison Nathan:

This case concerns statements that certain non-profit organizations that provide services and resources related to pregnancy and parenthood have made, or wish to make, about a protocol intended to counteract the effects of an abortion induced by oral medication.

A woman may seek to have a medication-induced abortion by first taking a dose of mifepristone followed by a dose of misoprostol 24 to 48 hours later. The dose of mifepristone is designed to block the body's progesterone receptors. Progesterone is a hormone critical to maintaining a pregnancy, and, by blocking its receptors, mifepristone can prevent the pregnancy from continuing. Once the progesterone receptors have been blocked, effectively ending the pregnancy, the dose of misoprostol induces the uterus to expel its contents.

If a woman has begun a medication-induced abortion by taking mifepristone, but has not yet taken misoprostol and decides she would like to continue her pregnancy, she may take progesterone supplements in an attempt to counter the effects of the mifepristone. The theory is that the progesterone supplements can increase the woman's progesterone levels to such a degree that the effects of mifepristone are neutralized. This use of progesterone is called "abortion pill reversal" or "APR." …

The NIFLA plaintiffs allege they have made religiously and morally motivated statements about APR on their website, social media, and in other materials … includ[ing]: (1) "if you have recently taken the abortion pill and are having regret, it may be possible to undo the effects of abortion drugs. Learn more here"; (2) "Progesterone … has been used to support pregnancies with a risk of miscarriage for decades[.] … [I]f you've taken the first [dose of mifepristone] and had doubts or changed your mind, you still have a chance to save your pregnancy!"; and (3) links to abortionpillreversal.com, the APR hotline, and the APRN webpage.

NIFLA sued the New York AG's office, claiming that the AG's past enforcement actions against pro-APR speakers chilled NIFLA's speech as well. And the Second Circuit "conclude[d] that the district court did not abuse its discretion, based on the record at this stage of the litigation, in finding that the NIFLA plaintiffs were likely to succeed on their First Amendment claims because their speech at issue is noncommercial speech, and the Attorney General has not demonstrated that regulation of that speech would survive strict scrutiny":

From today's jury verdict in Pete v. Cooper:

Question 1: Do you find, by a preponderance of the evidence, that Ms. Cooper is liable to Ms. Pete for defamation per se by accusing Ms. Pete of perjury—a felony—by lying under oath in a criminal trial when she asserted that: (1) Ms. Pete was a "non-credible witness"; (2) "I could go down the list of all the different shit that was not true"; and (3) asked "Was Megan Thee Stallion caught trying to deceive the courts again?" [Jury answer: Yes, damages award $15K + $1K punitives.] …

Question 9: Do you find, by a preponderance of the evidence, that Ms. Cooper intentionally or recklessly engaged in extreme and outrageous conduct toward Ms. Pete? [Jury answer: Yes, damages award $8K + $1K punitives.]

Question 11: Do you find, by a preponderance of the evidence, that Ms. Cooper willfully and maliciously promoted, without Ms. Pete's consent, a visual depiction of Ms. Pete that she knew or reasonably should have known was an altered sexual depiction? [Jury answer: Yes, damages award $50K.]

From a February decision by Chief Judge Cecilia Altonaga (M.D. Fla.) in Pete v. Cooper:

The allegations are connected to the fallout from the 2022 conviction of Daystar Peterson, popularly known as Tory Lanez, a Canadian rapper and singer who was found guilty of assaulting Plaintiff with a firearm following a widely publicized trial. Plaintiff asserts that Defendant … uses [his social media accounts] to harass and defame Plaintiff by disseminating false narratives and conspiracy theories. These include claims that Plaintiff lied under oath, suffers from alcoholism, is "mentally retarded," and needs a guardian.

In that February decision, the court concluded that plaintiff had adequately alleged that the statements were (1) factual assertions (rather than just insults, hyperbole, or opinion), (2) false, and (3) said with knowledge or recklessness as to their being false.

Today the U.S. Court of Appeals for the Third Circuit affirmed a district court ruling that Alina Habba is disqualified from serving as the acting U.S. Attorney for the District of New Jersey. The ruling is a setback for the Trump Administration's efforts to install its own leaders in U.S. Attorneys Offices in New Jersey and elsewhere. I have my doubts about the merits of the decision, on statutory construction grounds that I have previously blogged about here and here. (Co-blogger Steven Calabresi has also highlighted constitutional concerns that cast doubt on the underpinnings of the Circuit's decision). But rather than dive into those details, it may be more important to highlight a curious limitation to the Third Circuit's ruling. In its ruling's penultimate paragraph, the Circuit seems to invite the Administration to simply divide the powers of the U.S. Attorney between two people—rather than one. So divided, the opinion seems to suggest, then there is not a single "acting U.S. Attorney." And, accordingly, no problem exists under the relevant statutes with those two appointees each exercising half of the powers of the U.S. Attorney. Rather than appeal the Circuit's ruling (or, perhaps, in addition to appealing), the Administration could swiftly work-around the decision by cleaving Habba's duties in half.

The background surrounding the dispute has been laid out in my earlier posts, and recounted this morning by co-blogger Jonathan Adler's post about the Third Circuit ruling. In a nutshell, Senate Democrats have (for whatever reason) been slow-walking Trump Administration nominees for U.S. Attorney positions. While Senate Republicans have described these delaying tactics as "unprecedented", the important point for this blog post is that the Administration has needed to find a way to put in place its legal teams in place U.S. Attorneys Offices around the country, such as in New Jersey.

The approach that Administration took in New Jersey is, no doubt, complex. I have described the maneuver in detail previously. To quickly recap, on July 24th of this year, the Trump administration took the following steps (as the Third Circuit recounts): (1) the President withdrew Habba's then-pending nomination to be the U.S. Attorney for the District of New Jersey; (2) Habba resigned as the Interim U.S. Attorney; (3) the Attorney General issued an order appointing Habba as "Special Attorney" to the Attorney General, accompanied by a letter authorizing Habba to conduct "any kind of legal proceedings . . . which United States Attorneys are authorized to conduct" pursuant to 28 U.S.C. § 515; and (4) in the same order, the Attorney General also designated Habba as First Assistant U.S. Attorney, which purported to mean that Habba automatically became Acting U.S. Attorney pursuant to the Federal Vacancies Reform Act (FVRA), 5 U.S.C. § 3345(a)(1). As a result of these moves, the Administration contends that Habba is properly the Acting U.S. Attorney for the District of New Jersey.

A district court previously rejected the Administration's position, and today the Third Circuit affirmed the district court's disqualification of Habba. Here's the Circuit's summary of its decision (and note the language I've highlighted below):

Habba is not the Acting U.S. Attorney for the District of New Jersey by virtue of her appointment as First Assistant U.S. Attorney because only the first assistant in place at the time the vacancy arises automatically assumes the functions and duties of the office under the FVRA. Additionally, because Habba was nominated for the vacant U.S. Attorney position, the FVRA's nomination bar prevents her from assuming the role of Acting U.S. Attorney. Finally, the Attorney General's delegation of all the powers of a U.S. Attorney to Habba is prohibited by the FVRA's exclusivity provision. Therefore, we will affirm the District Court's disqualification order.

Op. at 32 (emphasis added).

So, as the Third Circuit makes clear in its summary, the problem with the Attorney General's delegation to Habba was that she delegated "all the powers of the U.S. Attorney" to Habba. Could the Circuit really mean that, so long as (let's say) only half of the powers were delegated, that would be fine?

And, indeed, that fine line seems to be what the Circuit seems to be defending. Read More

The article is here; the Introduction:

First Amendment disputes frequently require courts to assess governmental assertions that contested expression is unacceptably dangerous. This assessment requires courts to choose when to defer to the government's assertions of danger—and when instead to distrust those assertions. The centenary of the Supreme Court's decision in Gitlow v. New York invites us to revisit the role that deference has played, and could play, in Free Speech Clause theory and doctrine. And because a great deal of the First Amendment law developed since Gitlow is at least as much about suspicion of the government as it is about deference to the government, Gitlow's centenary also invites us to consider the role that suspicion has played, and could play, in First Amendment law.

Benjamin Gitlow was charged not "with the commission of any overt illegal act," nor "with conspiracy to commit an illegal act," nor "with advocating that anyone else go out and commit an overt illegal act." Instead, he and his co-defendants "advocated ideas that, if enough people agreed with them, might lead to illegalities at some point in the future." In defense, Gitlow argued that the First Amendment did not permit the government to punish this advocacy absent evidence of its causal connection to "some substantive evil, consummated, attempted or likely." A majority of the Supreme Court disagreed, deferring to the legislature's determination that this advocacy, without more, carried sufficient potential for harm to justify its regulation. But the Court failed to explain why it chose to defer to the legislature's statutory conclusion that certain speech was dangerous by its very nature.

As we'll see, a variety of principled reasons can support a court's choice to defer to the government's assessment of expression's danger. So too can multiple principled reasons support a court's choice to treat the government's assessments instead with suspicion. As we'll also see, courts sometimes explain their choice to be deferential, and sometimes they don't—and courts sometimes explain their choice to be suspicious, and sometimes they don't. But exposing and justifying these choices helps courts improve the quality of their threshold decision to defer or distrust, as well as the quality of their subsequent operationalization of that decision through the creation and application of free speech doctrine.

On the Monday after Thanksgiving, the New York Times published a lengthy article about turnover and partisanship in the Solicitor General's Office. Yet, there is very little new information. In April, the Washington Post reported on departures from OSG after Trump took office, and that there were now two principal deputies. The Times adds that the Office brought on several new assistants who (gasp!) clerked for Justices Kavanaugh and Barrett. But in the end, there is not even a hint that there is dissension within the office.

So far, people familiar with the office said the turnover had not affected morale; Mr. Kneedler and other recently departed attorneys returned for a recent happy hour with their former colleagues.

In 2024, I wrote about how there was some dissatisfaction with how Solicitor General Elizabeth Prelogar was taking more than her fair share of oral arguments. There were also departures. But Prelogar was praised with glamor shots.

So what do we learn from the Times? Michael Luttig is unhappy with his two former clerks, John Sauer and Hash Mooppan. Should we be surprised?

I think the biggest takeaway here is that a conservative Solicitor General is managing an office geared to a conservative Supreme Court, and he is strategically picking and choosing the cases that will lead to victories. Lisa Blatt's quote is on point:

Even critics of the president admit the office has an impressive record.

"It's like an 18-wheeler truck," said Lisa Blatt, a veteran of the Supreme Court bar and a partner at Williams & Connolly who has been critical of President Trump. "They're crushing it."

There was one useful piece of new information: introductions.

For years, it has bothered me that SG briefs lacked an introduction. Whenever I pick up a Supreme Court brief, I will immediately skim the intro to get a sense of what the argument is. If I am in a real hurry, I will scan the Table of Contents, as a good outline provide a short roadmap of the arguments. But the SG briefs never had introductions or descriptive table of contents. At some point this year, the practice changed. The New York Times has details:

For the first time in modern memory, the office's merits briefs, the legal filings it makes before the justices hear a case, begin with an "introduction," a section often filled with unusually charged language, including direct quotes from Mr. Trump. . . .

The new "introduction" section of briefs has been another point of contention. Government filings have typically begun with the legal argument, but now they open with a summary, often using punchy language. Ms. Baldassarre, the Justice Department spokeswoman, said the introductions offer a preview of the government's argument for the justices and make it more accessible for a general audience.

I, for one, welcome this change.

Now if the SG would only stop using Courier font for emergency applications. It is ghastly.

Update: A colleague reminded me that Sauer hired Aaron Roper as an Assistant SG. Aaron clerked for Judge Merrick Garland, and he was a Bristow Fellow. I suppose this sentence is accurate:

To replace departing lawyers, Mr. Sauer hired at least six new frontline attorneys. They broadly share the stellar credentials of their predecessors and include former law clerks to Justices Amy Coney Barrett and Brett M. Kavanaugh.

But Roper's hiring really doesn't advance the narrative.

This morning the U.S. Court of Appeals for the Third Circuit affirmed the district court decision disqualifying Alina Habba from acting as the U.S. Attorney for the District of New Jersey.

This is the first appellate decision weighing in on the Trump Administration's efforts to bypass the traditional route for appointing U.S. Attorneys in districts for which it has been unable to secure its preferred nominee's confirmation. It also comes on the heels of the Eleventh Circuit's decision affirming sanctions against Habba.

Senior Judge Fisher wrote for the panel in United States v. Giraud, joined by Senior Judge Smith and Judge Restrepo. (For those who care about such things, both Fisher and Smith were appointed by President George W. Bush, and Restrepo was appointed by President Obama.)

Judge Fisher's opinion begins:

The United States Attorneys' offices are some of the most critical agencies in the Federal Government. They play an important role in the criminal and civil justice systems and are vital in keeping our communities safe. The U.S. Attorney leading each office is an officer whose appointment requires Senate confirmation. Where a vacancy exists, Congress has shown a strong preference that an acting officer be someone with a breadth of experience to properly lead the office. It is apparent that the current administration has been frustrated by some of the legal and political barriers to getting its appointees in place. Its efforts to elevate its preferred candidate for U.S. Attorney for the District of New Jersey, Alina Habba, to the role of Acting U.S. Attorney demonstrate the difficulties it has faced—yet the citizens of New Jersey and the loyal employees in the U.S. Attorney's Office deserve some clarity and stability.

Congress has crafted various means through which agency authority is exercised absent a Senate-confirmed officer. When a presidentially appointed and Senate-confirmed officer resigns, the generally applicable Federal Vacancies Reform Act (FVRA) authorizes certain people to perform that officer's duties in an acting capacity subject to time limitations. In addition to the FVRA, other statutes expressly authorize the President, a court, or the head of an agency to designate someone to perform the duties of specified offices in an acting or interim capacity. Parallel to these grants of acting or interim authority, many statutes grant agency heads broad authority to delegate their own duties to other employees of their agencies.

These cases require us to consider the intersection of these various statutes to determine whether Habba is lawfully acting as U.S. Attorney for the District of New Jersey under the FVRA or has been lawfully delegated the full scope of powers of an Acting U.S. Attorney. The defendants in two criminal cases moved to dismiss their indictments and to disqualify Habba from participating in their prosecutions, arguing that she is unlawfully serving as Acting U.S. Attorney. The District Court denied the motions to dismiss, but it granted the motions to disqualify Habba from the prosecutions. The Government appeals. We will affirm.

The opinion concludes:

Habba is not the Acting U.S. Attorney for the District of New Jersey by virtue of her appointment as First Assistant U.S. Attorney because only the first assistant in place at thetime the vacancy arises automatically assumes the functions and duties of the office under the FVRA. Additionally, because Habba was nominated for the vacant U.S. Attorney position, the FVRA's nomination bar prevents her from assuming the role of Acting U.S. Attorney. Finally, the Attorney General's delegation of all the powers of a U.S. Attorney to Habba is prohibited by the FVRA's exclusivity provision. Therefore, we will affirm the District Court's disqualification order.

The opinion strikes me as correct, though I won't claim to be an expert on the intricacies of the FVRA. (On such matters I typically defer to Anne Joseph O'Connell, author of some of the most important work in this area.)

I expect the Trump Administration will seek further review. The question is whether it will file a petition for rehearing en banc before proceeding to the Supreme Court. I suspect the Administration will lean toward the latter.

The Third Circuit leans slightly to the right, as there are eight Republican appointees and six Democratic appointees. The best case for the Trump Administration would seem to be that the court splits along party lines, but if the two senior judges on today's decision participate, the decision would still be affirmed on a party-line vote (and that is assuming neither Judge Bove nor Judge Mascott is required to recuse). So this leads me to think the next stop is One First Street.

I am researching some of the unique benefits of being a Supreme Court Justice. One of the perks is the ability to borrow priceless artwork from the National Gallery of Art. Over the years, I have seen scattered reports of which paintings the Justices have displayed in their chambers, but I could not find a complete list. I realized no such list exists.

Then I figured out a crude way to search for them. The National Gallery of Art includes an "Artwork History" section for each piece of art in its collection. A search for "Extended loan for use by Justice" or "Extended loan for use by Chief Justice" brings up artwork that was loaned to members of the Supreme Court. I suspect artifacts from the Smithsonian Institution may also be loaned to the Justices, but I could not (yet) figure out a comprehensive way of searching.

Here is the list, with the Justices sorted by their date of appointment. Several pieces of art were passed between two Justices.

Chief Justice Rehnquist, by far, had the mot paintings. Justices Stevens and Rehnquist had about the same amount.

Marshall: Landscape (Imitator of Vincent van Gogh),
Rehnquist: Road in Provence (André Derain), First Landing of Christopher Columbus (Frederick Kemmelmeyer), Charles Evans Hughes (Augustus Vincent Tack), Abraham Lincoln (American 19th Century), Chapel in Provence (Captain Edward H. Molyneux), Boy in Blue (American 19th Century), Archery Contest (19th century Chinese Qing Dynasty), Little Girl with Pet Rabbit (Sturtevant J. Hamblin), Pink Roses (American 19th Century), Boy and Girl (American 19th Century), Jane Storm Teller (Ammi Phillips), Nayas Village at Sunset (George Catlin), Salmon River Mountains (George Catlin), Thomas Alston (Thomas Sully), Julianna Hazlehurst (Jacob Eichholtz), Portrait of a Gentleman (Possibly British 18th Century), Skating Scene (John Toole), Memorial to Nicholas M. S. Catlin (American 19th Century), Easby Abbey, near Richmond (George Cuitt the Younger), River Scene (Frits Thaulow),
Stevens: Portland Harbor, Maine (American 19th Century), La Bretonnerie in the Department of Indre (Gustave Courbet), Volendam Street Scene (Robert Henri), Queen Victoria (Studio of Franz Xaver Winterhalter), Street at Corté, Corsica (Maurice Utrillo), City Hall at Thorn (Eduard Gaertner), Scene from the Lower Mississippi (George Catlin), Hampstead Heath (Alphonse Legros),
O'Connor: Dog Dance - Sioux (George Catlin), A Little Sioux Village (George Catlin), Buffalo Chase, Sioux Indians, Upper Missouri (George Catlin), A Crow Village and the Salmon River Mountains (George Catlin), An Apachee Village (George Catlin), After the Buffalo Chase - Sioux (George Catlin), Two Blackfoot Warriors and a Woman (George Catlin)
Scalia: George Washington (Gilbert Stuart), Henry Pratt (Thomas Sully), Peaceful Valley (Alexander Helwig Wyant), Charles Evans Hughes (Augustus Vincent Tack), Steamer "St. Lawrence" (James Bard),
Kennedy: Siberian Dogs in the Snow (Franz Marc), View of the Mall in Saint James's Park (after Marco Ricci)
Souter: Harlan F. Stone (Augustus Vincent Tack), Captain Joseph Anthony (Gilbert Stuart), George Washington (Rembrandt Peale), William Constable (Gilbert Stuart), James Lloyd (Gilbert Stuart)
Ginsburg: The Omen (Mark Rothko), Untitled (Mark Rothko),
Roberts: George Washington (Gilbert Stuart)

There were also a number of paintings that were on loan to the Supreme Court, but not to any particular Justice. I have to assume that these paintings were on display in individual chambers.

Chapala Beach, Mexico (Lily Cushing) 1970-86, Posada Garden with a Monkey (Lily Cushing) 1970-86, Anna Maria Cumpston (Charles Peale Polk) - 1971-81, Mrs. Day (Ammi Phillips) - 1971-82, The Singing Party (Attributed to Philip Mercier), 1972, Winter Valley (Lamar Dodd) - 1972, Dutch Ships in a Lively Breeze (probably 1650s) 1972-86, Curious Grassy Bluffs, St. Peter's River (George Catlin) - 1972-91, The Island (John Hultberg) - 1972-86, Faraduro, Portugal (Leonid) 1972-73, The Square of Saint Mark's, Venice (Follower of Francesco Guardi), 1973-80, Leaving the Manor House (American 19th Century) - 1973-93, Washington at Valley Forge (American 19th Century) 1974-82, The Flags, Saint Mark's, Venice - Fête Day (Eugène Vail) 1974-82, Slaves' Dance - Saukie (George Catlin)) - 1976-77, 1977-78, Catlin and Indian Attacking Buffalo (George Catlin) 1976-77, Vapor Bath - Minatarree (George Catlin) - 1976-77 Fruit and Flowers (American 19th Century) - 1977-81, Southern Resort Town (Dana Smith) 1977-78, Stylized Landscape (American 19th Century) - 1977-80, The Taj Mahal (Erastus Salisbury Field) 1980-81, Southern Resort Town (Dana Smith) 1984-1993, Composition (Hans Hartung), 1976-77, Untitled (Enrique Castro-Cid) - Marble Mantel (Karl Knaths) 1980-1993, 1988-89, Behind the Scenes (Jean-Louis Forain) 1987-98, Race Course at Longchamps (French 19th Century) - 1989-91, The Island of Raguenez, Brittany (Henri Moret) - 1989-96, Flowers in a Classical Vase (French 17th Century) - 1989, Heaton Park Races (John Ferneley) 1989-1994, Paris, rue du Havre (Jean Béraud) 1989-?,

I am reasonably confident these lists are incomplete, as there are no listed pieces of art loaned after the early 1990s. The only exception was a painting of George Washington that moved from Justice Scalia's chambers to Chief Justice Roberts's chambers. Maybe these records are no longer kept public? Or maybe the Justices no longer borrow art?

I hope these lists are useful to those who know something about art--I do not.

Update: This 2012 article from the Wasingtonian lists some of Ginsburg's art on loan:

But there has been one constant. The now 79-year-old Ginsburg is surrounded by art, as she has been since childhood. A small Bose stereo fills her chambers with opera music—one of her lifelong loves and an appropriate soundtrack for such a regal setting. Her walls boast works on loan from the Smithsonian, including two original Rothkos, a painting by Max Weber, and one by Josef Albers. (Another Albers painting, which usually hangs in her chambers, is currently part of a traveling exhibit. Ginsburg vows that she won't retire until it returns.)

The loans for the two Rothkos were recorded by the National Gallery of Art. The others were not.

Frieze offered some more details about the Albers:

The Ginsburgs could not afford to buy the signed screenprint, but they bought and treasured an Albers reproduction from the museum shop. Eventually, Ruth Bader Ginsburg had, in her office at the Supreme Court, two Albers oil paintings from this same series. She chose them with utmost care. Both belonged to government institutions. In 2011, when Variant: On Tideland (1947–55) – on loan to the Supreme Court from the National Museum of American Art – was removed from her office wall for a touring show, Ginsburg was asked in an interview with NPR legal correspondent Nina Totenburg when she might retire. 'Not until I get my Albers back,' she replied.

An Alber print was auctioned after Ginsburg's passing.

Here are the factual allegations, as set forth in last week's long opinion by Justice Mark Hanasono, joined by Justice Anne Egerton, in Dinho v. Netflix, Inc.:

Plaintiffs' home is on a ridgeline in the Hollywood Hills. The property is guarded by a private gate and the home is not visible from any nearby street. The closest publicly accessible vantage point from which the home can be seen is 1,034 feet away….

Netflix began using a photo of plaintiffs' home in an advertisement for Buying Beverly Hills, one of its reality shows which depicts the operations of a real estate firm. The photo was taken by nonparty Ashwin Rao. Rao published the photo on Shutterstock.com (Shutterstock), "a website that allows any person with [I]nternet access to license photographs to the public for specific uses." Netflix hired Williams Creative Agency (WC+A) to produce the advertisement, and WC+A licensed the photo from Shutterstock for use in the advertisement.

Rao allegedly took the photo without [plaintiff] Dihno's knowledge or consent using a drone or other specialized photography equipment. The photo depicted interior and exterior details of the home not visible from any public location, including the "room layout" and the entrances and exits….

Netflix published the advertisement on its own website and on several other websites. Netflix did so without plaintiffs' knowledge or permission. Both Netflix and WC+A knew that the home was not associated with or depicted in Buying Beverly Hills….

[P]eople began to visit plaintiffs' home "on a daily basis" asking to see it and claiming they learned it was for sale through the Buying Beverly Hills advertisement. One woman rang the doorbell, demanded to enter the home, and refused to leave. Dihno called the police and the woman was arrested. Other people attempted to open plaintiffs' front gate and climb over their fence. [Plaintiffs] would only answer the doorbell for friends or relatives who provided advanced notice of their visit. In addition, [Plaintiffs] received calls "more than once daily" from real estate agents who sought to represent the family in selling the home.

Note that the ad apparently didn't include the address of the home, or the names of the owners. More from the allegations:

12/1/1897: Justice Stephen Field resigns.

Over at NRO, Andrew McCarthy largely agrees with Jack Goldsmith's conclusion that the the reported attack on survivors of a drug boat strike was unlawful. According to McCarthy, "If this happened as described in the Post report, it was, at best, a war crime under federal law." He writes further:

even if we stipulate arguendo that the administration has a colorable claim that our forces are in an armed conflict with non-state actors (i.e., suspected members of drug cartels that the administration has dubiously designated as foreign terrorist organizations (FTOs)), the laws of war do not permit the killing of combatants who have been rendered hors de combat (out of the fighting) — including by shipwreck.

To reiterate, I don't accept that the ship operators are enemy combatants — even if one overlooks that the administration has not proven that they are drug traffickers or members of designated FTOs. There is no armed conflict. They may be criminals (if it is proven that they are importing illegal narcotics), but they are not combatants.

My point, nevertheless, is that even if you buy the untenable claim that they are combatants, it is a war crime to intentionally kill combatants who have been rendered unable to fight. It is not permitted, under the laws and customs of honorable warfare, to order that no quarter be given — to apply lethal force to those who surrender or who are injured, shipwrecked, or otherwise unable to fight.

A key point here is that McCarty is not relying upon UN-affiliated entites nor unincorporated international law for his conclusion. Rather, he is resting his contentions on federal law (including those portions of the laws of war or international law that have been formally ratified by the Senate).

The laws of war, as they are incorporated into federal law, make lethal force unlawful if it is used under certain circumstances. Hence, it cannot be a defense to say, as Hegseth does, that one has killed because one's objective was "lethal, kinetic strikes."

And, it is worth noting, that federal law imposes the most severe penalties on war crimes.

McCarthy also highlights the fundamental irrationality of the Administration's policy, particularly given the constraints of federal law

. . . if an arguable combatant has been rendered hors de combat, targeting him with lethal force cannot be rationalized, as Bradley is said to have done, by theorizing that it was possible, at some future point, that the combatant could get help and be able to contribute once again to enemy operations. . . .

if the Post report is accurate — Hegseth and his commanders changed the protocols after the September 2 attack, "to emphasize rescuing suspected smugglers if they survived strikes." This is why two survivors in a subsequent strike (on October 16) were captured and then repatriated to their native countries (Colombia and Ecuador).

This was a ludicrous outcome: under prior policy, the boat would have been interdicted, the drugs seized, and the operators transferred to federal court for prosecution and hefty sentences. Under the Trump administration's policy, if the operators survive our missiles, they get to go back home and rejoin the drug trade. But put that aside. The point is that, if the administration's intent to apply lethal force were a defense to killing shipwrecked suspected drug traffickers, the policy wouldn't have been changed. It was changed because Hegseth knows he can't justify killing boat operators who survive attacks; and he sends them home rather than detaining them as enemy combatants because, similarly, there is no actual armed conflict, so there is no basis to detain them as enemy combatants.

11/30/1981: Harlow v. Fitzgerald argued.

The Washington Post reported yesterday that Secretary of Defense Pete Hegseth did not merely order the initial strike on a boat off of believed to be transporting drugs, but gave the specific order to kill those on the boat. After the first strike hit the boat, a second strike was ordered to take out two survivors "clinging to the smoldering wreck" caused by the first.

Jack Goldsmith posted on this report yesterday at Executive Function. His essay, "A Dishonorable Strike," begins:

One can imagine stretching Article II of the Constitution to authorize the U.S. drug boat campaign. The wildly overbroad Office of Legal Counsel (OLC) precedents, as I have written before, provide "no meaningful legal check on the president." And there are dim historical precedents one could cite. Arthur Schlesinger Jr. noted in The Imperial Presidency that in the 19th century presidents unilaterally engaged in "[m]ilitary action against Indians—stateless and lawless by American definition—pirates, slave traders, smugglers, cattle rustlers, frontier ruffians [and] foreign brigands."

One might also, possibly, stretch the laws of war to say that attacks on the drug boats are part of a "non-international armed conflict," as OLC has reportedly concluded. This line of argument likely draws on a super-broad conception of the threat posed by the alleged drug runners as well as the expansive U.S. post-9/11 justification for treating as targetable (i) dangerous non-state actor terrorists off the battlefield; (ii) those who merely "substantially support" the groups with whom one is in an armed conflict; and (iii) activities that provide economic support to the war effort, such as Taliban drug labs or ISIS oil trucks. I don't think this argument comes close to working without deferential reliance on a bad faith finding by the president about the non-international armed conflict and much greater stretches of precedent than the United States previously indulged after 9/11. Still, the unconvincing argument is conceivable.

But there can be no conceivable legal justification for what the Washington Post reported earlier today: That U.S. Special Operations Forces killed the survivors of a first strike on a drug boat off the coast of Trinidad who, in the Post's words, "were clinging to the smoldering wreck."

Whether Hegseth was aware of this second strike, or his initial order was properly interpreted to direct it is unclear, but it does not change the bottom line. Goldsmith writes:

In short, if the Post's facts are correct, it appears that Special Operations Forces committed murder when the "two men were blown apart in the water," as the Post put it.

The post concludes:

Hegseth has emphasized that he wants to restore the "warrior ethos" in the U.S. military. In the hours after the story, he signaled generic support for the boat strike campaign and chest-thumped that "We have only just begun to kill narco-terrorists."

Yet the warrior ethos has always demanded honorable conduct in warfare. The Navy Seals, for example, describe themselves as "a special breed of warrior" but the Seal Ethos thrice emphasizes the importance of honor, including "on . . . the battlefield." And surely the warrior ethos, whatever else it means, doesn't require killing helpless men clinging to the burning wreckage of a blown-up boat. The DOD Manual is clear because the law here is clear: "Persons who have been incapacitated by . . . shipwreck are in a helpless state, and it would be dishonorable and inhumane to make them the object of attack."

Read the whole thing.

11/29/2004: Randy Barnett argues Gonzales v. Raich.

From the Joint Pre-Trial Memorandum in McQuade v. UMass Memorial Health Care, Inc., the plaintiff's position:

In the summer of 2020, a position at UMass Memorial's Heart Vascular Interventional Lab commonly known as the Cath lab opened. Mr. McQuade and Andrews both applied for the Cath lab position. Ms. Andrews was awarded the Cath lab position. Once Mr. McQuade learned that Ms. Andrews was awarded the Cath lab position, he reached out to his union representatives for advice. Mr. McQuade's Massachusetts Nurses Association ("MNA") union representatives … both advised that Mr. McQuade should file a grievance because he had seniority over Andrews, and had the requisite experience to work in the Cath lab.

Ultimately, on September 11, 2020, Mr. McQuade was successful in his grievance and was awarded the Cath lab position. This, in turn, caused Andrews to leave the Cath lab position and return to her previous position in the float pool. Andrews was angry that she had to return to the float pool. Andrews desperately wanted to stay in the Cath lab and filed her own counter grievance that was eventually denied at the "step 3" stage by UMass Memorial. Therefore, the only way Andrews could be able to return to the Cath lab would be if a position opened by resignation or otherwise, including the resignation of Mr. McQuade….

The Nurse Defendants are all friends and would frequently socialize outside of work together. Mr. McQuade expects the evidence will show that, the Nurse Defendants did the unthinkable, and started a vile, and frankly evil slander campaign against Mr. McQuade, in an effort to have him resign from the Cath lab, so the Nurse Defendants could all work together again. Specifically, the Nurse Defendants began spreading defamatory rumors around UMass Memorial that stated Mr. McQuade abused his wife and child and had an open DCF investigation against him. Further, Clark stated that Mr. McQuade "created a farm in [his] back yard in order to lure in children as [his] prey."

From a Justice Department statement issued Nov. 7, but just posted on Westlaw:

Zimnako Salah, 46, of Phoenix, Arizona, was sentenced today in the Eastern District of California to six years in prison in connection with his plot targeting Christian churches.

In March 2025, a jury in Sacramento convicted Salah of strapping a backpack around the toilet of a Christian church in Roseville, with the intent to convey a hoax bomb threat and to obstruct the free exercise of religion of the congregants who worshipped there. The jury's verdict included a special finding that Salah targeted the church because of the religion of the people who worshipped there, making the offense a hate crime.

According to the evidence at trial, from September to November of 2023, Salah traveled to four Christian churches in Arizona, California, and Colorado, wearing black backpacks. At two of those churches, Salah planted those backpacks, placing congregants in fear that they contained bombs. At the other two churches, Salah was confronted by security before he got the chance to plant those backpacks.

While Salah had been making bomb threats by planting backpacks in Christian churches, he had been building a bomb capable of fitting in a backpack. During a search of his storage unit, an FBI Bomb Technician seized items that an FBI Bomb Expert testified at trial served as component parts of an improvised explosive device (IED).

A search of Salah's social media records revealed that he had consumed extremist propaganda online. Specifically, those records showed that Salah had searched for videos of "Infidels dying," and he had watched videos depicting ISIS terrorists murdering people. In a cellphone video taken days before the crimes of conviction, Defendant Salah declared, "America. We are going to destroy it." …

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"Arizona Man Sentenced to Six Years in Prison for Plot Targeting Christian Churches"

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