Eugene Volokh's Blog, page 2720

Texas Supreme Court Forbids Taking of Land for Private Pipelines

(Ilya Somin)

In a potentially important recent decision, Texas Rice Land Partners v. Denbury Green Pipeline the Texas Supreme Court has invalidated the use of eminent domain for a private pipeline to be owned by an oil company. Gideon Kanner has some good commentary on the decision here.

In Texas and many other states, public utilities and other "common carriers" have the power to use eminent domain to acquire land for their operations. In this case, however, Denbury, an oil company, sought to use eminent domain for a pipeline that would only transport carbon dioxide to and from its own facilities, without providing any service to the general public. In theory, the public would have the right to use the pipeline, but in practice no one but Denbury would have any reason to do so. The Texas Supreme Court quite rightly concluded that a "common carrier" taking must actually serve the general public, not just the carrier itself:

To qualify as a common carrier with the power of eminent domain, the pipeline must serve the public.... [E]xtending the power of eminent domain to the taking of property for a private use cannot survive constitutional scrutiny. The Denbury Green pipeline would not serve a public purpose if it were built and maintained only to transport gas belonging to Denbury from one Denbury site to another. As a constitutional matter, we can see no purpose other than a purely private one in such circumstances....

We accordingly hold that to qualify as a common carrier of CO2 under Chapter 111 [of Texas law], a reasonable probability must exist, at or before the time common-carrier status is challenged, that the pipeline will serve the public by transporting gas for customers who will either retain ownership of their gas or sell it to parties other than the carrier.

The case has been remanded for the trial court. In order to prevail there, Denbury would have to prove that its pipeline will transport carbon dioxide for the general public and not just its own use.

Some press commentary suggests that this decision will have a major impact on future pipeline takings in Texas. That may be so. But Texas eminent domain law contains several other loopholes that make it easy for private interest groups to get government to condemn property for their own benefit. As I discuss in this article and here, Texas' post–Kelo eminent domain reform law includes a very broad definition of "blight" that enables almost any property to be declared blighted and transferred to private parties. Oil companies and others seeking to use eminent domain for private pipelines might be able to get the land they want by having it declared blighted. This might require greater political clout than the direct private exercise of eminent domain under Chapter 111. The oil company in question would have to lobby the local government or redevelopment agency. However, Texas oil companies certainly have plenty of political influence.

UPDATE: I have not been able to find a link to the decision online. It is, however, available on Westlaw and Lexis.

UPDATE #2: I have corrected some minor errors in the initial version of this post. Because I made the corrections within a few minutes of the original posting, I am not going to describe them in detail, since I don't think there was any time for the mistakes to influence public discourse on the case.

Radical Islamism and the New Libyan Government

(Ilya Somin)

CNN has an interesting article about Abdul Hakeem Belhaj, a radical Islamist who is a prominent leader of the Libyan rebels whom the US and its allies have supported against Gaddafi. Belhaj has a long history of association with radical Islamist groups, including fighting for the Taliban against the US (he fled Afghanistan after the collapse of the Taliban regime in 2001).

The prominent role of such people among the rebels highlights one of the risks of the US intervention Libya that I noted here: the possibility that the new government will be as bad or worse than the old. If radical Islamists take over the new regime, their rule would likely be just as oppressive as Gaddafi's was. In addition, they could use Libya's oil wealth to sponsor anti-Western terrorism, something Gaddafi has abjured since cutting a deal with the US and Britain in 2003.

To be sure, Belhaj claims that he doesn't want to establish an Islamist regime and has no desire to support terrorism against the US. However, this is what we would expect him to say at a time when he still needs US support against the remnants of Gaddafi's regime. Even if he is sincere on these points, other radical Islamists among the insurgents may not be.

It's also possible that a radical Islamist government will be deterred from supporting terrorism by fear of US retaliation. That still, however, would not make the Libya intervention a success. After all, Gaddafi had been similarly deterred since at least 2003. If a nonterrorist but highly oppressive new government takes power, we would still have gained nothing from removing him.

Obviously, not all of the Libyan rebels are radical Islamists, and it's far from clear that Belhaj and others like him will control the new regime. A much better outcome is certainly possible, perhaps even probable. On the other hand, many historical examples demonstrate the advantages that well-organized, ruthless radicals have in a revolutionary situation. Often, they can seize power even if more moderate groups have greater public support. The French Revolution, Russia in 1917, Cuba in 1959, and 1979 Iran are among the best examples of this phenomenon.

I worry that the Obama administration and its European allies have not given this problem sufficient consideration. Obama's greatest success in Libya so far has been to facilitate Gaddafi's overthrow with only a minimal commitment of US and NATO forces. But that very minimalism will make it more difficult for the US and its allies to prevent radical Islamists from taking over if the latter win the internal struggle for power among the rebels after Gaddafi is gone.

On this point, Obama's failure to follow the Constitution by getting congressional authorization for the Libya war also increased the chance of failure on the ground. Given the narrow base of political support for the intervention and the lack of "buy-in" by Congress, Obama will find it difficult to increase our level of commitment if it becomes necessary to do so to stave off a radical Islamist takeover. Even setting aside legal considerations, he might well have done better to either get congressional authorization or not intervene in Libya at all.

Two Important Washington Post Articles on the CIA and JSOC

(Kenneth Anderson)

I wanted to flag for reader attention two articles in the Washington Post on the CIA and JSOC (Joint Special Operations Command), and their evolving roles as central counterterrorism fighters.  The first is by Greg Miller and Julie Tate, "Since Sept. 11, CIA's focus has taken lethal turn," September 2, 2011.  The second is by Dana Priest and William Arkin, "Top Secret America: A look at the military's Joint Special Operations Command," September 2, 2011, and adapted from Priest and Arkin's new book, Top Secret America, which I look forward to reading.

Over at Lawfare, Bobby Chesney talks about the first article, and some of the legal aspects raised or implied in the gradual integration of CIA operations with JSOC operations — what, referring to US law, is the interplay of "Title 10″ operations (military) with "Title 50″ operations (CIA).  As to the second article, on JSOC, speaking in my august capacity as Lawfare's book review editor, I plan to find someone knowledgeable in the law and policy to review it, and I'll let people know when that happens.

My own interest in these topics — aside from drones and targeted killing — is somewhat related to Bobby's detailed legal analysis of the separate domestic legal authorities under these different statutory provisions.  But it runs to a more broadly conceptual question, viz., whether there is, by implication, an emerging "law," or at least "norms," of the use of force in something that we can loosely call "covert action" but which is, in many circumstances, not truly covert, but instead at most "deniable."  The distinction matters because countries traditionally have hid behind the covert nature of covert action as a way of not having to discuss whether there are any rules or standards, not necessarily and unlikely to be "international" in a formal legal sense, but still norms for the conduct of such operations — either because they were genuinely unknown to the public, or else because even if hinted at, they were sufficiently under wraps that deniability could be plausible.  At least plausible enough not to have to talk about its conduct.

The emergence of targeted killing and drone warfare by the United States, and partly by Israel, has altered that.  These operations are at most thinly-deniable, not covert nor plausibly deniable.  They are denied (more exactly, "neither confirm nor deny") with respect to Pakistan for purely political reasons, not because they could plausibly be denied.  In that case, however, the legitimacy of the operations, particularly with regards to how they are conducted, becomes an issue, as a political and legal issue.  I am all in favor of targeted killing and drone strikes against "covert" targets — places where conventional hostilities are not at that moment underway — and depending upon circumstances either as part of an armed conflict or else as "naked" self-defense.  Legitimacy requires — at least for Americans — some sense that there are rules and norms; not necessarily black and white, and certainly not a set of rules that might satisfy Human Rights Watch or the ACLU — but norms of some kind for the conduct of these operations.

For that reason, I am coming to think that the most important contribution that Harold Koh, as Legal Adviser to the State Department, and hence the legal voice of the United States on this matter, will turn out to have made to international jurisprudence, is his repeated assertion both that the conduct of targeted killing  - whether with drones or human teams, whether by the CIA or by JSOC, and whether as part of an armed conflict or as "naked" self-defense — must still conform, as with any use of force, to norms in its conduct of necessity, distinction, and proportionality.  That, for the first time I am aware, is an official assertion by a senior legal official of a leading state that covert violence conducted by a state has conditions attached to its conduct.  Because this kind of "covert" activity is widely known and merely deniable, and because it being widely known creates demands for legitimacy, and since legal legitimacy requires the acknowledgment of legal norms, even necessarily very general ones, the result is the gradual extension of conduct norms into covert activities.

That's an important legal development, and as someone who is strongly in favor of such operations, I think it is an important step forward.  Those norms, it seems to me, will not be, for a long time if ever, anything other than domestic rules and rules of engagement that might, over time, be seen as a form of "soft" international law, very soft, something like "best practices."  The laws of war seem particularly inapposite if applied in their detailed, treaty forms — conceived for conventional war, they are overly technical in matters that do not have much to do with these operations.  What matters are the general principles — in my view, the standard for the conduct of such operations cannot, in the basic principles of necessity, distinction, and proportionality, fall below what the military standard in an actual armed conflict would be — but it does not require all the technical legal apparatus of conventional war, either.

In the other direction, however — away from permission and toward greater constraint — a general observation about these "intelligence-driven uses of force," particularly in targeted killing, is that they typically ought to require a higher standard of "necessity" in determining the target than conventional military operations would require — this is, after all, what makes it intelligence-driven targeted killing. In that particular aspect, covert action (again speaking loosely) ought to have standards that are higher than simply those that are and legally should be applied to that other use of drones — not targeted killing, but instead the targeting of a mass of combatants id'd as fighters crossing the Afghan border to fight Americans. (Drones have a role in both conventional warfare and special operations targeted killing, but the latter kind of use in special operations should apply a higher standard of identification and necessity. It is important to disentangle the uses of drones in different kinds of activities.) So the idea of applying general customary law principles applicable to all uses of force, even if the technical machinery of conventional war law as found in the treaties does not apply, is not a means of lowering the standards of conduct, but at least for certain purposes, raising them to reflect the "intelligence-driven" nature of this activity.

(This relates, by the way, to Bobby Chesney's project of examining how Title 10 and Title 50 interrelate in part because the integration of military personnel with CIA personnel means that military standards will have to carry over when it comes to the basic law of war rules; military personnel are bound to apply in all operations, no matter what.  I'd venture that the integration of military personnel into integrated operations will be the catalyst bringing these standards with them.)

I should add my congratulations to the Post's national security reporting team — I have often praised the WSJ's team in the past, with good reason, but the Post has outstanding folks doing outstanding reporting on these issues.

A Wake-Up Call to Associate Professors Everywhere

(Kenneth Anderson)

(H/T Insta).  Professor accused and on the run, presumed armed and dangerous, in San Bernardino, California:

"To have an associate professor who is a member of the Devils Diciples and allegedly dealing methamphetamine is quite alarming. I mean, it's unusual to say the least," Sheriff Rod Hoops said at a news conference in San Bernardino.

"Plausibility" and Legal Claims about the Gaza Blockade

(David Bernstein)

Kevin Jon Heller of University of Melbourne and Opinio Juris: "Insofar as Israel insists that it is not currently occupying Gaza, it cannot plausibly claim that it is involved in an IAC [International Armed Conflict] with Hamas" (and thus the blockade of Gaza is unlawful).

U.N.'s Palmer Committee Report on the Mavi Marmara incident (and note that the U.N. is not exactly the most sympathetic forum for Israel): "The Panel considers the [Hamas-Israel] conflict should be treated as an international one for the purposes of the law of blockade" (and thus the blockade is lawful).

Heller: "I have questioned the legality of the blockade before, leading two readers to claim that the Palmer Committee's report contradicts my analysis of the situation. In fact, the opposite is true."

Well, no. Because the Report concluded that the Hamas-Israel conflict was an IAC, it didn't contradict Heller's argument that if it's not an IAC, the blockade is illegal under international law. But Heller also, as he acknowledges, "questioned the legality of the blockade" and said that it was not just wrong but that Israel's claim to be in an IAC with Hamas is wholly implausible. While one Report cannot establish in everyone's mind the lawfulness of the blockade, surely if an unsympathetic (or at the very least, non-sympathetic) forum like a U.N. commission adopts the Israeli position on IAC, that position cannot be deemed beyond the realm of even plausible argument, and Heller's analysis is indeed "contradicted."

Lev Grossman's The Magicians

(Eugene Volokh)

I just finished Lev Grossman's The Magicians and liked it very much. It's basically modern fantasy, a genre that has been somewhat overdone recently; but it was fresh and very well executed, both in the general plot line and the word-by-word writing. I highly recommend it.

DC Circuit Judge Douglas Ginsburg To Take Senior Status, Join NYU Law Faculty Full-Time

(Orin Kerr)

The Blog of Legal Times has the scoop. Judge Ginsburg is no stranger to academia, of course, having been a professor at Harvard Law School from 1975 to 1983. Thanks to Howard Bashman for the initial link.

Michele Bachmann, Jewish Names, and Political Ignorance

(Ilya Somin)

Co-blogger David Bernstein is skeptical of that fundraisers for Mitt Romney are losing out on Republican Jewish donors because some of the latter are giving to Michele Bachmann instead, based on a mistaken impression that she is Jewish. The reports could well be false or exaggerated. But I am less skeptical about them than David.

Given widespread political ignorance, it would not be surprising if there were many Jews (and non-Jews) who misjudged Bachmann's ethnicity based on her last name, which does indeed sound vaguely Jewish. In my experience, many Americans (including many Jews) are confused about which names are likely to be Jewish and which ones are not. Many people also underestimate the extent to which non-Jews often have stereotypically Jewish names. For example, many probably don't realize that there are non-Jewish Rosenbergs, such as the notorious Nazi leader Alfred Rosenberg.

My own last name, Somin, is Jewish in the sense that a Somin is much more likely to be Jewish than the bearer of a random Eastern European name. But there are nonetheless a number of non-Jewish Somins, including one I found on the internet who is an anti-Semitic Russian nationalist. Many people don't realize that Somin is a Jewish name at all. Some of those who do know tend to assume that all Somins must be Jewish.

To be sure, as David suggests, an experienced Republican Jewish donor is unlikely to be confused about Bachmann. But the Romney campaign, which has an extensive organization that dates back to the last election cycle, could well be reaching out to smaller donors who are not as knowledgeable. They may include first-time contributors who only recently became interested in Republican politics. Given strict contribution limits of $2500 per person, many campaigns try to find small donors who can give a few hundred dollars each. Many such people are not as well-informed as longtime activists and major donors, and could easily be confused about Bachmann's background because of her name.

47 U.S.C. 223 and the Activity/Inactivity Distinction

(Orin Kerr)

The challengers to the constitutionality of the Affordable Care Act often argue that the Affordable Care Act is "unprecedented" — and therefore particularly suspect — because it uses the Commerce Clause to try to regulate inactivity. I'm still not sure of the line between activity and inactivity, so I'm wondering what proponents think of the provisions found in 47 U.S.C. 223 .

47 U.S.C. 223 is the federal telecommunications harassment statute, titled "Obscene or harassing telephone calls in the District of Columbia or in interstate or foreign communications." It generally prohibits harassing others, threatening them, and sending obscene materials over interstate communications networks. So far, it's all about regulating interstate activity. But the statute also prohibits failing to stop others from engaging in such offenses over "telephone facilit[ies]" they control:

Whoever . . . knowingly permits any telecommunications facility under his control to be used for any activity prohibited by [the sections on sending harassing communications, etc. ] with the intent that it be used for such activity, shall be fined under title 18 or imprisoned not more than two years, or both.

47 U.S.C. 223(a)(2). Another section is similar, but lacks in the intent requirement: It prohibits "permit[ing] any telephone facility under such person's control to be used for an activity prohibited" elsewhere in the statute. 47 U.S.C. 223(b)(1)(B).

I'm not sure how advocates of the activity/inactivity distinction will view this statute, but just from a common-sense perspective it looks to me like it regulates inactivity. The crime is permitting someone else to act — that is, failing to stop them from acting. If the decision not to buy health insurance is "inactivity," then I would think the decision not to stop someone from committing a harassment crime would be "inactivity," as well. Section 223 was also clearly enacted under the Commerce Clause power, as it regulates the channels of interstate commerce and communication of the telephone network and other communications networks.

So here's the question for proponents of the activity/inactivity distinction: Does this crime attempt to regulate activity or inactivity?

Is it Unethical for Judges to be Facebook "Friends" With Lawyers who Appear Before Them?

(Ilya Somin)

As co-blogger Eugene Volokh notes, the Oklahoma Judicial Ethics Advisory Panel recently issued an opinion holding that it is unethical for judges to be Facebook "friends" with lawyers who appear before them. Back in 2009, I criticized a similar opinion issued by the Florida Judicial Ethics Committee:

At first glance, it might seem as if the opinion reflects a generational divide. The older members of the Committee may simply not understand how Facebook and other social networking sites work, and therefore don't realize that a Facebook "friendship" doesn't necessarily signal any kind of close relationship. Indeed, many Facebook friends don't know each other in the real world at all.....

The problem goes deeper than that, however. As far as I know, both Florida and most other states don't forbid judges to be real-world friends with lawyers who may appear before them. A judge who shows favoritism to a lawyer who is a personal friend may be sanctioned..... But the mere existence of a friendship between lawyer and judge is not considered to be a violation of judicial ethics in and of itself. So the Florida Committee's approach actually treats Facebook friendship between lawyers and judges as a more serious breach of judicial etiquette than a genuinely close friendship between the two. I could understand the logic of a rule that forbade all social fraternization between judges and lawyers who might appear before them..... But I can't understand the justification for a rule that bans essentially innocuous Facebook "friendships" but turns a blind eye to real friendships.