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Legal Report June 2014


TERRORISM. A federal judge dismissed a case challenging the Obama administration’s use of unmanned drones to kill terrorism suspects overseas. In her ruling, the judge wrote that the courts cannot create a remedy for targeted killings without intruding on the powers of the president and Congress to wage war.

Anwar Al-Aulaqi was born in the United States and had dual U.S. and Yemeni citizenship. He was also on a U.S. “kill list” for allegedly leading al Qaeda terrorism efforts in the Arabian Peninsula. Along with his efforts in the Middle East, Al-Aulaqi allegedly helped inspire and prepare the Underwear Bomber—Umar Farouk Abdulmutallab—and counseled the Army psychiatrist, Major Nidal Malik Hasan, who shot and killed 13 soldiers and wounded 30 others at Fort Hood, Texas. However, the United States Government has never charged or prosecuted Al-Aulaqi for any crime.

On September 30, 2011, Al-Aulaqi was riding in a vehicle with three other individuals in the Yemeni province of al-Jawf, approximately 90 miles outside of the nation’s capital. The United States ordered a drone strike against him and Al-Aulaqi was killed by a missile launched from the drone. The strike also killed his fellow passenger, Samir Khan—another U.S. citizen. Two weeks later, on October 14, 2011, the United States ordered another drone strike that killed an additional group of people in the town of Azzan, including Al-Aulaqi’s teenage son who was at a nearby cafe.

In response, Al-Aulaqi’s father and his wife fi led suit against various U.S. officials, including then-Secretary of Defense Leon Panetta, CIA Director David H. Petraeus, Admiral William H. McRaven, and Lieutenant General Joseph Votel, in their personal capacities. The two alleged that the officials had violated the Fifth Amendment rights of the deceased U.S. citizens by authorizing the drone strikes against them. Additionally, they charged that the officials had violated the Fourth Amendment right of the deceased to be free from unreasonable seizures and Al-Aulaqi’s right to a trial under the U.S. Constitution.

The officials argued that the court lacked jurisdiction to hear the case and that they were entitled to qualified immunity. Justice Rosemary M. Collyer of the U.S. District Court for the District of Columbia granted the dismissal, noting in her opinion that no court has ever allowed a claim of violation of constitutional rights to challenge the action of government officials in military affairs or national security matters.

“In this delicate area of warmaking, national security, and foreign relations, the judiciary has an exceedingly limited role,” she wrote. “This court is not equipped to question, and does not make a finding concerning [the officials’] actions in dealing with al Qaeda in the Arabian Peninsula generally, or Anwar Al-Aulaqi in particular.”

Collyer said that she accepted most of the government’s evidence about Al-Aulaqi’s role in al Qaeda and that he was “an active and exceedingly dangerous enemy of the United States.” She also noted that she would have ruled in the same manner if Al-Aulaqi were a foreign national rather than a U.S. citizen.

The survivors of Al-Aulaqi and Khan have the option of appealing the case to the U.S. Court of Appeals for the District of Columbia Circuit. (Nasser Al-Aulaqi v. Leon C. Panetta, United States District Court for the District of Columbia, No. 12-1192 (RMC), 2014)

EMPLOYMENT. A New York court has ruled that an employee’s immigration status does not affect the employer’s rights under workers’ compensation law. Instead, employers have economic protections under the law regardless of an employee’s immigration status.

In early 2008, New York Hospital Medical Center hired Microtech Contracting to demolish a basement room that housed an incinerator at the hospital’s location in Flushing, Queens. On March 6, 2008, a Microtech supervisor met and spoke with brothers Luis and Gerardo Lema and hired them to perform the demolition. The Lemas, originally from Ecuador, were undocumented aliens not legally employable in the United States.

After the Lemas reached the hospital site, the Microtech employee supplied them with a sledge hammer and a chipping gun—a small jackhammer—and instructed them on the demolition. The brothers then broke apart and removed a cement platform before taking down a metal wall. The vibrations created by the tools during the demolition dislodged a metal chimney attached to the wall that was between 11 and 20 feet above the floor. The chimney toppled, striking and injuring both of the brothers.

The Lemas then made claims for and received workers’ compensation benefits, which Microtech’s insurance carrier paid. Additionally, the Lemas sued the hospital for violations of labor law and according to the hospital’s attorney, entered into an agreement with the hospital for compensation.

Meanwhile, the hospital filed suit against Microtech to recover damages it incurred from the lawsuit with the Lemas brothers. The hospital alleged that Microtech was performing the work that day, on a contract with the hospital. It charged that Microtech breached that contract and violated the Immigration Reform and Control Act (IRCA) when it hired the Lemas. The hospital also alleged that the Lemas were injured because of Microtech’s negligence.

Microtech challenged that, under workers’ compensation law, the hospital’s action was barred because the Lemas did not suffer a grave injury, and they did not enter into a written contract with the hospital. Without proof of grave injury or a contract between the hospital and the Lemas, the company argued, the hospital did not have a claim. Furthermore, Microtech challenged that noncompliance with the IRCA did not matter because workers’ compensation law applies to all workers within New York’s borders, regardless of their immigration status.

New York’s Supreme Court dismissed the case, and the hospital appealed the decision. The New York Court of Appeals ruled in favor of Microtech and ruled that IRCA violations do not abolish the protection from third-party claims granted to Microtech under workers’ compensation law.

In its opinion, the court said that ruling in the hospital’s favor would deny Microtech economic protections provided under workers’ compensation law in return for giving the Lemas compensation for their injuries. Additionally, the court ruled that siding with the hospital would have relieved it of its “responsibility to ensure a safe construction site for workers under the Labor Law.” (New York Hospital Medical Center of Queens v. Microtech Contracting Corp., Court of Appeals of New York, No. APL-2013- 00073, 2014).


REAL ID. As his first act in Congress, newly appointed Sen. John Walsh (D-MT) introduced a bill (S. 2121) to repeal part of the Real ID Act of 2005. The bill focuses on repealing the part of the act that enacts new requirements for state-issued driver’s licenses and ID cards.

The first phase of the Real ID Act is already in effect and requires personnel, contractors, and guests at the headquarters of the Department of Homeland Security to show IDs that are compliant with Real ID to access restricted areas. The second phase of the act will be enforced starting on July 21, 2014, when restricted areas of all federal facilities and nuclear power plants will only allow people to enter who show identification that is Real ID compliant. Eventually, the act will affect airline travel as all passengers boarding flights in the United States will be required to show a form of ID that is Real ID compliant.

The bill is cosponsored by another senator from Montana, Sen. John Tester (D-MT), and Sen. Mark Begich (D-AK). It is under review in the Senate Homeland Security and Governmental Affairs Committee.

DRONES. A bill was introduced in the House of Representatives to transfer all authority over unmanned aerial vehicles, or drones, to the Department of Defense (DoD). If passed, the bill (H.R. 4036) would prevent any officer, employee, or contractor of the CIA from using drones to carry out a weapons strike or other lethal action.

Instead, Rep. Michael C. Burgess’s (R-TX) measure would require the president to transfer all authority to use drones for strikes, or lethal action, to the DoD. In a statement on the bill, Burgess said that by “giving the CIA authority to do what should be the work of our military community, it compromises its ability to do its core intelligence-gathering work. Frankly, it oversteps its mission by a longshot.”

The bill is cosponsored by Rep. Rush Holt (D-NJ) and is pending in the House Intelligence Committee and the House Armed Services Committee.

TERRORISM. A bill (H.R. 4007) introduced by Rep. Patrick Meehan (R-PA) would require that the secretary of Homeland Security establish risk-based performance standards to protect chemical facilities from acts of terrorism. If passed, the bill would require facilities to submit security vulnerability assessments and to develop and implement site security plans based on those performance standards. The secretary would also be responsible for ensuring that security plans are implemented by auditing and inspecting chemical facilities.

The bill has six cosponsors, including the chairman of the House Homeland Security Committee, Rep. Michael McCaul (R-TX). It has been referred to the House Homeland Security Subcommittee on Cybersecurity, Infrastructure Protection, and Security Technologies.

FIRST RESPONDERS. A bill (H.R. 4203) that would prohibit interference with communication frequencies used by first responders was introduced by Rep. Steve Israel (D-NY). The bill aims to protect first responders’ communication methods by making it a criminal offense to interfere with a communication frequency used by emergency responders.

In addition, the bill would make it a crime to obstruct, hinder, or delay the transmission of any communication over any communication frequency used by emergency responders. Individuals caught tampering or conspiring to do so could be fined or imprisoned, or both, for up to 10 years.

The bill is cosponsored by Rep. Peter King (R-NY) and is being reviewed by the House Judiciary Committee.



Weapons. An Idaho law went into effect on May 21 allowing law-abiding adults over the age of 21 with a state concealed-carry permit to carry a fi rearm onto most parts of college campuses without fear of reprisal from the university. The law was passed to allow students in Idaho to “exercise their right to self-defense while attending class.”

However, the law (formerly S.B. 1254), does not allow firearms in dormitory buildings or into campus buildings hosting sporting competitions or similar events. Idaho joins Colorado, Kansas, Mississippi, Oregon, Utah, and Wisconsin, which already have provisions allowing citizens to carry firearms onto parts of campuses.


Discrimination. In February, Arizona Governor Jan Brewer vetoed a bill (S.B. 1062) that would have allowed businesses to refuse services to gays and others based on religious beliefs. Both houses of the state legislature had passed the measure, but Brewer took executive action on the bill after facing pressures from the business community and gay rights advocates.

Arizona’s are the latest in a string of similar bills in state legislatures. Earlier this year, Kansas introduced a bill (H.B. 2453) allowing businesses and governments to deny services to individuals whom they were religiously opposed to. The bill was passed by the state’s House, but was derailed in the Senate. Missouri, Ohio, Mississippi, Idaho, South Dakota, Tennessee, and Oklahoma have also introduced similar measures in their state legislatures. However, none of the bills have passed the state legislatures to become law.

This column should not be construed as legal or legislative advice.