Judge Ketanji Brown Jackson on National Security Law: A Reader’s Guide

Betty Q. Hixson

On Feb. 25, President Biden nominated Judge Ketanji Brown Jackson to the U.S. Supreme Court. She would replace Justice Stephen Breyer, for whom she once clerked. And if confirmed, Jackson would become the first Black woman and the first former federal public defender to serve in the U.S. Supreme Court. While Jackson has extensive experience serving in federal court—she worked for eight years as a judge on the U.S. District Court for the District of Columbia—her nine months on the U.S. Court of Appeals for the District of Columbia Circuit since she was confirmed in June 2021 means that she has not yet written a body of appellate court opinions expressing a legal philosophy. However, some of her decisions on the district court may be of particular interest to Lawfare readers, including opinions on executive power, immigration and the Foreign Sovereign Immunities Act. 

On Executive Power

Committee on the Judiciary v. McGahn, 407 F.Supp.3d 35 (D.D.C. 2019) (en banc) (memorandum opinion)

Jackson’s opinion in Committee on the Judiciary v. McGahn is perhaps her most high-profile decision to date. In this decision, she ruled that Don McGahn, the former White House counsel to President Trump, did not have absolute immunity from testifying. The practical implication of this decision was that McGahn would have to appear before the House Judiciary Committee as part of its investigation into Russian interference in the 2016 presidential election, despite Trump’s insistence to the contrary.

In her 120-page opinion, Jackson wrote that “Presidents are not kings” and that “however busy or essential a presidential aide might be, and whatever their proximity to sensitive domestic and national-security projects, the President does not have the power to excuse him or her from taking an action that the law requires.” While Jackson was clear that “absolute immunity from compelled congressional process simply does not exist” for a president’s top aides, she did qualify that the requirement that McGahn testify did not mean he had to answer every question the Judiciary Committee asked him—he could still refuse to answer questions by asserting executive privilege. But he had to show up.

The Trump administration appealed the decision, and the case bounced around the U.S. Court of Appeals for the D.C. Circuit on jurisdictional grounds without reaching the merits. Eventually, the committee and McGahn’s lawyers reached an agreement and jointly moved to dismiss the case, after which McGahn testified before the committee in a closed-door session.

Mobarez v. Kerry, 187 F. Supp. 3d 85 (D.D.C. 2016) (memorandum opinion)

In another case concerning justiciability, Mobarez v. Kerry, Jackson reached the opposite conclusion. Here, American citizens and lawful permanent residents sought to compel their evacuation from Yemen. Jackson noted that their claims concerned a foreign affairs function that the Constitution committed to the president’s discretion and that the president’s exercise of that discretion was a nonjusticiable political question. In so holding, she stated that evaluating the plaintiffs’ claims in this case “could not be accomplished without this Court making and imposing policy judgments of its own about the wisdom and/or reasonableness of the agencies’ determination that the requested evacuation should not proceed,” which Jackson declined to do.

Guam v. United States, No. 1:17-cv-2487 (KBJ) (D.D.C. 2019) (memorandum opinion)

Guam v. United States centered on a landfill in Guam created by the U.S. Navy in the 1940s while Guam was a military protectorate under its governance. The landfill contained significant amounts of hazardous waste, posing a serious risk to the surrounding environment. Guam sued the federal government for $160 million to clean up the landfill under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). CERCLA provides two mutually exclusive avenues for parties to recoup cleanup costs: cost-recovery actions and contribution actions. Jackson ruled that Guam could pursue a cost-recovery claim against the U.S., holding that an earlier consent decree addressing violations of the Clean Water Act at the landfill did not resolve Guam’s liability, and that it therefore did not trigger a contribution claim.

Although Jackson’s decision was initially reversed by a D.C. Circuit panel, the Supreme Court reversed, essentially affirming Jackson’s original ruling.

Trump v. Thompson, 20 F.4th 10 (C.A.D.C. 2021) (joined unanimous D.C. Circuit decision)

In another case involving the limits on presidential power, Jackson joined an opinion by Judge Patricia Millett that affirmed Trump could not assert executive privilege to block disclosure of certain White House records pertaining to the Jan. 6 attack on the U.S. Capitol. The Supreme Court upheld this decision.

On Immigration

Center for Biological Diversity v. McAleenan, No. 18-cv-655 (KBJ) (D.D.C. 2019) (memorandum opinion)

Jackson dismissed the Center for Biological Diversity’s complaint in Center for Biological Diversity v. McAleenan, where the group challenged the Department of Homeland Security’s waiver of multiple laws in order to construct a 20-mile segment of the border wall in New Mexico. The environmental group argued that the waiver exceeded the department’s power and would result in environmental damage. 

Notably, Jackson’s decision articulated a limitation on judicial power, as she ruled that federal courts do not have the authority to consider the group’s non-constitutional claims. In her opinion, she stated that “Congress has spoken in no uncertain terms about the limits of judicial review when it comes to legal claims that challenge on non-constitutional grounds the [Department of Homeland Security] Secretary’s authority to waive otherwise-applicable legal requirements with respect to the construction of border barriers.” 

Make the Road New York v. McAleenan, 405 F.Supp.3d 1 (D.D.C. 2019) (memorandum opinion)

In Make the Road New York v. McAleenan, Jackson temporarily blocked the Trump administration’s plan to expand fast-track deportations of people in the country illegally. Her opinion ran more than 120 pages and involved complex issues of immigration and administrative procedure laws.

Although Jackson’s decision blocked Trump’s actions, it was relatively narrow in its scope. She did not hold that the president lacked the authority to expand fast-track deportations but, rather, only that the administration had violated procedural requirements by failing to seek public comment for its immigration policy and that it must provide a more detailed explanation for the change before it could take effect. The D.C. Circuit reversed her decision, ruling that the Department of Homeland Security was allowed to make these changes to immigration policy without judicial oversight.

Jackson’s opinion in this case also includes an argument about the scope of judicial power. Jackson blocked the policy nationwide (as opposed to applying it only to the groups that sued). Conservative legal advocates have criticized judges who enter nationwide injunctions, but Jackson wrote (and the D.C. Circuit agreed) that judges are not limited in the reach of their decisions, as long as they first find that an agency’s actions were improper.

Kiakombua v. Wolf, 498 F. Supp. 3d 1 (D.D.C. 2020) (memorandum opinion)

Jackson ruled in Kiakombua v. Wolf that the U.S. Citizenship and Immigration Services’ “Lesson Plan on Credible Fear of Persecution or Torture” required asylum-seekers to meet an unreasonable standard for establishing the “credible fear” necessary to establish eligibility for asylum. She held that the Lesson Plan conflicted with the Immigration and Nationality Act, and because the unlawful parts could not be severed from the rest of the document, the Lesson Plan was vacated and the matter remanded to the agency.

Las Americas Immigrant Advocacy Center v. Wolf, 507 F. Supp. 3d 1 (D.D.C. 2020) (memorandum opinion)

In Las Americas Immigrant Advocacy Center v. Wolf, a legal aid organization and noncitizens challenged a policy that required noncitizens awaiting credible fear interviews or review of negative credible fear determinations to be detained in facilities run by Customs and Border Protection. 

Jackson ruled that the policy did not violate noncitizens’ statutory or constitutional rights, including with regard to their right to counsel, and that the policy was not adopted in an arbitrary and capricious manner for purposes of the Administrative Procedure Act. 

On the Foreign Sovereign Immunities Act

Azima v. RAK Investment Authority, 305 F. Supp. 3d 149 (D.D.C. 2018), rev’d, 926 F.3d 870 (D.C. Cir. 2019)

In Azima v. RAK Investment Authority, Jackson considered the applicability of the Foreign Sovereign Immunities Act (FSIA) to RAKIA, a wealth and investment fund owned by one of the emirates within the United Arab Emirates. The case involved a former employee, Azima, who claimed that RAIKA hacked his computer in violation of the Computer Fraud and Abuse Act. RAIKA argued that the court had no jurisdiction because the company was immune to suit under the FSIA and that the forum was improper because a prior agreement between the parties contained a forum selection clause for England. Jackson found that RAKIA was not immune from suit because the commercial activity exception to the FSIA had been met: RAKIA conducted itself “in the manner of a private player in the market.” Additionally, Jackson held that RAKIA had not met the “heavy burden” of persuading the district court that England was a necessary alternative forum that would provide Azima an adequate remedy. Underlying that analysis was the fact that under English law, it did not appear that Azima would have access to any judicial remedy.

Jackson was reversed by the D.C. Circuit the next year when Judge Thomas Griffith held that because a forum selection clause in the contract between the parties named England as the court of jurisdiction, the district court was incorrect in weighing public interest factors to determine whether it was appropriate to send the case there or not. Because the circuit court ruled on the grounds of the forum, it did not reach the FSIA question. 

Youssef v. Embassy of the United Arab Emirates, No. 17-CV-2638 (KBJ) (D.D.C. Aug. 23, 2021)

Jackson considered a similar issue in Youssef v. Embassy of the United Arab Emirates. Youssef claimed she was fired from her job at the embassy of the United Arab Emierates (UAE) in Washington, D.C., due to age discrimination. The UAE contested the suit, arguing that the U.S. District Court for the District of Columbia had no jurisdiction to hear the claim due to the FSIA. Jackson rejected that argument, holding that the present claim fell within the “commercial activity” exception to the FSIA, because the suit concerned Youssef’s employment relationship with the embassy, not any “categorically government activity.” In making that determination, Jackson found that Youssef’s work was not governmental in nature because “it involved the exercise of powers that can also be exercised by private citizens, as distinct from those powers peculiar to sovereigns.” 

CapitalKeys, LLC v. Democratic Republic of Congo, 278 F. Supp. 3d 265 (D.D.C. 2017); CapitalKeys, LLC v. Democratic Republic of Congo, No. 15-CV-2079 (KBJ), 2020 WL 7029934 (D.D.C. Feb. 14, 2020); CapitalKeys, LLC v. Democratic Republic of Congo, No. 15-CV-2079 (KBJ), 2021 WL 2255362 (D.D.C. June 3, 2021)

The CapitalKeys litigation, which concerns breach of contract claims by public affairs firm CapitalKeys against the Democratic Republic of Congo (DRC) and its central bank, began in 2017, and Jackson has heard three iterations and variations on the case. In the case’s first appearance, Jackson granted a default judgment after the defendant failed to appear. She found that although the central bank is an agent of instrumentality of Congo that would otherwise be subject to immunity, the FSIA did not apply because the DRC’s inclusion of a choice of law clause in its contract with CapitalKeys had established “an implicit waiver of sovereign immunity” or, in the alternative, the central bank’s contract constituted “commercial activity” such that the commercial activity exception to the FSIA applied.

In 2020, Jackson granted the central bank’s motion to set aside the default judgment on the ground that the official who signed the contract on behalf of the sovereign “lacked the authority to bind the Central Bank contractually.” She set the case to be reheard the next year.

Finally, in 2021, Jackson agreed that the central bank did have sovereign immunity and that neither the “waiver” nor “commercial activity” exception to the FSIA applied. On the waiver exception, Jackson held that although the forum selection clause could serve as an implicit waiver, in this case it did not because the agent of the DRC who signed the contract did not have the authority to act unilaterally on behalf of the bank. In making this determination, the court looked to whether the agent’s action was consistent with the foreign state’s statutes and regulations regarding that activity—and, in this case, it was not. Jackson also denied the commercial activity claim, holding that CapitalKeys did not demonstrate that “the conduct upon which its legal claims are based occurred in the United States or that the alleged breach is actually attributable to the bank.”

The case was heard most recently by a D.C. Circuit Court panel (Judges David Tatel, Robert Wilkins, and Neomi Rao) on Feb. 11.

Azadeh v. Government of the Islamic Republic of Iran, 318 F. Supp. 3d 90 (D.D.C. 2018)

In Azadeh v. Government of the Islamic Republic of Iran, a former American inmate in an Iranian jail brought a case against Iran for wrongful imprisonment and torture under various federal and state laws. Azadeh was allegedly subject to mock executions, long interrogations and frequent poisoning. Iran argued that it was immune from suit under the FSIA, but the plaintiff argued that due to its use of torture, Iran gave up its claim to immunity. Jackson held that the U.S. District Court for the District of Columbia had subject matter jurisdiction under the FSIA, as sovereign immunity is stripped due to Iran’s designation as a state sponsor of terrorism, which further caused personal injury to a U.S. national. 

However, Jackson held that there was no personal jurisdiction over the parties because the plaintiff had not fully complied with the procedures necessary to secure a default judgment. Noting that the plaintiff’s failure to follow the necessary procedures had resulted from a mistake stemming from an incorrect attorneys’ manual posted to the district court’s website, Jackson wrote:

Judges are sometimes called upon to set aside heart-wrenching and terrible facts about a claimant’s treatment at the hands of a defendant and enforce seemingly draconian, technical mandates of law. This is an especially difficult duty when the machinery of the judicial system itself appears to have played a role in the claimant’s mistaken view of the applicable legal requirements.

SACE S.p.A. v. Republic of Paraguay, 243 F. Supp. 3d 21 (D.D.C. 2017)

In another case about exceptions to the FSIA, Jackson considered claims by SACE, an Italian joint stock corporation, against the Republic of Paraguay. SACE argued that Paraguay was not immune from suit under the FSIA because a part owner of two Paraguayan state-owned companies implicated in the suit had signed a “guarantee” waiving immunity on behalf of the country. Paraguay argued in response that the power to waive immunity was not within that employee’s responsibilities and that he did not have the “actual” requisite sovereign authority (as established in CapitalKeys). SACE countered that the fact that the employee had “apparent” authority was sufficient to meet the waiver exception. Jackson denied SACE’s proposed interpretation of the waiver exception to the FSIA, holding instead that actual authority is a requirement to the exception.

Jackson’s holding conflicts with the current interpretation of the same exception in the U.S. Court of Appeals for the Second Circuit in First Fid. Bank, N.A. v. Government of Antigua & Barbuda—Permanent Mission, which held that “mere apparent authority can bind a foreign country to an agent’s commitments on behalf of the sovereign[,]” and in Republic of Iraq v. ABB AG, which narrowed that holding, stating that “it is possible for the persons that comprise the government to act without acting as the government.”

On the Political Question Doctrine

Mobarez v. Kerry, 187 F. Supp. 3d 85 (D.D.C. 2016)

In Mobarez, Jackson considered the interplay between foreign relations cases and the justiciability doctrines. The case concerned U.S. citizens and permanent residents with Yemeni connections who filed an official capacity complaint to compel the secretaries of state and defense to “comply with the alleged duty of the executive branch to provide means of evacuation from Yemen for them or their relatives.” In considering the government’s motion to dismiss, Jackson was clear that “there is no per se ‘foreign policy’ rule—i.e., a claim is not nonjusticiable simply and solely because it ‘implicates foreign relations.’” She continued that as long as the federal courts are not being asked to “supplant a foreign policy decision of the political branches with the courts’ own unmoored determination,” and are instead “merely tasked” with “determining how a statute should be interpreted or whether it is constitutional,” cases are justiciable and do not run afoul of the political question doctrine.

Nevertheless, Jackson found the claims nonjusticiable. She concluded:

The bottom line is this: while the mere fact that a case touches upon foreign relations does not render a claim nonjusticiable, the claims Plaintiffs bring in this case go far beyond a mere nexus with the foreign-policy realm …. Plaintiffs are effectively asking this Court to decide whether the Executive Branch should have exercised its discretion to undertake a complex military operation in order to effect an evacuation in a foreign, war-torn country. … Therefore, on its face, Plaintiffs’ complaint plainly raises a nonjusticiable political question.

On the Freedom of Information Act (FOIA)

Campaign for Accountability v. U.S. Department of Justice, 278 F. Supp. 3d 303 (D.D.C. 2017) (“Campaign for Accountability I”) and Campaign for Accountability v. U.S. Department of Justice, 486 F. Supp. 3d 424 (D.D.C. 2020) (“Campaign for Accountability II”) 

In Campaign for Accountability I, Jackson found that some—not none, but not all—of the Office of Legal Counsel’s (OLC’s) written opinions must be affirmatively disclosed, pursuant to the Freedom of Information Act’s (FOIA’s) reading-room provision. This provision seeks to eliminate secret law by requiring Congress to openly disclose documents having legal force to the public, without a request. 

In Campaign for Accountability II, Jackson held that the OLC is required to affirmatively disclose OLC opinions that resolve interagency disputes under FOIA’s reading-room provision. However, Jackson denied three types of affirmative disclosure obligations—OLC opinions interpreting agency nondiscretionary legal obligations, OLC opinions that find certain statutes unconstitutional and thus agencies are not required to comply with them, and OLC opinions related to adjudicating or determining private rights and obligations—because unlike opinions resolving interagency disputes, these three are not final opinions adjudicating cases or statements of policy adopted by the agency. 

Brick v. United States Department of Justice, 358 F. Supp. 3d 37 (D.D.C. 2019) 

In Brick v. United States Department of Justice, a case regarding a FOIA request for FBI records of former First Lady Eleanor Roosevelt, Jackson denied the request for the release of 12 redacted pages covering Roosevelt’s travel to the Soviet Union and her activities there including interactions with Soviet U.N. personnel. While Jackson recognized the “unfairness” of allowing ex parte justifications because they put FOIA plaintiffs “at a distinct disadvantage,” Jackson nevertheless found the FBI had proved “extensive public justification would threaten to reveal the very information for which a FOIA exemption is claimed” during in camera review and therefore allowed the FBI’s ex parte justifications for the redactions. Jackson held that two FOIA exemptions applied to the redacted pages: first, that another statute prohibited disclosure of the information, and second, that the records had been compiled for law enforcement purposes. 

Unrow Human Rights Impact Litigation Clinic v. U.S. Department of State, 134 F. Supp. 3d 263 (D.D.C. 2015)

Jackson considered a case involving FOIA Exemption 1, which protects from disclosure of classified national security information. The plaintiff’s request in Unrow Human Rights Impact Litigation Clinic v. U.S. Department of State related to a document that had been partially published in the Guardian as part of a WikiLeaks disclosure. Jackson held that the document pertained to national defense or foreign policy and that the government had established that disclosure could be harmful because of its potential to chill U.S.-British relations. She further held that notwithstanding the fact that the document was partially published by the press, the plaintiff had not adequately established that “the specific information sought … [is] already … in the public domain by official disclosure.” 

Judicial Watch, Inc. v. Central Intelligence Agency, 310 F. Supp. 3d 34 (D.D.C. 2018)

In Judicial Watch, Inc. v. Central Intelligence Agency, Jackson denied a plaintiff’s claim against the CIA seeking FOIA disclosure of pornographic materials discovered by the U.S. military during the raid of Osama bin Laden’s compound after his death. The CIA argued that the files were exempt from FOIA because of the operational files exemption. The plaintiff argued that even if the materials are operational files, the operational files exemption does not apply because the CIA raid is a “special activity” under the CIA Information Act. Jackson held that even if the CIA raid was a “special activity,” the pornographic materials are not “information concerning” the special activity, so FOIA’s operational files exception applies. 

Neuman v. United States, 227 F. Supp. 3d 86 (D.D.C. 2015)

In Neuman v. United States, the plaintiff filed a FOIA request with the Department of Justice and U.S. Immigrations and Customs Enforcement (ICE) for investigation records gathered by ICE pertaining to the plaintiff’s 2009 conviction. The plaintiff contends that ICE officials unlawfully withheld exculpatory evidence in 25 redacted documents. Jackson found that the court did “not have sufficient information to rule on the propriety of” the defendants’ claim that FOIA’s personal privacy exemption applies, so Jackson allowed the defendants to submit further materials for in camera review. During in camera review, Jackson found that the Justice Department and ICE did release all documents relevant to the plaintiff’s FOIA request, citing a presumption of good faith for the government, especially when the plaintiff had not provided any contrary information.

Electronic Privacy Information Center v. Department of Justice, 15 F. Supp. 3d 32 (D.D.C. 2014) (“EPIC I”) and Electronic Privacy Information Center v. Department of Justice, No. 13-CV-1961 (KBJ), 2016 WL 447426 (D.D.C. Feb. 4, 2016) (“EPIC II”) and Electronic Privacy Information Center v. Department of Justice, 296 F. Supp. 3d 109 (D.D.C. 2017) (“EPIC III”)

The Electronic Privacy Information Center (EPIC) sued the Justice Department, seeking a preliminary injunction to compel FOIA request for documents related to the Foreign Intelligence Surveillance Act’s (FISA’s) national security program’s secretive use of pen register and trap and trace devices to collect communication information. Jackson issued three decisions related to the matter. 

In EPIC I, Jackson rejected the plaintiff’s motion for a preliminary injunction to compel disclosure of the documents, which EPIC based on the Justice Department’s failure to respond within FOIA’s non-expedited 20 days requirement. Jackson found that EPIC had not successfully demonstrated that it would suffer irreparable harm without the injunction, and, while there is some public interest for the records requested, EPIC had not sufficiently argued that the Justice Department was acting in bad faith. 

In cross-motions for summary judgment, EPIC II considered whether the government had improperly withheld documents regarding FISA’s pen register and trap and trace devices. Jackson found the government’s declarations insufficient in particularity to determine whether FOIA exemptions were justified and requested additional declarations for in camera review. 

Finally, in EPIC III, Jackson narrowly held that the classified documents were properly withheld as FOIA Exemption 3 because the information is potentially harmful if disclosed. However, Jackson found issue with three redactions that the Department of Justice categorized as undisputed, and requested the department submit supplemental declarations to remedy these issues.

Bigwood v. U.S. Department of Defense, 132 F. Supp. 3d 124, 137 (D.D.C. 2015) 

The plaintiff in Bigwood v. U.S. Department of Defense, a freelance journalist, sued the Department of Defense’s Southern Command and the CIA for failing to adequately respond to his FOIA request concerning the 2009 Honduran coup d’état. Magistrate Judge G. Michael Harvey heard the defendants’ motion for summary judgment and the plaintiff’s motion to file a sur-reply, and issued a Report and Recommendation. Jackson adopted Harvey’s Report and Recommendation in full, granting defendants’ summary judgment and holding that the defendants properly invoked FOIA exemptions for secret records under executive order and records for law enforcement purposes, while releasing “all reasonably segregable non-exempt information.”

On Military Law

Watervale Marine Co., Ltd. v. U.S. Department of Homeland Security, 55 F. Supp. 3d 124 (D.D.C. 2014)

In Watervale Marine Co., Ltd. v. U.S. Department of Homeland Security, Jackson considered the justiciability of the U.S. Coast Guard’s decision to impose nonfinancial conditions for the release of a vessel that violated federal and international environmental law. The defendant argued that the Coast Guard lacked statutory authority to impose such conditions. The Coast Guard countered that the decision was “committed to agency discretion by law.” In her opinion, Jackson first found that although the Coast Guard’s decision was not nonjusticiable “by nature,” because it did not relate to international law or foreign policy, the matter was nonjusticiable on statutory grounds—specifically because the statute authorizing the Coast Guard’s action did not “provide any standards for th[e] Court to apply when evaluating the Coast Guard’s decision.”

Sickle v. Torres Advanced Enterprise Solutions, LLC, 17 F. Supp. 3d 10 (D.D.C. 2013), aff’d and remanded, 653 F. App’x 763 (D.C. Cir. 2016), and aff’d in part, rev’d in part and remanded, 884 F.3d 338 (D.C. Cir. 2018)

Jackson evaluated justiciability again in considering the claims of two former military defense contractors, who argued in Sickle v. Torres Advanced Enterprise Solutions that the defendant discharged them discriminately and retaliatory in violation of the Defense Base Act and common law. Jackson upheld the defendant’s motion to dismiss. First, Jackson held that the court couldn’t hear the Defense Base Act claim because the petitioners failed to “first exhaust[] administrative remedies.” Jackson further held that the petitioners’ common law claims were nonjusticiable because they were expressly preempted by the Defense Base Act, the field preemption doctrine and the conflict preemption doctrine.

The U.S. Court of Appeals for the D.C. Circuit affirmed in part and reversed in part in 2016 and again in 2018. In 2016, the court dismissed the plaintiffs’ claims to abide by the new case of Brink v. Continental Insurance Co., which required the plaintiffs to exhaust the necessary administrative remedies. 

In 2018, the D.C. Circuit reheard the case regarding preemption, and the court disagreed with Jackson’s understanding of the Base Act and Longshore Act as jurisdictional or merit based, instead concluding that “preemption under the Base Act and Longshore Act speaks to the legal viability of a plaintiff’s claim, not the power of the court to act.” The D.C. Circuit therefore found the plaintiffs’ claims were not automatically preempted. 

On Habeas Corpus

Han v. Lynch, 223 F. Supp. 3d 95 (D.D.C. 2016)

In Han v. Lynch, Jackson considered the petitioner’s habeas corpus claim that he was improperly detained, first under preindictment detention in the District of Columbia for violating international environmental law and later under constructive detention in Hawaii because of a separate criminal proceeding. Jackson first held that the petitioner’s preindictment detention was moot and nonjusticiable because the detention had ended and there was “no reasonable expectation” that the petitioner would be “subjected to the same harm.” Jackson then held that the constructive detention in Hawaii was also nonjusticiable because the court lacked personal jurisdiction over the petitioner in that matter.

Custis v. CIA, 118 F. Supp. 3d 252 (D.D.C. 2015)

In Custis v. CIA, the petitioner argued that the CIA put her into a “virtue prison” by “surgically implant[ing] GPS technology” into her skull. Jackson refused to hear the petitioner’s claim because this argument was “patently insubstantial” and therefore the court lacked subject matter jurisdiction. 

On Forum Non Conveniens

In re Air Crash Over S. Indian Ocean, 352 F. Supp. 3d 19 (D.D.C. 2018), aff’d sub nom. In re Air Crash over the S. Indian Ocean on Mar. 8, 2014, 946 F.3d 607 (D.C. Cir. 2020)

In a relatively straightforward application of the forum non conveniens factors, Jackson held that the multidistrict litigation over the disappearance of Malaysian Airlines flight MH370 in 2014 should not be held in U.S. courts. Jackson reached this conclusion after noting the accident’s location near Malaysia and the long investigation by Malaysian authorities. These factors established beyond a doubt the nexus between the incident and Malaysia, notwithstanding the interests of many other countries in the case. Trial in the United States was held to be inconvenient, and the case was dismissed.

 On Privacy

Austin-Spearman v. AARP & AARP Servs. Inc., 119 F. Supp. 3d 1 (D.D.C. 2015)

In Austin-Spearman v. AARP & AARP Servs. Inc., Jackson dealt with a class-action challenging a website’s practice of sharing personally identifiable information with third parties. The petitioners purchased membership to the website, and they argued that the website’s practice breached their contracts and violated the District of Columbia Consumer Protection Procedures Act. Jackson held that the petitioners lacked standing to sue because they did not suffer an injury as the website had not actually violated its privacy policy. Jackson further reasoned that even if the privacy policy had been violated, the petitioners still lacked standing because they had not suffered an economic injury and thus suffered no injury-in-fact; the website’s privacy policy does not “rise to the level of binding contractual obligations” because it was offered to all website users regardless of whether they purchased membership.


https://www.lawfareblog.com/judge-ketanji-brown-jackson-national-security-law-readers-guide

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