of war is no convict; his imprisonment is a simple war measure.’ ” 542 U.S. at 518, 124 S.Ct. 2633 (quoting W. Winthrop, Military Law and Precedents 788 (rev.2d ed.1920)) (other internal quotation marks and alterations omitted). 173 . Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 415, 123 S.Ct. 2374, 156 L.Ed.2d 376 (2003) (internal quotation marks omitted). 174 . Olegario v. United States, 629 F.2d 204, 233 (2d Cir.1980). 175 . Dames & Moore v. Regan, 453 U.S. 654, 678, 101 S.Ct. 2972, 69 L.Ed.2d 918 (1981). 176 . Haig v. Agee, 453 U.S. 280, 292, 101 S.Ct. 2766, 69 L.Ed.2d 640 (1981) (emphasis and internal quotation marks omitted). 177 . Clapper, 133 S.Ct. at 1149 (emphasis in original). 178 . See Abuelhawa v. United States, 556 U.S. 816, 823 n. 3, 129 S.Ct. 2102, 173 L.Ed.2d 982 (2009) (<HOLDING>). 179 . U.S. Const, art. II, § 3; accord United
holding that assumption of the risk is not an available defense for civil battery holding that exercise of prosecutorial discretion was not subject to judicial review absent a constitutional claim or question of law holding that the faas action in this case was  analogous to an exercise of prosecutorial discretion  and noting that when prosecutorial discretion is at issue the matter is presumptively committed to agency discretion by law recognizing that congress legislates against a background assumption of prosecutorial discretion recognizing primary assumption of risk as a viable doctrine