*Forthcoming Scholarship
Paul A. Diller
Willamette University College of Law
University of Chicago Law Review, Forthcoming
Although the Constitution’s Suspension Clause explicitly mentions the writ of habeas corpus, it does not require that Congress make the writ available in its common-law form at all times. Rather, the Clause has long been understood to permit Congress to replace the writ with an alternative procedure so long as that remedy is an adequate and effective substitute for habeas corpus. Under this functional view of the Suspension Clause, Congress might delegate responsibility for performing the habeas review function to an entity other than an Article III court, so long as the substitute procedure allows a detainee to challenge the lawfulness of his detention fairly and effectively. Because, at its core, habeas is concerned with checking arbitrary executive detention, however, this article argues that any delegation of the habeas review function to a non-Article III entity must conform to the dictates of the nondelegation doctrine. To delegate the authority for designing the procedures used to challenge executive detention to the very executive responsible for detention would defeat the purpose of the Clause. In Boumediene v. Bush, the Supreme Court cast doubt on its prior functional jurisprudence regarding the Suspension Clause. In particular, the Court expressed hostility toward any substitute for habeas corpus that did not rely exclusively on an Article III Court. This article criticizes the Court’s approach in Boumediene, and demonstrates how it threatens the functional view of the Suspension Clause the Court had previously embraced. At the same time, this article explains how and why nondelegation concerns justified the result in Boumediene. In particular, by relying so heavily on an executive-designed scheme – the Combatant Status Review Tribunals – Congress’s substitute for habeas delegated excessive authority to the executive to perform the habeas review function. For that reason, Congress’s attempt to eliminate access to the writ for Guantánamo detainees through the Military Commissions Act of 2006 violated the Suspension Clause when read in conjunction with the nondelegation doctrine. A decision grounded more in nondelegation than in the absolutist conception of the Suspension Clause espoused by the Boumediene majority would have preserved more flexibility for the political branches to design a system for detaining terrorist suspects in the future.
“Prosecutorial Power and the Legitimacy of the Military Justice System”
Note, Harvard Law Review
In the American criminal justice system, the prosecutor is a uniquely powerful individual.1 Due to the huge number of prosecutable crimes, he has vast discretion in bringing and dismissing charges, negotiating plea bargains, trying cases, and recommending sentences. Because of these great powers, a prosecutor has a duty beyond that of an ordinary advocate in an adversarial legal system.2 The legal rules establishing this regime of great prosecutorial discretion evolved in response to a vast number of concerns both within and outside the criminal justice system, including racism, economic inequality, and the need for administrative efficiency. As a result of this variety of motivating principles, the structure of prosecutorial power in the civilian criminal justice system lacks a coherent underlying principle; instead, it struggles to accommodate many contributing forces. Prosecutorial discretion is similarly broad in the military justice system, where it is wielded by a senior commander who faces many of the same issues as civilian prosecutors. However, military justice is a distinct legal system outlined by the Uniform Code of Military Justice3 (UCMJ). As it has emerged since the mid–twentieth century, this system has largely developed around the concern that the system appear fair and legitimate. The rules controlling military prosecutorial power reflect and coalesce around this concern. Consequently, the structure of military prosecutorial power strongly manifests the value placed on perceived legitimacy. The coherence of the military rules demonstrates the value of a system of justice that is consciously designed according to a limited number of fixed principles.
Part II of this Note explains the development of the modern civilian and military criminal justice systems. Part III briefly assesses the notion of legitimacy in criminal justice. Parts IV and V then analyze two aspects of the process of criminal adjudication — charging discretion and guilty pleas — and consider the effects of different civilian and military procedures on the perceived legitimacy of the two systems. Part IV argues that by situating the authority to choose which defendants to prosecute at a higher level and requiring a thorough adversarial investigation before felony proceedings, the military justice system increases the accountability and perceived legitimacy of charging decisions. Part V argues that heightened scrutiny of guilty pleas, higher-level control of plea bargaining, and substantive limitations on the scope of plea bargains produce a military system that projects a higher value for accuracy and procedural fairness. Part VI concludes that the manifestation of the military justice system’s institutional value for legitimacy in the structure of prosecutorial power stems from the conscious design of the system with legitimacy as a core concern.
“A New Era of Openness? Disclosing Intelligence to Congress Under Obama”
Constitutional Commentary, Vol. 26, No. 3, 2010
Washington U. School of Law Working Paper No. 10-02-01
KATHLEEN CLARK, Washington University School of Law
Email: KATHLEEN
As a candidate, Barack Obama promised “a new era of openness,” and his administration has taken some significant steps to increase transparency in the executive branch. But it has also continued the Bush administration’s policy of invoking the state secrets privilege to avoid judicial scrutiny of controversial warrantless surveillance and torture programs. Many commentators have noted the parallels between the Bush and Obama policies on disclosing sensitive information to courts, but they have paid little attention to how the Obama administration compares with the Bush administration in disclosing sensitive information to Congress.
This essay fills that gap, and looks in detail at the Bush and Obama administration responses to legislative proposals for expanding intelligence disclosures to Congress. It reviews both the Bush and Obama administration positions on legislation that would require intelligence disclosure to Congress, and finds that there are substantial similarities – though not identity – between the Bush and Obama administrations. Both administrations have opposed disclosure of covert actions to the full intelligence committees as well as mandated disclosure of internal executive branch legal advice. On these most sensitive intelligence issues, we will see increased disclosure to Congress only over the objection of President Barack Obama.
Ronald Sievert, George H.W. Bush School of Government, Texas A&M University; Adjunct Professor University of Texas School of Law
7 Rutgers Journal of Law and Public Policy 35
The author details the intense legal criticism of the Bush administration’s national security law policies and notes that the charges that they constituted an “assault on civil liberties” may be a lasting Bush legacy. He argues that a detached post administration legal review of the government’s most controversial policies, however, leads one to a dramatically different conclusion as to the fundamental Constitutionality of the government’s actions. Specifically, as examples, he points out that the appellate courts have not overruled major portions of the Patriot Act, the Obama administration has not proposed any significant changes in this legislation, Obama’s Detainee Policy Task Force has acknowledged military commissions have a long tradition in the United States and may be utilized on a case by case basis in trying Al Qaeda combatants, and the Supreme Court’s recent opinion in Ashcroft v. Iqbal found that the FBI’s country of origin profiling that disparately impacted Arabs and Muslims after 9/11 was not purposeful,invidious, illegal discrimination. The FISA Appellate Court’s decision in In Re Sealed Case even suggested that the President’s use of the NSA to intercept AL Qaeda without FISA authorization may have been proper because Congress’s FISA statute “could not encroach on the President’s constitutional power” to monitor enemy communications. Finally, the author notes that the Supreme Court’s 5-4 decisions in Hamdan (2006) and Boumediene (2008), despite their often strained efforts at distinguishing prior cases, essentially reversed on policy grounds the established Constitutional precedents of Johnson v. Eisenstrager and Ex parte Quirin. These earlier cases provided a solid Constitutional framework between 2001 and 2006 for Bush administration decisions on civilian habeas appeals for enemy combatants and military commissions.
Washington University Law Review, Forthcoming
DAKOTA S. RUDESILL, Georgetown University Law Center
Email: dakota.rudesill
Most federal law today is statutory or rooted in statutes, which are created through a complicated process best understood through work experience inside legislatures. This article demonstrates that America’s most influential lawyers are not getting it.
My new empirical analysis of the work experience of the top 500 lawyers nationwide as ranked by Lawdragon.com finds that work experience in legislative bodies is dramatically less common among the profession’s leaders than is formative work experience in courts, government executive agencies, private practice, and academe. This article continues the empirical study of the professional experience of the legal profession’s elite published in 2008 in the Washington University Law Review’s online scholarly publication, Slip Opinions.
Here, I elaborate upon my argument that this legislative experience gap is bad both for the profession and for Congress and argue for a congressional clerkship program as a first corrective step. Such a program would be analogous to the clerkship program of the judiciary and legal apprenticeships offered by executive branch agencies, the private sector, and academe. Over time, by sending its rising stars to clerk for Congress, I suggest that the profession would come to a better understanding of the virtues of legislative solutions to problems of law and policy, and a more balanced constitutional perspective. After refuting potential objections, I close by urging the Senate to approve House-passed legislation (H.R. 151 / S. 27) that would create such a program this year.
U of Penn Law School, Public Law Research Paper No. 10-03
Rutgers School of Law-Newark Research Papers No. 64
PAUL H. ROBINSON, University of Pennsylvania Law School
Email: phr
ADIL AHMAD HAQUE, Rutgers, The State University of New Jersey – School of Law-Newark
Email: adil.haque
Current international law imposes limitations on the use of force to defend against unlawful aggression that improperly advantage unlawful aggressors and disadvantage their victims. The Article gives examples of such rules, governing a variety of situations, showing how clearly unjust they can be. No domestic criminal law system would tolerate their use.
There are good practical reasons why international law should care that its rules are perceived as unjust. Given the lack of an effective international law enforcement mechanism, compliance depends to a large degree upon the moral authority with which international law speaks. Compliance is less likely when its rules are perceived as obviously unjust. This common sense perspective is supported by social science research showing the importance of law’s moral credibility in gaining assistance and compliance, in reducing resistance and subversion, and in helping to shape shared norms. The current practice of victim states’ ignoring the legal limitations, with studied indifference to such “violations” by the international community, only legitimizes and habituates law-breaking, further undermining international law’s moral credibility.
Interpretations of international law can be constructed that would narrow the gap between the legal rules and moral intuitions regarding the use of defensive force. Such revisionist interpretations may be a useful temporary measure, but are not a solution, because the gap between law and justice can be narrowed but not closed by reinterpretation alone. Ultimately, reform is required of international law’s foundational texts, in particular Article 51 of the U.N. Charter.
International law limitations on responses to aggression are also improper for reasons beyond their conflict with the principles of justice instantiated in domestic criminal law. International law and domestic criminal law are importantly different. Most fundamentally, international law lacks an effective law enforcement system. In order to effectively control unlawful aggression, international law needs to have fewer limitations on responses to aggression, not more. A series of examples of such improper limitations are given. They have the unfortunate effect of promoting aggression and instability by undermining effective deterrence. Again, there exist possible reinterpretations of international law that could avoid some of the improper limitations but, ultimately, a reform of international law’s foundational texts is required.
Opportunities for reform of international law are rare, but luckily the Assembly of State Parties to the International Criminal Court is currently developing an amendment to the Rome Statute that identifies the crimes over which the Court has jurisdiction. Tragically, rather than taking this opportunity to confront international law’s existing problems, the current Draft Amendment compounds those problems by imposing individual criminal liability on leaders of victim states who authorize defensive force against unlawful aggression in violation flawed current law.
“Cyberwarfare and the Use of Force Giving Rise to the Right of Self-Defense”
Boston College International and Comparative Law Review, Vol. 32, p. 439, 2009
MATTHEW HOISINGTON, affiliation not provided to SSRN
Email: hoisingm
Cyberwarfare represents a novel weapon that has the potential to alter the way state and non-state actors conduct modern war. The unique nature of the threat and the ability for cyberwar practioners to inflict injury, death, and physical destruction via cyberspace strains traditional definitions of the use of force. In order to clearly delineate the rights of the parties involved, including the right to self-defense, the international community must come to some consensus on the meaning of cyber-warfare within the existing jus ad bellum paradigm. After examining the shortcomings inherent in classifying cyber-attacks according to classical notions of kinetic warfare, this Comment argues that international law should afford protection for states who initiate a good-faith response to a cyber-attack, especially when the attack targets critical national infrastructure.