Virginia Law Review, Vol. 96, No. 6, 2010
Northwestern Public Law Research Paper No. 10-11
MARTIN H. REDISH, Northwestern University – School of Law
Email: m-redish
COLLEEN MCNAMARA, Northwestern University – School of Law
Email: C-McNamara2011
Ever since the attacks of September 11, 2001, constitutional scholars have been exploring the controversial issues surrounding the so-called “Emergency Constitution.” One of the very few provisions of the Constitution that explicitly contemplates such emergency situations is Article I, section 9, concerning the writ of habeas corpus. That provision prohibits suspension of the “Great Writ,” except “when in cases of rebellion or invasion the public safety may require it.”
The writ of habeas corpus has long stood as the primary weapon against the development of tyranny. It enables a court to demand that the executive produce individuals it is detaining and explain the lawful basis for that detention, and to order the detainees’ release if it finds the confinement to be unlawful. Absent the availability of habeas corpus, there would exist no legal means of preventing those in power from arresting any individual they want, for as long as they want, regardless of the legitimacy of the arrest. Yet pursuant to the so-called Suspension Clause, in times of rebellion or invasion the government is authorized to suspend the writ.
Highly respected scholars have recently engaged in an intense debate over the meaning and implications of the Suspension Clause. All of them, however, have seriously missed the mark, because all have assumed the continuing validity of that Clause. In this Article, we argue that the Due Process Clause of the Fifth Amendment effectively repeals the Suspension Clause. We reach this conclusion for two reasons: first, the Suspension Clause indisputably authorizes summary detention without the availability of any form of hearing before a neutral adjudicator.
Whatever “due process” means at its outer fringes, there is no doubt that such a practice deprives an individual of liberty without due process of law. Yet the Due Process Clause, on its face, is unlimited in its application; it contemplates no exceptions, when an individual is to be deprived of life, liberty or property. Thus, purely as a matter of textual construction, the Due Process Clause, contained in an amendment, supersedes the Suspension Clause, which appears in the body of the Constitution. Moreover, it is important to recognize that the Suspension Clause authorizes tyrannical practices wholly inconsistent with and undermining of foundational precepts of American Constitutionalism. This concept dictates a governmental commitment to the rule of law and to limited governmental authority over its citizens. The Due Process Clause should be deemed to protect these core values. After establishing the supremacy of the Due Process Clause, the Article carefully explores the manner in which the Due Process Clause should be found to limit coercive governmental authority in times of national crisis.
“Detention, the War on Terror, and the Federal Courts”
Columbia Law Review, Vol. 110, p. 579, 2010
JUDITH RESNIK, Yale University – Law School
Email: judith.resnik
Between 2004 and 2009, the United States Supreme Court relied numerous times on habeas corpus to protect the rights of citizens and of aliens detained after 9/11. Various claims could be marshaled to bracket the 9/11 decisions — as “war” cases; “Guantánamo” cases; “torture” cases; aberrational responses to documented procedural unfairness; unusual instances of federal pretrial detention; and either as extraordinary judicial rejections of challenges to the Court’s authority or as disappointingly narrow procedural remedies licensing forms of preventive detention. Further, one could argue that the specter of terrorism raises normative questions distinct from those related to confinement for other reasons.
But neither the problems nor the law produced through 9/11 detention are exotic. Rather, they are continuous with judicial responses to decisions by governments trying to maintain peace and security and, hence, incapacitating some individuals feared likely to inflict grave harm. Officials deal with uncertainty about which persons are threatening in the contexts of 9/11, of ordinary criminality, and of border regulation. In response, more than two million persons are detained in the United States, and some 25,000 segregated in solitary confinement in “supermax” facilities. Courts in turn have, over the last several decades, addressed or demurred on claims about the illegality of both the length and conditions of confinement, and Congress has repeatedly sought to structure or limit routes that various kinds of detainees may take to court.
Therefore, the 9/11 decisions are exemplary of what Henry Monaghan termed the “timeless” questions within the federal courts canon about the role of courts in this constitutional order. One sees, repeatedly, the many effects of “foreign” law on U.S. precepts, as well as the distinctive contributions made by courts, obliged to function independently, to treat all persons as equally entitled to dignity, and to work in public. But the limited role for courts is also vivid; even as adjudication can frame some parameters of confinement, the protection of human dignity depends on a diverse set of officials interacting at all levels and in all sectors of government.
The Legal Regime Governing Transfer of Persons in the Fight Against Terrorism
Margaret L. Satterthwaite
New York University – School of Law
COUNTER-TERRORISM AND INTERNATIONAL LAW: MEETING THE CHALLENGES, van den Herik & Schrijver, eds., 2010
NYU School of Law, Public Law Research Paper No. 10-27
Abstract:
The practice of rendition – the involuntary transfer of an individual across borders without recourse to extradition or deportation proceedings – is not new. Indeed, the practice has been used by governments for more than a century. Famous renditions include that of Nazi war criminal Adolf Eichmann from Argentina to Israel, and terrorist Carlos “the Jackal” (Ilich Ramirez Sanchez) from Sudan to France. Although such renditions have been controversial in human rights circles, they have been celebrated by many as crucial in the fight against impunity for grave crimes and are sometimes called “rendition to justice.”
The administration of former U.S. President George W. Bush was criticized for the new practice of “extraordinary rendition” – the transfer of suspects to countries known for the systematic use of torture. U.S. officials at the time defended the practice, relying on justifications developed to support “rendition to justice” and arguing that the practice was legal. Despite these justifications, international human rights bodies and intergovernmental bodies have determined that the extraordinary form of rendition is unlawful under human rights law. Although individuals have faced significant legal hurdles in fighting the practice in the U.S. legal system (most prominently in the form of the state secrets doctrine), there is little doubt among international law experts that extraordinary rendition is prohibited. Despite this clear consensus, there is no similar agreement concerning the practice of informal transfers – renditions of the non-“extraordinary” kind – more generally in the context of counter-terrorism efforts.
This article fills the void in the literature by examining the legal norms governing such transfers and setting out a minimum standard that must be upheld whenever a state transfers an individual. As a threshold matter, formal processes for transfer may not be intentionally bypassed and the transferring state must have a valid legal basis for apprehending the individual in contemplation of transfer. Substantive rules protect individuals against transfer to a real risk of: torture or cruel, inhuman or degrading treatment; persecution; enforced disappearance; or arbitrary deprivation of life. Procedural rules guarantee the individual the ability to challenge the basis for his or her apprehension/detention in advance of transfer before an independent decision-maker on the grounds provided for in international law. Where diplomatic assurances are used, they must be accompanied by rigorous safeguards including judicial review and effective post-return monitoring by the transferring state.
“National Security and the Article II Shell Game”
Constitutional Commentary, Vol. 26, 2010
Minnesota Legal Studies Research Paper No. 10-19
HEIDI KITROSSER, University of Minnesota – Twin Cities – School of Law
Email: hdk
This essay considers the important but under-explored link between politics and constitutional interpretation in the realm of national security. The school of constitutional interpretation at which it looks is “presidential exclusivity,” which has gone from relative obscurity to prominence in the political branches and in public debate over the past several decades. Exclusivists deem the President to have substantial discretion under Article II of the Constitution to override statutory limits that he believes interfere with his ability to protect national security. The first question that this essay takes up is why exclusivity has come so far over the past several decades in the political branches and why it has demonstrated appeal and staying power across parties. It concludes that exclusivity by and large is consistent with the post – World War II political incentives of legislators and Presidents alike, enabling them to associate themselves with the iconic image of a tough President and to situate their allegiance to that image in a larger narrative of keeping faith with the rule of law. The second question that this essay considers is how exclusivity manifests itself in the political branches. In this respect, the essay explains, among other things, that the combined effect of exclusivity’s many active and passive uses is that of an elaborate shell game. In this “Article II shell game,” accountability is the palmed object and potential accountability mechanisms are the shells. If the game is well played, the public will often be told that accountability does not lie under one shell for exclusivist reasons, but that it may lie under the next shell, only for the process to repeat ad infinitum.
“On a Differential Law of War”
GABRIELLA BLUM, Harvard Law School
Email: gblum
Should the United States, as the strongest military power in the world, be bound by stricter humanitarian constraints than its weaker adversaries? Would holding the U.S. to higher standards than the Taliban, Iraqi insurgents, or the North Korean army yield an overall greater humanitarian welfare or be otherwise justified on the basis of international justice theories? Or would it instead be an unjustifiable attempt to curb American power, a form of dangerous “lawfare”?
The paper offers an analytical framework through which to examine these questions. It draws on the design of international trade and climate agreements, where obligations have been linked to capabilities through the principle of Common-but-Differentiated Responsibilities (CDRs), and inquires whether the justifications that have been offered for CDRs in these other regimes are transposable to the laws of war. More broadly, the framework tests the extent to which war can and should be equated to other phenomena of international relations or whether it is a unique context that resists foreign analogies.
Rather than offering a definitive answer, the inquiry illuminates the types of judgments and predictions that one must hold in order to have a position on the desirability of CDRs in international humanitarian law, most notably, the degree to which weaker adversaries will be prone to abusing further constraints on stronger enemies, the expected effects of CDRs on the propensity to go to war, who on the enemy’s side is the “enemy,” and what are the duties that are owed to one’s enemies.
“Legality of Lethality: Paradigm Choice and Targeted Killings in Counterterrorism Operations”
George Washington University Legal Studies Research Paper
George Washington University Law School Public Law Research Paper
ADAM ROSS PEARLMAN, The George Washington University Law School
Email: arpearlman
Since 9/11, academics and government officials alike have debated whether counterterrorism efforts fit into the laws of war, or are instead criminal law enforcement endeavors. Each legal paradigm, in addition to the authorities granted to the intelligence community, brings with it specific powers and limitations. This paper briefly surveys the legal authorities and implications for the targeted killings of terror suspects within each paradigm: the law of armed conflict, criminal law, and covert action, and argues for the justification of the practice within each. It is not meant to be an exhaustive analysis, but rather serves to raise the key legal issues involved, and concludes by pointing out the policy aspects that ultimately drive whether and how we continue the practice.
“Remodeling the Classified Information Procedures Act (CIPA)”
William Mitchell Legal Studies Research Paper No. 2010-09
Cardozo Law Review, Forthcoming
AFSHEEN JOHN RADSAN, William Mitchell College of Law
Email: jradsan
The intelligence community and the law enforcement sector are supposed to be working closely to keep us all safe from terrorists and other dangers. The benefits of this cooperation should not be frittered away by unnecessary burdens in trying suspected terrorists in civilian courts. If the executive branch is to be kept away from the dark side of counterterrorism, the courts, Congress, or a combination of the two should modernize their approach to alignment, to Section 6 of Classified Information Procedures Act, and to closed portions of trials.
First, a prosecutor’s discovery obligations should apply to the intelligence community only when spymasters have most actively participated in the investigation. When defining “most actively” and in determining who falls within the prosecution unit, all three branches of government should err toward non-alignment. The recent creep toward conceding alignment on all cases since 9/11 should stop.
Second, courts should be less inclined to admit top-secret information into trial than information at a lower level of classification. The more sensitive the information, the more leeway courts should give prosecutors in proposing substitutions and summaries. The common sense that probably fills the gaps of CIPA practice, squeezing around cases and the statute, should be formalized by an update of CIPA.
Third, it should be possible to close portions of trials to all but the judge, jury, and the parties to the case when especially sensitive information is being presented. These limited closures will allow courts, as a compensating benefit, to lean toward defendants on Section 6 decisions as to the use of classified information at trial. By this compensation, the either/or of full disclosure versus complete suppression is traded for a range of options.
CIPA is showing its age. Even so, because its foundation is solid, it does not require a tear down as much as a remodeling. In at least three areas – alignment, Section 6, and closed portions of trials – our nation deserves a better resolution between the conflicting interests of prosecutors and spymasters.
Subcommittee on National Security and Foreign Affairs, Committee on Oversight and Government Reform, US House of Representatives, Subcommittee Hearing, March 2010
KENNETH ANDERSON, Washington College of Law, American University, Stanford University – The Hoover Institution on War, Revolution and Peace
Email: kanders
This document is written testimony submitted to the Subcommittee on National Security and Foreign Affairs, for a hearing under the general title of “Rise of the Drones: Unmanned Systems and the Future of War.” The hearing covered military, strategic, technological, and economic issues related to unmanned aerial vehicles in military, intelligence, and civilian commercial use. This written testimony addressed certain international law and legal policy issues raised by the use of drones as a means of projecting force. It is primarily addressed to the question of the CIA campaign of drone attacks in Pakistan and beyond, rather than the use of drones as an alternative form of air support on active battlefields in, for example, Afghanistan.
The testimony defends the lawfulness of the CIA campaign of drone strikes in Pakistan and beyond, arguing that they are lawful under doctrines of self defense, and that this legal justification protects this activity even outside of their use by regular military on conventional battlefields. The testimony argues, however, that whatever legal issues are unique to drone warfare, the most important issue facing the United States over their use at this time is not drone technology as such, but instead whether, and on what grounds, their use is lawful by the civilian clandestine service, the CIA. Drone technology in effect forces onto the table serious discussion of the lawful and proper role of the CIA.
The President has tasked the CIA with the mission that it currently carries out in Pakistan – essentially, drone strikes against militants and suspected or known terrorists, but using the CIA rather than the military presumably in order to be able to preserve the formal denial that US military forces are operating inside Pakistan. The question that critics increasingly raise is whether this activity by the CIA is lawful, and in addition the standing questions about drone warfare – is it extrajudicial execution, are there obligations to seek to capture rather than kill, and others. The Obama administration has embraced the drone strategy – and in particular, it has embraced the CIA campaign because it is, as senior US leaders have said repeatedly, the only way to strike directly at the terrorists and their leadership and seek to deny them safe havens.
This testimony argues that the US government drone program through the CIA is lawful. But it notes sharply that the US government has conspicuously failed to offer a public rationale for the legality of the program – and that the program’s legitimacy is at risk of gradual erosion from the public perception that if the government will not defend its lawfulness, perhaps it is not. This testimony urges the administration and Congress directly to address this issue of vital legal policy, and specifically to address the situation of the CIA and its use of force. It briefly offers grounds of argument on which to do so, starting from the proposition of international law of self-defense as a category broader and separate from armed conflict.
(Important Note of March 26, 2010. This testimony was submitted and the subcommittee hearing held on March 23, 2010, just prior to a major address by Harold Koh, State Department Legal Adviser, to the American Society of International Law, on March 25, 2010. The Legal Adviser’s address carried a substantial discussion of drone warfare and targeted killing, offered as the “considered view” of the United States. Professor Anderson makes special note that the Legal Adviser addressed some of the core concerns of this testimony, and asks that this testimony be read in light of that speech a few days later. In particular, the Legal Adviser offered a clear and considered public legal rationale for the legality of drone strikes as carried out by the US government – one of the key criticisms that this testimony makes of the Obama administration’s legal approach to drone warfare. Professor Anderson welcomes the Legal Adviser’s statement as a very important step forward with respect to both the willingness of the US government to offer a public legal rationale as well as its general substantive content.)