* Forthcoming Scholarship

Principles of Counter Terrorism Law

Jimmy Gurule (Notre Dame)

Geoffrey Steven Corn (South Texas)

West Concise Hornbook Series

The book examines the military and law enforcement responses to international terrorism. Subjects include the legal authority to use military force; determining when the law of armed conflict comes into force; the law of targeting and how this authority is applied to terrorist operatives; preventive detention; prosecution of terrorists by military commission; the legal framework for gathering counter-terrorism intelligence information; prosecuting terrorists and their sponsors; freezing terrorist assets; and civil liability for personal injury or death caused by acts of international terrorism.

‘A New Era of Openness?’ Disclosing Intelligence to Congress Under Obama

Kathleen Clark
Washington University School of Law

Constitutional Commentary, Vol. 26, No. 3, 2010
Washington U. School of Law Working Paper No. 10-02-01

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.

The Architecture of Accountability: A Case Study of the Warrantless Surveillance Program

Kathleen Clark
Washington University School of Law

Brigham Young University Law Review, Vol. 2010, No. 2, 2010
Washington University in St. Louis Legal Studies Research Paper No. 10-11-02

This Article identifies mechanisms that help to hold the federal government’s executive branch accountable for complying with the law, and shows how claims of national security secrecy undermine the effectiveness of these accountability mechanisms. It identifies four distinct stages in the process of accountability, sets out a typology based on the mechanisms’ location inside or outside of government, and identifies some of the specific mechanisms that hold the executive branch accountable for violations of the law. These multiple overlapping mechanisms would appear to constitute a robust system of accountability.

A review of how this system of accountability operated in connection with the Bush Administration’s warrantless surveillance program, however, reveals that all of these mechanisms share a common characteristic, which turns out to be a weakness: a dependence on the provision of information. Remove the information, and the entire structure of apparently robust accountability collapses. The executive branch was able to prevent these multiple accountability mechanisms from scrutinizing the warrantless surveillance program by asserting national security secrecy. This systematic weakness in the accountability architecture has significant policy implications, including the need to recognize a crime-fraud exception to the state secrets privilege.

Questioning Law Enforcement: The First Amendment and Counterterrorism Interviews

Shirin Sinnar
Stanford University

Brooklyn Law Review, Vol. 77, No. 1, 2011

Law enforcement interviews are sometimes viewed as among the least intrusive and least objectionable investigative methods in the government’s counterterrorism arsenal. Yet FBI and Customs and Border Protection interviews of U.S. Muslims in the terrorism context involve greater coercion and stigma than prevailing accounts recognize. While such interviews have almost entirely escaped scholarly attention, I argue that as common, direct, and visible encounters between individuals in the U.S. Muslim community and the U.S. government, interviews inform targeted individuals’ and communities’ sense of “belonging” and inclusion in the United States. Moreover, interviews triggered by individuals’ political, religious, or cultural expression or association – those that are based on “First Amendment profiling” – impose particularly grave stigmatic costs and chilling effects on expression. First Amendment profiling, while sometimes justified, is wrong both where the government deliberately seeks to suppress speech and where investigations undertaken for a legitimate law enforcement purpose sweep too broadly in burdening lawful speech and association. I contend that although courts are deeply divided as to which investigations warrant judicial review, and how rigorous that review should be, existing First Amendment doctrine offers the potential for courts to question the questioners in an important segment of cases. Courts should employ heightened scrutiny to evaluate First Amendment profiling rather than categorically defer to law enforcement justifications.