Stephen Dycus reviews Professor Eric K. Yamamoto’s timely book In the Shadow of Korematsu: Democratic Liberties and National Security, published just weeks before the Supreme Court decided Trump v. Hawaii. Dycus draws out the book’s core themes, highlighting Yamamoto’s analysis of the Korematsu decision and its continued relevance in American jurisprudence. The review concludes with a discussion of Yamamoto’s proposed process for judicial review in cases that involve both national security and civil liberties.
In one of her speeches on Internet freedom, Secretary of State Hillary Rodham Clinton said that “[t]he fact that WikiLeaks used the internet is not the reason we criticized its actions.” Although Clinton is correct that it is essential to separate the technology WikiLeaks uses from its actions, the digital age has raised new concerns about the unauthorized dissemination of sensitive national security information. New technology has made it much easier to leak and otherwise disseminate national security information. At the same time, leaks continue to play an essential role in checking governmental power and often make invaluable contributions to our public debate. WikiLeaks has prompted renewed debate concerning when the disclosure of national security information by nongovernmental actors should be protected, both as a policy matter and as a matter of constitutional law.
One dominant theme in the discussion of how to strike the balance between an informed public and the need to protect legitimate national security secrets is whether new media entities like WikiLeaks are part of“the press” and whether Julian Assange and his cohorts are engaging in“journalism.” As the gathering and distribution of news and information becomes more widely dispersed, and the act of informing the public more participatory and collaborative, however, determining who is engaging in journalism and what constitutes the press has become increasingly difficult. It is not possible to draw lines based on the medium of communication, the journalistic background of the publisher, the editing process, the size of the audience, or the methods used to obtain the information.
In June 2010, journalists for the Associated Press reported the arrest often Russian spies, all suspected of being “deep-cover” illegal agents in the United States. Seeking to convey the magnitude of this event, the journalists wrote that this “blockbuster series of arrests” might even be as significant as the FBI’s “famous capture of Soviet Col. Rudolf Abel in 1957 in New York.” The reference may have been lost on many Americans, but Colonel Abel’s story of American justice at a time of acute anxiety about the nation’s security is one that continues to resonate today. The honor, and error, that are contained in Colonel Abel’s story offer lessons worth remembering as the United States struggles against a new enemy: international terrorists. One important lesson is that ad hoc departures from the requirements of constitutional criminal procedure, even in the pursuit of seemingly exigent and unique national security threats, tend to cause more trouble than they are worth. Another is that these lessons have been repeatedly learned and, it would seem, repeatedly forgotten. We should be in the process of relearning these lessons today. In that spirit, after briefly summarizing Colonel Abel’s case and some of the themes it shares with contemporary cases, this article presents selected aspects of Colonel Abel’s arrest, trial, and appeal.
Early in the morning of June 21, 1957, almost exactly fifty-three years before the June 2010 arrests, Special Agents Edward Gamber and Paul Blasco of the FBI pushed their way into Room 839 at the Hotel Latham in Manhattan. The FBI agents sat a sleepy and half-naked Abel on his bed, identified themselves as charged with investigating matters of internal security, and questioned him for twenty minutes, insinuating knowledge of his espionage activities by addressing him as “Colonel.” The FBI agents told Abel that “if he did not ‘cooperate,’ he would be arrested before he left the room.” When Abel refused, the FBI signaled to agents of the Immigration and Naturalization Service (the INS, then under the authority of the Department of Justice), who were waiting outside. Under the close observation of the FBI agents, the INS agents arrested Abel, searched him and the contents of his room, and seized several items as evidence of Abel’s alienage.
The filling of a judicial vacancy provides a unique opportunity to examine not only the appointment or election process, but also the court itself and its work. For obvious reasons, this has been recognized in connection with the Supreme Court of the United States,1 where vacancies are often the subject of much conjecture but, because of life tenure, remain essentially unpredictable. On a less lofty plane, the opportunity to take stock also occurs in other courts, and the timing, at least, is less a matter of speculation in non-Article III courts, where judges serve for fixed terms.
A case in point is the expiration of Chief Judge Andrew S. Effron’s term on the United States Court of Appeals for the Armed Forces (referred to here as the Court of Appeals) on September 30, 2011. It is appropriate to consider the process for filling his seat; the standards that, based on the law and past experience, must, could, or should not be taken into account in choosing a successor; and the possible impact on the court and its jurisprudence.
While national security law covers a broad swath, military justice is a key component, since good order and discipline are integral to a credible military capacity, and notwithstanding the remarkable trend towards the use of high technology in national defense, uniformed personnel – human beings – and their conduct (both actual and desired) remain the heart of the matter. Hence, the filling of Judge Effron’s seat is properly viewed as potentially impacting on national security.
The practical consequence of the Constitutional Court’s balancing approach to maintain both security and liberty has been a shifting jurisprudence, a fact that is bound to buoy and bother American conservatives and progressives in equal measure. There is something in the Court’s cases for both camps. Before 9/11, the Court deferred to the legislature’s attempts at promoting security. This inclination, however, changed dramatically in the post-9/11 period. In a string of cases the Court has consistently invalidated national security legislation for failing to adequately take account of constitutionally protected liberty interests.