Humberto Alvarez-Machain, a Mexican national, was kidnapped in Mexico and brought to the United States at the behest of US Drug Enforcement Administration (DEA) agents for allegedly assisting in the torture and murder of a DEA agent in Mexico. He challenged the jurisdiction of US courts to try him, arguing that his illegal seizure barred the trial. The Supreme Court rejected that contention, holding that “the power of a court to try a person for a crime is not impaired by the fact that he has been brought within the court’s jurisdiction by reason of a ‘forcible abduction.’” This writer was one of the few who supported the Supreme Court’s decision sustaining jurisdiction, arguing that it was consistent both with international law and with the Fourth Amendment.
In comparison with other subjects currently taught at law schools in this country, national security law is relatively new. Traditionally, issues involving the constitutional separation of powers among the respective branches of government, including war powers, were covered within the context of an offering on basic constitutional law. If there were courses that touched on specific legal issues involving national security, they tended to be occasional seminars teaching military justice. These focused almost exclusively on the Uniform Code of Military Justice and the separate criminal legal system that it establishes for men and women in uniform. One such course, first offered at the University of North Carolina Law School almost 50 years ago and later at Duke University Law School, was taught by Robinson O. Everett, then a young faculty member at Duke.
Breakthrough science can lead both to great good and to great evil. The September 11, 2001, terrorist attacks on the World Trade Center and the Pentagon and the anthrax letter attacks that followed highlight the fact that our enemies may use our own advanced science and technology against us. When the dissemination of scientific information might jeopardize national security, the federal government’s primary response has always been to try to control the spread of that information. In a variety of ways, the government has long restricted public access to scientific information in the government’s possession. Since September 11, the government has further tightened access to its own information, withholding from public view not just classified data but also so-called “sensitive” information, the release of which it says could pose a danger to national security.