Category Archives: Teaching National Security Law

Why Klein (Still) Matters: Congressional Deception and the War on Terrorism

No one seriously claims that the Supreme Court’s 1872 decision in United States v. Klein is a model of clarity. Justice Field’s opinion for the Court is as enigmatic as it is intriguing, providing the only pre-2008 example of a Supreme Court decision invalidating an Act of Congress for unconstitutionally depriving the federal courts of jurisdiction. The million dollar question, of course, is why the Court so ruled, and no amount of scholarship, no matter the quality of the analysis or the intellectual abilities of the author, has managed to settle the issue to any meaningful degree. Indeed, even when the Klein “rule” has been deployed by contemporary jurists as a basis for invalidating federal legislation, such efforts have, charitably, failed to persuade. Thus, although virtually all observers agree that Klein bars Congress from commanding the courts to rule for a particular party in a pending case, the question remains whether it stands for any broader constraint on legislative power.

Professor Howard Wasserman’s response to this state of doctrinal, academic, and juridical indeterminacy is to suggest that it conclusively establishes Klein’s insignificance, and that Klein’s importance to the modern Federal Courts canon is really a “myth,” born out of a “false belief that Klein establishes vigorous judicially enforceable constitutional limitations on Congress.”  To be sure, Wasserman does not believe Klein to be devoid of force; rather, he concludes that “[m]ost blatantly Klein violative laws are never enacted; Klein-vulnerable laws that have been enacted raise no meaningful or serious Klein problems and should survive any separation of powers challenge.”

Constitutional Pathology, the War on Terror, and United States v. Klein

Many labels have attached to United States v. Klein, the venerable Reconstruction era Supreme Court decision that established some undefined limits on congressional control over federal law and federal courts. It has been called “opaque,” “deeply puzzling,” “disjointed,” “Delphic,” “generally difficult to follow,” “exaggerated,” and “dead wrong.” Klein is a case of substantial significance, although no one really knows how or why. Nevertheless, it has achieved a cult-like following among academics, advocates, and some judges.

In a recent article, I attached a new label to Klein – myth. In this article, I explore the Klein-derived issues in two major pieces of national security legislation enacted as part of the ongoing struggle against terrorism. The first is Section 802 of the Foreign Intelligence Surveillance Act (FISA) Amendments Act of 2008, which granted retroactive immunity from civil liability to telecommunications providers for assisting the federal government with arguably unconstitutional warrantless domestic surveillance between late 2001 and early 2007. The second is the Military Commissions Act (MCA) of 2006, which in several provisions creates adjudicative mechanisms for dealing with terror suspects and simultaneously limits the scope and manner of judicial involvement in those cases.

In Klein, the Supreme Court struck down an 1870 law governing claims by pardoned southern property owners seeking to recover proceeds in the Court of Claims for property confiscated during the Civil War. The law prohibited any claimant who used an uncontested pardon to establish loyalty to the Union from recovering proceeds; instead, it required that courts treat the pardon as conclusive evidence that the claimant had been disloyal and thus was not entitled to recover. The legislation was intended to limit recovery by disloyal southern property owners (particularly cotton growers, such as the claimant in Klein, who had acted as sureties for Confederate officers). Congress sought not only to undo the lower-court decision in favor of the claimant in Klein (which then was pending onappeal), but also to undo the effects of the Court’s decision holding that receipt of a pardon rendered a property owner innocent in law.

The Case of Colonel Abel

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 Next Judge

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 Choice of Law Against Terrorism

The assessment of facts to determine if peacetime law or the law of armed conflict is the correct choice involves the same analysis used in resolving other choice of law questions. Lawyers and judges constantly make choice of law decisions. Choice of law is part of the consideration of every legal matter. … In the terrorism-related cases discussed [here], international law … determines the choice of law. In these cases, choice of international law sends us, generally, to the domestic criminal law of the United States, Pakistan, Yemen, and other states. It does not send us to the law of armed conflict.