National Security
Warrant Canaries and Disclosure by Design: The Real Threat to National Security Letter Gag Orders
Citizenship, Passports, and the Legal Identity of Americans: Edward Snowden and Others Have a Case in the Courts
In this Essay, Professor Patrick Weil reexamines the constitutional function of the passport in relation to American citizenship. The State Department recently developed apolicy of passport revocation whereby some Americans are transformed into de facto stateless persons, like Edward Snowden, or are prohibited from living abroad as citizens, like dozens of Yemeni Americans. In the Yemeni Americans’ case, the State Department confuses the legality of passports and naturalization. Revoking Snowden’s passport violates the right for acitizen to possess a passport confirming his or her legal identity—including citizenship—while abroad. This passport function, recognized since 1835, is one of the privileges and immunities of American citizens protected by the Fourteenth Amendment. The Supreme Court has never authorized its suspension by the executive for national security reasons, unlike the other function of a passport—the right to travel. New technologies offer a way to distinguish between these two functions and to make effective a constitutional right.
Syria, Threats of Force, and Constitutional War Powers
In this Essay, Professor Matthew Waxman argues that debates about constitutional war powers neglect the critical role of threats of war or force in American foreign policy. The recent Syria case highlights the President’s vast legal power to threaten military force as well as the political constraints imposed by Congress on such threats. Incorporating threats into an understanding of constitutional powers over war and peace upends traditional arguments about presidential flexibility and congressional checks—arguments that have failed to keep pace with changes in American grand strategy.
Gideon at Guantánamo
122 Yale L.J. 2416 (2013). The right to counsel maintains an uneasy relationship with the demands of trials for war crimes. Drawing on the author’s personal experiences from defending a Guantánamo detainee, the Author explains how Gideon set a baseline for the right to counsel at Guantánamo. Whether constitutionally required or not, Gideon ultimately framed the way defense lawyers represented their clients. Against the expectations of political and military leaders, both civilian and military lawyers vigorously challenged the legality of the military trial system. At the same time, tensions arose because lawyers devoted to a particular cause (such as attacking the Guantánamo trial system) were asked at times to help legitimize the system, particularly when it came to decisions about whether to enter a plea to help legitimize the rickety trial system in operation at Guantánamo.
Gideon at Guantánamo: Democratic and Despotic Detention
122 Yale L.J. 2504 (2013). One measure of Gideon v. Wainwright is that it made the U.S. government’s efforts to isolate 9/11 detainees from all outsiders at Guantánamo Bay conceptually and legally unsustainable. Gideon, along with Miranda v. Arizona, is part of a democratic narrative shaped over decades to insist that, unlike totalitarian regimes, the United States has constitutional obligations to equip individuals with third parties—lawyers—to inhibit (if not to prevent) coercion. Both Gideon and Miranda recognize the relationship between the dignity of individuals in their encounter with the state and the legitimacy of state processes. Both decisions locate enforcement authority in courts. Both rely on lawyers, deployed as witnesses to interrogation and as advocates, and both impose obligations that, when necessary, governments subsidize lawyers. Conflicts in the post-9/11 era over the boundaries of Gideon and Miranda illuminate what is at stake: whether aspirations remain that detention and interrogation of individuals—even the reviled—could possibly merit the adjective “democratic” to reflect constitutional commitments that all persons are rights-bearers who cannot be left alone and subject to state power closed off from public oversight.
WikiLeaks and the Institutional Framework for National Security Disclosures
121 Yale L.J. 1448. WikiLeaks’ successive disclosures of classified U.S. documents throughout 2010 and 2011 invite comparison to publishers’ decisions forty years ago to release portions of the Pentagon Papers, the classified analytic history of U.S. policy in Vietnam. The analogy is a powerful weapon for WikiLeaks’ defenders. The Supreme Court’s decision in the Pentagon Papers case signaled that the task of weighing whether to publicly disclose leaked national security information would fall to publishers, not the executive or the courts, at least in the absence of an exceedingly grave threat of harm. The lessons of the Pentagon Papers case for WikiLeaks, however, are more complicated than they may first appear. The Court’s per curiam opinion masks areas of substantial disagreement as well as a number of shared assumptions among the Court’s members. Specifically, the Pentagon Papers case reflects an institutional framework for downstream disclosure of leaked national security information, under which publishers within the reach of U.S. law would weigh the potential harms and benefits of disclosure against the backdrop of potential criminal penalties and recognized journalistic norms. The WikiLeaks disclosures show the instability of this framework by revealing new challenges for controlling the downstream disclosure of leaked information and the corresponding likelihood of “unintermediated” disclosure by an insider; the risks of non-media intermediaries attempting to curtail such disclosures, in response to government pressure or otherwise; and the pressing need to prevent and respond to leaks at the source.
When Machines Are Watching: How Warrantless Use of GPS Surveillance Technology Violates the Fourth Amendment Right Against Unreasonable Searches
Introduction Federal and state law enforcement officials throughout the nation are currently using Global Positioning System (GPS) technology for automated, prolonged surveillance without obtaining warrants. As a result, cases are proliferating in which criminal defendants are challenging law enforcement’s warrantless uses of GPS surveillance technology, and courts are looking for direction from the Supreme Court. Most recently, a split has emerged between the Ninth and D.C. Circuit Courts of Appeal on the issue. In United States v. Pineda-Moreno, the Ninth Circuit relied on United States v. Knotts—which approved the limited use of beeper technology without a warrant—to uphold warrantless use of GPS surveillance technology. However, in United States v. Maynard, the D.C. Circuit held that warrants are required for law enforcement use of GPS tracking devices. In distinguishing Knotts, the D.C. Circuit pointed to the vast differences between the relatively primitive beeper technology used almost thirty years ago and the unprecedented power of GPS surveillance technology used today. The Seventh Circuit Court of Appeals and various state courts are similarly divided. In light of this confusion, the Supreme Court has recently agreed to review the issue, granting certiorari from the decision of the D.C. Circuit in Maynard and leaving the Pineda-Moreno petition in a holding pattern. On November 8, the Supreme Court will hold oral arguments in the case, which was docketed under the new name United States v. Jones. The Supreme Court’s Fourth Amendment doctrine, including its cases evaluating new surveillance technologies, has always been informed by one of the Amendment’s animating principles: its mandate to prevent abuse of police power. While the Court has not always articulated this theory of the Fourth Amendment as clearly as it could have, a careful review of the case law reveals a concern about abuse and “a too permeating police surveillance.” This reading demands that, in any review of new surveillance technology, courts must evaluate the technology’s potential for abuse.
Disastrously Misunderstood: Judicial Deference in the Japanese-American Cases
119 Yale L.J. 270 (2009). This Note offers a new framework to evaluate judicial deference in cases reviewing government actions during national emergencies. Rejecting the conventional approach assessing deference as a matter of degree or as a condition present or not present, this Note offers a nuanced framework to evaluate deference that considers both degree and form. It identifies two forms of deference: perception deference as an independent decision not to reach an independent conclusion concerning whether and to what extent a threat exists, where the decision is expressed through the adoption of government decisionmakers’ conclusions, and means deference as an independent decision not to reach an independent conclusion concerning the proper means to respond to the perceived threat, where the decision is expressed through the adoption of government decisionmakers’ conclusions. Applying this framework to the Japanese-American cases, this Note concludes the Supreme Court exercised little perception deference and complete means deference, a finding with important implications for four prominent scholarly debates.
Interrogation's Law
118 Yale L.J. 1434 (2009). Conventional wisdom states that recent U.S. authorization of coercive interrogation techniques, and the legal decisions that sanctioned them, constitute a dramatic break with the past. This is false. U.S. interrogation policy well prior to 9/11 has allowed a great deal more flexibility than the high-minded legal prohibitions of coercive tactics would suggest: all interrogation methods allegedly authorized since 9/11, with the possible exception of waterboarding, have been authorized before. The conventional wisdom thus elides an intrinsic characteristic of all former and current laws on interrogation: they are vague and contestable, and thus, when context so demands, manipulable.
Our Imperial Criminal Procedure: Problems in the Extraterritorial Application of U.S. Constitutional Law
118 Yale L.J. 1660 (2009). From the early days of the Republic, courts have encountered the question of whether and to what extent provisions of the Constitution establishing individual rights have force beyond the borders of the United States—that is, whether the Constitution has “extraterritorial” force. Despite nearly two centuries of decisions on this issue, the law remains unsettled, and no framework for analyzing these claims is clearly defined, much less well established. This Essay draws on that body of decisions to develop an approach for evaluating whether a particular constitutional provision should have overseas application in a particular case. In so doing, it considers competing theories of the Constitution—one envisioning the document as a “compact” between the government and the governed, and the other construing it as a charter from which “organically” flow both the power of the government and the limitations of that power—and how these competing theories shape views on whether constitutional provisions should have force abroad. The question of extraterritorial applicability has arisen in numerous contexts in our history, including continental expansion, colonial administration, and conventional war. In modern times, however, we see it raised most often in the context of criminal prosecutions and antiterror operations. Because the focus of this Essay is on contemporary criminal prosecutions, it examines the basis in international law for a nation to prosecute individuals residing beyond its borders. It then discusses the body of law addressing the question of extraterritorial application and, avoiding a rigid, dogmatic theory, gleans from these decisions a set of considerations that can guide future decisionmaking in this complex area of law.
The Constitutional Power To Interpret International Law
118 Yale L.J. 1762 (2009). What is the force of international law as a matter of U.S. law? Who determines that force? This Essay maintains that, for the United States, the U.S. Constitution is always supreme over international law. To the extent that the regime of international law yields determinate commands in conflict with the Constitution’s commands or assignments of power, international law is, precisely to that extent, unconstitutional. Further, the force of treaties (and executive agreements) to which the United States is a party is always subject to the constitutional powers of Congress and the President to supersede or override them as a matter of U.S. domestic law. It follows from the Constitution’s allocation of power exclusively to U.S. constitutional actors that the power to interpret, apply, enforce—or disregard—international law, for the United States, is a U.S. constitutional power not properly subject to external direction and control. The power “to say what the law is,” including the power to determine the content and force of international law for the United States, is a power distributed and shared among the three branches of the U.S. government. It is not a power of international bodies or tribunals. This understanding of the relationship of international law to the U.S. Constitution’s allocation of powers in matters of war and foreign affairs has important implications for many contemporary issues and the United States’s actions with respect to compliance with international treaties and other international law norms in the areas of criminal law enforcement, the conduct of war, war prisoner detention and interrogation practices, and the imposition of military punishment on unprivileged enemy combatants.
The Example of America
Owen M. Fiss, Sterling Professor of Law at Yale Law School, tackled legal issues involved in the war on terror on March 5, 2009 at the 13th Annual John W. Hager Distinguished Lecture at The University of Tulsa College of Law. The Pocket Part is pleased to present an adapted version of Professor Fiss's lecture, The Example of America. For an audio version of this piece read by the author please access the podcast here. On May 12, 2009, Professor Fiss published an article based on this piece in The Huffington Post, which can be accessed here.
Gangs in the Military
118 Yale L.J. 696 (2009). Gang activity in the U.S. military is increasing. Gang members undermine good order and discipline in the armed services and pose a serious threat to military and civilian communities. Congress recently responded to this threat by directing the Secretary of Defense to promulgate regulations forbidding the active participation of service personnel in criminal street gangs. This Note reviews the threat posed by military gangs and analyzes existing military policies addressing gang affiliation. This Note concludes with recommendations for the military to consider when it drafts the new regulations demanded by Congress.
Suspension as an Emergency Power
118 Yale L.J. 600 (2009). As the war on terrorism continues, and along with it a heated debate over the scope of executive authority in times of national emergency, one important question deserves careful attention: how much power may Congress vest in the executive to address the crisis at hand when it chooses to take the “grave action” of suspending the privilege of the writ of habeas corpus? For example, may suspension legislation authorize the executive to arrest and detain individuals on suspicion that they might engage in future acts of terrorism? Or does suspending the privilege merely remove the courts from the governing equation without expanding the scope of executive power to arrest and detain persons of suspicion? This Article seeks to provide a definitive account of what it means to suspend the privilege. Toward that end, the Article explores in detail the relationship between suspension, executive power, and individual rights throughout American history along with how the suspension power fits into our larger constitutional scheme. The analysis yields the conclusion that in the narrow circumstances believed by the Framers to justify suspending the privilege—times of “Rebellion or Invasion”—a suspension offers the government some measure of latitude in its efforts to restore order and preserve its very existence. The idea is hardly new. Indeed, Blackstone articulated it long ago. As he both explained and cautioned, “[T]his experiment ought only to be tried in cases of extreme emergency; and in these the nation parts with its liberty for a while, in order to preserve it forever.”