National Security
We Don’t Want To Conquer You; We Have Enough To Worry About: The Russian Sovereign Wealth Fund
Defending the Faithful: Speaking the Language of Group Harm in Free Exercise Challenges to Counterterrorism Profiling
117 Yale L.J. 920 (2008). Counterterrorism officials increasingly seek to scrutinize conduct and behavior that they believe, however uncertainly, to be probative of terrorist activity. When such conduct- based profiling specifically targets activity that is also expressive of Muslim identity, it may inflict pervasive dignitary and stigmatic harms upon the American Muslim community. Those seeking redress from such policies through litigation would find that existing constitutional doctrine does not readily let judges account for group harms when balancing the interests at stake. This Note, however, argues that Muslim plaintiffs can use the Free Exercise Clause doctrine of “hybrid situations,” announced in Employment Division v. Smith, to plead that certain profiles’ burdens upon their religiously motivated exercise of secular constitutional rights threaten to subordinate their religious community as a whole.
The Canons of War
117 Yale L.J. 280 (2007). War powers hang in a delicate balance, with conflicting statutes overlying contrasting constitutional prerogatives. Because Congress has filled nearly every shadowy corner of Justice Jackson’s “zone of twilight” with its own imprimatur, war powers debates now hinge on traditional statutory interpretation, albeit in a unique context. This Note draws upon the complete set of judicial opinions assessing authorizations for the use of military force in order to propose context-specific canons for interpreting war powers statutes. These canons of war provide a principled way for courts to ascertain the limits of executive power and civil liberties in times of military conflict.
"I Did Not Come Here To Defend Myself": Responding to War on Terror Detainees' Attempts To Dismiss Counsel and Boycott the Trial
117 Yale L.J. 70 (2007). A significant portion of the war on terror detainees who have been charged at Guantanamo have announced their intentions to dismiss their attorneys, to waive their right to be present at their trials, or to take both actions simultaneously so that their interests will not be represented. This Note demonstrates that strong justifications, rooted in international and domestic legal rules and precedent, support honoring the detainees’ requests. Yet the military tribunal proceedings are designed to follow the adversarial model to achieve just outcomes; granting the detainees’ procedural requests can, in certain situations, undermine the ability of the military commissions to reach just outcomes in favor of the personal whims of the detainees. When a detainee’s procedural request threatens to undermine the adversarial model, I propose that military adjudicators appoint an amicus curiae counsel to provide sufficient process on behalf of the tribunal.
On Target? The Israeli Supreme Court and the Expansion of Targeted Killings
116 Yale L.J. 1873 (2007).
Chevronizing Foreign Relations Law
116 Yale L.J. 1170 (2007) A number of judge-made doctrines attempt to promote international comity by reducing possible tensions between the United States and foreign sovereigns. For example, courts usually interpret ambiguous statutes to conform to international law and understand them not to apply outside of the nation’s territorial boundaries. The international comity doctrines are best understood as a product of a judicial judgment that in particular contexts the costs of deference to foreign interests are lower than the benefits to American interests. Sometimes Congress balances these considerations and incorporates its judgment in a statute, but usually it does not. In such cases, executive interpretations should be permitted to trump the comity doctrines, as long as those interpretations are reasonable. This conclusion is supported both by considerations of institutional competence and by the distinctive position of the President in the domain of foreign affairs. It follows that if the executive wants to interpret ambiguous statutes to conflict with international law or to apply extraterritorially, it should be permitted to do so. The analysis of the interpretive power of the executive can be justified by reference to the Chevron doctrine in administrative law, which similarly calls for deference to executive interpretation of statutory ambiguities. Sometimes the Chevron doctrine literally applies to executive interpretations; sometimes it operates as a valuable analogy. At the same time, the Chevron principle is qualified by doctrines requiring a clear congressional statement, especially when constitutionally sensitive rights are involved. These claims have many implications for legal issues raised by the war on terror, including those explored in the Hamdi and Hamdan cases.
Disregarding Foreign Relations Law
116 Yale L.J. 1230 (2007) What deference is due the executive in foreign relations? Given the considerable constitutional authority and institutional virtues of the executive in this realm, some judicial deference is almost certainly appropriate. Indeed, courts currently defer to the executive in a large number of cases. Eric Posner and Cass Sunstein nevertheless call for a dramatic expansion in the deference that courts accord executive interpretations of law in the foreign affairs context. They maintain that courts should presumptively give Chevron-style deference to executive interpretations of foreign relations law—even if the executive interpretation is articulated only as a litigation position, and even if it violates international law. In our view, substantial deference to the executive is singularly inappropriate in a large swath of cases eligible for Chevron deference under their proposal—namely, those involving foreign relations law that operates in what we call the “executive-constraining zone.” Courts have scrutinized, and should continue to scrutinize, executive interpretations of international law that has the status of supreme federal law, that is made at least in part outside the executive, and that conditions the exercise of executive power. Failure to do so would undermine the rule of law in the foreign relations context. It would also dramatically increase the power of the President in ways that would subvert the nation’s interests, discourage the executive from developing important internal checks on presidential power, and lead to less congressional regulation of the executive. In short, we maintain that deference at some point invites disregard and that law-interpreting authority at some point effectively constitutes lawbreaking authority.
Understanding the Distinct Function of the Combatant Status Review Tribunals: A Response to Blocher
Combatant Status Review Tribunals: Flawed Answers to the Wrong Question
116 Yale L.J. 667 (2006) Read Geoffrey Corn, Eric Talbot Jensen, and Sean Watts's Response, Understanding the Distinct Function of the Combatant Status Review Tribunals: A Response to Blocher.
Inherent Executive Power: A Comparative Perspective
115 Yale L.J. 2480 (2006) In light of recent debates regarding the scope and basis of inherent executive power, particularly with regard to foreign affairs and national security, this Essay examines different conceptions of executive power in five modern democracies. The Essay's study of British and German parliamentary systems, the semi-presidential French system, and the presidential Mexican and South Korean systems suggests that executive power is highly contingent and shaped by political context. The Essay identifies the common features of all these governmental structures, including the fluid line between executive and legislative power, and emphasizes that all of these nations have recognized the importance of placing limits on executive power, including in the spheres of foreign affairs and national security. These comparative examples thus provide a counterweight to recent arguments that executive power inherently requires unchecked authority in these spheres.
Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within
115 Yale L.J. 2314 (2006) The standard conception of separation of powers presumes three branches with equivalent ambitions of maximizing their powers. Today, however, legislative abdication is the reigning modus operandi. Instead of bemoaning this state of affairs, this Essay asks how separation of powers can be reflected within the executive branch when that branch, not the legislature, is making much of the law today. The first-best concept of "legislature v. executive" checks and balances must be updated to contemplate second-best "executive v. executive" divisions. A critical mechanism to promote internal separation of powers is bureaucracy. Much maligned by both the political left and right, bureaucracy serves crucial functions. It creates a civil service not beholden to any particular administration and a cadre of experts with a long-term institutional worldview. This Essay therefore proposes a set of mechanisms that can create checks and balances within the executive branch in the foreign affairs area. The apparatuses are familiar--separate and overlapping cabinet offices, mandatory review of government action by different agencies, civil-service protections for agency workers, reporting requirements to Congress, and an impartial decision-maker to resolve inter-agency conflicts. The idea is to create a more textured conception of the presidency than either the unitary executivists or their critics espouse.
Rational War and Constitutional Design
115 Yale L.J. 2512 (2006) Contemporary accounts of the allocation of war powers authority often focus on textual or historical debates as to whether the President or Congress holds the power to initiate military hostilities. In this Essay, we move beyond such debates and instead pursue a comparative institutional analysis of the relationship between Congress and the President on war powers. More specifically, we ask which war powers system would best enhance the effectiveness of the United States in making decisions about war and peace? First, we suggest that the argument that a Congress-first approach will have clear political accountability and accuracy advantages over a President-first approach rests on questionable empirical and theoretical assumptions. Second, we turn to the international dimension and draw on one of the few facts considered to be close to an empirical truth in international relations: Democracies do not tend to go to war with each other. Here, we explore the relationship between the regime type of the adversary and the war powers system best suited to combating it. We argue that if the United States were involved in a dispute with another democracy, involving Congress could help facilitate a peaceful resolution by allowing the United States to signal more effectively its intentions. If, however, the United States were involved in a dispute with a nondemocracy or a terrorist organization, a unilateral presidential approach would make more sense because such an opponent is less likely to have the proper incentives to respond to the signal conveyed by congressional participation. Finally, we conclude that only an approach that vests exclusively in the President the discretion to seek ex ante congressional authorization would permit the United States to adapt its domestic decision-making structure to the exogenous demands of the international system.
Setting the World Right
115 Yale L.J. 2350 (2006) Five years after September 11, 2001, America's response to that traumatic day has effectively turned the world of American public law upside down. Claiming that a global war on terror calls for an entirely new legal paradigm, the Bush Administration and its supporters have pressed for a revamped constitutional and international vision that champions the supremacy of both executive and American unilateralism. Recently, executive power advocates have even begun to claim that in a crisis, executive action validates itself. This Essay reviews this cycle of history and argument and describes what impels executive power in this direction. The Essay argues that the United States Supreme Court's landmark opinion in Hamdan v. Rumsfeld has begun setting the world of public law right and explains how Hamdan undermines scholarly claims of those who still urge the need for enhanced executive authority in national security affairs.