National Security
Kilburn v. Libya: Cause for Alarm?
115 Yale L.J. 1177 (2006) In Kilburn v. Libya, the D.C. Circuit held that a plaintiff may turn to United States courts to seek recovery from a foreign nation for injuries suffered at the hands of a terrorist organization with which the foreign nation was affiliated--if actions taken by that foreign nation were a proximate cause of the plaintiff's injury. Kilburn is part of an emerging pattern. Over the past ten years, Congress and the courts have made it increasingly easy for plaintiffs to secure compensation from foreign nations for injuries arising out of terrorist acts. In particular, courts have liberally interpreted the state sponsor of terrorism amendment to the Foreign Sovereign Immunities Act of 1976 (FSIA), which permits plaintiffs to sue those nations designated as state sponsors of terrorism for damages in U.S. courts. Yet Kilburn also broke with prior cases. Kilburn involved an unusual set of facts and resolved the questions they presented in atypical fashion. Prior to Kilburn, most cases brought pursuant to the terrorism amendment had involved terrorist acts committed directly by a foreign nation or instigated by a foreign nation and committed by that nation's agent. Kilburn, by contrast, involved damage done by a nonstate actor who received material support and resources from the defendant nation but who was not its agent. Moreover, prior to Kilburn, courts had seldom permitted plaintiffs to seek relief for injuries foreign nations had not specifically intended to cause. Indeed, the United States, appearing as amicus curiae in Kilburn, asserted that it was not clear from existing case law that "the allegation of a foreign state's general support for the terrorist group that carried out the act of terrorism is sufficient to satisfy the statute." The Kilburn court, by contrast, adopted a more relaxed, proximate cause standard for jurisdiction. This Comment argues that Kilburn is inconsistent with the FSIA scheme. I do not weigh the merits of the Kilburn causation standard on its own terms. Rather, I contend that Kilburn will lead to extensive jurisdictional discovery. Permitting such discovery not only would create a disjunction between foreign sovereign immunity practice on the one hand and domestic sovereign immunity practice and international law on the other, but it also might frustrate Congress's goals in passing the terrorism amendment. I begin by explaining why the adoption of the Kilburn standard makes it more likely that courts will engage in jurisdictional discovery. In Part II, I elucidate the history of the FSIA and use that history to demonstrate why extensive jurisdictional discovery is incompatible with the FSIA. Finally, in Part III, I offer alternatives to the Kilburn standard.
The Court of Vice Admiralty at Sierra Leone and the Abolition of the West African Slave Trade
115 Yale L.J. 1122 (2006) Drawing on archival sources, this Note explores an early experiment in humanitarian intervention undertaken by the Court of Vice Admiralty at Sierra Leone through the suppression of the West African slave trade during the early decades of the nineteenth century. Part I discusses the social and geopolitical pressures that helped British abolitionists realize their hopes of creating a free colony in Africa. Part II demonstrates the manner in which Robert Thorpe, Chief Judge of the Court of Vice Admiralty at Sierra Leone, enforced Britain's 1807 Act for the Abolition of the Slave Trade against British and foreign traders alike. Part III argues that Thorpe's court, in conjunction with aggressive interdictions by the British Navy and privateers, forced Europe's great slaving powers to the negotiating table and secured their abandonment of the slave trade through the creation of multilateral institutions equipped to adjudicate captured slave ships. This Part also discusses the Le Louis case, which demonstrated the impact of Thorpe's court on the legal regime governing free navigation. Part IV then analyzes the relevance of Thorpe's experiment in humanitarian intervention to current interdiction efforts undertaken by the Proliferation Security Initiative.
The Responsibility To Protect: The U.N. World Summit and the Question of Unilateralism
115 Yale L.J. 1157 (2006) More than a decade after the world did nothing to halt genocide in Rwanda, and in the shadow of ongoing atrocities in Darfur, Sudan, the international community recently made a new commitment to protect populations from genocide, war crimes, ethnic cleansing, and crimes against humanity. The United Nations 2005 World Summit brought together representatives from more than 170 countries, including the United States. While largely reiterating previous international development and security goals, the Summit culminated with an agreement that the international community, acting through the United Nations, bears a responsibility to help protect populations from genocide and other atrocities when their own governments fail to do so. The agreement further announced a willingness to take "collective action" through the Security Council to protect populations if peaceful means prove inadequate. The motivating force behind the agreement is the United Nations' past inaction in the face of grave atrocities, including genocide. At the conclusion of the World Summit, Secretary General Kofi Annan told the world's leaders: "[Y]ou will be pledged to act if another Rwanda looms." However, by describing the responsibility to protect in terms of U.N. action, the World Summit failed to address a critical issue: What can and should be done by individual states if the United Nations fails to fulfill its pledge? The answer to this question will inform the scope of permissible unilateral action, with implications for future humanitarian interventions and military actions. This Comment argues that the Summit agreement strengthens the legal justification for limited forms of unilateral and regional action–including military action–if the United Nations fails to act to protect populations from genocide and other atrocities. The Summit agreement strengthens the justification for unilateral action in two main ways. First, the agreement affirms important limits on national sovereignty by recognizing a state's responsibility to protect its own citizens. Second, the agreement sets clear responsibilities for the international community when a country fails to protect its own citizens. In cases of U.N. inaction, would-be unilateral actors can point to an explicit failure to fulfill a duty. However, the agreement only supports unilateral action in a narrow set of circumstances. First, the agreement is limited to a small set of extreme human rights abuses. Second, the agreement implies a hierarchy of actors and of interventions: Good faith U.N. action is privileged over unilateralism and peaceful action is privileged over violent means. Finally, the agreement limits the scope of intervention to the goal of protection. For these reasons, the U.S. invasion of Iraq could not have been justified using the Summit agreement.
The Mosaic Theory, National Security, and the Freedom of Information Act
115 Yale L.J. 628 (2005) This Note documents the evolution of the "mosaic theory" in Freedom of Information Act (FOIA) national security law and highlights its centrality in the post-9/11 landscape of information control. After years of doctrinal stasis and practical anonymity, federal agencies began asserting the theory more aggressively after 9/11, thereby testing the limits of executive secrecy and of judicial deference. Though essentially valid, the mosaic theory has been applied in ways that are unfalsifiable, in tension with the text and purpose of FOIA, and susceptible to abuse and overbreadth. This Note therefore argues, against precedent, for greater judicial scrutiny of mosaic theory claims.
Comment: War and Uncertainty
114 Yale L.J. 1405 (2005) This comment builds on John Hart Ely's concern in War and Responsibility with Congress's duty to investigate the factual predicate for going to war in circumstances of uncertainty. Professor Damrosch argues that Congress should exercise its constitutional power to decide to authorize military conflict with the fullest feasible understanding of policy-relevant factual context, but that the contextual investigation Congress should undertake should not be confused with a kind of incident-specific fact-finding that Congress is ill suited to perform.
Parrhesiastic Accountability: Investigatory Commissions and Executive Power in an Age of Terror
114 Yale L.J. 1419 (2005) In War and Responsibility, John Hart Ely sought to answer a question that has bedeviled constitutional scholars since the beginning of the Republic: What meaningful checks should be placed on the power of the Executive in wartime? For Ely, the answer was a new and improved version of the War Powers Resolution, a solution entirely in keeping with his support for theories of legal process more generally. Yet in light of the open-ended congressional resolutions authorizing the United States's military engagements in Afghanistan and Iraq, the viability of such legal process approaches to checking executive power in the area of national security is open to question. This article contends that a reinvigorated version of the independent investigatory commission may represent an effective supplemental check on the power of the Executive. To this end, it examines the experience of the 9/11 Commission and attempts to explain its remarkable successes by reference to a concept known as parrhesia. Celebrated in ancient Greece, parrhesia occurs when a speaker with a personal knowledge of the folly of choices made by his leaders confronts them with evidence of their failures. Whereas past investigatory commissions engaged solely in what can be called an analytics of truth--determining the objective facts of what happened--the 9/11 Commission also opened itself to the parrhesiastic truth telling of those who had experienced the consequences of what happened. This truth moved Congress to act and imposed a measure of accountability on the executive branch.
Rethinking Early Judicial Involvement in Foreign Affairs: An Empirical Study of the Supreme Court's Docket
114 Yale L.J. 855 (2005) Mainstream and revisionist scholars advance radically different histories of early judicial involvement in foreign affairs. By reconstructing the foreign affairs docket of the Jay and Marshall Courts, this Note presents empirical evidence with which these claims can be evaluated. In finding that one-fourth of the Court's caseload involved international disputes, and in presenting summary statistics on the parties, jurisdictions, areas of law, and kinds of disputes involved in these 323 cases, this Note concludes that scholars have not fully appreciated the degree of judicial involvement in foreign affairs or the reasons for it.
Solving the Due Process Problem with Military Commissions
114 Yale L.J. 921 (2005) The terrorist attacks of September 11, 2001 prompted the creation of two new adjudicatory bodies within the Department of Defense. First, military commissions were established by presidential order just two months after the attacks in order to prosecute members of al Qaeda for war crimes. The commissions are non-Article III courts (although they adhere to many aspects of conventional criminal procedure) and are empowered to try persons designated by the President as eligible for trial by commission for offenses against the laws of war. No trials have yet taken place, although commissions for four detainees have been convened, and fifteen detainees have been designated for trial. Second, combatant status review tribunals (CSRTs) were created in the wake of Hamdi v. Rumsfeld to determine if detainees at Guantánamo Bay are being properly held as enemy combatants. A plurality of the Supreme Court held in Hamdi that "a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker." The CSRTs aim to provide that "fair opportunity" to individuals who the government alleges are enemy combatants and hence subject to detention until the end of hostilities. This Comment's principal goal is to explore the interplay between the military commissions and the CSRTs. A plethora of law review articles have dealt with military commissions, and the CSRTs have been covered at length in the press. There has been almost no effort, however, to analyze how the two institutions fit together or how the lessons of one could be used to solve the potential constitutional problems of the other. This Comment seeks to fill that gap. In particular, it argues that there is a serious constitutional flaw in the military commissions' procedure for establishing personal jurisdiction and that, in an ironic twist, this flaw can be mended through a modest broadening of the scope of the CSRTs' fact-finding powers. Part I describes the looming due process problem with the military commissions: that there is currently no mechanism by which individuals who dispute their eligibility to be tried by commission can resolve this jurisdictional issue. This Part argues that this aspect of the commissions' procedure is unconstitutional under case law on both Article III personal jurisdiction and unilateral executive designations. Part II contends that this due process problem can best be solved by expanding the decisionmaking range of the CSRTs. Rather than merely determining whether a detainee is an enemy combatant, the CSRTs should also decide whether a detainee found to be an enemy combatant is a lawful combatant, immune from trial by military commission, or an unlawful combatant, subject to such trial. Part II also argues that the CSRTs are better positioned to make this determination than either conventional courts or the military commissions themselves. Part III concludes.
Emergency Power and the Militia Acts
114 Yale L.J. 149 (2004) An important chapter is missing from contemporary debates over the constitutional source of the federal government's emergency power. In focusing on five statutes passed by early Congresses to provide for the calling forth of the militia and the federal armed forces to respond to certain types of crises and the cases interpreting them, this Note argues that these "Militia Acts" should significantly inform our understanding of the intended structural allocation of domestic constitutional emergency power and of the important role Congress was always intended (and should continue) to play in policing the boundaries of the President's crisis authority at home.
Editor's Note: The Constitution in Times of Emergency
113 Yale L.J. 1751 (2004) Earlier in this Volume of The Yale Law Journal, Professor Bruce Ackerman published his essay The Emergency Constitution, in which he advocated a new constitutional regime to confront the potential for recurring terrorist attacks among modern nations--and the United States in particular--in the twenty-first century. Professor Ackerman proposed that, following such an attack, the President seek congressional authorization for a declaration of emergency, with reauthorizations at fixed intervals, subject to increasing supermajority requirements. Among other measures, Professor Ackerman's emergency regime permitted time-delimited detention, subject to ex post judicial review at the close of the emergency. The status of the constitution in times of emergency is not a new topic of inquiry: It has loomed large throughout our nation's history, particularly--but not exclusively--in times of overt military conflict. Yet we believe the subject to be an important one at this historical juncture, and Professor Ackerman's work is by no means the only view of how to empower governments to combat terrorism and deal with emergency in a post-September 11 world. In the pages that follow, Professor David Cole and Professors Laurence Tribe and Patrick Gudridge provide alternatives for the structure of emergency regimes, reflections on our nation's--and other nations'--histories of dealing with emergency, and critiques of Professor Ackerman's approach.
Non-Self-Executing Treaties and the Suspension Clause After St. Cyr
113 Yale L.J. 2007 (2004) Ogbudimkpa v. Ashcroft, 342 F.3d 207 (3d Cir. 2003). In INS v. St. Cyr, the Supreme Court rejected Congress's attempt to foreclose judicial review in various provisions of the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996 and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996. The St. Cyr Court held that Congress must be extraordinarily explicit whenever it intends for legislation to strip courts of the jurisdiction to hear any class of habeas petitions, including the deportation-related claims that AEDPA and IIRIRA sought to restrict. Such a "superclear" statement, the Court concluded, was needed to avoid the potential constitutional problem posed by the Suspension Clause, which bars foreclosure of habeas "unless when in Cases of Rebellion or Invasion the public Safety may require it."
The Anti-Emergency Constitution
113 Yale L.J. 1801 (2004) INTRODUCTION The season for talk of leaving the Constitution behind, while we grit our teeth and do what must be done in times of grave peril--the season for talk of saving the Constitution from the distortions wrought by sheer necessity, while we save ourselves from the dangers of genuine fidelity to the Constitution--is upon us. Such talk, the staple of commentary on the survival of constitutional democracies in wartime and other similarly trying periods, was to be expected in the wake of September 11. It was once an unspeakable thought that our Constitution should have lacunae--temporal discontinuities within which nation-saving steps would be taken by those in power, blessed not by the nation's founding document but by the brute necessities of survival. But the unspeakable became more readily articulable when the inimitable pen of Robert H. Jackson gave word to the thought in his canonical dissent from the Supreme Court's justly infamous Korematsu decision, proclaiming that the great harm to liberty and equality done by the military expulsion of Japanese Americans from their homes and communities was dwarfed by the still greater harm done by bending the Constitution into a form that could rationalize that course of action. Better by far, Jackson darkly suggested, would have been a strategy whereby the military would have been left free to do what the law of necessity called for, while the courts washed their hands of the affair and did nothing to create a precedent by holding the military's actions to be constitutional.
The Priority of Morality: The Emergency Constitution's Blind Spot
113 Yale L.J. 1753 (2004) INTRODUCTION In the wake of the terrorist attacks of September 11, Attorney General John Ashcroft announced a campaign of aggressive preventive detention. Invoking Robert Kennedy, the Attorney General announced that just as Kennedy would arrest a mobster for "spitting on the sidewalk," so he, Ashcroft, would use every law in his power, including the immigration laws, to apprehend "suspected terrorists," lock them up, and prevent the next terrorist attack. As of January 2004, the government had detained more than 5000 foreign nationals through its antiterrorism efforts. By any measure, the program has been spectacularly unsuccessful. None of these detainees has been determined to be involved with al Qaeda or the September 11 conspiracy. Only three have been charged with any terrorism-related crime, and two of those three were acquitted of the terrorism charges. The lone conviction--for conspiring to support some unspecified terrorist activity in the unspecified future--has been called into question by the revelation that the prosecution failed to disclose evidence that its principal witness had lied on the stand. In June 2003, the Justice Department's own Inspector General issued a sharply critical report on the preventive detention campaign, finding, among other things, that people were detained and treated as "of interest" to the September 11 investigation on such information as an anonymous tip that there were "too many" Middle Eastern men working in a convenience store. Many were initially arrested without charges at all; over seven hundred of the arrests remain secret to this day; and more than six hundred detainees charged with immigration violations were tried in secret, without any showing that any information involved in their immigration hearings was classified. The vast majority were not only not charged with a terrorist crime, but were affirmatively cleared of any connection to terrorism by the FBI. Virtually all of the detainees were from predominantly Arab countries.
This Is Not a War
113 Yale L.J. 1871 (2004) I know that some people question if America is really in a war at all. They view terrorism more as a crime, a problem to be solved mainly with law enforcement and indictments. After the World Trade Center was first attacked in 1993, some of the guilty were indicted and tried and convicted and sent to prison. But the matter was not settled. The terrorists were still training and plotting in other nations and drawing up more ambitious plans. After the chaos and carnage of September the 11th, it is not enough to serve our enemies with legal papers. The terrorists and their supporters declared war on the United States, and war is what they got. [Applause.] -- President George W. Bush, State of the Union, January 20, 2004 The Cold War. The War on Poverty. The War on Crime. The War on Drugs. The War on Terrorism. Apparently, it isn't enough to call a high-priority initiative a High-Priority Initiative. If it's really important, only a wimp refuses to call it war, almost without regard to its relationship to the real thing.
The Emergency Constitution
113 Yale L.J. 1029 (2004) Terrorist attacks will be a recurring part of our future. The balance of technology has shifted, making it possible for a small band of zealots to wreak devastation where we least expect it--not on a plane next time, but with poison gas in the subway or a biotoxin in the water supply. The attack of September 11 is the prototype for many events that will litter the twenty-first century. We should be looking at it in a diagnostic spirit: What can we learn that will permit us to respond more intelligently the next time around? If the American reaction is any guide, we urgently require new constitutional concepts to deal with the protection of civil liberties. Otherwise, a downward cycle threatens: After each successful attack, politicians will come up with repressive laws and promise greater security--only to find that a different terrorist band manages to strike a few years later. This disaster, in turn, will create a demand for even more repressive laws, and on and on. Even if the next half-century sees only four or five attacks on the scale of September 11, this destructive cycle will prove devastating to civil liberties by 2050. It is tempting to respond to this grim prospect with an absolutist defense of traditional freedom: No matter how large the event, no matter how great the ensuing panic, we must insist on the strict protection of all rights all the time. I respect this view but do not share it. No democratic government can maintain popular support without acting effectively to calm panic and to prevent a second terrorist strike. If respect for civil liberties requires governmental paralysis, serious politicians will not hesitate before sacrificing rights to the war against terrorism. They will only gain popular applause by brushing civil libertarian objections aside as quixotic. To avoid a repeated cycle of repression, defenders of freedom must consider a more hard-headed doctrine--one that allows short-term emergency measures but draws the line against permanent restrictions. Above all else, we must prevent politicians from exploiting momentary panic to impose long-lasting limitations on liberty. Designing a constitutional regime for a limited state of emergency is a tricky business. Unless careful precautions are taken, emergency measures have a habit of continuing well beyond their time of necessity. Governments should not be permitted to run wild even during the emergency; many extreme measures should remain off limits. Nevertheless, the self-conscious design of an emergency regime may well be the best available defense against a panic-driven cycle of permanent destruction. This is a challenge confronting all liberal democracies, and we should not allow American particularities to divert attention from the general features of our problem in institutional design. Nevertheless, the distinctive character of the U.S. Constitution does create special problems, which I discuss separately when the need arises. My argument proceeds in two stages: The first is diagnostic, the second prescriptive. The exercise in diagnosis involves a critical survey of the conceptual resources provided by the Western legal tradition: Are our basic concepts adequate for dealing with the distinctive features of terrorist strikes? Part I suggests that we cannot deal with our problem adequately within the frameworks provided by the law of war or the law of crime. This negative conclusion clears the conceptual path for another way to confront the problem: the "state of emergency." The paradigm case for emergency powers has been an imminent threat to the very existence of the state, which necessitates empowering the Executive to take extraordinary measures. Part II urges a critical reassessment of this traditional understanding: September 11 and its successors will not pose such a grave existential threat, but major acts of terrorism can induce short-term panic. It should be the purpose of a newly fashioned emergency regime to reassure the public that the situation is under control, and that the state is taking effective short-term actions to prevent a second strike. This reassurance rationale, as I call it, requires a sweeping revision of the emergency power provisions currently found in many of the world's constitutions. But it requires something more: a reconsideration of the self-confident American belief that we are better off without an elaborate set of emergency provisions in our own Constitution, and that we should rely principally on judges to control our panic-driven responses to crises. Part III takes up this common law prejudice, and suggests why it will no longer serve us well under the conditions likely to prevail in the twenty-first century. This is the point at which cultural diagnosis gives way to constitutional prescription. If I am right that the threat of terrorism cannot be cabined within the traditional categories of war and crime, that we cannot rely on judges to manage the panic-reactions likely to arise, and that existing constitutional provisions do not focus on the reassurance rationale, we have our work set out for us. What should a proper emergency constitution look like? I offer a three-dimensional approach. The first and most fundamental dimension focuses on an innovative system of political checks and balances, with Parts IV and V describing constitutional mechanisms that enable effective short-run responses without allowing states of emergency to become permanent fixtures. The second dimension--Part VI--integrates economic incentives and compensation payments into the system. Finally, Part VII moves from political economy to the legal realm--proposing a framework that permits courts to intervene effectively to restrain predictable abuses without viewing judges as miraculous saviors of our threatened heritage of freedom. Part VIII confronts some American political realities. Something like my design may prove attractive in countries that already possess elaborate emergency provisions. Given the formidable obstacle course presented by Article V of the U.S. Constitution, my proposal is a nonstarter as a formal amendment. Nevertheless much of the design could be introduced as a "framework statute" within the terms of the existing Constitution. Congress took a first step in this direction in the 1970s when it passed the National Emergencies Act. But the experience under this Act demonstrates the need for radical revision. The next few years may well create a political opening for serious consideration of a new framework statute, especially if the Supreme Court acts wisely in some great cases coming up for decision in the next year or two. We shall see.
Leaving FISA Behind: The Need To Return to Warrantless Foreign Intelligence Surveillance
113 Yale L.J. 179 (2003) In a locked, windowless room with walls of corrugated steel, in a restricted area of a Justice Department building in Washington, sits the Foreign Intelligence Surveillance Court (FISC). Conducting proceedings completely hidden from the public, as mandated by Foreign Intelligence Surveillance Act (FISA) of 1978, the FISC grants government agents permission to surveil targets if there is probable cause to believe they are foreign powers or agents of foreign powers. The FISC is accustomed to approving each government request it receives, but on May 17, 2002, it issued an order stating that the Department of Justice (DOJ) had overstepped its bounds by promulgating surveillance procedures that gave prosecutors too much supervisory authority over intelligence investigations. The DOJ insisted that its procedures were in accordance with the FISA amendments passed with the USA PATRIOT Act, and filed the first ever appeal to the Foreign Intelligence Surveillance Court of Review, a panel of three senior federal circuit court judges appointed by Chief Justice Rehnquist. The court handed down In re Sealed Case, reversing the FISC order and affirming the legitimacy of the new DOJ procedures and the USA PATRIOT Act amendments. In late March 2003, the Supreme Court declined to reconsider the decision. The USA PATRIOT Act has virtually eliminated the specialized intelligence-gathering function of FISA orders; they now can be used with the specific purpose of obtaining evidence to be used in criminal prosecutions, as long as this is not the sole purpose of such investigations. Additionally, prosecutors and intelligence officials may now consult over FISA warrant application and execution. A FISA warrant has become little more than a regular Title III warrant issued secretly with no required showing of probable cause of criminal activity. In view of these significant changes, the FISC retains little unique jurisdiction. The FISC's secret, perfunctory procedures no longer provide constitutionally adequate protection for surveillance targets who will be unknowingly investigated and prosecuted as a direct result of its orders, especially now that FISA surveillance may be used specifically for criminal--and not simply intelligence-gathering--investigations. The best way to revive the constitutional viability of foreign intelligence surveillance is to forego the FISA warrant procedure entirely and rely on regular Article III courts to guarantee the reasonableness of such searches if challenged. Such a change in process would allow law enforcement authorities more flexibility in pursuing foreign intelligence investigations, since no pre-investigatory warrants would be required, but would also allow for greater protection of the civil liberties of those investigated, since the standard of review would not be simply whether the target is an agent of a foreign power, but whether the search was conducted in a reasonable manner, in conformance with the Supreme Court's Fourth Amendment jurisprudence. Warrantless foreign intelligence surveillance would be admissible in criminal prosecutions, but only if such surveillance were determined to be reasonable in post hoc adversary proceedings. My proposal is not to give the DOJ a blank check to investigate anyone, anytime, anywhere; such a regime would cause the kind of backlash that prompted the passage of FISA in the first place. Rather, if warrantless foreign intelligence surveillance is going to succeed in the twenty-first century, strict executive and legislative branch internal review procedures are necessary. Prosecutors will have to give targets of warrantless operations notice when such investigations are concluded, allowing targets to contest the surveillance in Article III courts. Such a change would benefit all parties involved. The DOJ would enjoy greater freedom in conducting investigations, as it would not have to procure judicial warrants and could act rapidly to investigate time-sensitive threats. At the same time, the entire process would be removed from the supersecret domain of the FISC, making the Attorney General publicly and politically accountable for his orders, allowing targets more opportunities to challenge investigations, and requiring Article III courts to closely examine the constitutionality of warrantless surveillance when targets so desire. In this Note, I first briefly discuss the reasons for the passage of FISA and the establishment of the FISC, including the past and current workings of the FISC as an institution and its questionable constitutionality even before the USA PATRIOT Act amendments. I then explain how the USA PATRIOT Act and In re Sealed Case have damaged the usefulness and legitimacy of FISA and the FISC. Finally, I make the case for the abolition of FISA and the appropriateness of warrantless searches as the standard in foreign intelligence cases.
Insuring Against Terror?
112 Yale L.J. 2509 (2003) The current Act reflects the political reality of concentrated interests of insurers and businesses. This group had the influence and the platform to push for the government's assumption of much of their terrorist risk exposure. The Act disproportionately assists the insurers and affluent property owners who face the highest risks from terrorism, yet it contains significant safeguards that limit the potential for rent-seeking and distorting effects on participants' behavior. The Act's reliance on market pricing limits rent-seeking by subjecting prices to market discipline. The use of copayments reduces moral hazards. The employment of deductibles limits the burden shifting to the government primarily to catastrophic terrorism risks. These advantages do not eliminate the upward redistribution, which would be inevitable in almost any government solution to address terrorism risks that by nature disproportionately affect the affluent. Nonetheless, the Act serves as a politically and economically viable solution that partly addresses the substantive economic challenges facing terrorism insurance, yet limits the potential for abuse and further extension of rents for the three-year term of the plan. The threat of terrorism is one that is likely to be with us so long as the United States maintains its global role. If terrorist threats continue to remain perceived as real and substantial, entities facing high terrorism risks will have both the incentives and likely the political means to continue to secure government rents by reducing their risk exposure. Changes two to three years hence at the expiration of the Act's program will obviously be contingent on the degree of perceived threats. Policymakers should work within political constraints on continuing to increase deductibles and copayments. This approach would reduce implicit subsidies and move the reinsurance plan toward primarily serving as a liquidity device for catastrophic terrorist attacks. Even in its present form, however, the Act is a significant step forward in the design of government insurance programs. It serves as a model of how, even in the context of overwhelming rent-seeking pressures, policymakers can incorporate market safeguards that limit the distorting effects of government intervention.
Korematsu Continued . . .
112 Yale L.J. 1911 (2003) How far have America and her courts come since World War II? Even in the wake of September 11th, it seemed they would not again endorse racial intolerance on the level of wholesale internments. This Comment argues, however, that Dasrath v. Continental Airlines, Inc. indicates there has been limited progress since the internment camps and the Supreme Court's validation of those internments in Korematsu v. United States. In Part I, this Comment briefly discusses the months that followed 9/11, noting particularly this country's desire to avoid repeating history. In Part II, this Comment asserts that, notwithstanding the observations of Part I, Korematsu has been reborn. Part II finds Dasrath closely mirrors Korematsu's powerful and peculiar rhetoric, and it concludes that Dasrath accordingly embodies Korematsu. Part III discusses Dasrath's ramifications. It demonstrates that Korematsu was the Court's concession to America's existing anti-Asian and anti-asian American racism. As a reincarnation of Korematsu, Dasrath is a tool for cloaking existing anti-Arab and anti-arab American sentiment in legal legitimacy. Finally, in Part IV, this Comment concludes that Dasrath's insidious purpose indicates America and her courts remain willing to sanction some racist sentiment. While Korematsu has been long reviled, the tolerance for racism manifested in that case continues. I September 11, 2001, was compared, almost immediately, to December 7, 1941. The ensuing debate over the Bush Administration's domestic response to 9/11 similarly included comparisons to the Roosevelt Administration's response to Pearl Harbor. Caution against repeating World War II's race-based internments accompanied those comparisons. Many also feared the courts would resurrect the sort of judicial deference that gave legal legitimacy to the internments--i.e., the courts would "repeat" Korematsu v. United States. These concerns were not overstated. After September 11th, some called for ethnic profiling, insisting that the Constitution permitted it. Others cited Korematsu as favorable precedent. Indeed, even before 9/11, a few commentators still argued that Korematsu had life, though by the 1980s most scholars considered the case functionally dead letter, As the Administration and the courts acted, however, it seemed that, while possibly open to criticism, the response to 9/11 would not sink to race-based internments or Korematsu-like opinions. Following the attacks, our leaders were careful to "acknowledg[e] and celebrat[e] our racial and religious diversity." One year after 9/11, the courts appeared not to be deferring to the executive branch's wartime policies. Scholars who warned of Korematsu-type deference conceded that, while judicial deference today might resemble the deference in Korematsu, the sort of outright racism seen in Korematsu would not withstand modern equal protection review. One commentator--a Columbia University professor-- even referred to Korematsu as an "obscure" Supreme Court case. September 11th did not immediately result in the sort of publicly sanctioned racism that, after Pearl Harbor, had led to Time and Life "how-to" guides for distinguishing, on the basis of physical characteristics alone, between our "friends," the Chinese, and our "enemies," the "Japs." In his September 20, 2001, address to Congress, President Bush asserted several times that America would not profile, saying once, "The enemy of America is not our many Muslim friends; it is not our many Arab friends." America would not repeat the past.
Romanticizing Guilt
112 Yale L.J. 1625 (2003) George P. Fletcher's Romantics at War begins by describing an ironic blindness. The threat of terrorism has forced Americans to consider questions of war and guilt with a new sense of immediacy and relevance, to disorienting effect. We remain unable to reconcile our instinctive view of the war on terror as a moral conflict, pitting good against evil, with our basic legal and moral commitments, rooted in notions of fairness and individual justice. Professor Fletcher proposes to clarify this "conceptual morass" (p. 5) by drawing our attention to what may be an irreducible contradiction between our liberal aspirations and our Romantic impulses. The first step in Fletcher's argument is to reveal what he perceives as the shortcomings of a liberal tradition embraced by most American legal theorists. According to Fletcher, liberalism cannot fully explain the nature of our legal duties in the context of war, much less account for the feelings of solidarity that shape a nation's willingness or unwillingness to engage in war. What we need in order to think more clearly about these issues is an altogether different vantage point. Fletcher finds this alternative footing in Romanticism, from which he develops a concept of the nation as a collective agent and as a potential bearer of guilt. Fletcher is by no means the first to criticize liberalism for its preoccupation with the individual and its tendency toward a universalism based on abstract principles of reason. More unique is his intent to focus on the tension between liberalism and Romanticism without necessarily arguing for one over the other. In order to defend the Romantic perspective against its own potential excesses, however, Fletcher adopts too narrow a view of the Romantic movement to make the tension productive. He is, paradoxically, forced to resort to liberal principles in order to vindicate a mode of thinking he characterizes as diametrically opposed to liberalism. The aim of this Comment is to extend and modify Fletcher's account of the conflict between liberals and Romantics by examining an aspect of the Romantic tradition that he ignores. Specifically, it highlights a particular conception of imagination central to the English Romantics' understanding of national identity. At the same time, it argues that Fletcher's approach to the question of war's appeal and his argument for the principle of collective guilt are inconsistent with his own premises.
Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?
112 Yale L.J. 1011 (2003) This Article suggests that legal models that have been traditionally invoked in the context of fashioning responses to emergencies may not always be adequate. Rather, there may be circumstances when the appropriate method of tackling grave threats entails going outside the legal order, at times even violating otherwise accepted constitutional principles. The "Extra-Legal Measures" model proposed in the Article informs public officials that they may act extralegally when they believe that such action is necessary for protecting the nation in the face of calamity provided that they openly and publicly acknowledge the nature of their actions. It is then up to the people to decide how to respond to such actions. The actor may be held to the wrongfulness of her actions and required to make legal and political reparations. Alternatively, the people may act to approve, ex post, the extralegal actions of the public official. The process leading up to such ratification (or rejection) of those actions promotes deliberation after the fact, as well as establishes the individual responsibility of each member of the relevant community for the actions taken on behalf of the public during the emergency. That very process, with its uncertain outcomes, also serves an important function of slowing down any possible rush to use extralegal powers by governmental agents. By separating the two issuesÜaction and ratificationÜthe model adds an element of uncertainty hanging over the head of the public official who needs to decide how to act. That uncertainty raises the cost of taking an extralegal course of action. While going outside the legal order may be a "little wrong," it is advocated in the Article in order to facilitate the attainment of a "great right," namely the preservation not only of the constitutional order, but also of its most fundamental principles and tenets. The model promotes, and is promoted by, ethical concepts of political and popular responsibility, morality, and candor.