National Security
A Small Problem of Precedent: 18 U.S.C. 4001(a) and the Detention of U.S. Citizen "Enemy Combatants"
112 Yale L.J. 961 (2003) In 1971, Congress repealed the Emergency Detention Act, part of the Internal Security Act of 1950, by writing into 18 U.S.C. § 4001(a) the provision that "[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." Enacted amid mounting public pressure during the Vietnam War, § 4001(a) sought to "restrict the . . . detention of citizens of the United States to situations in which statutory authority for their incarceration exists." At the time, it represented a legislative response to the outrage over the executive internment of Japanese Americans during World War II, detentions carried out pursuant only to a presidential order. Today, § 4001(a) represents a bar to the Bush Administration's current policy of detaining U.S. citizens as "enemy combatants," absent congressional authorization, without charges and without access to counsel or the courts. This Comment analyzes that policy in light of the current force of § 4001(a) and Howe v. Smith, the 1981 Supreme Court decision that embraced an expansive reading of the antidetention statute. Since, under Howe, § 4001(a) applies to all U.S. citizens regardless of "enemy combatant" status, the only remaining issue is whether Congress authorized the detentions in question. After tracing the history of § 4001(a), this Comment evaluates, and finds inadequate, the Administration's various justifications for the detention of U.S. citizens as "enemy combatants." The analysis concludes that, in the absence of clear congressional authorization, the detention policy not only violates § 4001(a) but also shows complete disregard for the deeper purpose behind this provision's enactment and the fundamental separation of powers principles manifested therein.
Reorganization as a Substitute for Reform: The Abolition of the INS
112 Yale L.J. 145 (2002) September 11th and the events that followed highlighted the shortcomings of our nation's immigration policies and their enforcement. Gaffes, such as the issuance of student visas to two of the hijackers on the six-month anniversary of 9/11, reinforced public perceptions that the Immigration and Naturalization Service (INS) is an agency beyond repair. Critics from both ends of the political spectrum have condemned the INS for its failures. As House Minority Leader Richard A. Gephardt stated, "We saw in the 9/11 incident some of the problems in the INS that many of us had seen before. . . . It became clear, I think, to everybody in the country and in the Congress that we needed reform." Consensus on the need for reform may be clear, but the question remains of what shape reform should take. Unfortunately, politicians have taken the path of least resistance by focusing on reorganization plans, rather than tackling the substantive issues that plague the INS. The Bush Administration and both houses of Congress have differed about what form a reorganization should assume. Their proposals share a misguided faith, however, in the efficacy of agency restructurings as a vehicle for reform. These proposals are the latest variation on an old theme. Reorganizations have long served as politicians' tool of choice for reforming the American administrative state. Such plans do have the potential to effect widespread change by shaking up agency culture and reallocating management responsibilities and personnel. At the same time, the literature on reorganizations casts doubt on their efficacy as a vehicle for reform. As Paul Light has highlighted, the pursuit of too many competing goals through agency reorganizations has often served as a formula for failure. Donald Kettl and John DiIulio have documented how the "overwhelming result" of agency restructurings has been "an intransigent gap between the effort invested and the results produced." In practice, the main virtue of reorganizations may be their role as politicians' symbolic substitute for tackling the underlying problems that agencies face. This Comment raises doubts about whether any of the reorganization proposals have the potential to accomplish their intended goals. It assesses the potential and limits of the five main proposals to reorganize the INS. This Comment concludes that the Senate proposal sponsored by Senators Ted Kennedy and Sam Brownback is the strongest in a set of weak options because it seeks to accomplish the least through restructuring and would leave agency leaders with the most flexibility to make future changes. Regardless of which proposal is enacted, the hope for reform lies in politicians' recognition that "restructuring alone is not going to solve all the problems, [but rather] just begins the effort" of reexamining the assumptions, goals, and approaches of immigration policy.
Local Policing After the Terror
111 Yale L.J. 2137 (2002) Crime waves always carry with them calls for more law enforcement authority. What happened on September 11, 2001 was, among other things, a crime wave--because of that one day, the number of homicides in America in 2001 will be twenty percent higher than the year before. It is no surprise, then, that even before the fires in the rubble that was the World Trade Center burned themselves out, some politicians were calling for broader powers for law enforcement and greater restrictions on citizens, all in the effort to fight this particular crime wave. That is not a bad thing. Law enforcement authority naturally varies with the nature and size of the crime problems police must combat. A glance at the recent history of criminal procedure shows as much. Most legal restrictions on policing date from the criminal procedure revolution of the 1960s, which itself can be seen as a consequence of the low-crime 1950s. Higher crime rates led to cutbacks in those legal protections in the 1970s and 1980s, just as lower crime rates have led to some expansion in the past few years. In short, Fourth and Fifth Amendment rights have varied with crime before, and they will probably do so in the future. As they must, if the law is to reflect a sensible balance between the social need for order and individuals' desire for privacy and liberty. The terrorist attacks on New York and Washington raised the demands on law enforcement. Those increased demands have already led to some increases in law enforcers' legal authority, and that trend will--and probably should--continue, at least for a while. It helps to separate these legal changes (both the ones we have already seen and the ones likely to come in the near future) into two categories: special powers that are limited to the fight against terrorism, and changes in the authority of police across the board. The first is the product of federal legislation, and thus affects only a small fraction of the more than 800,000 law enforcement officers in the United States. The second is, or will be, the product of judicial decisions, for it is judges who determine the scope of Fourth and Fifth Amendment law, and it is those bodies of law that constrain the great majority of those 800,000-plus officers. The first category has gotten the most ink thus far, but the second category is more important. The sheer size of America's local law enforcement machinery means that the rules that bind it have much more to do with the amount of freedom most Americans possess than the rules that limit the power of FBI agents. The subject of this Essay is that second category. At first blush, one might wonder whether the category will even exist. Why, after all, should the war on terrorism lead to change in the doctrines governing ordinary searches and seizures when Congress has already created targeted authority for fighting terrorists? The answer comes in three parts. First, some antiterrorism legislation is not so targeted after all: Some of the extra powers Congress has granted the FBI are general, not limited to the fight against al Qaeda. Courts will be called on to assess the constitutionality of these provisions as a general matter, not just as applied to a particular crime problem. If they are upheld, state and local governments can be expected to copy them. Second, the domestic war on terrorism is already affecting local police departments' ability to deal with more typical sorts of crime. A lot of police manpower has been diverted to various forms of homeland security, such as guarding at-risk public spaces and responding to reports of possible attacks. That drains resources from more ordinary policing, which may in turn lead to an increase in crime generally--some cities have seen sharp increases in homicides since September 11. A general crime rise would naturally lead to calls for fewer legal restrictions on the police, as it did in both the 1960s and the 1980s. Such calls are likely even if we manage to avoid a post-September 11 surge in crime: Lowering the level of legal regulation would permit police to do the rest of their jobs more cheaply, leaving more time and personnel to devote to security against further terrorist attacks. This is a particular instance of a general point: A sharp rise in one kind of crime inevitably generates demand for greater authority to deal with other crimes. Third, most constitutional limits on policing are transsubstantive--they apply equally to suspected drug dealers and suspected terrorists. A number of scholars have bemoaned this fact, but it remains a fact, and there is no reason to believe that current exigencies will change it. It follows that when courts approve police tactics designed to fight terrorists, they will also be sanctioning use of the same tactics against other sorts of criminals. And the transsubstantive nature of American criminal procedure matters in another important way: Judges and Justices are likely to think about the effect of their decisions on the fight against terrorism even when the underlying cases involve more ordinary sorts of policing. We have seen this before. One cannot read Fourth Amendment cases from the 1980s without sensing judicial attention to the pros and cons of the war on drugs--even when the cases did not involve drug crime. Crack dealers were the most salient crime problem a dozen years ago; now, terrorists occupy that place. And if the war on terrorism has half the effect on Fourth Amendment law that the war on drugs had, the effect will be large indeed. For all these reasons, Fourth and Fifth Amendment law is likely to move toward greater authority for the police--not just for the FBI, and not just when fighting terrorists. The natural conclusion is that we will see a loss of individual liberty and privacy. After all, this tradeoff seems to be zero-sum. Giving ground on one side means losing ground on the other. Yet that need not be so. As things stand now, the law that polices the police is at once too lax and too strict. It both limits police in the wrong ways and leaves them free to do the wrong things. Some of these dysfunctional features appear precisely in areas where the fight against terrorism is most likely to place pressure on the law. In the wake of September 11, these conditions present a large opportunity. It may be possible, by fixing some of the law's worst mistakes, to give the police more power while also giving citizens more liberty and privacy--a Pareto move in a sphere where such moves are rare. Now may be the time for a grand trade--greater power to catch criminals coupled with rules that limit the harm greater power can do. My chief goal in this Essay is to suggest the outlines of such a trade. It has four elements. First, give police the power to seize or search groups, with or without any grounds for suspecting individual members of those groups. That sounds like, and is, a large gift. Yet it is also a bribe (of the healthy sort), a means of inducing police to substitute less harmful and more self-regulating tactics for more harmful and harder-to-regulate ones. Second, give police the power (more precisely, let them keep the broad power they already have) to stop and question individual suspects based on slight suspicion, but regulate the manner of those encounters more seriously. Right now, Fourth Amendment law devotes an enormous amount of attention to the fact of searches and seizures, but almost none to how those searches and seizures are carried out. That ought to be reversed; sharp legal lines between "searches" and "seizures" and everything else ought to be replaced with hazier boundaries between decent police behavior and the indecent kind. Those two changes would have a number of good effects; among other things, they might substantially reduce the harm caused by racial profiling--the practice of selecting targets of police attention based in part on race or ethnicity. Third, give police greater power to gather information, but couple that gift with restrictions on how the information is used once it is gathered. It is one of the law's great peculiarities that privacy tends to be protected either absolutely or not at all--either no one can see the contents of my glove compartment or the police can both see it and put it on the evening news. Graded protection would make more sense, by giving police greater power to catch criminals while still guarding against the worst privacy intrusions. Fourth, give police the ability to question all arrestees, even those who have invoked their Miranda rights, but couple that with a requirement that interrogation be video- and audiotaped, so that courts can review police questioning for evidence of coercion. Current Miranda doctrine overprotects a few suspects--the few who are savvy enough to invoke their rights (and thereby opt out of questioning)--and underprotects the rest. Case-by-case review with tapes of interrogation sessions would be fairer. Notice that racial profiling appears only indirectly on this list of proposed reforms. That might seem like a dodge. In terms of how we police the police, profiling is the great issue of our time. There was already a lively debate about it before September 11, and the mass murder that took place on that date only served to make that debate more important. Any responsible discussion that aims to reform Fourth Amendment law should, one might think, grapple with this issue. But profiling is an issue best solved by indirection. If confronted directly, it is intractable--easy to forbid in theory, impossible (and maybe inadvisable) to root out in practice, for reasons that go to the heart of why police officers do the things they do. At the same time, the size of the problem might be reduced significantly if the law did two things it does not presently do: Make alternatives to profiling cheaper for the police, and reduce the harms profiling causes when it happens. Those steps would not solve the problem--maybe they would not come close to solving the problem--but with unsolvable problems, mitigation of harm is a worthy goal. The Essay proceeds as follows. Part I defends the proposition that the scope of Fourth and Fifth Amendment rights does and should vary (and has varied in the recent past) with crime rates. In other words, there is nothing new about, and nothing wrong with, the claim that after September 11 law enforcement authority should increase. Part II then deals with the ways that power could increase while minimizing harm to the citizenry, focusing on the elements of the trade outlined above, and, in particular, on the ways in which these legal changes might be the best available option for dealing with racial profiling. Part III concludes with a brief discussion of the feasibility of a constitutional trade like the one I suggest here.
The Storrs Lectures: Liberals and Romantics at War: The Problem of Collective Guilt
111 Yale L.J. 1499 (2002) Somehow we in the West thought the age of war was behind us. After nuking Hiroshima, after napalming Vietnam, we had only distaste for the idea and the practice of war. The thought of dying for a noble cause, the pursuit of honor in the name of patria, brotherhood in arms--none of this appealed to us anymore. "I hate war and so does Eleanor," opined FDR in the oft-repeated lyrics of Pete Seeger. War became a subject for ironic disdain. As Tom Lehrer caught the mood of the 1960s: "We only want the world to know that we support the status quo. . . . So when in doubt, Send the Marines!" Behind this disdain for war lies as well a distaste for the Romantic view of the world that tends to glorify the nation and war as an expression of patriotism. As Nancy Rosenblum argues, in the Romantic view of the world, war and militarism become sources of inspiration. Identifying with an ideology worth dying for, accepting a place in the hierarchy of command, becoming part of the fighting collective--these are actions and commitments that lift men out of the quotidian and enable them to feel that their lives express a deeper meaning. Revolutions and wars of self-determination have always appealed to Romantics. In the beginning of the nineteenth century, the Greek war of independence captured Byron's imagination. The War of 1848 brought Francis Lieber face to face with the glory of battle. The Spanish Civil War had a similar appeal in the twentieth century. As Barbara Ehrenreich describes the popular reaction to World War I, the outbreak of hostilities in 1914 unleashed "a veritable frenzy of enthusiasm, . . . not an enthusiasm for killing or loot, . . . but for something far more uplifting and worthy." The aversion to war that set in after Hiroshima and Vietnam represented a rejection of this Romantic sensibility. Finding meaning in warfare was relegated to the outdated attitudes of another time. In popular culture, at least, things have begun changing, and the shift became evident even before September 11. If the postwar and Vietnam eras found expression in films like Dr. Strangelove and Apocalypse Now, the new spirit of patriotism became visible in Steven Spielberg's film Saving Private Ryan and in Tom Brokaw's bestseller The Greatest Generation. Slightly more than fifty years after the event, the invasion of Normandy became a focal point of nostalgia and renewed interest in the lives of heroes bound together in the brotherhood of battle. Consider that Joseph Ellis, best-selling historian and professor at Mount Holyoke College, made up heroic military adventures to please his students. It would have been unthinkable for a professor circa 1970 or 1980 to think that he could impress a university audience by pretending to have fought against the Viet Cong. The recent call to arms against terrorism came when many Americans were yearning to believe, once again, that our highest calling lay in going to war for freedom and the American way. Whatever may happen in the culture at large, the law has never been a particularly hospitable place for poets and Romantics yearning for peak moments of experience. Perhaps some lawyers who litigate grand political issues experience something like Romantics going to war. But by and large, we in the academic world are committed to the orderly life and, at least on the surface of things, to a set of ideas that I describe as the opposite of the Romantic ethic. We advocate the principles of voluntary choice, methodological individualism, and individual responsibility. All challenges to the hegemonic way of thinking are simply accommodated as variations on individual needs and preferences. For want of a better term, I refer to this collection of ideas as liberalism. Not many would dissent from the claim that the dominant culture of the law school world is this ever-yielding, all-encompassing form of liberalism--the "L" word used, of course, in the philosophical rather than the political sense. There are variations of liberal jurisprudence but there is no school of Romantic jurisprudence. Admittedly the "R" word crops up here and there--in works by James Whitman on early nineteenth-century German attitudes toward Roman law, Steve Shiffrin on the First Amendment, and Vivian Curran on the disputed distinction between common law and civil law. A Lexis search reveals about 500 documents in the year 2001 containing the word "liberalism." In the entire database of law reviews, there are about the same number of references to "Romanticism," and often the use of the word is incidental or dismissive, as in the expression "naïve Romanticism." A single methodology dominates the legal discourse of our time. Whether the talk is of law and economics, of constitutional law, of corrective justice, or of human rights, the methodology remains the same. What counts is individuals, their rights, their preferences, their welfare. Perhaps we are missing something by ignoring the impulses that led Romantics to worship an expansive self that could identify with the entire nation as an actor in history. The Romantics in Germany, in France, and in England--though there were ample differences among them--created an alternative to methodological individualism. They developed a way of thinking about the self and about the nation that challenges us to reconsider liberal assumptions about both the virtues and the vices of collective entities of which we are a part. Of all the attributes of collective entities, the phenomenon of collective wrongdoing offers the greatest challenge. I want to take seriously the possibility that entire bodies of people, in particular the nations of which we are a part, can be guilty for the crimes actually carried out by a few. It is obvious that this possibility of collective guilt flouts liberal premises, which hold that only individuals can have the mens rea and tender the malice necessary to be held guilty for wrongdoing. Though I probably have more sympathy for collective guilt than can be found in the current academic culture, I conceive of this Article as devoted not to a thesis but to a problem. The problem is whether it is acceptable to ascribe guilt to collective actors and particularly to nations like the United States, France, and Germany. The problem, I argue, is an outgrowth of larger conflict between the mentality of liberals and the sentiments of Romantics. For liberals and Romantics at war, this is one of the primary intellectual fields of battle. As the fight over collective guilt is won or lost, so are larger stakes decided: Is the individual the ultimate unit of action and responsibility, or are we, as individuals, invariably implicated by the actions of the groups of which we are a part?
Waging War, Deciding Guilt: Trying the Military Tribunals
111 Yale L.J. 1259 (2002) In this Essay, we argue that President Bush's recent Military Order, which directs his Defense Department to detain any members of an ill-defined class of individuals, potentially indefinitely, and to try them in military tribunals, jeopardizes the separation of powers today and charts a dangerous course for the future. Our Constitution's structure mandates that fundamental choices, in times of war as well as peace, be made not by one person or one branch, but by the three branches of government working together. Approval by Congress is a necessary, but by no means sufficient, precondition before the tribunals can be entertained as constitutional. We also explain why the present circumstances differ decisively from those at issue in the Supreme Court's body of decisions regarding military tribunals during the Civil War and World War II. And we explain why the specter of civilian habeas review will necessitate legislative involvement. Finally, we detail a significant equal protection problem with the Order.