forthcoming scholarship

* Forthcoming Scholarship

After Deference: Formalizing the Judicial Power for Foreign Relations Law

Deborah N. Pearlstein

159 U. Pennsylvania L. Rev. (forthcoming 2010)

How much deference should courts afford executive branch interpretations of statutes and treaties? The question that has long engaged foreign relations scholars has found new salience as it has become apparent in recent years that the Supreme Court will neither abstain nor reliably defer to presidential judgment even in cases implicating national security. As the courts grapple with the scope of detention authority granted by Congress’ 2001 Authorization for the Use of Military Force, or the limits on that authority under the Geneva Conventions, a number of scholars have embraced administrative law deference doctrines such as that in Chevron v. Natural Resources Defense Council as a way of constraining newly vigorous judicial engagement with executive law interpretation. The courts may have some appropriate role in interpreting foreign relations law, the notion is, but Chevron at least requires that the courts accept any “reasonable” executive interpretation. Yet, as this Article contends, Chevron’s promise for foreign relations law is elusive. The Chevron doctrine in administrative law has proven neither as stable nor as attuned to the executive’s functional strengths and weaknesses as its foreign relations advocates imagine. More, Chevron poses a still unresolved challenge to formal understandings of the judicial power under Article III of the Constitution. If the executive enjoys substantial authority in statutory and treaty interpretation, what remains at the core of the courts’ structural power to “say what the law is”? While administrative law scholars have long struggled with the question, it has received surprisingly scant attention in the contemporary foreign relations debate. This is an oversight. Understanding what power – and duty – the courts have to “say what the law is” is a necessary precursor to determining what interpretive relationship between the courts and the executive should come after the Court has rejected abstention or total deference. This Article introduces the formal dimension into questions of interpretation in foreign relations law. Concluding that predominant understandings of the judicial power of interpretation provide insufficient accounts of the Court’s role in this realm, it begins the task of developing a supplemental understanding of formal judicial power for foreign relations law.

Ratcheting Back: Considering International Law as Constraint on Executive Power

Deborah N. Pearlstein

Constitutional Commentary (forthcoming 2010)

Constitutional scholars have long noted the historic tendency of the Executive to accrue power in times of security concern. Indeed, by most accounts, the trajectory of executive power relative to the other branches has been one of dramatic, often security-driven, expansion. The expansion is attributed to a number of factors, including not only the Executive’s institutional ability to act with speed and initiative, but also to the domestic and international political incentives that shape the presidency. Together, such forces have combined to ensure that only a one-way ratchet is applied to presidential power. Yet the recent change of presidential administration provides an intriguing set of examples by which one might measure the continued salience of the one-way ratchet paradigm. In particular, the Bush Administration had asserted broad executive power to resist the application of international law in a way that would constrain U.S. counterterrorism operations. It had also advanced the view that the power to interpret treaty obligations – to “say what the law is” as provided by treaties – rests primarily or even exclusively with the Executive himself. Has the Obama Administration resisted asserting a similar degree of interpretive prerogative over international law? Or has one-way ratchet effect proven too great a temptation in this regard? While it is still early enough in the new Administration to make any conclusions uncertain, this essay considers a set of steps that might be seen to reflect a greater willingness by the Administration to acknowledge limits imposed on the Executive by treaty commitments, and arguably a greater willingness to share power to interpret treaties with the courts. If these early indications prove meaningful, they raise a series of questions about the political and structural mechanisms said to drive the one-way ratchet. In the world of incentives the one-way ratchet view describes, why would an Executive move to restore any constraints on power? This essay considers the Obama Administration’s early engagements with the international law of armed conflict – and the Geneva Conventions in particular – in an attempt to explore some potential answers.

Material Witness Detention in a Post-9/11 World: Mission Creep or Fresh Start?

Don Cochran

Cumberland School of Law

18 Geo. Mason L. Rev. 1.

Bruce Ackerman predicts that “[t]errorist 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… The attack of September 11 is the prototype for many events that will litter the twenty-first century.” Whether such dire predictions turn out to be true or not, there is no question that the potential consequences of such an attack are so devastating that it is irresponsible for our government not to do everything legally possible to avoid them. And yet, despite a general realization that devastating attack by terrorists is, if not inevitable, at least a distinct possibility, the “tools” available to law enforcement in the United States to preventively or investigatively detain suspected terrorists today are essentially unchanged from September 11th.

In this article I begin by exploring the law enforcement response to the events of 9/11 when the Justice Department’s primary focus was preventing future terrorist attacks by taking suspected terrorists off the street. Arrest on immigration or criminal charges provided the basis for the majority of detentions, but there also existed a smaller number of individuals who could not be arrested for immigration or criminal charges, but against whom there was significant, and often legitimate, concern of terrorist involvement. In the case of these individuals – what I call the “hard cases” – the detention device most often employed was the ancient material witness statute. Developed over centuries for the purpose of ensuring the testimony of reluctant witnesses, the statute was forced into service after 9/11 in the “war on terror.”

I argue that the statutory safeguards provided by the material witness statute, including an arrest warrant issued by a federal judge as well as a right to a hearing, an attorney, and a presumption in favor of deposition and release, all combine to ensure that the arrest of material witnesses, although based on a different kind of probable cause than most arrests, is permissible under the Fourth Amendment. Even use of the statute to detain an individual as a terrorist suspect rather than as a witness is allowed under the Fourth Amendment, I argue, because issuance of an arrest warrant by a federal judge under the objective circumstances set out in the statute constrains law enforcement conduct sufficiently to ensure reasonable behavior, making the subjective motivation behind detention irrelevant.

I also argue, however, that serious questions exist as to whether bending an old statute to make it fit a new set of circumstances for which it was not designed is the best approach to dealing with terrorist detention. Instead, I argue that within existing Fourth Amendment law may lay the principles necessary for construction of a constitutionally permissible framework for detention of suspected terrorists. The key to such a framework lies in the United States Supreme Court’s 1972 decision in United States v. United States District Court for the Eastern District of Michigan (Keith) which suggested that the national security context permits a modification of Fourth Amendment probable cause to search, allowing a different standard more appropriate to national security. Congress’s enactment of FISA in response to Keith provides, in my opinion, a model for deliberative legislative action to create a reasonable tool for law enforcement.

While it is not entirely clear that the Keith rationale applies in the arrest context – permitting a similar modification to probable cause and the potential for creation of a FISA-like statute to establish a system of “national security detention” – I argue that such a discussion is one that we should be having as a country. Although hard decisions would have be made about some aspects of the new statute, such as the quantum of proof required to detain, access to counsel and the degree to which interrogation by intelligence officials could occur, the degree of secrecy in which proceedings would be conducted, as well as the length of time detention would be allowed, the one unquestionable advantage that a deliberately designed system of national security detention would have over the “mission creep” of an existing statute is that it would be based on debate and analysis during the legislative process and a deliberate decision by the political branches – accountable to the American people – rather than the bending of an old statute designed for other purposes to make it fit.

Law’s Detour: Justice Displaced in the Bush Administration

Peter Margulies

Roger Williams University School of Law

NYU Press (2010)

From the Justice Department’s memos defending coerced interrogation to Alberto Gonzales’ firing of U.S. Attorneys who did not fit the Bush Administration’s political needs, Law’s Detour paints an alarming picture of the many detours that George W. Bush and his allies created to thwart transparency and undermine the rule of law after September 11, 2001. Pursuing those detours, Bush officials set up a law-free zone at Guantánamo, ordered massive immigration raids that separated families, and screened candidates for civil service jobs to ensure the hiring of “real Americans.”

While government needs flexibility to address genuine risks to national security—which certainly exist in the post-9/11 world—the Bush Administration’s use of detours distracted the government from urgent priorities, tarnished America’s reputation, and threatened voting and civil rights. In this comprehensive analysis of Bush officials’ efforts to stretch and strain the justice system, Peter Margulies canvasses the costs of the Administration’s many detours, from resisting accountability in the war on terrorism to thwarting economic and environmental regulation. Concise and full of compelling anecdotes, Law’s Detour maps these aberrations, surveys the damage done, and reaffirms the virtues of transparency and dialog that the Bush administration dismissed.

Pace Law Review – Symposium Issue on National Security and the Law


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