nationalsecuritylaw forthcoming scholarship

* forthcoming scholarship

Executive Power and the Discipline of History

Julian Davis Mortenson (Michigan Law School)

78 University of Chicago Law Review 377 (2011)

In a trilogy of books published after September 11, John Yoo has argued that George W. Bush’s counter-terrorism efforts were well grounded in both law and policy. As a rhetorical matter, Yoo largely grounds his legal claims in British and American history. But his conclusions are not actually tethered to plausible historical analysis. To demonstrate that fact, this essay focuses on three legal problems presented by the first-term Bush administration: the question of presidential preeminence in conflict with Congress; the question of presidential susceptibility to judicial supervision; and the question of presidential power to start armed hostilities. On each issue, the historical evidence suggests an American constitutional tradition that is wholly at odds with both Yoo’s own conclusions and the positions advanced by the Bush administration. Yoo’s legal claims therefore depend entirely on an underdeveloped theoretical proposition about national risk tolerance during crisis. This essay does not attempt to resolve the validity of that proposition. But the surviving argument must be recognized for what it is: a first principles assertion about political theory that has little to do with either law qua law or the discipline of history.

The Constitution and the Laws of War During the Civil War

Andrew Kent (Fordham University – School of Law)
Notre Dame Law Review, Vol. 85, No. 5, p. 1839, 2010

This Article uncovers the forgotten complex of relationships between the U.S. Constitution, citizenship and the laws of war. The Supreme Court today believes that both noncitizens and citizens who are military enemies in a congressionally-authorized war are entitled to judicially-enforceable rights under the Constitution. The older view was that the U.S. government’s military actions against noncitizen enemies were not limited by the Constitution, but only by the international laws of war. On the other hand, in the antebellum period, the prevailing view was U.S. citizenship should carry with it protection from ever being treated as a military enemy under the laws of war. This Article documents how this antebellum understanding about the protection of U.S. citizenship was challenged and overthrown during the first years of the Civil War. As articulated by Union statesmen, members of Congress, lawyers, soldiers and publicists, the rebels by seceding and seeking to throw off their allegiance to the United States and its Constitution, had forfeited their right to be protected by the Constitution. Henceforth, all military actions against them would be governed only by the loose standards of the international laws of war – the standards always applicable to foreign enemies. But if, at its option, the United States chose at times to deal with the rebels not as military enemies but as wayward citizens committing civil crimes like treason, then these citizens retained their pre-war constitutional entitlements. Thus the way the United States choose to respond to the rebels determined the applicable legal regime – whether the Constitution and other municipal protections would apply, or only the harsh laws of war. Starting in 1863 in the Prize Cases, and continuing until the end of the century, the Supreme Court decided over 300 cases arising out of the war. The Court adopted and articulated the theories about the relationship between the Constitution, citizenship, and the international laws of war that had been first developed out of the court in the early years of the war. These legal doctrines and understandings prevailed into the mid-twentieth century, until developments like the civil rights revolution and the increasing sense of judicial supremacy began to set the stage for today’s judicial management of the U.S. government’s relationship with military enemies under the aegis of the Constitution.

Advising Terrorism: Hybrid Scrutiny, Safe Harbors, and Freedom of Speech

Peter Margulies (Roger Williams University School of Law)

Ever since Brandenburg v. Ohio, departures from content-neutrality under the First Amendment have received strict scrutiny. However, in Humanitarian Law Project v. Holder (HLP), the Supreme Court decided that the perils of content-regulation were less pressing than the need to curb the human capital of groups such as Hamas designated as foreign terrorist organizations (DFTOs). As a result, the Court upheld a statute that bars “material support” of terrorist organizations, ruling that the statute barred speech coordinated with DFTOs, including training in negotiation or the use of international law. Some commentators have labeled HLP as heralding a new McCarthyism. This Article argues that critics who condemn HLP as the reincarnation of Cold War content-regulation overlook the tailored quality of the decision’s hybrid scrutiny model, its roots in the Framers’ concerns about foreign influence, and its surprising parallels with constitutional justifications for professional regulation. However, Chief Justice Roberts’s opinion for the Court also sends needlessly mixed signals that may encourage government overreaching.

HLP is not the marked departure that critics claim. Anxiety about covert influence from abroad drove enactment of the Constitution’s Foreign Gifts Clause and Washington’s Neutrality Proclamation. Regulation of lawyers has long curbed asymmetries in information and crafted “rules of the road” that promote cooperation. Just as professional regulation limits lawyers’ use of pretrial publicity, HLP reduced the impact of asymmetries in information that terrorist groups exploit. Groups like Hamas only signal cooperation to maximize gains from defection, e.g., by treating a cease-fire as a pretext for rearmament. Curbing this defection scenario required limits on a narrow band of speech: communication between an agent and a DFTO on putatively nonviolent matters such as the negotiation of truces. To constrain government, HLP’s framework of hybrid scrutiny also provides a safe harbor for the independent expression of ideas, and for scholars, journalists, human rights monitors, and attorneys.

Nevertheless, HLP’s critics are right that the Court’s decision is flawed. Chief Justice Roberts’s opinion invited confusion about the First Amendment status of lending “legitimacy” to violence, which could quickly drain the safe harbor that the Court created for independent advocacy. Roberts’s opinion also made a studied show of deference to official sources, disdaining independent accounts of terrorist groups’ penchant for defection. Only the next case will tell if these flaws were minor missteps in a balanced decision or signs of a more severe conflict with First Amendment values.

A Unified Approach to Extraterritoriality

Anthony J. Colangelo
Southern Methodist University (SMU) – Dedman School of Law
Virginia Law Review, Forthcoming

This Article develops a unified approach to extraterritoriality. It uses the source of lawmaking authority behind a statute to discern the proper canon for construing that statute’s geographic reach and to evaluate whether application of the statute violates due process.

The approach holds important implications for a variety of high-stakes issues with which courts are presently wrestling, including: the proper role of the presumption against extraterritorial application of U.S. law, whether international law or federal common law should supply the rule of decision in Alien Tort Statute cases, the scope of U.S. jurisdiction over terrorism offenses, and the viability of due process objections to the application of U.S. law abroad.

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