nationalsecuritylaw forthcoming scholarship

April 14, 2011

* forthcoming scholarship

The Speedy Trial Rights of Military Detainees

Syracuse Law Review, Vol. 62, 2011

Walter E. Kuhn
United States Senate Judiciary Committee, Subcommittee on the Constitution, Civil Rights and Human Rights

The hybrid nature of the War on Terror is testing the limits of the Speedy Trial and Due Process Clauses. Former military detainees have been convicted in federal court years after their crimes and capture. Setting aside the wisdom of civilian detainee trials, they have thus far proven consistent with constitutional delay protections.

The courts have correctly determined that military detention generally does not trigger the protections of the Speedy Trial Clause. Absent unusual circumstances, judicial scrutiny of delay due to military detention should occur via the Due Process Clause, which allows for operational flexibility while safeguarding against bad faith by the government. The administration should continue to try detainees when possible, with the venue depending on the nature of the case, and be mindful of the potential for precedent established in civilian detainee trials to govern ordinary criminal cases.

Relearning Lessons of History: Miranda and Counterterrorism

Louisiana Law Review, Vol. 71, 2011

Amos N. Guiora
University of Utah – S.J. Quinney College of Law

Umar Farouk Abdulmutallab’s attempt to blow up Northwest Flight 253 and Umar Faisal Shahzad’s attempt to blow up an SUV on New York City’s 42nd Street led many to question whether terrorism justifies denying Miranda protections to suspected terrorists beyond the public safety exception. As the November 27, 2010 arrest of a naturalized U.S. citizen, Mohamed Osman Mohamud, on suspicion of using a weapon for purposes of causing mass destruction made clear, the list of "triggering events" is constantly evolving.

The argument, in a nutshell, is that extending Miranda protections to a recently arrested suspected terrorist would significantly hamper law enforcement’s ability to question the individual, thereby endangering the public. In other words, denying Miranda protections would both facilitate arrests of additional suspected terrorists and prevent further acts of terrorism.

In Miranda v. Arizona, the Court created the "Miranda warning"; in New York v. Quarles, the Court created an exception to Miranda according to which public safety justifies an absence of the warning, and therefore statements given to police in context of public safety are admissible in court.

Those advocating "Miranda denial" claim that the public safety exception to Miranda set forth in Quarles is insufficient in the face of terrorism. My deep objection to denying suspected terrorists Miranda protections is based on a ready willingness to minimize rights for a loosely defined category of individuals in the immediate aftermath of a terrorist attack. Second, I am concerned by the simultaneous unwillingness to recognize objective "clear and present" standards in defining ‘threats’. The Supreme Court has already established a public safety exception to Miranda; expanding the exception is fraught with danger, particularly when the proposal is raised in the immediate aftermath of an act of terrorism. My skepticism about such an exception draws strength from law enforcement officials who have neither advocated nor requested such a measure, suggesting that the existing standard is sufficient for lawful and effective domestic counter-terrorism. Simply put, Quarles’s public safety exception is sufficient; expansion beyond that is both unwarranted and dangerous.

Unfortunately, American history is replete with examples of the high price innocent individuals have paid for executive branch excess, aided by an acquiescent Congress and docile Supreme Court. This past highlights the extraordinary dangers inherent in an unwarranted expansion of executive power. The past, both near and far alike, provides clear and direct guidance regarding the dangers of creating exceptions in the face of a threat, whether real or imagined. In weighing whether to expand the exception, and thereby to argue that Quarles[1] is insufficient, our most poignant guide should be the timeless words of the poet and philosopher George Santayana: "Those who cannot remember the past are condemned to repeat it." In Miranda, the Supreme Court penned some of its most important words; Quarles articulates an exception to those words.

This Article argues that expanding that exception poses significant risks; any potential benefits do not outweigh the certain costs. Part I details the critically important history underpinning Miranda and the fundamental protections it enshrines for individuals before setting forth the foundations of the public safety exception in Quarles. Part II analyzes the application of Miranda – Quarles to terrorism and counterterrorism to demonstrate the dangers of expanding any exceptions to Miranda as a response to terrorism. Finally, Part III draws together lessons from the past with a look to the future.

In expanding Escobedo and providing greater protections to individuals subject to police interrogation – even those not deemed specific suspects – Chief Justice Warren clearly looked back into the dark pages of interrogations in the U.S. The history that guided Chief Justice Warren must serve as an important reminder with respect to denying suspected terrorists Miranda protections.

Terrorism poses extraordinary dangers; of that, there is little doubt. The last four decades have been marked by attack after attack against innocent people worldwide defined as "legitimate targets" by terrorists. This Article defines "terrorism" as an attack by a group or individual in an effort to advance a cause – religious, social, economic, or political – by killing, harming, or intending to injure innocent civilians, or by intimidating the civilian population from conducting its daily life.

In applying the Miranda-Quarles framework to terrorists, the question is what the Supreme Court intended in both cases; that is, what are the cases’ respective core principles with respect to terrorism. Chief Justice Warren’s words are extraordinarily clear and powerful. They reflect both his deep understanding of the American interrogation reality and the extraordinary – and unforgiveable – price paid by untold numbers of people subjected to methods ranging from the third degree to the unconscionable. Chief Justice Warren’s reference to Brown, White, Wade, and Ashcraft is not just judicial craftsmanship; it is also a clarion call to state agents that the rule of law demands protection for suspects. The criminal procedure revolution does not limit law enforcement’s ability to detain for either interrogation or "on the scene" crime prevention. The criminal procedure revolution does impose on law enforcement the obligation to inform the suspect of the right to representation by counsel during interrogation and the right to remain silent.

As Miranda’s language makes abundantly clear, creating – and protecting – both rights is essential; therefore, as I argue in the article, to expand Miranda beyond Quarles is both unwarranted from a law enforcement perspective and represents an unnecessary ‘chipping away at Miranda.

Reforming Lawyers into Irrelevance?: Reconciling Crisis and Constraint at the Office of Legal Counsel

Peter Margulies
Roger Williams University School of Law
Roger Williams Univ. Legal Studies Paper No. 103

A Predator drone attack in Pakistan and the "enhanced interrogation techniques" that the Bush administration used on suspected terrorists have at least one thing in common: legal advice. While advice given the Obama administration on drones has received only a partial airing, disclosure that lawyers in the Justice Department’s Office of Legal Counsel (OLC) authorized coercive interrogation after 9/11 has ignited a wide-ranging debate on reform and accountability. However, the volume of calls for reform has exceeded consideration of the competing values at stake.

Some reformers stress the need to combat a climate of impunity with formal sanctions such as disbarment and damages. Advocates of structural reform, such as Bruce Ackerman, view sanctions as small change, and urge OLC’s makeover as an adjudicative body. Veterans of OLC reject these dramatic steps. They caution that structural changes could threaten the separation of powers. Structural changes could also detach OLC from its clients in the executive branch, transforming it into a stately mansion that requires too much maintenance to use. OLC veterans urge more measured changes, including greater transparency and a renewed commitment to stare decisis.

After assessing these reform proposals, this paper suggests a model of dialogic equipoise to shape both the substance of OLC opinions and OLC’s deliberative process. While a structural makeover would actually weaken the rule of law, OLC resembles a court in its need to conserve institutional capital with two audiences: the legal community and the President. OLC can issue opinions that authorize robust responses to national security and humanitarian crises, if the President seeks ratification of executive action. To conserve OLC’s institutional capital, the model caps legal advice that expands presidential power. Just as courts preserve institutional capital with devices such as standing, mootness, and political questions, a cap will prompt OLC to marshal its institutional capital for those occasions when no alternatives will do the job.

"The Article II Safeguards of Federal Jurisdiction"

Columbia Law Review, Vol. 112, 2012
FSU College of Law, Public Law Research Paper No. 489

TARA LEIGH GROVE, Florida State University – College of Law
Email: tgrove

Jurisdiction stripping has long been treated as a battle between Congress and the federal judiciary. Scholars have thus overlooked the important (and surprising) role that the executive branch has played in these jurisdictional struggles. I seek to fill that void. Drawing on two strands of social science research, I argue that the executive branch has a strong incentive to use its constitutional authority over the enactment and enforcement of federal law to oppose jurisdiction-stripping measures. Notably, this structural argument has considerable historical support. The executive branch has repeatedly opposed jurisdiction-stripping proposals in Congress. That has been true even when the President was otherwise deeply critical of the federal courts’ constitutional jurisprudence (such as during the Franklin Roosevelt and Reagan Administrations). Furthermore, even when jurisdiction-stripping measures do become law, the executive branch controls the enforcement of that law. The Department of Justice has repeatedly used this enforcement authority to urge the courts to interpret jurisdictional restrictions narrowly in order to preserve jurisdiction over constitutional claims. This executive branch practice has important implications for the Obama Justice Department, as it litigates cases brought by current and former detainees in the war on terror. One provision of the Military Commissions Act of 2006 appears to preclude any court from examining a detainee’s challenge to his “conditions of confinement” during his detention. The executive branch could substantially limit the impact of this law by conceding (as it has in prior administrations) that the federal courts retain jurisdiction over constitutional claims.

Counterinsurgency and Stability Operations: A New Approach to Legal Interpretation

US Naval War College, International Law Studies (Blue Book) Series, Vol. 86, pp. 289-321, 2010

Dale Stephens
Harvard Law School

We are currently living in the post modern era of warfare where small scale, internecine conflict is the norm. It turns out that such warfare can be as deadly and strategically significant as conventional warfare. The US military has re-conceptualized how such wars are to be effectively engaged with the publication of the Counterinsurgency and Stability Operations field manuals. These manuals represent a decisive shift in the manner such conflicts are to be perceived and fought. Notwithstanding such a decisive operational change, there has been a correlative lag in accompanying legal interpretative practice. This article seeks to redress that omission and offers a theoretical and practical framework for optimizing the interpretative enterprise experienced in applying the Law of Armed Conflict to counterinsurgency and stability operations.

Drone Warfare and the Law of Armed Conflict

Denver Journal of International Law and Policy, Vol. 39, No. 1, 2011

Ryan J. Vogel
Government of the United States of America – Department of Defense

The United States has increasingly relied upon unmanned aerial vehicles (UAVs), or "drones," to target and kill enemies in its current armed conflicts. Drone strikes have proven to be spectacularly successful – both in terms of finding and killing targeted enemies and in avoiding most of the challenges and controversies that accompany using traditional forces. However, critics have begun to challenge on a number of grounds the legality and morality of using drones to kill belligerents in the non-traditional conflicts in which the United States continues to fight. As drones become a growing fixture in the application of modern military force, it bears examining whether their use for lethal targeting operations violates the letter or spirit of the law of armed conflict. In this article I identify the legal framework and sources of law applicable to the current conflicts in which drones are employed; examine whether, and if so in what circumstances, using drones for targeting operations violates the jus in bello principles of proportionality, military necessity, distinction, and humanity; and determine what legal boundaries or limitations apply to the seemingly limitless capabilities of drone warfare. I then evaluate whether the law of armed conflict is adequate for dealing with the use of drones to target belligerents and terrorists in this nontraditional armed conflict and ascertain whether new rules or laws are needed to govern their use. I conclude by proposing legal and policy guidelines for the lawful use of drones in armed conflict.

The Curious Case of Anwar Al-Aulaqi: Is Targeting a Terrorist for Execution by Drone Strike a Due Process Violation When the Terrorist is a United States Citizen?”

Michael Robert Epstein
Journal of International Law

Michigan State University College of Law Journal of International Law, Vol. 19, 2011

In response to the horrific attacks of September 11, 2001 by al-Qaeda upon the United States, the U.S. Government has responded with a vast war on terror, both domestically and abroad. The U.S.’s pursuit of al-Qaeda and other affiliated terrorists abroad has led to increased use of advanced technology, which in turn allows the U.S. to pursue terrorists and enemy combatants in far away countries where they have little or no troop presence. These operations, occurring most often in the form of remote-controlled drone strikes, have been the increasingly favored method of combating terrorists both in Afghanistan, where the U.S. is at war, as well as territories where Taliban and al-Qaeda operatives have fled, such as Pakistan and Afghanistan. President Barack Obama allegedly has a secret kill list of high-risk terrorists who have been pre-approved for killing if they are found by U.S. operatives.

This increased use of allegedly pre-approved strikes has led to significant controversy. This note explores the claims of Nasser al-Aulaqi on behalf of his son, Anwar al-Aulaqi, who has allegedly been placed on the Obama Administration’s pre-approved terrorist kill list. Part 1 of this paper introduces Anwar al-Aulaqi and his father’s proposed injunction to have him taken off the targeted kill list. Part 2 of this paper lays out all of the current statutory and case law that the U.S. government currently acts under when pursuing and prosecuting terrorists. Part 3 of this paper explores the applicability of this legal framework to al-Aulaqi’s case and the merits of the plaintiff’s case in light of the government’s motion to dismiss. Part 4 examines the D.C. Circuit’s grant of the government’s motion to dismiss. Ultimately this case raises fundamental issues regarding the Due Process owed to U.S. citizens engaged in acts of terrorism abroad, but the sensitive nature of national security and military concerns and prudential requirements will ultimately keep full adjudication of these issues awaiting their day in court.

"Intolerable Abuses: Rendition for Torture and the State Secrets Privilege"

Valparaiso University Legal Studies Research Paper

D.A. JEREMY TELMAN, Valparaiso University School of Law
Email: Jeremy.Telman

In Mohamed v. Jeppesen Dataplan, Inc., the Ninth Circuit, sitting en banc, issued a 6–5 opinion dismissing a complaint brought by five men claiming to have been victims of the U.S. government’s extraordinary rendition program, alleged to involve international kidnapping and torture at foreign facilities. Procedurally required to accept plaintiffs’ allegations as true, the court nonetheless dismissed the complaint before discovery had begun based on the state secrets privilege and the Totten doctrine, finding that the very subject matter of plaintiffs’ complaint is a state secret and that the defendant corporation could not defend itself without evidence subject to the privilege. This Article contends that courts should almost never dismiss suits based on the state secrets privilege and should never do so in a case like Jeppesen Dataplan, in which plaintiffs did not need discovery to make out their prima facie case alleging torts by the government or its contractors.

While much has been written on the state secrets privilege since 9/11, this Article focuses on the role of the Totten doctrine in transforming the state secrets privilege into something like a government immunity doctrine. The Article first argues that Totten was wrongly decided because it is overprotective of state secrecy and requires dismissal with prejudice of suits that would more appropriately be dismissed without prejudice, subject to re-filing when the relevant secrets are declassified. The Article next contends that Totten is a very narrow doctrine that cannot and should not have any role in informing cases such as Jeppesen Dataplan in which plaintiffs did not contract with the government.

In addition, the Article argues that the state secrets privilege, as laid out in the 1953 Reynolds case and subsequently expanded by lower courts, permits pre-discovery dismissal of suits based on the state secrets privilege and thus exacerbates the pro government bias already present in Reynolds. The Article explores seven ways in which lower court decisions have all tended to make it easier for the government to assert the state secrets privilege, while the lack of penalties for overly aggressive assertion of the privilege results in intolerable abuses.

While the Article thus offers fundamental critiques of both the Totten doctrine and the state secrets privilege, it does not advocate disclosure of state secrets. Rather, in a concluding section, the Article draws on federal statutory schemes relating to the introduction of classified information in trials and offers numerous alternatives to judgment in favor of the government and its contractors before discovery has begun in cases implicating state secrets. Congress has repeatedly empowered courts to make decisions that protect government secrecy while facilitating limited access to secret information when necessary in the interests of justice and open government. In some cases, the government’s inability to defend itself may necessitate the socialization of the costs associated with national security secrets, but that result is preferable to forcing plaintiffs to bear all the costs of government secrecy.