nationalsecuritylaw forthcoming scholarship

The First Amendment’s Borders: The Place of Holder v. Humanitarian Law Project in First Amendment Doctrine

David Cole

Georgetown University Law Center

Harvard Law & Policy Review, Vol. 6, pp. 148-177, 2012

In Holder v. Humanitarian Law Project, the Supreme Court’s first decision pitting First Amendment rights against national security interests since the terrorist attacks of September 11, 2001, the Court appears to have radically departed from some of the First Amendment’s most basic principles, including the maxims that speech may not be penalized because of its viewpoint, that even speech advocating crime deserves protection until it constitutes incitement, and that political association is constitutionally protected absent specific intent to further a group’s illegal ends. These principles lie at the core of our political and democratic freedoms, yet Humanitarian Law Project seems to contravene all three. This article assesses the place of Humanitarian Law Project in First Amendment jurisprudence. It argues that the decision departs so dramatically from precedent that it was wrongly decided. But it also maintains that if the decision is to do least damage to First Amendment freedoms going forward, and if it is to be construed as far as possible in harmony with its precedents, three limiting features of the decision are essential to understanding its rationale.

At issue in Humanitarian Law Project was whether the government could make it a crime to engage in speech advocating only lawful, peaceful activity, when done in coordination with or for a foreign organization labeled “terrorist.” In Humanitarian Law Project, the Court properly ruled that the government may prohibit speech advocating lawful, peaceful activity based on its content only where it can satisfy the demanding standard that governs when laws prohibit speech on the basis of its content. But the Court’s application of that scrutiny bore no resemblance to any other speech case in the modern era and employed reasoning and reached results that are sharply inconsistent with substantial precedent. Where it had previously protected even direct advocacy of crime, it now denied protection to advocacy of peace and human rights. Where it had previously held that strict scrutiny placed a heavy burden on the government to demonstrate with concrete evidence that its specific speech prohibitions were necessary to further a compelling end, here it sua sponte advanced arguments that the government never made; said no evidence was necessary to support its speculations; and deferred to a legislative finding and an executive affidavit that did not even address the necessity of prohibiting speech, and were not based on any actual evidence. Where it had previously ruled that a desire to suppress particular viewpoints was enough to render a law presumptively invalid, here it took the government’s viewpoint-based motive in suppressing messages of legitimacy as a reason to uphold, not to strike down, the law. And where it had previously protected the right to associate with groups having both lawful and unlawful ends, and recognized that the right included the freedom to act in concert with one’s associates, in Humanitarian Law Project it reduced the right to an empty formalism.

Such dramatic departures from precedent suggest that the decision was wrongly decided. But until it is overturned, we must live with it. And that puts a premium on considering whether its rationale can be limited. The Court itself offered three possible avenues of limitation, but offered no explanation for why those avenues were doctrinally significant. None of the three distinguishing features the Court identified is sufficient to reconcile the result with First Amendment precedent. But if the case is to be harmonized as much as possible with precedent, its application should be limited to situations in which all three of the factors identified by the Court are present—namely, when the government is prohibiting only speech coordinated with or directed to foreign organizations that have been subjected to diplomatic sanctions for compelling national security reasons. Short of outright reversal, such a reading provides the most persuasive ground for restricting the damage Humanitarian Law Project does to First Amendment doctrine.

Spatial Legality

Anthony J. Colangelo

Southern Methodist University (SMU) – Dedman School of Law
Northwestern University Law Review, Forthcoming

For too long, state interests have dominated public jurisdiction and private choice-of-law analyses regarding the reach and application of a state’s law, or prescriptive jurisdiction. Individual rights — whether of criminal defendants or private litigants — have been marginalized. Yet states are projecting regulatory power over actors abroad with unprecedented frequency and aggression. State interest analyses proceed from the perennially critiqued but remarkably sticky concept of sovereignty. Now more than ever, legal thinkers, courts and litigants need a bedrock concept from which to build individual rights arguments against jurisdictional overreach. And it should be one that holds not only theoretical cogency but also the promise of real-world traction in cases.

This article introduces the concept of spatial legality. It recasts the familiar and deeply rooted notion of legality — that is, the idea of fair notice of the law — along spatial as well as temporal dimensions. Operating in time, legality vindicates individual rights, for example by prohibiting ex post facto laws. Spatial legality focuses on law’s reach in space rather than its existence in time, but the problem is essentially the same: someone is being subjected to a law he could not reasonably have expected would govern his conduct when he engaged in it.

The article begins by taking extant rules of jurisdiction in multistate systems and transforms them through the concept of spatial legality into a right to fair notice of the law applicable at the time of conduct. It then shows how a jurisdictional mix-up metastasizing in both U.S. and international law is presently aggravating spatial legality problems: namely, the use of personal jurisdiction over parties to bootstrap application of substantive law to their extraterritorial conduct. The mix-up occurs (a) on the criminal side, by using a defendant’s post-conduct presence in the forum to justify applying substantive law to prior conduct outside the forum, and (b) on the civil side, by using “general” personal jurisdiction over parties to justify applying forum law to activity outside the forum. Reorienting jurisdictional doctrine around the rights of parties instead of states generates important doctrinal and litigation payoffs: it clarifies and straightens out the law for courts and, where courts do err, supplies parties with rights-based arguments to challenge such errors as opposed to state-based arguments about sovereignty and comity. In this connection, the article proposes a typology that weaves together public jurisdiction and private choice-of-law doctrines to identify how and when spatial legality claims will have the most traction on the current state of the law. It concludes by indicating the limits of a spatial legality concept based only on notice and suggests other rule-of-law criteria like feasibility of compliance, avoidance of contradictory laws, and consistency that, going forward, may further inform analysis of the demands multistate systems with overlapping laws place on fundamental fairness.

Toward a Unified Theory of Professional Ethics and Human Rights

Jonathan H. Marks

Edmond J. Safra Center for Ethics, Harvard University; Pennsylvania State University
Michigan Journal of International Law, Vol. 33, p. 215, Winter 2012

This article begins with a simple empirical claim – that professionals (doctors, lawyers, and psychologists, among others) may either facilitate or prevent human rights violations. They possess this power by virtue of their expertise, access and social status. Building on this claim, I argue that states are dependent upon the assistance of professionals in order to comply with their international human rights obligations. Compliance with these obligations is an essential condition of the legitimacy of states; non-compliance is a matter of global concern and, if systemic, renders the state liable to interference from external agents in the international community. It follows that states are, in this fundamental respect, dependent upon professionals. But professionals are also dependent upon states; their ability to perform their professional functions in full is contingent upon privileges and protections accorded to them by the state. Given this mutual dependence, I advance a contractarian account of the relationship between professionals and the state – one that gives rise to a duty on the part of professionals to assist the state with the performance of its human rights obligations. The content of that duty varies across professions and among professionals, since it depends upon the nature of the professional’s expertise, and the degree of access and social status she possesses. This account offers both theoretical and practical benefits. First, it avoids human rights foundationalism because it ties the ethical obligations of professionals to international legal norms, rather than to human rights conceived as ethical claims. Second, the account offers a further approach for bridging the gap that scholars and advocates have identified between human rights commitments and compliance. The incorporation of human rights norms into domestic law, political institutions and corporate governance may all contribute to this. But the essential role professionals can play in the acculturation of and compliance with human rights has been neglected. The account advanced here has a number of important practical implications – not least, the need for more (and better) human rights education and mentorship for professionals.

Historical Gloss and the Separation of Powers

Curtis A. Bradley

Duke University – School of Law

Trevor W. Morrison

Columbia University – Law School
Harvard Law Review, Vol. 126

Arguments based on historical practice are a mainstay of debates about the constitutional separation of powers. Surprisingly, however, there has been little sustained academic attention to the proper role of historical practice in this context. The scant existing scholarship is either limited to specific subject areas or focused primarily on judicial doctrine without addressing the use of historical practice in broader conceptual or theoretical terms. To the extent that the issue has been discussed, most accounts of how historical practice should inform the separation of powers require “acquiescence” by the branch of government whose prerogatives the practice implicates, something that is viewed as critical to giving historical practice the force of law. Yet the concept of acquiescence has been treated much too casually in the literature. Claims about acquiescence are typically premised on a Madisonian conception of interbranch competition, pursuant to which Congress and the Executive Branch are each assumed to have the tools and the motivation consistently to guard against encroachments on their authority. It has become apparent from political science scholarship, however, that the Madisonian model does not accurately reflect the dynamics of modern congressional-executive relations. This requires a reexamination of the premises and implications of the idea of institutional acquiescence in particular, and of the role of historical practice more generally. Ultimately, we argue, the problems with the Madisonian model are not fatal to crediting historical practice in interpreting the separation of powers. But they do require more attention to the reasons why such practice is invoked, the extent to which the reasons demand institutional acquiescence, and the precise method by which such acquiescence is identified. To illustrate the importance of each of these questions, we present three case studies of constitutional debates concerning the separation of powers in which practice-based arguments are prominent – war powers, congressional-executive agreements, and removal of executive officers.

Killing in the Fog of War

Adil Ahmad Haque

Rutgers, The State University of New Jersey – School of Law-Newark

This article answers two of the most urgent and important questions facing the contemporary law of armed conflict. First, how certain must a soldier be that a given individual is a combatant and not a civilian before attacking that individual? Second, what risks must soldiers accept to themselves and to their mission in order to reduce the risk of mistakenly killing civilians?

In the absence of clear legal rules, leading states, scholars, and practitioners have embraced a Balancing Approach according to which both the required level of certainty and the required level of risk vary with the balance of military and humanitarian considerations. However, this article shows that the Balancing Approach ignores the moral asymmetries between killing and letting die and between intentionally and unintentionally killing civilians. As a result, in a wide variety of situations, the Balancing Approach would permit soldiers to intentionally kill individuals who are probably, much more likely, or almost certainly civilians rather than combatants. These implausible implications expose the fatal defects of the Balancing Approach and demonstrate the need for a morally defensible alternative.

To meet this need, this article develops a deontological account of both the required level of certainty and the required level of risk. The first part of this new account, Deontological Targeting, prohibits a soldier from intentionally killing an individual whom she believes is a civilian or whom she does not reasonably believe is a combatant. These constraints establish a minimum threshold of certainty that soldiers must reach before using deadly force. Above the reasonable belief threshold, the required level of certainty varies with the relative costs of error but, crucially, also reflects the moral asymmetry between killing and letting die. In particular, except in rare cases, targeted killing operations against individuals who pose no immediate threat are permissible only if there is conclusive reason to believe that the individuals are combatants.

The second part of this new account, Deontological Precaution, requires, at a minimum, that soldiers take as much risk as necessary to reach the required level of certainty. In addition, soldiers must take further precautions unless doing so would increase the risk to the soldiers substantially more than doing so would decrease the risk to civilians. If soldiers are unwilling or unable to reach the required level of certainty or accept the required level of risk then they must hold their fire.

The article concludes by distilling these complex moral principles into new legal rules, reinterpretations of existing legal rules, and model rules of engagement in which soldiers can be trained and that can guide soldiers through the fog of war.

"Habeas Corpus and Due Process"

Cornell Law Review, Vol. 98, No. 1, 2012
Virginia Public Law and Legal Theory Research Paper No. 2012-14

BRANDON L. GARRETT, University of Virginia School of Law
Email: bgarrett

The writ of habeas corpus and the right to due process have long been linked together, but their relationship has never been more unsettled or important. The U.S. detained hundreds of suspected terrorists who brought legal challenges using the writ. In the first of two landmark Supreme Court cases addressing those detentions, Hamdi v. Rumsfeld, the plurality chiefly relied on the Due Process Clause to explain what procedures must be followed. Most scholars assumed due process would govern the area. However, the due process path was not taken in Boumediene v. Bush, in which the Court held that the Suspension Clause itself extended habeas corpus process to noncitizen detainees at Guantánamo Bay. In fleshing out the required process, lower courts have misunderstood the Court’s command, borrowing from far-flung standards in post-conviction, administrative, criminal procedure, and immigration law, and generating vague and inadequate procedures for reviewing sensitive national security detentions. I argue Boumediene correctly located procedures in the Suspension Clause, not the Due Process Clause. Further, I argue history and practice supports the view that the Suspension Clause demands a flexible traditional habeas process. This view challenges the set of standards currently used in executive detention cases. This also has implications for domestic habeas; it could ground innocence claims in the Suspension Clause. More broadly, this explains commonalities in the structure of statutes and caselaw regulating habeas corpus across its array of applications to executive detention and post-conviction review. Habeas review now plays a far more central role in the complex regulation of detention than many would have predicted. This is because it does not, as often understood, depend on underlying due process rights – to the contrary, habeas inversely plays its most crucial role when prior process is lacking. Put simply, the Suspension Clause ensures that habeas corpus begins where due process ends.

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