nationalsecuritylaw forthcoming scholarship

Can the States Keep Secrets from the Federal Government?

Robert A. Mikos

Vanderbilt Law School
University of Pennsylvania Law Review, Vol. 161, Forthcoming

States amass troves of information detailing the regulated activities of their citizens, including activities that violate federal law. Not surprisingly, the federal government is keenly interested in this information. It has ordered reluctant state officials to turn over their confidential files concerning medical marijuana, juvenile criminal history, immigration status, tax payments, and employment discrimination, among many other matters, to help enforce federal laws against private citizens. Many states have objected to these demands, citing opposition to federal policies and concerns about the costs of breaching confidences, but the lower courts have uniformly upheld the federal government’s power to commandeer information from the states. This Article provides the first in-depth analysis of the commandeering of states’ secrets. It identifies the distinct ways the federal government demands information from the states, illuminates the harms such demands cause, and challenges the prevailing wisdom that states may not keep secrets from the federal government. Perhaps most importantly, the Article argues that federal demands for information should be considered prohibited commandeering. It suggests that the commandeering of state information-gathering services is indistinguishable in all relevant respects from the commandeering of other state executive services. The Article discusses the implications such a ruling would have in our federal system, including its potential to bolster the states’ roles as sources of autonomous political power and vehicles of passive resistance to federal authority.

Human Rights and Counterterrorism: A Contradiction or Necessary Bedfellows?

Amos N. Guiora

University of Utah – S.J. Quinney College of Law

Ten years after the 9/11 terrorist attacks, questions remain regarding the relationship between human rights and counterterrorism. The historical track record of the Executive Branch, Supreme Court, and Congress in this vein is troubling. While the contradiction suggested in this Essay’s title need not be the case it is, nevertheless, the persistent reality in American history.

This Essay assesses the current relationship between human rights and counterterrorism. In doing so, it reflects on wartime measures implemented by presidents throughout U.S. history and recommends a way forward that facilitates more effective protection of human rights without impinging on legitimate national security considerations. Many counterterrorism measures adopted in the aftermath of 9/11, including torture, rendition, indefinite detention, and denial of habeas corpus, reflect a fundamental denial of human rights. Furthermore, evidence that the circumstances do not justify such extraordinary measures illustrate that the tension between human rights and counterterrorism requires constant vigilance. This was recently highlighted when Attorney General Eric Holder suggested that individuals suspected of involvement in terrorism be denied Miranda rights. In recommending “ways forward” this Essay analyzes how operational counterterrorism measures can meet the recommended two-part test of respect for human rights and enhancing national security without unduly minimizing one at the expense of the other. It concludes that crisis points involving national security concerns are precisely when the Judiciary must engage in active judicial review in safeguarding basic rights.

Foreign Relations, Strategic Doctrine and Presidential Power

David Gartner

Arizona State University – Sandra Day O’Connor College of Law
Alabama Law Review, Vol. 63, No. 3, p. 499, 2012

There is a central debate in foreign relations law between scholars who argue that the President inherited great power from the founding and those who contend that only after World War II was there a significant shift in the balance of powers over foreign relations. This Article highlights a third perspective by focusing on the significance of presidential assertions of power during the decade after the Spanish-American War. In this period, presidents asserted unprecedented power to dispatch the armed forces of the United States into foreign conflicts and to independently enter into binding international agreements without the participation of Congress. The Article concludes that shifting international relations, shaped by strategic foreign policy doctrine, have been central drivers of presidential assertions of authority over foreign relations.

International Law and Limitations on the Exercise of Extraterritorial Jurisdiction in U.S. Domestic Law

Dan E. Stigall

U.S. Department of Justice, Office of International Affairs
Hastings International and Comparative Law Review, Vol. 35, No. 2, p. 323, 2012

With the dramatic rise in the frequency and scope of transnational criminal activity and the modern phenomenon of globalization, the interrelationship between international law and U.S. domestic law has come into sharper focus. From issues relating to international terrorism to more banal matters with distinct international dimensions, national courts in the modern era find themselves deciding cases with significant international elements and which have the potential to impact relations between sovereigns on the international plane. One area which is implicated across a broad range of legal topics and which has a natural propensity to affect international relations is the assertion of extraterritorial jurisdiction. This is due to the inherently conflict-generative nature of extraterritoriality.

In grappling with the need to address transnational issues in the context of a national legal system, domestic courts have increasingly looked to international legal principles, resulting in a level of penetration of international law in the national legal order. This Article explores the degree to which international law has permeated U.S. jurisprudence governing the exercise of extraterritorial jurisdiction over transnational criminal activity and the degree to which international law has been used by U.S. courts to limit or empower extraterritorial jurisdiction. Specific focus is given to the interrelationship between the limits imposed by international law, such as the “rule of reasonableness,” and due process limitations imposed by U.S. courts.

In reviewing a broad spectrum of U.S. judicial decisions, this Article demonstrates that the justifications for and against the exercise of extraterritorial jurisdiction in U.S jurisprudence are multifarious, revealing distinct analytical strata that are dependent upon the nature of the law being applied extraterritorially and the conduct regulated. For instance, regulatory laws impacting commercial markets have been made the subject of an analysis that is distinct from analysis applied to other forms of transnational criminal activity. Moreover, due to a split in U.S. jurisprudence, the analysis applied to that latter group of transnational crimes (those that do not impact international commercial markets), will further depend upon the judicial district.

This Article posits that the different approaches to these different sorts of legislation are entirely justifiable (and even logically necessary) due to the very obvious differences between civil actions involving U.S. antitrust law and criminal statutes that take on a transnational focus. Moreover, by understanding the role international law plays in each of these analyses, the similarities of the undergirding rationales, as well as the differences and potential dangers, policymakers and legal actors can work to clarify this otherwise discordant and fractured legal landscape and articulate a unified view of international law and limitations on the exercise of extraterritorial jurisdiction in U.S. domestic law.

Protecting Rights from Within? Inspectors General and National Security Oversight

Shirin Sinnar

Stanford University
Stanford Law Review, Forthcoming

Courts and Congress are often reluctant to constrain the executive branch when it limits individual rights in the pursuit of national security. Many scholars have argued that mechanisms within the executive branch can supply an alternative constraint on executive power – whether as a preferred alternative due to the comparative advantages of such institutions or as a second-best option necessitated by congressional and judicial abdication. Despite this interest in the “internal separation of powers,” there is very little attention to what such internal mechanisms are actually doing to protect individual rights.

I argue that Inspectors General (IGs), little noticed oversight institutions in federal agencies, are now playing a significant role in monitoring national security practices curtailing individual rights. IGs have investigated the post-9/11 detentions of immigrants, the use of National Security Letters to obtain personal records, coercive interrogations of terrorist suspects, extraordinary rendition, military monitoring of political protests, and many other controversial counterterrorism practices. Analyzing five reviews at the Departments of Justice, Homeland Security, and Defense, and the Central Intelligence Agency, I argue that these investigations varied significantly in independence and rigor. At their strongest, IG reviews provided remarkable transparency on national security practices, identified violations of the law that had escaped judicial review, and even challenged government conduct where existing law was ambiguous or undeveloped. Such reviews protected rights where courts had failed and significantly reinforced other forms of oversight. At the same time, even stronger reviews largely did not result in remedies for most victims, repercussions for high-level executive officials, or significant rights-protective constraints on agency discretion. These case studies illuminate the potential strengths and limitations of IG rights oversight: IGs are well-suited to increase transparency, evaluate the propriety of national security conduct, and reform internal procedures; on the other hand, their independence can be undermined, they may avoid constitutional questions, and they rely on political actors to implement reforms. IGs can help protect individual rights against national security abuses and should be modestly strengthened, but do not displace the need for robust external oversight of the national security executive.

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