Structural Constitutionalism as Counterterrorism
University of Chicago Law School
During the past decade, federal courts have adjudicated proliferating challenges to novel policy responses to terrorism. Judges often resolve the individual rights and statutory interpretation questions implicated in those controversies by deploying presumptions or rules of thumb derived from the Constitution’s Separation of Powers. These “structural constitutional presumptions” serve as heuristics to facilitate adjudication and to enable judicial bypass of difficult legal, policy, and factual questions. This Article challenges the use of such structural presumptions in counterterrorism cases. Drawing upon recent empirical research in political science, political psychology, and security studies, it demonstrates that abstract eighteenth-century Separation of Powers ideals do not translate into robust and empirically defensible generalizations for twenty-first-century security decisions. Structural constitutionalism thus cannot serve as a foundation for heuristics or shortcuts in the judicial consideration of new security measures. To the extent courts properly pass on the legality of counterterrorism policies, judges should rely instead on the ordinary tools of doctrine, statutory construction, and fact finding. The ensuing jurisprudence of counterterrorism would look much more like ordinary public law.
The Limits of National Security
Laura K. Donohue (Georgetown Law)
48 Am. Crim. L. Rev. (2012)
The United States’ National Security Strategy, issued in May 2010, articulates an expansion in U.S. interests that stems from the end of the Cold War. Departing from a policy of industrial growth and military containment in response to geopolitical threats, U.S. national security is now defined in terms of a wide range of potential risks that the country faces. The NSS is not alone in its rather expansive view—one that significantly departs from the perspective adopted at any point in U.S. history. It represents the fourth (and most concerning) epoch in the country’s evolution, and it is beginning to find root in the law, with serious constitutional implications.
The Article begins by considering what, exactly, is meant by “national security.” It posits a Hamiltonian definition: laws and policies directed at protecting the national government in its efforts to aid in the common defense, preserve public peace, repel external attacks, regulate commerce, and engage in foreign relations. It turns then to the Founding and suggests that the first epoch was marked, primarily, by the drive to Union and, secondarily, by the goals of establishing international independence and building the country’s economic strength. The Civil War represented a reversion to Union as the core of American security, with recourse to international independence and economic growth following Confederate defeat. The Spanish-American War brought the first epoch to a close, leading to the second, in which U.S. national security expanded to include a formative agenda in the global environment. The country would no longer be content with merely reacting to international developments; it would seek to shape the international arena. Domestically, the federal government sought to limit the rapidly expanding power of private sources of power, particularly corporate entities. Tensions between the goals of the first age and those of the second resulted in power struggles between the federal branches of government. During the third epoch, national security became the United States’ overriding interest, rendering all other concerns subservient. The economy, education, housing, health care, and civil rights came to be seen through a new lens, gaining for national security a privileged position. This third epoch began not with World War I or World War II (common markers in studies of U.S. foreign affairs), but with the rise of totalitarianism in the 1930s. World War II narrowed the focus to one form of threat—communism, while during the Cold War containment of the Soviet Union became the overriding goal. Resistance involved a combination of military engagement and humanitarian aid to countries resisting communist influence and, at a domestic level, the integration of industry, science, and political institutions. Strides in the domestic civil rights arena also became an important response to Soviet allegations of democratic injustice.
The fourth, and most recent, epoch emerged with the fall of the Berlin Wall. National security now dominates, making it the most powerful institutional engine. Risks, broadly defined, have been folded into the framework, with emphasis now placed on the effects that may result should anticipated risks become manifest. As a result, areas outside the traditional framework, such as climate change, public health, drugs, and criminal law, have been drawn into the national security infrastructure. Executive branch authorities in regard to each of these areas have rapidly expanded, raising a number of constitutional concerns.
Binding the Executive (by Law or by Politics)
University of Chicago Law School
University of Chicago Law Review, Vol. 79, No. 2, 2012
U of Chicago, Public Law Working Paper No. 400
What in practice limits executive branch discretion? In The Executive Unbound: After the Madisonian Republic, Eric Posner and Adrian Vermeule reject “liberal legalism,” which situates constraint in the power of law and legally constituted institutions such as Congress and the courts. In their view, it is political, not legal, mechanisms that cabin executive discretion on the ground. This review essay examines critically both parts of that positive thesis — the weakness of law and the force of politics — as a vehicle for reconsidering the operation of presidential discretion. The essay identifies a more subtle but fragile political economy of constraint: Legal and political mechanisms are not substitutes, but complementary elements of an increasingly threadbare dynamic of executive restraint. This reformulation also has troubling normative implications for evaluations of the current scope of executive discretion.
LAURA DONOHUE, Georgetown University Law Center
Federal interest in using facial recognition technology (“FRT”) to collect, analyze, and use biometric information is rapidly growing. Despite the swift movement of agencies and contractors into this realm, however, Congress has been virtually silent on the current and potential uses of FRT. No laws directly address facial recognition — much less the pairing of facial recognition with video surveillance — in criminal law. Limits placed on the collection of personally identifiable information, moreover, do not apply. The absence of a statutory framework is a cause for concern. FRT represents the first of a series of next generation biometrics, such as hand geometry, iris, vascular patterns, hormones, and gait, which, when paired with surveillance of public space, give rise to novel questions of law and policy.
These technologies constitute what can be termed Remote Biometric Identification (“RBI”). That is, they give the government the ability to ascertain the identity (1) of multiple people, (2) at a distance, (3) in public space, (4) absent notice and consent, and (5) in a continuous and on-going manner. RBI fundamentally differs from what can be understood as Immediate Biometric Identification (“IBI”) — i.e., the use of biometrics to determine identity at the point of arrest, following conviction, or in conjunction with access to secure facilities. IBI, in contrast, tends to be focused (1) on a single individual, (2) close-up, (3) in relation either to custodial detention or in the context of a specific physical area related to government activity, (4) in a manner often involving notice and often consent, and (5) is a one-time or limited occurrence. The types of legal and policy questions raised by RBI significantly differ from those accompanying IBI.
In the absence of a statutory framework, we are driven to Constitutional considerations, where the Court’s jurisprudence proves inadequate as a way of addressing the concerns that present in the realm of RBI. The Fourth Amendment’s guarantee to protection against unreasonable search and seizure and the probable cause requirement for the issuance of warrants; the Fifth Amendment’s right against self-incrimination; the First Amendment’s protection of speech and assembly; and the Fifth and Fourteenth Amendments’ due process protections fail to account for the way in which such measures fundamentally challenge the current norms. The article calls for Congressional action and a judicial framing commensurate with the threat posed by these new and emerging technologies.