National Security Advisors

The Second Circuit addresses National Security Letters, touching along the way on deference to the executive branch

A very interesting decision today by the 2nd Circuit in the long-running litigation involving the FBI’s ability to issue “national security letters” to communication service providers and to direct recipients of such letters not to go public with that information. The panel (Newman, Calabresi, and Sotomayor), in an opinion by Judge Newman, has reinstated the government’s capacity to issue such letters, subject to a novel procedural requirement in which the government must initiate judicial review of the non-disclosure order in the event that the letter recipient wishes to contest the order.

The opinion is posted here. By way of summary, I first outline the statutes in issue, and then provide a brief overview of the holding. Note that certain aspects of the opinion will be of particular interest to those of you who follow the state secrets privilege and other doctrinal areas in which judges confront the question of how to reconcile judicial review with executive expertise and authority in the area of national security.

The statutes:

18 USC 2709 authorizes FBI to issue “national security letters” requesting certain information, subject to a non-disclosure obligation:

That statute states that “A wire or electronic communication service provider shall comply with a request for subscriber information and toll billing records information, or electronic communication transactional records in its custody or possession….”
Such a request must be supported by a certification from an appropriate FBI official to the effect that the “records sought are relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely on the basis of activities protected by the first amendment to the Constitution of the United States.”
Critically, if the official “certifies that otherwise there may result a danger to the national security of the United States, interference with a criminal, counterterrorism, or counterintelligence investigation, interference with diplomatic relations, or danger to the life or physical safety of any person, no wire or electronic communications service provider, or officer, employee, or agent thereof, shall disclose to any person (other than those to whom such disclosure is necessary to comply with the request or an attorney to obtain legal advice or legal assistance with respect to the request) that the Federal Bureau of Investigation has sought or obtained access to information or records under this section.

18 USC 3511 creates a mechanism for challenging requests for information under 2709 and related statutes:

Section 3511(a) states that the “recipient of a request … may, in the United States district court for the district in which that person or entity does business or resides, petition for an order modifying or setting aside the request. The court may modify or set aside the request if compliance would be unreasonable, oppressive, or otherwise unlawful.”

Section 3511(b) similarly authorizes courts to “modify[] or set[] aside a nondisclosure requirement imposed in connection with such a request,” and it also specifies the substantive grounds for granting such relief.

Condensing things a bit, the statute permits the judge to modify or set aside the nondisclosure obligation only “if it finds that there is no reason to believe that disclosure may endanger the national security of the United States, interfere with a criminal, counterterrorism, or counterintelligence investigation, interfere with diplomatic relations, or endanger the life or physical safety of any person.”

In making that determination, however, the judge is directed by the statute to give binding weight to the government’s position subject to a determination of bad faith: “If, at the time of the petition, the Attorney General, Deputy Attorney General, an Assistant Attorney General, or the Director of the Federal Bureau of Investigation, or in the case of a request by a department, agency, or instrumentality of the Federal Government other than the Department of Justice, the head or deputy head of such department, agency, or instrumentality, certifies that disclosure may endanger the national security of the United States or interfere with diplomatic relations, such certification shall be treated as conclusive unless the court finds that the certification was made in bad faith.”

Also note that the statute permits ex parte presentations by the government: “In all proceedings under this section, the court shall, upon request of the government, review ex parte and in camera any government submission or portions thereof, which may include classified information.”

Today’s opinion included the following holdings:

* The “no reason” test permits judges to review the reasonableness of the government’s claim that disclosure would risk one of the enumerated harms (slip at 30)

* The burden is on the government to show that this test has been satisfied, not on the petitioner to disprove it (slip at 31)

* The non-disclosure requirement presents a First Amendment issue, prompting strict scrutiny (the panel disagreed as to whether this might be a scenario in which something weaker than the usual strict scrutiny might apply, but concluded that the point was immaterial here) (slip at 36)

* There is no question that the government has a compelling interest in maintaining secrecy in such cases, as a general proposition; the question instead is the tailoring of the non-disclosure petition process (slip at 37)

* Issue 1: The status quo places the burden on the recipient of a letter to initiate litigation to challenge a non-disclosure order. Is that too restrictive?

Yes (38-42). Though the First Amendment does not require the government to actually initiate such review itself in every one of the tens of thousands of NSLs issued each year, it does require compliance with what the panel describes as a “reciprocal notice” procedure: “The Government could inform each NSL recipient that it should give the Government prompt notice, perhaps within ten days, in the event that the recipient wishes to contest the nondisclosure requirement. Upon receipt of such notice, the Government could be accorded a limited time, perhaps 30 days, to initiate a judicial review proceeding to maintain the nondisclosure requirement, and the proceeding would have to be concluded within a prescribed time, perhaps 60 days. In accordance with the first and second Freedman safeguards, the NSL could inform the recipient that the nondisclosure requirement would remain in effect during the entire interval of the recipient’s decision whether to contest the nondisclosure requirement, the Government’s prompt application to a court, and the court’s prompt adjudication on the merits.” (39) Does that mean the court is construing the statute to contain such a procedural requirement? No, not really. The court seems to be saying that the statute as written is unconstitutional, but that the government can “cure” the defect through voluntary action short of a legislative fix: “We deem it beyond the authority of a court to “interpret” or “revise” the NSL statutes to create the constitutionally required obligation of the Government to initiate judicial review of a nondisclosure requirement. However, the Government might be able to assume such an obligation without additional legislation.” (49)

* Issue 2: The status quo makes the court accept the government’s assertion that disclosure poses an unacceptable risk of harm, except upon a determination that the assertion is made in bad faith. Is that constitutional?

No. This is a complex and important question.

(a) As an initial matter, the panel holds that the government must offer more than a conclusory assertion that disclosure would risk such a harm. “In showing why disclosure would risk an enumerated harm, the Government must at least indicate the nature of the apprehended harm and provide a court with some basis to assure itself (based on in camera presentations where appropriate) that the link between disclosure and risk of harm is substantial. As the Government acknowledges, “Nothing in [subs]ection 3511(b) would require a district court to confine judicial review to the FBI’s necessarily unelaborated public statement about the need for nondisclosure. The provisions in [subs]ections 3511(d) and (e) for ex parte and in camera review provide a ready mechanism for the FBI to provide a more complete explanation of its reasoning, and the court is free to elicit such an explanation as part of the review process.” (45, 48-49)

(b) What about the prerogatives of the executive branch in making such determinations in the national security setting? Note that this is a *very* familiar question from the parallel context of state secrets privilege doctrine. The panel’s statement on this point is typical of what court’s say in that setting, suggesting that judges simultaneously exercise independence and avoid intrusion on executive prerogatives. “We have every confidence that district judges can discharge their review responsibility with faithfulness to First Amendment considerations and without intruding on the prerogative of the Executive Branch to exercise its judgment on matters of national security. Such a judgment is not to be second-guessed, but a court must receive some indication that the judgment has been soundly reached.” (46)

(c) What about the district court’s determination that judges must remain able to balance the risk to national security against their sense of the importance of the petitioner’s First Amendment interests? On this point, the panel held for the government. It wrote that there is no need for such additional balancing under the review system it envisions, stating that “[a] demonstration of a reasonable likelihood of potential harm, related to international terrorism or clandestine intelligence activities, will virtually always outweigh the First Amendment interest in speaking about such a limited and particularized occurrence as the receipt of an NSL and will suffice to maintain the secrecy of the fact of such receipt.” (46-47)

* Issue 3: Must the entire statute be struck because of these flaws, or can they be severed?

Contrary to the district court’s view, they may be severed. The panel therefore reinstates the government’s capacity to issue NSLs under this framework, subject to the rulings noted above. (53)

Call for Papers: 2nd Annual National Security Law Jr. Faculty Workshop

The 2nd Annual National Security Law Junior Faculty Workshop will be held in Austin on March 12 and 13, 2008. The Call for Papers, with all the details, is posted here. A quick word about this event. We did it last year at Wake Forest, and it was quite successful. Basically, the format intersperses paper presentations with blocks of law of war instruction. This keeps everyone fresh, and gives the event a rather different flavor than many other workshops. The only changes this year, aside from location, are (i) we have direct involvement from the ICRC as a co-sponsor, (ii) we're spreading the event out over two days; and (iii) we'll use a discussant for the paper presentations (i.e., someone will comment on your paper for ten minutes or so, and then you'll respond before taking questions and suggestions from the rest of the attendees).

Will Al Marri be transferred to civilian custody (for prosecution) before the Supreme Court can rule on the merits? How if at all would the Obama administration defend the detention?

As you probably know by now, the Supreme Court has just granted cert in Al-Marri v. Pucciarelli (08-368), the case involving the sole person currently detained in the U.S. as an enemy combatant (Al-Marri is a non citizen who was arrested in the U.S. after 9/11, held on relatively innocuous charges for a time, and then transferred to military custody as an enemy combatant based on intelligence indicating that he was an al Qaeda operative; the Fourth Circuit recently issued a splintered en banc decision upholding the substantive grounds for his detention, but requiring greater procedural safeguards (shades of Hamdi).

The Supreme Court's decision to review that outcome raises a host of important issues, and no doubt there will be much blogging and writing about the merits in the months ahead. But the questions that interest me at the moment are these:

Will Al-Marri be transferred to civilian custody, as Padilla was, prior to the decision? Recall that the Bush Administration transferred Padilla to civilian custody for criminal prosecution after a favorable Fourth Circuit ruling and before the Supreme Court could rule. Might the same thing occur here? This would require the government to have sufficient admissible evidence to make out a viable case, of course, so the option may or not be realistic. But let's assume it might be possible. When this happened in Padilla, the Court wrestled with whether to treat the military detention issue as moot; ultimately, it did, though Justice Kennedy warned that the Court would reengage quickly if Padilla were put back in military detention (which reminds me: what year does Padilla's sentence end?). Well, now we have the prospect of something similar occurring in Al-Marri's case. If it does, would the Court again treat the issue as moot? Perhaps not.

What will the Obama Administration do? Of course, the Bush Administration won't be making the decisions for much longer, as a friend just reminded me. What version of detention power will the Obama Administration defend in this case, if any? Will the Obama administration instead seek to moot the issue by transferring Al-Marri to civilian custody for prosecution in the event the Bush Administration has not already done so?

Was Judge Leon’s earlier ruling on the scope of the government’s detention authority a narrowing construction?

Over at Georgetown's terrific new blog Security Law Brief, co-blogger and buddy Steve Vladeck has posted some very interesting thoughts regarding Judge Leon's recent decision to order the release of 5 out 6 GTMO detainees whose habeas petitions had come before him. Details here.

Steve properly draws attention to the question of how one defines the scope of whatever military detention authority the government may have. I agree with much of what he says, but I do want to quibble regarding a few points. Steve writes:

Judge Leon then suggested that, because the government's evidence is insufficient, he needn't reach whether "commitment to such a plan would be enough, as a matter of law, to constitute 'support' under the Court's definition of 'enemy combatant.'" To me, though, that is the crucial issue, and one for which Leon's earlier ruling in the same case had already tipped the scales. Here is his definition:

An "enemy combatant" is an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.

Contrast this reading with the definition of "unlawful enemy combatant" in 10 U.S.C. § 948a(1)(A), part of the Military Commissions Act of 2006 (emphasis added):

[A] person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces).

Unlike the MCA, Leon's definition thus does not allow for the possibility that one can be subjected to military jurisdiction without either committing a belligerent act or "directly support[ing] hostilities in aid of enemy armed forces." That is, Leon's definition does not incorporate the open-endedness of "material support" (which, as one government lawyer once notoriously suggested, seems to include little old ladies in Afghanistan who give money to Islamic charities).

A few thoughts in response to this:

First, Steve is dead-on in drawing attention to the importance of the "support" concept.

Second, I'm not sure that the correct point of comparison is the MCA definition, which by its terms is used to determine who is eligible for trial by military commission rather than who is eligible for military detention for the duration of hostilities. For the latter determination, the government has employed the CSRT definition, and it is that very definition that Judge Leon adopted here.

In any event, the Leon/CSRT definition may be just as expansive as the MCA definition. The latter employs the language "material support", as Steve notes, while the former refers to persons who were "part of or supporting" al Qaeda etc., "includ[ing] any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces." If the quoted language about belligerent acts and direct support of hostilities operates as a limitation on what conduct counts as being "part of or supporting" AQ etc., then I can see the argument for saying that this is narrower than the MCA definition (though note that the MCA definition expressly requires that support be "purposeful," whereas the Leon/CSRT definition omits that phrase). But I'm not convinced that language is best read as a limitation as opposed to just providing a non-exhaustive example (whether it *ought* to be limited to those examples is a different question, of course). It also seems to me that "direct support for hostilities" and "material support[ for] hostilities" may cover much the same terrain.

If that is correct, then Judge Leon's approach to the definitional question in Boumediene does not move the ball very much on the critical question of definition. Presumably Bensayah (the 6^th detainee, whose detainability was confirmed) will raise this issue in his inevitable appeal to the DC Circuit. And of course the issue is there for the other district judges dealing with GTMO habeas petitions to decide; almost inevitably some of them will disagree with Judge Leon's decision to simply follow the CSRT definition. And finally, as Steve notes, the issue is central to al-Marri's cert petition as well.

Judge Leon’s written opinion: insufficient evidence to warrant detention of five detainees, but sufficient evidence to hold one detainee linked both to al Qaeda and to (unrealized) plans to fight in Afghanistan

* Judge Leon's written opinion in Boumediene v. Bush (D.D.C. Nov. 20, 2008)

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2004cv1166-276 

Here is a brief overview of the opinion:

Judge Leon framed the question as follows, citing the Case Management Order he previously had issued: had the government presented proof sufficient to establish by a preponderance of the evidence that the detainees were part of or supporting al Qaeda, the Taliban, or associated forces engaged in hostilities against the U.S. or its allies (including persons who committed belligerent acts or who "directly supported" hostilities). 

The government argued that all 6 men planned to go to Afghanistan to fight against the US.  It also alleged that one of the men – Belkacem Bensayah – was an al Qaeda member who served a "facilitator" function (i.e., that he recruited fighters and assisted their transit to Afghanistan).  The government did not at this stage still contend that the men had plotted to attack the US embassy in Bosnia, nor that Bensayah was a financier as opposed to a "facilitator".

To support the claim that the men planned to go to Afghanistan to fight, the government appears to have relied on a single document citing an unnamed source. Judge Leon described the document as tending to show at least something about each detainee's knowledge of and desire to participate in such a plan, but concluded that the government had not provided sufficient information about this source to establish his/her credibility.  As there was no corroborating evidence, Judge Leon concluded that the government had failed to satisfy the preponderance standard as to the Afghanistan argument.  (Note: Judge Leon did not say that the document was sufficient to support detention for purposes of intelligence gathering, as some have reported, but rather simply observed that the document in issue may have been useful as an item of intelligence but was not a sufficient evidentiary predicate for detention).  Judge Leon expressly reserved decision as to whether the government would have been justified in detaining these individuals if the evidence had supported the claim that they had hoped to go to Afghanistan to fight (i.e., whether the intention to do this constitutes "support" within the meaning of the enemy combatant definition).

This left the question of whether the government had adequate proof that Bensayah was an al Qaeda member and "facilitator".  Here, the government relied not just on the above-mentioned document, but other intelligence reports "based on a variety of sources and evidence" which corroborated this claim.  Judge Leon explained that the government's evidence (i) linked Bensayah to al Qaeda in general and a senior al Qaeda facilitator in particular; (ii) established Bensayah's capacity to travel internationally on false passports in multiple names; and (iii) tended to discredit Bensayah's attempt to explain away the government's allegations.  From this, Judge Leon concluded that the government met its burden with respect to Bensayah in terms of showing  both that he intended to go to Afghanistan to fight the US and also that he sought to help others travel to Afghanistan to do the same.   According to Judge Leon, "there can be no question" that this constituted "direct support" to al Qaeda, making him eligible for military detention. 

Bottom line: numerically it was a defeat for the government, but the government prevailed in a significant way insofar as Judge Leon has affirmed (i) the government's power to use military detention at least as to those who intended to fight or help others to fight against the US and (ii) that at least one of these men falls into that category. 

Restoring the Balance Between Security and Justice, a Response

The following article is posted from the JURIST-Forum, "A National Security Court: Restoring the Balance Between Security and Justice."  

Although I very much enjoyed reading Professor Leila Nadya Sadat's recent JURIST Forum op-ed Restoring America's Rights Record, I respectfully disagree with her observations regarding an alternative legal system to try terror suspects. In particular, I was struck by her characterization of such proposals as ‘rights denial'. With respect to my own proposal nothing could be further from the truth. Quite the opposite - my proposal is predicated on a rights-based solution to a problem requiring an immediate, legal answer. Rights denial? Absolutely not. Rights ensuring? Yes. Absolute rights? No. Workable, practical and legal solution to an enormous legal and practical conundrum? Absolutely.

Let me explain.

In advocating the establishment of domestic terror courts I am seeking both a legal and practical solution to the continued detention of thousands of "post 9/11 detainees". My over-riding concern is for the rule of law and rights of detainees otherwise held, in essence, in indefinite detention. That has been the primary motivation for my proposal.

When I testified before the Senate Judiciary Committee (June, 2004) regarding my proposal I suggested that establishing a domestic terror court is the most effective way to begin trying thousands of detainees held by the United States directly or indirectly world-wide. I suggest that the term "GITMO" is misleading. Guantanamo Bay is but one detention facility; what about the detainees held in Abu Ghraib, Bagram and Camp Buco? What about detainees held elsewhere in the world either by or on behalf of the US? What about future detainees?

In other words, GITMO must be viewed as a term of art referring to thousands of detainees with an unknown number potentially held in the future. While I suggest there is no "war on terrorism" (an unfortunate and inaccurate term), active and engaged operational counter-terrorism (what has been referred to as "armed conflict short of war") will directly lead to the continued detention of thousands of individuals. That is the reality of terrorism and counterterrorism. My proposal is in response to that continued and perhaps never-ending reality.

In developing a "rights-based" alternative legal regime I recommend that "where" individuals suspected of involvement in terrorism be tried is but one piece of the puzzle. That puzzle is comprised of three legs: how and when to detainee, how to interrogate and how and where to try. Looking forward: With respect to detention-an individual can be detained only if he is "caught in the act" or if there is reliable, valid and valid intelligence information with respect to his involvement in terrorism. "Round up the usual suspect" and guilt by the association are unconstitutional. They are also enormously problematic from an operational perspective. With respect to interrogations, according to my proposal individuals detained for suspicion of involvement in terrorism will be granted Miranda rights. They will also not be subject to torture no matter what offense they are suspected of. Torture is illegal, immoral and does not lead to actionable intelligence.

As to where to try the detainees. I suggest that the military commissions are an unworkable solution. Similarly, a suggested international treaty based terror court is presently unfeasible given a fundamental disagreement by the international community to agree on a definition of terrorism. That leaves two solutions-Article III courts and domestic terror courts.

The fundamental differences between Article III courts and my proposed domestic terror court is with respect to the introduction of classified intelligence information in camera and bench, rather than jury, trials. With respect to the former, the defendant's 8th Amendment right to confront his accuser will be balanced with the State's absolute requirement to protect intelligence sources. Is this problematic? It most certainly is; of that, there is no doubt. However, it is critical to emphasize that this exception will only be implemented in those cases where the available criminal evidence is insufficient for conviction. In other words, if the prosecutor is convinced that conviction does not require intelligence information the case will be solely based on criminal evidence therefore preserving the defendant's right to confront. However, in those cases where the criminal evidence is insufficient the domestic terror court paradigm will enable introduction of classified information.

The judge, in such occurrences, will "wear" two hats-that of judge and that of defense counsel. Furthermore, the judge will proactively seek to de-classify otherwise classified information thereby enabling the defendant to cross examine his accuser. While this will not be possible in all cases, the judges "mandate" is to minimize those cases where classified information is introduced. While this is not a "perfect solution" it seeks to balance between two powerful competing interests by suggesting a workable solution.

With respect to bench, rather than jury trials I suggest that convening thousands of American citizens to sit as a "jury of peers" of suspected terrorists and expecting them to understand enormously complicated intelligence information and not be fearful of "jury intimidation" is an all but impractical solution. Not only logistically (in the words of the former President of the Israel Supreme Court, Aharon Barak, "the logistic considerations of the executive must not serve as a barrier to the freedom of the individual") but legally from the perspective of protecting the detainee-defendants rights. Bench trials-in my proposal by a re-structured FISA Court-with appeal to the US Court of Appeals would far more effectively preserve and protect the rights of the detainee than jury trials. Trial by jury of thousands of detainees will undoubtedly be inordinately slower than bench trials thereby continuing to deny the defendant basic judicial rights.

That will be the true and continuing "rights denial" Prof Sadat suggests in her commentary.

I do agree with Prof Sadat that a discussion on this topic must be held and quickly so for the existing paradigm is unworkable. The debate regarding this question must be robust and candid. It must include policy and decision makers, academics, members of the Bar, civil rights organizations and the public. The over-riding principle is respect for the rule of law with an understanding that balancing between the legitimate rights of the individual with the equally legitimate national security rights of the state is the essence of a democracy.

Cross posted on AIDP Blog.

Military Commissions and National Security Courts after Guantanamo

View my essay, Military Commissions and National Security Courts after Guantanamo, Northwestern Law Review, Colloquy, 2008, written in response to Gregory S. McNeal's article, Beyond Guantanamo, Obstacles and Options.

Abstract:

In the aftermath of 9/11, definitional uncertainty as to the status and rights of detainees has contributed to unending violations of civil and political rights for thousands of individuals held world-wide either directly by, or on behalf of, the United States. While various terms have been used to label detainees including "enemy combatant," "illegal belligerent," and "enemy belligerent," all fail to define the rights such individuals should be granted.  Admittedly, this process has been made more difficult by a continued inability--perhaps unwillingness-- to define the conflict in a consistent manner.  Is this a war? Is this a "war on terror"? Is this police action?  Considering this definitional uncertainty, the critical question becomes where to appropriately try these detainees--how to try these individuals while protecting classified intelligence and also maintaining individual rights.

In this essay, I propose that detainees are neither prisoners of war nor criminals in the traditional sense; rather they are a "hybrid" of both.  To that end, I recommend that the appropriate term for post 9/11 detainees is "individuals suspected of involvement in terrorism."  This definition adopts aspects of both the prisoner of war and criminal law paradigms, thereby creating what I have called a "hybrid paradigm."  The hybrid paradigm seeks to balance--or maximize--the legitimate rights of the individual with the equally legitimate national security rights of the state.  Furthermore, it seeks to move beyond the amorphousness that has defined much of the debate over the last seven years.

To try these individuals, I suggest a hybrid "domestic terror court" that would allow for an in camera review of confidential intelligence information presented by the prosecutor and a representative of the intelligence services.  A properly constituted domestic terror court--comprised of judges schooled in understanding intelligence reports and intelligence gathering procedures, and aware of the necessity of preserving constitutional rights--is the proper starting point in moving forward with post 9/11 terrorist prosecutions.  The proposed hybrid paradigm will ensure both the state's obligations to keep intelligence and matters of national security confidential as well as the defendant's right to a fair trial. 

Cross-posted in AIDP Blog.

Anticipatory Self-Defense Key to Terror Fight

View an op-ed I co-wrote with Dan Barr of Perkins Coie Brown & Bain published Nov. 8 in the Arizona Republic, "Anticipatory Self-Defense Key to Terror Fight."

In applying "lessons learned" from previous examples of anticipatory self-defense, we recommend that the executive branches' ability to engage in anticipatory self-defense be subject to criteria-based external authorization.

Cross posted on AIDP Blog.

Forthcoming scholarship: Profiling, Prevention, Insurgents, Terrorism Financing, Technology and More

The latest from SSRN…

 

"Terrorism and Profiling: Shifting the Focus from Criteria to Effects" 

Cardozo Law Review, Vol. 29, No. 1-9, 2007

DAPHNE BARAK-EREZ, Tel Aviv University - Buchmann Faculty of Law
Email: barakerz@post.tau.ac.il

The article evaluates the proposal made by Heymann and Kayyem in their book Protecting Liberty in an Age of Terror to replace the practice of ethnic profiling by nationality-based profiling. It argues that in many circumstances this proposed alternative is not less offensive than ethnic profiling, especially when there is high correlation between ethnicity and nationality, and that at the same time it is does not prove to be an effective alternative in many other circumstances, especially in the context of immigration countries. Ultimately, the article proposes a shift in the focus of the debate on profiling from the controversy around the legitimate criteria for profiling to the context in which profiling is used and the kind of decisions to which it applies. The argument in this regard is that profiling is criticized also because it was used in the context of decisions with long-lasting effects on people's lives - for the purpose of completely denying people an entrance to a country or for detaining them (in the Korematsu example). Therefore, rather than focusing only on the question of the criteria used for profiling, it would be better also to ensure that profiling is used only with regard to enforcement decisions that do not have long-lasting effects on the lives of innocent people.

"The Institutional Logic of Preventive Crime" 

Stanford Public Law Working Paper No. 1272235

MARIANO-FLORENTINO CUELLAR, Stanford Law School
Email: tcuellar@stanford.edu

Criminal justice plays a major role in regulating undesirable conduct. As part of that role, the system relies on deterrence, incapacitation, and the shaping of social norms and preferences in an effort to prevent conduct considered harmful. But that preventive role is routinely misunderstood. This paper rethinks preventive enforcement by training attention on the relationship between criminal law and the institutional realities affecting risk regulation in environmental, health, and national security regulation. First, while not denying a host of problems with the expansive reach of criminal enforcement, the article describes how the structure of criminal enforcement does not draw particularly stable or convincing lines excluding risk regulation from its domain. Distinctions between administrative regulation and criminal enforcement therefore blur on the issue of whether preventing harm and regulating risks are crucial goals, but remain important with respect to matters such as type of sanction available (a commonly appreciated distinction) and type of agency used for enforcement (a less-commonly appreciated distinction).

Second, the analysis trains attention on preventive enforcement in a world where social regulation faces a variety of institutional constraints and where multiple political dynamics drive expansive criminal liability. In such a world, a coercive and costly darker side of criminal justice coexists with the socially-valuable institutional characteristics of law enforcement organizations. As examples from food and drug regulation, environmental policy, and national security demonstrate, the mix of unique sanctions and procedural constraints associated with criminal enforcement have distinct institutional effects on public agencies. Specifically, the criminal justice system is capable of fostering a measure of autonomy that often eludes conventional regulatory agencies, provides incentives for investigative competence, and creates contextual effects in the choice of sanctioning regime, allowing politicians to signal the national state's competence to a potentially skeptical public.

This perspective does not necessarily legitimize all preventive criminal enforcement. Instead, three major implications follow from the analysis. (1) Policymakers should rethink the unfavorable comparisons of law enforcement to intelligence agencies in the national security context. (2) Society should recognize that circumscribing preventive criminal liability has subtle and underappreciated costs for regulatory policy. (3) Scholars should better appreciate the interdependence between legal mandates and the evolution of organizations. By ignoring or minimizing the importance of criminal enforcement's distinctive institutional structure, however, scholars and policymakers have often misconceived the central role of criminal enforcement agencies in advanced industrialized states, providing policy prescriptions that are at best incomplete and at worse perverse and highly problematic.

"Legitimacy of Insurgents in International Law" 

Belgian Review of International Law, 2009

JEAN D'ASPREMONT, University of Leiden - Faculty of Law, University of Louvain
Email: j.daspremont@law.leidenuniv.nl

At first glance, the question of the legitimacy of rebels in international law may sound a bit awkward if not utterly absurd. Indeed, rebels are classically identified by opposition to the legitimate governments. This means that their illegitimacy is a constitute element of their status of insurgent. In other words, they are deemed rebels because they violently oppose the legitimate government. Moreover, it is not entirely certain the question of legitimacy, as a whole, is an issue to be taken up by international legal scholars. However, there still are a few hypotheses where a test of the legitimacy of the rebels is carried out in practice, the result of which impinges on the application of international law. It is the aim of this paper to grapple with these few exceptional situations where the legitimacy of the rebels is examined. To that end, a distinction is drawn between separatist rebellions, political rebellions and the situation of failed States.

"East Meets West in Anti-Money Laundering and Anti-Terrorist Finance: Policy Dialogue and Differentiation on Security, the Timber Trade and Alternative Banking" 

Asian Journal of Criminology, Vol. 3, No. 1, pp. 91-110, November 2007

NICHOLAS DORN, Erasmus University Rotterdam - School of Law, School of Social Sciences, Cardiff University
Email: dorn@law.eur.nl
MICHAEL LEVI, University of Wales System - Cardiff University
Email: Levi@cardiff.ac.uk

This paper compares and contrasts South East Asian and European Union countries' perceptions of the priorities for anti money laundering (AML) and anti terrorist finance (ATF) in relation to three industries: security goods and services; the timber trade; and 'informal' value transfer and banking services. It might be expected that all countries would equally support each of these aspects of AML/ATF policies, without differentiating between the industries generating the proceeds. As this paper will show, however, historical experiences, contemporary political relations and patterns of trade shape countries' approaches, resulting in distinctive enthusiasms and reservations. In a nutshell, the EU points most strongly to products and services originating in Asia as posing AML/CTF risks, and locates primary responsibility for monitoring and control as falling within Asia - a projection of risk and responsibility that is reciprocated by Asian countries. Asian countries perceive a need for tighter control of dangerous products exported by the west, for example, small arms and light weapons, and of related money laundering circuits. Asian and European policy makers increasingly articulate concerns over illegal logging and related laundering, however European importers and their governments see responsibilities for this as falling primarily within Asia. Finally, the EU (like the US) perceives high levels of laundering risk in 'informal' value transfer/banking services, in which Asian-run businesses have a global competitive advantage. For the future, as the international balance of trade shifts, and as Asia increases its influence in international fora including those concerned with AML/CTF, so the region's policy preferences may be expected to carry more weight.

"Power to the Edge? New Threats, New Responses" 

2008 Global Strategic Assessment, Institute for National Strategic Studies, National Defense University

K. A. TAIPALE, Center for Advanced Studies in Science and Technology Policy
Email: ssrn@advancedstudies.org

Enabled by modern network technologies, power is "shifting to the edge", allowing decentralized networked groups to compete with traditional hierarchical organization forms. The globalization of communications and computing infrastructure (together with new collaborative software) is allowing hostile non-state groups - including terrorists, criminal organizations, rogue corporations, anti-globalization movements, pernicious hackers, and proxy groups acting on behalf of or "encouraged" by other nation states or these other entities - to directly threaten national security and international stability. Increasingly, existing security arrangements and practices based on rigid geographic borders, exclusive sovereign control of physical territory, and unilateral response to global threats by individual nation states are inadequate to counter these groups effectively.

This essay provides a brief overview of these technology-enabled trends and their implications for current international and domestic security arrangements, and suggests how counter-forces might themselves adopt new strategies to meet these threats. In particular, this essay suggests that future national defense strategies should increasingly incorporate a decentralized, multilateral "public health model" for security against unknown threats based on local monitoring for emerging global threats, swarming global response resources to counter manifest threats, and developing robust resilience and shared recovery capabilities to withstand and recover from unexpected or spontaneous attacks.

 

Forthcoming scholarship: Sealing on FSIA and Due Process; Reich on SCR 1267 and Due Process; Michaels on Private Sector Checks on the Intelligence Community

State Sponsors of Terrorism are Entitled to Due Process Too: The Amended Foreign Sovereign Immunities Act is Unconstitutional

Keith Sealing (University of Louisville Brandeis School of Law)

In 1996, Congress, as part of the Antiterrorism and Effective Death Penalty Act of 1996, amended the list of noncommercial tort exceptions to sovereign immunity in the Foreign Sovereign Immunities Act ("FSIA") in response to a federal court's determination that it lacked subject matter jurisdiction over Libya and alleged Libyan terrorists in Smith v. Socialist People's Libyan Arab Jamahiriya, one of many cases resulting from the terrorist bombing of Pan Am Flight 103 over Lockerbie, Scotland. The ambiguously worded amendment appears to give federal courts both subject matter jurisdiction, which Congress clearly intended, and personal jurisdiction over the seven nations currently listed by the Executive Branch as "state sponsors of terrorism." The United States District Court for the Southern District of New York, the only court to address the amended FSIA, unconstitutionally interpreted it as according the court personal jurisdiction over Libya in the re-filed suit by the survivors, executors, administrators, and personal representatives of those killed over Lockerbie. This Article demonstrates that giving the court personal jurisdiction over a foreign sovereign simply because the Executive Branch has concluded that it is a "state sponsor of terrorism" or because an offshore terrorist act had some "effect" in the United States would violate the Due Process Clause of the Fifth Amendment absent the performance of traditional "minimum contacts" analysis under both the specific and general personal jurisdiction tests.

Due Process and Sanctions Targeted Against Individuals Pursuant to Resolution 1267 (1999) - With an Added Note on European Court of Justice, Judgment in Joined Cases C-402/05 P and C-415/05 P, Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council and Commission, September 3, 2008

Yale Journal of International Law, forthcoming

Johannes Reich (Univ. of Basel - Law)

This paper assesses the legal consequences of the framework established pursuant to Resolution 1267 (1999) and subsequent decisions by the United Nations Security Council imposing sanctions on individuals not necessarily associated with states or state actors. This shift in focus piercing the veil of statehood raises pressing issues of both international and domestic constitutional law, human rights law, and administrative law (including the emerging field of international administrative law) as the current system lacks basic guarantees of fair trial and effective remedy. After analyzing the current framework, this paper critically reviews two decisions evaluating this new generation of "targeted" sanctions imposed by the United Nations, namely the case regarding Youssef Mustapha Nada v. State Secretariat for Economic Affairs of the Swiss Confederation (SECO) ["Nada-case"] by the Swiss Federal Supreme Court and - in an added note - the case regarding Yassin Abdullah Kadi et al. v. Council and Commission ["Kadi-decision"] by the European Court of Justice. Based on this analysis, this paper argues for installing an independent administrative mechanism to review both the listing and de-listing decisions made by the Security Council as only a mechanism at the level of the United Nations can, at the same time, preserve the crucial framework of international implementation of collective measures and also validate the core principles of the rule of law.

All the President's Spies: Private-Public Intelligence Partnerships in the War on Terror

California Law Review, Vol. 96, p. 901, 2008

Jon D. Michaels (University of California, Los Angeles - School of Law)

Commentators who have examined the Executive's post-September 11 practice of persuading corporations to enter into informal and, at times, unlawful intelligence-gathering partnerships have largely viewed the participating firms as co-conspirators, unwitting pawns, or coerced captives of the Executive-and understandably so. After all, participating corporations have been instrumental in enabling U.S. intelligence officials to conduct domestic surveillance and intelligence activities outside of the congressionally imposed framework of court orders and subpoenas, and also outside of the ambit of inter-branch oversight. Yet despite their track record as enablers, corporations are uniquely positioned to help rein in the currently unregulated practices.

This Article analyzes corporate-government agreements and provides the rationale and blueprint for shifting the principal locus of compliance with existing laws (and oversight obligations) from the intelligence officials to the corporations. The inquiry begins by laying out the Article's fundamental postulates: the intelligence agencies depend on private actors for information gathering; the Executive is institutionally predisposed to seek maximum discretion in conducting intelligence operations, both because of the overwhelming pressure to thwart acts of terrorism and because its officials are relatively immune from serious legal or political sanction for proceeding ultra vires; and, the Executive may choose to conduct intelligence policy through informal collaborations notwithstanding the legal, political, and economic harms these shadowy bargains may generate.

To mitigate these harms and enhance the legitimacy of domestic intelligence-gathering practices, the Article proposes to flip the private-public partnerships on their heads, converting the privatization schemes from the handmaidens of inscrutable intelligence policy into the guarantors of a new counterterrorism regime built on legality, integrity, and accountability. Whereas the Executive has shown itself willing (and able) to disregard legal requirements, the corporations lack the incentive and institutional capacity to act with similar abandon.

Thus, the Article recommends that Congress consider using these unlikely-but more pliable-corporate allies as gatekeepers, strengthening the currently incomplete and oft-bypassed legal framework for intelligence operations by obligating the firms to condition their intelligence-gathering cooperation on the Executive's compliance with legal formalities. Ultimately, the Article seeks not only to provide practical insights into the instant problems with unaccountable intelligence operations, but also to spark normative thinking both about how to manage a counterterrorism policy that is rapidly outgrowing the traditional boundaries of private versus public governance and, more generally, about how to involve private actors (and harness their self-interests) in efforts to boost compliance in other failing or failed public-law-enforcement paradigms.