The Month Ahead: Spies, Lies, Russia, and Terrorist Watchlists
posted by Jeffrey Kahn
It’s great to be back at Concurring Opinions (and thanks to Danielle for the generous (re)introduction last week). This month, I plan to blog on a few ongoing projects and some upcoming news events. Here are two topics soon to come, with two more after the break.
(1) Spies. Immigration authorities seize a suspected spy in Manhattan on the grounds that he entered the country unlawfully. Rather than process him through the immigration system, or transfer him to the criminal justice system, he is secretly flown more than a thousand miles away, interrogated without a lawyer, and kept virtually incommunicado for almost seven weeks in a government facility on the Texas-Mexican border. When he doesn’t break, he is transferred back to New York to be tried in federal court for a capital offense. The evidence from his warrantless arrest and secret detention helps to convict him.
When did this happen?
No surprise that the story resonates with our national security debates today. But it all happened during the Eisenhower Administration. Rudolf Abel was the top Soviet spy in North America before he was convicted of atomic espionage. Thanks to his lawyer, his life was spared (and he was later exchanged for U-2 pilot Francis Gary Powers). I think that there are lessons to be learned from this history today, but mine seems to be the minority view.
(2) Lies. Okay, not lies exactly, but pretext. (You try rhyming pretext with anything. You’ll wind up perplexed, if not vexed, with the text that comes next.) Pretextual use of the law is all around us. The most common example is the law governing arrests. In Whren v. United States, the Supreme Court unanimously agreed that the police were free to do “under the guise of enforcing the traffic code what they would like to do for different reasons,” namely, stop and search Whren’s car for drugs. Abel’s case (referenced in Whren) presented another classic instance of pretext: his detention for an immigration violation was used for the unintended purpose of counterespionage, neatly skirting in the process constitutional protections against warrantless searches and seizures, not to mention official disappearances. When Abel’s able lawyer argued pretext, however, the Supreme Court sustained the conviction.
Sometimes the law abhors pretext. For example, in Kelo v. City of New London, the Supreme Court categorically rejected the idea that the state may take property under the pretext of a public purpose. How should citizens regard the pretextual use of the law by state officials? Does such use tend to weaken the rule of law in ways that should matter to us as individuals or as a society? When tempted to use a law for an unintended purpose, how should the “good” official distinguish an innovative pretextual use from a destructive one? The Supreme Court dodged these questions just last term in Ashcroft v. Al-Kidd and I’d like to think hard about why.
(3) Russia. I wrote my doctoral dissertation at Oxford on rule of law issues in Russia. That study became my first book (which I published with Oxford University Press while I was a law student) and that place still captures a fair amount of my research interests. In Russia, they have a saying: “The law is like the shaft of a wagon; it goes wherever you turn it.” Russia, home to Colonel Abel of the KGB, has a long and ignominious history of pretextual use of law.
Does the second conviction of Mikhail Khodorkovsky fit into that category? Khodorkovsky was the richest man in Russia when, in 2003, he was arrested and charged with crimes connected to his Yukos Oil Company, Russia’s most profitable and well-known private corporation. He and his business partner, Platon Lebedev, were convicted of fraud, causing property damage by deceit or breach of trust, and tax evasion. They were sentenced to eight years in prison. Yukos was seized and sold to state-controlled companies. As their sentences drew to a close, Khodorkovsky and Lebedev were convicted just last December by another court of embezzlement and money-laundering, charges arising out of the same time period and concerning the same corporate activities that were the basis for the first conviction.
While the Russian courts have repeatedly found against Yukos, Khodorkovsky, and his associates, the European Court of Human Rights has consistently found (most recently this past September) that their detention and trials worked numerous violations of the European Convention on Human Rights. Russia’s already tense relationship with the Council of Europe could well be at risk of further unraveling as Khodorkovsky’s cases continue to move from Moscow to Strasbourg. The question is, what results when the judgments handed down in Strasbourg are received in Moscow?
(4) Terrorist Watchlists. One or two of my posts last year were about the right to travel. In particular, I’m interested in terrorist watchlists like the No-Fly List maintained by the FBI. When combined with computer systems like TSA’s “Secure Flight,” the result is that anyone who flies into, out of, or over the United States must obtain the express prior permission of the U.S. Government to board that plane. Is that the relationship citizens should have with their government in a republic like ours?
My second book explores these questions. It’s called Mrs. Shipley’s Ghost: The Right to Travel and Terrorist Watchlists and it will be published by the University of Michigan Press this coming spring. Mrs. Shipley ran the State Department’s Passport Office from 1928 to 1955. If she thought your travel was “not in the interest of the United States,” then you stayed home. As with Colonel Abel, not everyone finds my historical analogy to her reign to be persuasive (particularly the government officials I’ve interviewed about the No-Fly List!).
Today’s lists were originally justified as measures to protect civil aviation from hijackers and terrorists. But, sometimes at least, that turned out to be a pretext: the lists can and have been used to investigate or frustrate the travel of individuals about whom there was no evidence that they presented a threat to civil aviation. Ever hear of Cat Stevens? And an American citizen, in particular, might be troubled by the creation of a system in which he or she must seek the state’s consent to travel by air. That might sound like a system more appropriate to a country like Russia.
But as Yogi Berra said, it’s déjà vu all over again. And that’s why spies, lies, Russia, and terrorist watchlists will be on my mind this month.
November 6, 2011 at 1:17 pm
Posted in: Articles and Books, Civil Rights, Constitutional Law, Criminal Procedure, Government Secrecy, Uncategorized
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Responses (3)
Brett Bellmore - November 6, 2011 at 3:36 pm
“For example, in Kelo v. City of New London, the Supreme Court categorically rejected the idea that the state may take property under the pretext of a public purpose.”
Excuse me, but New London won that case… I think you’ve characterized the case exactly backwards; It’s more like the Court categorically rejected the idea of ever admitting that ‘public purpose’ was pretextual.
Ken Rhodes - November 6, 2011 at 4:11 pm
No, Brett, Professor Kahn got it right.
The Supreme Court, in its majority opinion, “categorically rejected …” Here is the sentence from the opinion delivered by Justice Stevens:
“Nor would the City be allowed to take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit.”
The opinion went on to state, in the rest of that paragraph, that the instant case was NOT a “pretext” since the public purpose was a “carefully considered development plan. The trial judge and all the members of the Supreme Court of Connecticut agreed that there was no evidence of an illegitimate purpose in this case.”
fresno dan - November 7, 2011 at 8:41 am
Well I guess the arguement centers around the word “pretext” (or for clarity, let’s use the word “lying”)that is, was the city lying when they said the taking was for a public purpose?
It gets more convoluted – I would say the city sincerely believed that PRIVATE development would add the PUBLIV coffers. Unfortunately, turns out real estate investing isn’t always profitable to the public or the private sector.
http://newsbusters.org/blogs/tom-blumer/2009/11/10/pfizer-leaving-new-london-ct-just-dont-mention-kelo-while-reporting-it
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