Author Archive for jeffrey-kahn

Happy New Year, Time to Go

posted by Jeffrey Kahn

The New Year has rung in and it is time for me to ring out.  I’ve enjoyed being a guest blogger again at Concurring Opinions very much.  Thanks to Danielle Citron for inviting me back.  It’s been great fun!

  January 2, 2012 at 11:47 pm   Posted in: Uncategorized   Print This Post   No Comments

Russian Human Rights Council Recommends Quashing Khodorkovsky’s Conviction

posted by Jeffrey Kahn

Just before Christmas, Russian President Dmitrii Medvedev’s Council on the Development of Civil Society and Human Rights recommended that the December 2010 conviction of Yukos-Oil-CEO-now-prisoner Mikhail Khodorkovsky be annulled.  That announcement (unfortunately, only available in Russian, but reported by the BBC, among others) coincides with massive street protests not seen in Russia since shortly before Christmas 1991, when the Soviet Union collapsed. 

The Council’s recommendation was based on a 427-page report on Khodorkovsky’s conviction that the Council gave to President Medvedev.  The report contained the analysis of nine scholars that the Council selected last spring from Russia, Germany, the Netherlands, and the United States.  I was the American contributor.  The report on the Council’s website is in Russian, but you can find an English-version of my portion of the document here. 

The Khodorkovsky case will be the focus of a “hot topics” panel on Friday morning, January 6, at 10:30 at the AALS Conference in Washington D.C.  How does the case relate to the recent protests in Russia?  What does it say about the rule of law in Russia and prospects for reform?  Come to the panel and find out!

  December 31, 2011 at 9:24 am   Posted in: Civil Rights, Courts, Criminal Law, Criminal Procedure, Current Events, Uncategorized   Print This Post   No Comments

When Worlds Collide: Russia, the Internet, and Nothing to Hide (or, Интернет в России)

posted by Jeffrey Kahn

Danielle Citron and Daniel Solove – whose guest I am here at CO – always offer great insights into the brave new world of cyber law.  I find their work fascinating and worth a careful read.  But readers tend to bring a bit of themselves to whatever they read, and I’m no exception.  That part of my scholarship that focuses on Russian law sometimes makes it hard for me to avoid thinking about the original model for Big Brother that George Orwell had in mind when I read about the latest anxieties about the state’s relationship to cyberspace.

So today I was not entirely surprised to learn that the recent mass protests in Russia have a cyber-angle to them beyond the emphasis in news reports on how protesters have used Facebook and flash mobs.  Two angles, actually, that readers might miss and that I thought worth sharing.  The protests, as many know, were catalyzed by elections to the lower house of the Russian parliament, the State Duma, which were held Sunday, December 4. 

The first one was reported yesterday by Mark Franchetti in Moscow for the The Sunday Times (UK):

The dirtiest election in the country’s post-Soviet era began with a cyber attack, unprecedented both in its scale and its efficacy, on several websites critical of the Kremlin.

It was launched 90 minutes before polling stations opened and ended 90 minutes after they closed.  Half a dozen sites were shut down completely.

According to security experts employed by one of those affected, the onslaught came from 200,000 hacked computers across the world.  Unbeknown to their users, they requested simultaneous access to the sites, which crashed under the weight of demand.

“This was a concerted, well-organized attack which was very expensive to sustain.  It’s not some lone hacker causing trouble – rather something far more sinister, almost certainly linked to the security services,”  said one web security exeprt.

United Russia, the country’s largest party, led by Putin, denied any involvement but suspicion fell on the state — especially the FSB, the former KGB.  The only common link between the targeted sites was that all had posted an interactive map detailing alleged pre-election violations reported by ordinary citizens.

The map, which listed 6,000 alleged violations, was created by Golos, Russia’s only independent election monitoring group, whose site was among those disabled.

The offices of Golos, which is funded partly by the United States and European Union, waere raided by prosecutors in the run-up to the polling.  The Kremlin claimed that the West was meddling and Putin, who served in the KGB for 16 years, compared Russian recipients of foreign money to Judas.

The second report comes from ITAR-TASS, a Russian state-owned news service.  A report on its wire service suggested that someone (and probably a lot more than one)  in the Russian Interior Ministry really ought to read some of Solove’s and Citron’s work.  According to ITAR-TASS:

Alexei Moshkov, head of the bureau of special technical activities under the Interior Ministry, suggested on Thursday the taking of measures against anonymity in the Internet.  In his opinion, “today social networks not only have some advantages, but also create a potential threat to the fundamentals of society.”  Some mass media organs linked his proposal with the growth of protest activity of Russians after the parliamentary elections, in which the Internet is playing an important role.

Major General Moshkov believes that stability of the fundamentals of society may be ensured by banning the publication of anonymous reports, The Novye Izvestia [a Moscow newspaper -- ed.] writes.  “One may get registered under his real name, may report his address and after that communicate with others.  An honest and law-abiding person does not have to hide.  Let me remind you that there is no censorship in the Internet.  The “K” Department will not search for anybody or arrest anybody for criticism,” he stated point-blank.

Not everybody in Russia seems to agree with the general.  His boss, for example, Rashid Nurgaliyev, the Minister of the Interior.  Another ITAR-TASS post (which I’ve only been able to find in Russian) states:

 Head of the MVD [the Interior Ministry -- ed.] Rashid Nurgaliyev expressed his negative attitude toward required registration of the names and surnames of Internet users.  He declared this in answering a question of news agency  journalists concerning “face-control” on the network.

“This is stupidity and no one is planning to introduce this,” said Nurgaliyev.

Well, maybe there’s a reader out there after all!

  December 12, 2011 at 8:43 pm   Posted in: Cyberlaw, Privacy (Electronic Surveillance), Uncategorized   Print This Post   2 Comments

What if the Boy Who Cried Wolf Could Testify under a Pseudonym … as an Expert Witness on Canis Lupus?

posted by Jeffrey Kahn

“Major Lior” is the pseudonym for an Israeli Defense Force officer who testified in Dallas not long ago in what has been called the “largest terrorism financing investigation in American history.”  His name was pronounced “Major Lee-OR” at the trial.  Snarky commentators suggested that defense counsel should mispronounce his name to rhyme with “fire.”  After all, what defense counsel would not want to refer the jury to the testimony of a major liar?  But the joke exposed a real problem for the defense: how can you “attack a witness’s reputation for having a character for truthfulness or untruthfulness” under FRE 608 or engage in more typically frutiful areas of inquiry into credibility or expertise if — thanks to a court-sanctioned pseudonym — you don’t even know his name and must rely on your adversary for information in place of any investigative legwork of your own?

Last week, the Fifth Circuit handed down an important opinion upholding the convictions in that case.  The unanimous and enormous (172 page) opinion written by Judge Carolyn King (joined by Judges Emilio Garza and James Graves) received virtually no media attention.  That’s strange, considering that the convictions that the court upheld concerned an international conspiracy to fund Hamas and the defendants once ran the largest Muslim charity in the United States.

But the silence is stranger still when you consider the importance of the issue (one of many) before the court: Did the district court deprive the defendants of their rights to due process and to confront witnesses against them when it allowed two witnesses to testify using pseudonyms?  As far as I know, such a practice would be unusual but not entirely unprecedented were it to concern the typical fact witness.  Children, informers, and undercover agents are sometimes allowed various levels of shielding from the ordinary requirement of fully public testimony in a completely open court.  But these witnesses were far from ordinary.  Both were officers in the Israeli Defense Force.  “Major Lior” was a fact witness whose role was to authenticate documents obtained by the IDF during a military operation.  The other, “Avi,” testified as an expert witness, providing his opinion to the jury about the financial structure of Hamas.

After the break, I’ll give some background on the case and then explore the appellate court’s conclusion that this testimony worked no constitutional injury.  Given that the Supreme Court granted only 1.1% of the petitions for review last term, I doubt that the appeal will go any farther.  But I think it should and, though I certainly would give no quarter to Hamas or its allies, I think the use of these anonymous witnesses violated the defendants’ rights.

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  December 12, 2011 at 1:08 pm   Posted in: Constitutional Law, Evidence Law, Uncategorized   Print This Post   One Comment

AALS “Hot Topics” Program: Russia’s “Dictatorship of Law”

posted by Jeffrey Kahn

I am glad to announce that the AALS Committee on Special Programs selected my proposal as a “Hot Topics” panel for the 2012 AALS Annual Meeting in Washington D.C. next month.  The program is called: “The Dictatorship of Law: The Khodorkovsky Case, Human Rights, and the Rule of Law in Russia.”  William Pomeranz, Deputy Director of the Kennan Institute for Advanced Russian Studies at the Woodrow Wilson International Center for Scholars, will chair a panel that includes Kim Lane Scheppele (the University of Pennsylvania and Princeton), Bruce Bean (Michigan State University), Christopher Bruner (Washington and Lee University), Alexei Trochev (Nazarbayev University) and me.  The program will begin at 10:30 on Friday morning, January 6. 

Below is a description of the panel, which will occur (as perhaps a “hot topic” should) between two central events on the Russian calendar: the surprising results of yesterday’s parliamentary elections in Russia and presidential elections scheduled for March 4 that (at least until yesterday) everyone was saying would be certain to return now Prime Minister Vladimir Putin to the presidency currently held by his protégé, Dmitrii Medvedev.

During his first campaign for President of Russia in February 2000, Vladimir Putin defined democracy as a “dictatorship of law.”  This was meant to signal a shift away from the perceived lawlessness of his immediate predecessor’s governance, and to feed the nostalgia for Soviet-era stability.  As Putin starts his gambit to return to the Russian presidency, this panel examines which half of that slogan will dominate the other.  Recent developments in the most well-known case in the courts of both Russia and the Council of Europe present an opportunity to do so at a pivotal moment not only in that case but for the future of the rule of law in Russia.

Mikhail Khodorkovsky was the CEO of the Yukos Oil Company and the richest man in Russia when in 2003 he and his business partner, Platon Lebedev, were arrested and charged with crimes connected to Yukos, Russia’s most profitable and well-known private corporation.  They were convicted of fraud, causing property damage by deceit or breach of trust, and tax evasion and sentenced to eight years in prison.  Yukos was seized and sold to state-controlled companies.  In December 2010, as their sentences drew to a close, Khodorkovsky and Lebedev were convicted 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.  On the eve of that verdict, Prime Minister Vladimir Putin informed a nationwide television audience that “a thief should sit in jail,” a reference to a well-known Soviet mini-series that would have been quite familiar to viewers (the quote continues: “… and people don’t care how I put him away.”).  In midsummer 2011, a Russian court upheld the verdict, extending the defendants’ sentences until 2016. 

A bit more on the tension this case embodies for Russian law and human rights after the break …

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  December 5, 2011 at 11:33 am   Posted in: Corporate Law, Corruption, Courts, Criminal Procedure, Current Events, Law School, Uncategorized   Print This Post   3 Comments

Pretext, the Rule of Law, and the Good Official

posted by Jeffrey Kahn

How should citizens in a republic bound by the rule of law regard the pretextual use of law by state officials?  If the United States Supreme Court is any indicator of the answer in our own republic, we are pretty ambivalent about pretext. 

Sometimes we don’t care very much.  In its most well-known case on the subject, Whren v. United States (1996), the Court upheld the pretextual use of the traffic code (which was prolix enough to be violated sooner or later by just about any car on the road).  Whren’s car was stopped by a vice squad cop who had a hunch (but not probable cause to believe) that Whren had drugs in his car.  One lesson of this case is that you should always signal before making a turn.  Justice Scalia, writing for a unanimous Court, had another one: the police are free to do “under the guise of enforcing the traffic code what they would like to do for different reasons.”  In other words, a green light to pretextual traffic stops.

Sometimes, we care a great deal.  In Kelo v. City of New London (2005), the Supreme Court categorically rejected the idea that government officials may “be allowed to take property under the mere pretext of a public purpose, when [their] actual purpose was to bestow a private benefit.”  Likewise, interpreting Title VII in their concurrence in Ricci v. DeStefano (2009) (which concerned a city fire department), Justices Alito, Scalia, and Thomas highlighted the subjective component of liability in a civil suit for employment discrimination in a disparate-treatment case: the employer is liable if its facially legitimate reason for a decision turns out to be “just a pretext for discrimination.”  Justice Frankfurter long ago chastised the Court for sustaining a law “because Congress wrapped the legislation in the verbal cellophane of a revenue measure.”  The concept of limited and enumerated powers seems to suggest a general disapproval of pretext.

Does repeated pretextualism — whether one is making or enforcing the law — weaken the rule of law?  When tempted to use a law for an unintended purpose, how should the “good” official (read the adjective however you like) distinguish an innovative use from a destructive one?  My own motivation for this research stems from concern that using law to achieve an objective that the law was clearly unintended to achieve might do something destructive to the rule of law itself.  Maybe it does some harm to the official who wields power in that pretextual way, too, an official who may be the worst-placed government agent to exercise the sort of discretion that creative administration of the law demands.  Pretextualism may be habit-forming and, like cigarettes, unhealthy.

After the break, I’ll share my working definition of pretext and two cases separated by more than fifty years, but adopting the same pretextual technique to evade restrictions on government action.  One involves a Soviet spy whose case troubled the Supreme Court so much that the Court heard oral argument twice.  Surprisingly, that case foretold and influenced the “easy” Whren case.  The other involves a former college football player caught up in the current “War on Terror.”  That case, Ashcroft v. al-Kidd, was decided in May, also referencing Whren, but this time without such unanimity and with a lot more unease about pretext.

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  November 29, 2011 at 3:15 pm   Posted in: Administrative Law, Civil Rights, Constitutional Law, Criminal Procedure, Immigration, Supreme Court, Uncategorized   Print This Post   No Comments

“The first thing we do, let’s [train] all the lawyers.”

posted by Jeffrey Kahn

David Segal has a front-page, above-the-fold article in today’s New York Times, What They Don’t Teach Law Students: Lawyering.  Segal blasts legal education for failing to produce prêt-à-porter lawyers sized to fit the needs of everyone from Skadden Arps to solo practitioners.  Segal also denies the value of “pure” research — law review articles and other scholarly output that do not satisfy his requirements for immediate application to daily practice.  Gerard Magliocca and Alex Guerrero already commented on one of his examples.  As with Dick the Butcher’s suggestion in Shakespeare’s Henry VI, Part 2, Segal’s article is wrong on both teaching and research.

First, teaching.  I think that when law schools succeed at their mission they do produce graduates with skills ready for use in any legal environment.  It’s just that developing the skill set that Segal prioritizes (such as his opening example: filing a certificate of merger with a secretary of state) is not the sole, let alone primary, goal of legal education.  Those form-filling and filing skills are important, but best honed by firms that daily engage in those specialized, localized, and technical operations.  Law schools, in contrast, have the advantage in teaching the general skills and knowledge that firms of all sizes (as well as government agencies and corporations) have neither the time, inclination, nor resources to perfect.  But these organizations desperately need these things in the lawyers they hire: critical thinking, professional standards, ethical judgment, and historical perspective (to name a few).

Unlike medical schools and engineering programs, law schools do not set out to create technicians.  (I suspect that the best medical and engineering institutions don’t have this goal either, but this is the common comparison.)  Law schools, especially, should produce graduates comfortably inclined to question the status quo, challenge assumed truths, and think about the long-term implications of their actions as members of a learned profession.  Over time, one hopes that their training will combine with experience to produce in them judgment about when each skill should take a leading role.  Lawyers with these skills are needed in any age, but especially one that produced such colossal fails ranging from Enron to government-sanctioned torture.

Second, research.  I also reject Segal’s essentially anti-intellectual critique of research.  Last spring, I was asked by a high-level Russian official to write a report on a verdict in a criminal case.  That report explored the many departures from Russia’s obligations under the European Convention on Human Rights to be found in that verdict, but it also raised serious questions about fundamental aspects of Russian law.  The report could hardly qualify as research readily useful to the day-to-day activities of a practitioner at the bar of any American state or the present Russian one.  Nevertheless, I found that the research that I conducted, the exercise of drafting my report, and the report itself generated useful starting points for several discussions in classes that I teach on American law.  Those conversations ranged from an aspect of the famous Chenery case in my Administrative Law class to an editing exercise in a seminar on counterterrorism.  Needless to say, I hope it also makes a positive impact in Russia when it is released next month.

Those teaching moments were hard to foresee at the outset of my research.  But anyone who values knowledge for its own sake would not be surprised by the serendipity my Russian law work produced in my American law classrooms.  That the report led to invitations to speak to groups at universities and thinktanks in the U.S., U.K., Sweden, Norway, Finland, and Belgium also suggests that what counts as valuable research might benefit from a less cramped definition than Segal and company provide.

  November 20, 2011 at 8:55 pm   Posted in: Education, Law Practice, Law School (Scholarship), Law School (Teaching), Uncategorized   Print This Post   7 Comments

Leo, J. Edgar, and Ruth

posted by Jeffrey Kahn

Clint Eastwood’s biopic of J. Edgar Hoover opens nationwide tomorrow.  The New York Times’s Manohla Dargis liked it, and liked Leonardo DiCaprio in it.  So, if you can’t wait until the April release of Titanic 3D to get your Leo fix, this is your weekend.  Of course, J. Edgar is no Jack Dawson.  So you may need another reason to see the film.

Here’s one.  According to the Times review, the film begins with a voiceover by the title character: “Communism is not a political party — it is a disease.”  Strong words, but strongly felt by many back then (and a few even now).  And that’s a point worth remembering today as we continue to fight the sadly named “GWOT” — the Global War on Terror. 

Consider the year 1952, the midpoint of Hoover’s reign.  The Soviet Union had successfully tested three atomic bombs.  The Korean War was entering its third year, with hundreds of thousands of military and civilian casualties.  President Truman’s proclamation of a national emergency to fight the “world conquest by communist imperialism” led Congress to pass the Emergency Powers Continuation Act, extending the statutory duration of a wide variety of exceptional presidential powers.  Senator Joseph McCarthy had discovered communists infiltrating the United States Government.

Of course, Hoover wasn’t alone fighting communists.  Besides politicians like McCarthy, Hoover’s contemporary for much of his career was Ruth B. Shipley, the Chief of the State Department’s Passport Office.  (As it happens, Ruth’s older brother, A. Bruce Bielaski, preceded Hoover as the Director of the Bureau of Investigation, the precursor to the FBI.)  As I detail in a recent article in the Connecticut Law Review based on materials from the National Archives, Shipley controlled travel then with paper files and miles of file cabinets, but her method resonates with how we control travel today, using computerized terrorist watchlists.  Mrs. Shipley took second to no one in her zeal to keep communists and other subversives grounded.

In my forthcoming book, Mrs. Shipley’s Ghost: The Right to Travel and Terrorist Watchlists (University of Michigan Press, forthcoming 2012), I argue that Mrs. Shipley’s approach was just an analogue version of the digital No Fly List used today.  The legal and policy premises are exactly the same: some people are too dangerous to travel, but for various reasons can’t be charged with a crime or otherwise detained.  (The No Fly List is just one of many watchlists; for example, there is one for maritime travel, too.)  It is up to the FBI’s Terrorist Screening Center to craft the lists that contain their names, just as Mrs. Shipley’s Passport Office red-flagged (ironically enough) the passport applications of Americans deemed too dangerous to travel.  Your chance of obtaining redress against this system for claims of mistake or misjudgment are as slim today as they were back then, also for many of the same reasons.

A recurring criticism of my argument is that this historical analogy doesn’t work.  I’ll revisit the issue later this month (I’m about to fly — FBI-permitting — to the University of Connecticut School of Law to present my case there).  But for now, as a simple test, ask yourself whether the words of one of the country’s most successful Supreme Court lawyers describe your (and Leo’s) world or the world of Ruth and J. Edgar:

“In short, several officials gather secretly behind closed doors, peruse secret intelligence reports and purport to arrive at a fair judgment affecting not only the citizen’s right to travel but also his reputation and possibly his livelihood and financial well-being.”

The year was 1952.  The source is Eugene Gressman, The Undue Process of Passports, 127 New Republic 13, 14 (Sept. 8, 1952).

  November 10, 2011 at 11:50 pm   Posted in: Civil Rights, History of Law, Uncategorized   Print This Post   8 Comments

Post-Soviet Russia: Just Like 15th Century England?

posted by Jeffrey Kahn

Yesterday I noted that I would blog a bit this month about the rule of law in Russia.  Today’s Wall Street Journal carries a front-page feature article by Guy Chazan that offers a rare look into the world of Russia’s oligarchs.  I’m interested in the fate of Mikhail Khodorkovsky, once Russia’s richest man, now its most famous prisoner.  Chazan’s story focuses on two more oligarchs: Boris Berezovsky and Roman Abramovich.

The collapse of the Soviet Union led to a decade in which vast fortunes could be made in the chaos of the new Russia.  These men (and they were all men) built empires from scratch on unstable legal foundations in the rubble of post-Soviet society.  The strength or permanence of the law didn’t matter much to the oligarchs; indeed, they relied on its weakness to amass their wealth.

Now that those empires need protecting, however, it is to law that the oligarchs turn.  Berezovsky, once the éminence grise behind Boris Yeltsin, now lives in luxurious self-imposed exile in London.  The WSJ reports that he is worth about $750 million.  Abramovich owns the Chelsea Football Club and the world’s largest yacht; his worth is estimated at about $16.5 billion.  Berezovsky has sued Abramovich for $6 billion, alleging that the latter violated oral agreements about various oil and metal companies in Russia.  Berezovsky claims he left his stake in them in Abramovich’s hands after he fled to London to escape the wrath of then President Vladimir Putin.

According to Abramovich’s attorney, Jonathan Sumption, there is nothing to this claim.  The dispute arose, he says, in a “society without law,” and the deal the two men made was itself “corrupt.”  That might seem like a strange legal defense but, as Sumption continued, “the reality was that that was how business was done in Russia at the time.” 

The case is being heard at London’s High Court.  To help the judge understand the millieu in which the oligarchs did business, Sumption told the court: “In our own national experience, we have to go back to the 15th century to find anything remotely comparable.” 

Maybe.  But the average Russian citizen observing this legal squabble might note that 15th century England had something that 21st century Russia lacks: Robin Hood.

  November 7, 2011 at 11:16 pm   Posted in: Corruption, Courts, Current Events, International & Comparative Law, Uncategorized   Print This Post   No Comments

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.

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  November 6, 2011 at 1:17 pm   Posted in: Articles and Books, Civil Rights, Constitutional Law, Criminal Procedure, Government Secrecy, Uncategorized   Print This Post   3 Comments

Tempus Fugit

posted by Jeffrey Kahn

I enjoyed my time as a guest of Concurring Opinions, but my monthlong visit is over.  Having never blogged before January, I had no idea how fast time would fly.  So thanks to Danielle Citron and Daniel Solove for extending the invitation to me and for providing the easy-to-use tutorial and sound advice on how, what, and when to post.  At the risk of melodrama, I’ll just sign off with a line from a favorite poem: “They are not long the days of wine and roses.”  And while I would not recommend blogging-while-intoxicated, that verse sums up the brief but pleasurable visit that I thoroughly enjoyed.  Thank you!

  February 3, 2010 at 10:24 am   Posted in: Uncategorized   Print This Post   One Comment

A Debate about Connecting the Dots and the Christmas Plot

posted by Jeffrey Kahn

The last major news story of 2009 was the near-catastrophe on Christmas Day on Northwest Airlines Flight 253.  Debate about the lessons learned from this failed attack continues, and will continue for some time.  

This weekend, I was glad to be invited to join this debate as a participant in the new “Forum” feature over at the online Harvard National Security Law Journal.  Paul Rosenzweig, a former deputy assistant secretary for policy at the Department of Homeland Security, started us off with a short, op-ed style piece: Connecting the Dots and the Christmas Plot.  Two short responses followed yesterday and today.  The first response is by Nathan Sales, now a law professor at the George Mason School of Law and also a former deputy assistant secretary for policy at DHS (accessible here).  The second response is by me (accessible here).

  January 27, 2010 at 9:49 am   Posted in: Privacy (National Security), Uncategorized   Print This Post   No Comments

Meet Mrs. Shipley

posted by Jeffrey Kahn

Is it sensible to analogize between the first decade of the War on Terror and the first decade of the Cold War?  What lessons can we draw from the comparison?  I am finishing a manuscript to be published by the University of Michigan Press with the working title International Travel, National Security, and the Constitution in War and Peace.  In the book, I plan to defend this analogy, at least when it comes to the role travel restrictions have played in the national security policies of that time and our own.

Some officials and experts whom I’ve interviewed for this project thinks that this is a bad idea!  They point to differences they perceive between terrorism, al Qaeda, and asymmetrical warfare on the one hand, and communism, the Soviet Union, and the Cold War balance of power on the other.  But I also think that their reluctance to embrace the analogy is partly driven by the disconcerting feeling that it teaches the wrong lesson.  Maybe we over-reacted then, they sometimes concede, but we are certainly not over-reacting now.  Whatever shadows we boxed during the Red Scare, terrorism today is the real deal.

I’m keeping the analogy as a core feature of my book because I think that history has a lot to teach us.  Back then, very thoughtful people were certain that communism was a clear and present danger that required extraordinary measures to defeat.  The issue isn’t the objective merit of the threat assessment, but how we react to the threats we perceive.  After the break, I’ll give you a taste of this analogy by way of introducing Mrs. Ruth Shipley, whom Time magazine described in 1951 as: “the most invulnerable, most unfirable, most feared and most admired career woman in Government.”  Not only was she powerful, she was also one of a very small cohort of women to rise to the commanding heights of power in the Washington of her day.  Here she is receiving the Distinguished Service Medal from John Foster Dulles:

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  January 25, 2010 at 10:53 am   Posted in: Uncategorized   Print This Post   2 Comments

3rd Annual National Security Law Faculty Workshop/IHL Training Event

posted by Jeffrey Kahn

Wouldn’t it be wonderful if there were an academic conference at which you could work through tough national security law issues by day, then hit the ice to train with the fastest, toughest, and most talented hockey players in the International Hockey League (IHL)?

Alas, there is no such event and I doubt there ever will be.  But the very next best thing is a workshop that will take place at the University of Texas at Austin on April 1 and 2.  In this context, IHL stands for International Humanitarian Law, of course, although I’m sure that Wayne Gretzky and his friends would be welcome guests. 

This workshop is unlike any that you may have ever attended before.  The traditional elements are all there: presentations of academic papers, discussants, serious exchanges between scholars interested in a friendly environment at which to try new ideas.  But this workshop adds something new and exciting.  For the third year in a row, instructors from the U.S. Army Judge Advocate General’s Legal Center and School and instructors from the International Committee of the Red Cross (ICRC) will provide their perspectives on international humanitarian law in training blocks interspersed between the academic papers. 

The event is sponsored this year by the Strauss Center for International Security and Law and the ICRC.  The co-hosts are Professor Bobby Chesney (UT Austin) and Professor Geoffrey Corn (South Texas College of Law).  More details, including deadlines, are available here.

I attended the first two iterations of this workshop and came away each time thinking it was the best event I attended that year.

  January 20, 2010 at 12:43 pm   Posted in: Uncategorized   Print This Post   No Comments

Run, Don’t Walk, To Your Nearest Bookstore …

posted by Jeffrey Kahn

Should the fate of Umar Farouk Abdulmutallab, who tried to blow up a plane over Detroit on Christmas Day, be decided by the United States military or by a federal court?  If only an Article III court could try him, does that mean that only the FBI can question him, subject to all his constitutional protections (including his right to remain silent)?  Or should he have been turned over to military interrogators immediately, as former federal judge and Attorney General Michael Mukasey suggested last week: “[h]olding Abdulmutallab for a time in military custody, regardless of where he is ultimately to be charged, would have been entirely lawful” (What Does the Detroit Bomber Know? Wall St. J. 1/16/10).

Resolving these questions isn’t easy, and certainly isn’t merely a policy choice.  Several panels at the AALS Conference in New Orleans last week were devoted to national security issues.  But more than once, I heard the leading experts in the country disagree on how to resolve this fundamental question: when must captured, suspected terrorists be tried in our criminal justice system and when should the laws of war, a.k.a. international humanitarian law (IHL) apply?

Needless to say, an understanding of the laws of war/IHL helps untangle this challenge.  But how many of us had such a course in law school?  A chance encounter with the subject in practice?  Fortunately, the best new book you can read on the subject has just been published by Oxford University Press: The War on Terror and the Laws of War: A Military Perspective.  (Full disclosure: I received a complimentary review copy.)  You can peak inside the cover at the table of contents and read reviews at its Amazon.com page.

Here are three reasons why you should have this book on your shelf:

(1)  The authors.  Geoff Corn, Eric Jensen, James Schoettler, Dick Jackson, Victor Hansen and Michael Lewis have over a century of collective experience in the United States Army and United States Navy working on the very issues they analyze.  They have been prosecutors and defense counsel, legal advisors and strike planners.  They have also been combatants themselves.  Rarely does one get the chance to read a careful, academic analysis written from the vantage point of scholars with such extensive experience with so many different facets of the subject of their study.

(2)  The subjects.  This book covers the gamut of critically important topics: the choice of law, targeting, detention, interrogation, war crimes liability, command responsibility, and the difficulty inherent in translating legal principles into on-the-ground practice.  The perspective is future oriented but also offers insights on the legal decisions and policy choices of previous administrations.  All that, under one cover, is hard to find.

(3)  The presentation.  Civilians can read this book!  It is pleasantly free of jargon, thoroughly footnoted (with both references to primary sources and useful commentary on secondary debates), and judiciously edited.  There is also a valuable thread of debate on several issues that can be traced through the authors’ contributions.  They don’t always agree themselves on all points.  This provides a further source of confidence in the thoughtful and lawyerly quality of their views, regardless of whether one agrees with them.

  January 12, 2010 at 10:34 am   Posted in: Civil Rights, Constitutional Law, International & Comparative Law, Uncategorized   Print This Post   One Comment

A Very Brief History of the No-Fly List

posted by Jeffrey Kahn

In the aftermath of the near catastrophe aboard Northwest Flight 253 on Christmas Day, Washington is clamoring for more names, faster, on the No-Fly List.  The Transportation Security Administration (TSA) checks each potential traveler’s name against this list of persons deemed too dangerous to fly.  This recent scare seems to have flipped the conventional wisdom about the No-Fly List.  Fairly or not, many used to perceive the list as too big and too prone to false positives (remember Cat Stevens?).  The new conventional wisdom seems to be different: fill ‘er up.

Have you ever wondered where this No-Fly List came from and how it came to look the way it does?  What does “dangerous” mean?  Who decides?  Media reports about the No-Fly List led me to write my article in the UCLA Law Review, which explored the constitutional questions underneath those policy ones.  Here is a very brief history of the No-Fly List to give you some perspective on the White House report scheduled for release today.  I’ll conclude with a few questions that will be covered in future posts.

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  January 7, 2010 at 1:29 pm   Posted in: Civil Rights, Constitutional Law, Uncategorized   Print This Post   4 Comments

The Month Ahead: War, Rights, Travel

posted by Jeffrey Kahn

Sometimes opportunity just comes knocking at your door.  That’s sure how it felt when Danielle invited me to be a guest at Concurring Opinions this month.  But I never imagined that, on my first day as a guest blogger, opportunity would come knocking again, this time with the blogging equivalent of a welcome basket.

That’s how it felt to read Michael Kinsley’s op-ed in the New York Times last night as I contemplated my first post (What’s Our Line? N.Y. Times, 1/5/10 at A21 NY edition).  His eight-paragraph pitch to stay true to America’s first principles of justice (at least, as he sees them) seemed a custom-made opportunity to lay out my blogging agenda for the month.  Kinsley’s essay was a great little read for me not because of his too broad conclusion (“We have nothing to be ashamed of, little to fear and much to be proud of in choosing to err on the side of treating captured foreign terrorists as we would treat any upstanding American who tried to blow up an airplane full of people.”), but mainly for the odd path he took to reach it.  It was opportunity knocking again because he teed up several issues that interest me.  (A mixed metaphor there?  Nevermind, that train has sailed.)

Three issues jumped out in particular:

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  January 6, 2010 at 9:20 am   Posted in: Civil Rights, Constitutional Law, International & Comparative Law, Uncategorized   Print This Post   One Comment