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 [...]]]>

Russian President Dmitrii Medvedev met Tuesday with Mikhail Fedotov, Chairman of Medvedev's Human Rights Council. The Khodorkovsky report was the first topic that Mr. Fedotov raised.

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!

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 [...]]]> 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!

“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 [...]]]>

What would the Daubert Hearing for "Shepherd X" look like?

“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.

The Holy Land Foundation (HLF) was once a thriving organization operating out of Richardson, Texas, just north of Dallas.  The Government charged that HLF was no charity at all, but rather engaged in the criminal enterprise of funneling millions of dollars to Hamas.  Money is fungible, the United States argued, and even if money were being sent to Hamas-run schools or hospitals alone, those donations would simply free money to be spent on the other side of Hamas’s ledger, for suicide bombings and other terrorist attacks.  It was a winning argument, although the first jury trial ended in a mistrial and the second jury trial took six weeks to reach the convictions at issue in the case. 

Considerable time and treasure went into this prosecution, which was part of a multi-stage, decade-long effort by the United States to shut down financing for Hamas.  Months after 9/11, HLF was declared to be a specially designated terrorist under the International Emergency Economic Powers Act and all of its assets blocked by order of a special component of the Department of the Treasury, the Office of Foreign Asset Control.  This followed FISA authorized surveillance and wiretaps that started in 1994.  HLF had been fighting, and losing, the legal battle over those actions when the defendants were indicted in 2004.  Judge King’s opinion affirmed the convictions of HLF’s leadership on multiple counts of conspiring and violating the material support statute (18 U.S.C. § 2339B), the IEEPA provisions concerning transactions with Hamas, money laundering, and tax offenses.  The defendants received sentences ranging between 15 and 65 years.

One needn’t have any opinion about the guilt of these defendants to worry about the use of anonymous witnesses to convict them.  This is especially of concern when it comes to the (to my knowledge) unprecedented use of an anonymous expert witness.  Expert witnesses, once qualified as such, are allowed under Federal Rule of Evidence 704 to testify about their opinions regarding an ultimate issue (except for a criminal defendant’s mental state as an element of the offense).  And, of course, they are presented to the jury with the imprimatur of the court qualifying them to do so. 

Judge King and her colleagues did not share these concerns of mine.  The court reviewed these constitutional claims de novo, unwilling to  reverse the lower court unless the defendants were clearly prejudiced.  The court began by distinguishing a 1968 precedent, Smith v. Illinois, that reversed a trial court’s decision to permit a fact witness to testify under a pseudonym about buying drugs from the defendant.  Justice Stewart, writing for himself and seven others, observed that “when the credibility of a witness is in issue, the very starting point in exposing falsehood and bringing out the truth through cross-examination must necessarily be to ask the witness who he is and where he lives.  The witness’ name and address open countless avenues of in-court examination and out-of-court investigation.  To forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of cross-examination itself.”  

But according to the Fifth Circuit, Smith was easily distinguishable, a simple conflict of the he-said-she-said variety, in which “the only real issue at trial” was the credibility of the would-be anonymous drug buyer.  HLF was much more complex and multi-faceted, with issues of classified information and witness safety to consider.  But surely the logic of Smith applies especially to an expert witness, whose opinion ultimately will be accepted or rejected by the jury based on jurors’ evaluation of his credibility.  It may not matter much that the Government “disclosed to the defense over twenty volumes of material that Avi used to formulate his expert opinion about Hamas financing” if Avi has a reputation for exaggeration, false accusations, or other falsehoods that defense counsel could discover.

Satisfied that the defense was given ample access to all the information relied upon by Major Lior and Avi, the court conducted a balancing test to see if that was enough.  Courts tend to give great weight to government assertions of “national security,” especially in terrorism trials, and  that is what happened here.  Emphasizing what the defendants were allowed to know, the court gave short shrift to the “most rudimentary inquiry” that the defendants wanted to be allowed to conduct.  The court concluded that even if the witnesses’ true identities were disclosed to the defense, it was “unlikely [since they were classified] that anyone who knew the witnesses’ true names could or would discuss them with defense counsel.”  

On what basis the court reached this speculative conclusion is left unstated.  The Fifth Circuit cited two other cases to support pseudonymous testimony.  The first, United States v. Celis, 608 F.3d 818 (D.C. Cir. 2010), upheld the use of pseudonyms  to prevent retaliation by Columbian drug cartels who threatened to kill cooperating witnesses.  But even the Fifth Circuit conceded that the Celis court “allow[ed] defense counsel to learn the true names of the witnesses for investigative purposes only days before the testimony was to be given at trial.”  No such luck for the Holy Land defendants.  The second was a ruling by a trial court in United States v. Marzook, 412 F.Supp.2d 913 (N.D. Ill. 2006).  The Fifth Circuit does not quote its analysis because the opinion contained no analysis of the Sixth Amendment issue presented by anonymous testimony.  Perhaps it was cited for moral support.

Also unstated is any response by the court to the defendants’ assertion that the Government did not have to call Avi as an expert witness at all.  The defense noted in its appeal that the Government had noticed another person as an expert witness who could testify on the same subject and “whose identity was not classified” by anyone.  This left me to wonder why a court should not weigh in the balance “the probable value, if any, of additional or substitute” safeguards  (just as one would do in a Mathews v. Eldridge-style balancing about procedural due process).  After all, shouldn’t there be some weight given to the lack of necessity to balance the defendants’ constitutional rights at all?

 I wonder what life this opinion will lead?

Below is a description of the panel, which will occur (as perhaps a [...]]]> 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 …

While Russian courts have repeatedly found against Yukos, Khodorkovsky, and his associates, the European Court of Human Rights has consistently found that their detention and trials worked numerous violations of the European Convention on Human Rights.  Four judgments have been handed down by the Strasbourg Court, all against Russia.  More are pending.  The most recent decision, handed down in late September 2011, held that some of Russia’s actions to seize control of Yukos violated the Convention.  The Court reserved the determination of damages to a later date, thus setting the stage for a confrontation that has the potential to sunder the already tense relationship between Russia and the Council of Europe.

In the shadow of the Russian presidential election scheduled for March, the panel will examine this tension and the mirror this case holds up to reflect the state of the rule of law in Russia.  Russian membership in the Council of Europe has often been a catalyst for legal reform.  European judgments concerning this most political of cases have unsettled an already rocky relationship.  Russian President Dmitrii Medvedev will shortly receive a report on this case from his Council on Civil Society and Human Rights.  The Russian Constitution grants him a pardon power.  What can, what should, what will he do?

In the same remarks in which he vowed to create a “dictatorship of law,” Putin asked “what then should be the relationship with the so-called oligarchs?  The same as with anyone else.  The same as with the owner of a small bakery or a shoe-repair shop.”  This panel will reflect on the impact of Khodorkovsky’s case on the rights of “anyone else” in Russia.

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 [...]]]>

Justice Scalia, author of Whren v. United States and Ashcroft v. al-Kidd (used with permission, www.courtartist.com)

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.

By pretext, I mean the use of legal authority for a purpose clearly and substantially different than the original reason for which the power was granted.  Pretextual use of laws will often be covert or unacknowledged.  That is, officials may feign to exercise their authority under the law’s original purpose or seek refuge in a double purpose.  But I do not mean to include the lawful use of subterfuge or deceit (such as when police conduct a sting or lie to a suspect during consensual questioning).  Those tactics may raise serious issues, but not pretext as I define it.  Nor do I mean to include prosecution for a lesser offense, such as convicting Al Capone for tax evasion.  Officials certainly wished they had the evidence to convict Capone of much more, but their tax prosecution was squarely within the intended use of that provision of the criminal code.  Michael Whren was never tried for violating the traffic code; it was a means to a different end that was used to avoid the Fourth Amendment’s restriction of the police.  Capone was indicted, tried, and convicted, for doing precisely what the law forbid.  Eliot Ness and his Untouchables didn’t use this law to evade some other restriction on their conduct.  The prosecution was the point.

Abel v. United States (1960)

KGB Colonel Rudolf Ivanovich Abel

Consider the case of Rudolf Abel, the master KGB spy whose seizure, conviction, and exchange for U-2 pilot Francis Gary Powers I examine in a recent article.  Abel’s arrest was a classic instance of pretext.  The Fourth Amendment required FBI agents to obtain a warrant before they could seize Abel and search his room.  My research into the case convinced me that a warrant could have been obtained had one been sought.  But the men who pushed into Abel’s room early one morning, warrantless, knew that an arrest warrant carried undesirable consequences.  Such an arrest would lead to an arraignment in open court, the appointment of counsel, and all the attendant publicity such a hearing would entail.  That would ruin any hope of turning Abel into a double agent in an existential fight against the Soviet Union.

When Colonel Abel was rousted from his bed, he was therefore awakened on a pretext.  The FBI asked the INS to seize Abel under the pretext of enforcing the country’s immigration regulations while the FBI directed the operation from the doorway.  At the time, the INS could seize Abel without a warrant, acting only on the basis of an internal departmental order. 

The tale then takes a turn that might seem to have come from today’s headlines.  Abel was secretly flown from New York to McAllen, Texas, where he was interrogated without a lawyer and kept virtually incommunicado for almost seven weeks.  Following this unsuccessful effort to break him, the Justice Department then used the evidence obtained during their raid to convict him of espionage.  The use of this immigration authority for the unintended purpose of counterespionage neatly skirted the constitutional protection against unreasonable searches and seizures, not to mention official disappearances.  On a purely formalistic level, the officials complied with the requirements of this immigration law.  On another level, the pretextual use of this statute produced results hard to justify as lawful.  When his lawyer argued pretext in an effort to exclude the (damning) evidence, the Supreme Court sustained his conviction.  The vote was close, 5-4, and Justice Douglas mockingly noted the real reason why a warrant was never sought for this arrest: “If the FBI agents had gone to a magistrate, any search warrant issued would by terms of the Fourth Amendment have to ‘particularly’ describe ‘the place to be searched’ and the ‘things to be seized.’  How much more convenient it is for the police to find a way around those specific requirements of the Fourth Amendment!  What a hindrance it is to work laboriously through constitutional procedures!  How much easier to go to another official in the same department!  The administrative officer can give a warrant good for unlimited search.  No more showing of probable cause to a magistrate!  No more limitations on what may be searched and when!”

Ashcroft v. Abdullah al-Kidd (2011)

Former Attorney General John Ashcroft

Fast foward fifty years.  Abdullah al-Kidd (a U.S. citizen and former University of Idaho football star) was cooperating with the FBI in a counterterrorism investigation.  The FBI alleged (how truthfully is sharply disputed) that al-Kidd was about to flee the country.  A criminal warrant for his arrest could not be sought because there was no probable cause to believe that al-Kidd had broken any law.  So the FBI obtained a material witness warrant, which may be had from a judge on grounds substantially easier to meet.  The material witness statute, 18 U.S.C. § 3144, was originally intended to secure “the testimony of a person [that] is material in a criminal proceeding” when it is impracticable to do so by other means, such as a subpoena or deposition.

Al-Kidd alleged that he was then held for sixteen days in high-security prisons in three states, housed with convicted criminals, subjected to frequent strip-searches, routinely shackled, and forced to sleep without clothes when he was not kept awake by bright lights in his cell.  He was interrogated without counsel.  He was then subject to severe restraints on his travel for fifteen more months. 

Al-Kidd claimed that the material witness statute was used pretextually, to interrogate him as a suspect in his own right, not as a witness to someone else’s wrongdoing.  His lawyers observed that his arrest was mentioned in congressional testimony by FBI Director Robert Mueller as an example of success in the Government’s counterrorism operations ( a strange statement if made about a witness, but not if made about a suspect).  In any event, al-Kidd was never called to testify at the trial, which ended in an acquittal on some counts and a hung jury on others.  So the Government never used the testimony that it claimed was material enough to justify his lengthy detention. 

Al-Kidd filed a Bivens action, alleging that his arrest was part of a nationwide policy to use the material witness statute pretextually.  When Acting Solicitor General Neal Katyal began his argument for the United States last March, he started as you would expect a defense of pretextualism under the favorable Whren precedent to start: “This lawsuit seeks personal money damages against a former Attorney General of the United States for doing his job, allegedly with an improper motive …”  It was the right rhetorical focus.  Justice Scalia, delivering the opinion of the Court, noted that the Whren opinion “swept broadly to reject inquiries into motive generally” and “only an undiscerning reader” would disagree.  On the strength of the Whren analysis, the Court held that the material witness warrant “cannot be challenged as unconstitutional on the basis of allegations that the arresting authority had an improper motive.” 

But it turns out that the case wasn’t quite as easy for the Supreme Court to decide as Whren had been fifteen years earlier.  The opinion was announced on the last day in May, with concurring opinions by Justices Kennedy, Ginsburg, and Sotomayor (Justice Kagan took no part in the case).  Although no one dissented, the latter two opinions concurred only in the judgment reversing and remanding the lower court decision that had allowed the action to proceed.  Justice Kennedy (who, like Justice Ginsburg, had joined the Whren opinion) had more trouble.  He insisted that the opinion he joined left “unresolved whether the Government’s use of the Material Witness Statute in this case was lawful.”  Justice Ginsburg seemed to wonder, given al-Kidd’s allegations, whether the material witness warrant had been validly obtained in the first place.  In addition, Justice Ginsburg wondered at the alleged conditions of his confinement, especially since he was “[o]stensibly held only to secure his testimony[.]“  And Justice Sotomayor, also questioning the validity of the warrant, refused to join the majority’s opinion because “it unnecessarily resolves a difficult and novel question” of constitutional law.  For the newest justice participating in the case (and the one with far and away the most prosecutorial experience), ”[w]hether the Fourth Amendment permits the pretextual use of a material witness warrant for preventive detention of an individual whom the Government has no intention of using at trial is, in my view, a closer qusetion than the majority’s opinion suggests.”

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 [...]]]> 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.

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 [...]]]>

Hoover or DiCaprio?

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.

Ruth B. Shipley, not Kate Winslet

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).

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, [...]]]> 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.

(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 [...]]]> 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.

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).

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, [...]]]> 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:

Mrs. Shipley was the chief of the State Department’s Passport Division from 1928 to 1955.  She had the power to grant, restrict, and revoke passports.  Her word was law, since prior to the Supreme Court’s opinion in Kent v. Dulles in 1958, the decisions of her office were unreviewable in a court of law.  That’s why Dean Acheson referred to the Passport Division as Mrs. Shipley’s “Queendom of Passports” and noted her “almost absolute power to decide who might leave and enter the country.”  If Mrs. Shipley wrote you a letter that said your travel is “not in the interests of the United States,” you stayed put.  Just like William O. Douglas, W.E.B. DuBois, Arthur Miller, Paul Robeson and many others.

In many ways, I think that Mrs. Shipley’s Passport Division was the paper-and-rubber stamp precursor to today’s sophisticated, digital systems of controlling international travel.  Consider, for example, the digital “Secure Flight” program, which is operated by the Transportation Security Administration (TSA).  Secure Flight, once fully rolled out, will check the name, gender, and date of birth of every would-be air traveler against government watchlists.  You’ve probably already experienced it if you fly on American Airlines.  You won’t receive a boarding pass unless TSA gives the all-clear.  Or you may find yourself subject to heightened scrutiny at the ticket counter, security lane, or at the gate.  If the government determines that your travel raises a red flag — even if every physical search of your bags and person gives you a green light — you’re grounded.

Just as Mrs. Shipley decided whether to issue the passport required for international travel, the TSA determines who may board aircraft (and maritime vessels, too, I should add).  But twenty-first century technology and attitudes have worked some significant changes.  Here are three:

(1)  Mrs. Shipley was the single, identifiable source of a traveler’s cut-short itinerary.  Today’s watchlists are classified, originate from multiple agencies, and decisions based upon them are made by anonymous officials.

(2)  Mrs. Shipley made most of her decisions in the Winder Building located across the street from the White House and the Old Executive Office Building. She was a well-known Washington presence.  The Terrorist Screening Center, which manages the watchlists for TSA and other agencies, has operated since its inception in a secret, undisclosed location somewhere in Northern Virginia.  (One official told me this will change soon and was driven by security concerns, although none apparently bothered Mrs. Shipley during WWII or the Cold War.)

(3)  Mrs. Shipley heard and responded to all complaints.  You could even meet with her in person (though it scarcely ever did any good).  Today, citizens who are denied boarding passes are not supposed to be told whether their names appear on a watchlist.  Instead, frustrated travelers are directed to a Department of Homeland Security website to complete an electronic complaint form.  That form is then reviewed by unspecified officials whose criteria and decisionmaking methods are classified. 

Mrs. Shipley’s power came from the need to fight, in the words of the Internal Security Act of 1950, “a world-wide revolutionary movement whose purpose it is, by treachery, deceit, infiltration into other groups (governmental and otherwise), espionage, sabotage, terrorism, and any other means deemed necessary, to establish a Communist totalitarian dictatorship in the countries throughout the world through the medium of a world-wide Communist organization.”  Stopping this threat was national security priority number one. 

Mrs. Shipley’s role was to stop citizens suspected of communist sympathies from travel that was “not in the interests of the United States.”  Today, Mrs. Shipley’s digital equivalent is the watchlist known as the No Fly List.  The No Fly List is not just about the physical safety of air travellers.  That was the FAA’s old standard, which limited its security directives to refuse boarding only when there was a specific and credible threat to a partiuclar aircraft (You can read how well that went over with the 9/11 Commission beginning on the bottom of page 26 of this transcript).  It is also now intended to be used as part of our efforts to disrupt a world-wide terrorist movement.  In other words, it is Mrs. Shipley’s task, digitized.

So, what do you think of the analogy?

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, [...]]]> 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.

Resolving these questions isn’t easy, and certainly isn’t merely a policy choice.  [...]]]> 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.

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 [...]]]> 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.

The No-Fly List did not start out as a list at all, but as occasional security bulletins issued to commercial airlines by the FAA.  Long before 9/11, these bulletins advised (but did not oblige) airlines to take various security precautions based on intelligence gathered about long-term or specific threats.  About 20-30 might be issued each year.  These advisory bulletins eventually became obligatory “Security Directives” (or SDs, as they were called) in the aftermath of the catastrophic bombing of Pan Am Flight 103 over Lockerbie, Scotland.  This was a change based on the findings of a presidential commission on the bombing, which found plenty of blame to spread around official Washington (sound familiar?).

These SDs were the tool of a new, but rather small office in the FAA.  That office sought intelligence relevant to airline security from more established and powerful agencies like the CIA, State Department, or the FBI.  As a consumer of other agencies’ intelligence, FAA needed their permission to distribute its information to commercial airlines.  A few SDs named individuals who were considered to be a “specific and credible threat” to civil aviation.  That phrase had a particular meaning in government and industry circles, much as different standards of review do in the legal community.  When FAA used the phrase, it meant that the individual named was believed to be an actual, concrete threat to a particular aircraft or route. 

On September 10, 2001, this incipient no-fly list had about 20 names on it.  By comparison, the State Department’s TIPOFF watchlist (created in 1987 to track known or suspected terrorists of all stripes, colors, and modi operandi), had about 61,000 names on it.  This discrepancy positively outraged several members of the 9/11 Commission.  In a rather harsh cross-examination in early 2004, several commissioners jumped on this numerical disparity between tens of thousands of people that the State Department suspected to be bad enough to deny a visa, and the dozen or so that the FAA suspected were about to try to blow up an airplane.  (Pages 26-30 of the 1/27/04 hearing transcript gives you a flavor of this, or you can read former co-chairman Thomas Kean’s and his counsel John Farmer’s recollections in their op-ed yesterday: How 12/25 was like 9/11, N.Y. Times 1/6/10 at A23 NY edition.)  The commissioners were not particularly interested at that time in exploring the reasons why these lists might employ different standards to accomplish their different purposes.

By that time, however, the list had expanded rapidly.  And with this numerical expansion, the list’s intended purpose broadened as well.  The No-Fly List — an actual list now known by that name had been created to replace the piecemeal system of FAA Security Directives as new agencies like the TSA were formed — was no longer to be a protection only against concrete threats to particular planes or routes (although this obviously remained a core purpose).  The list was now conceived to serve other purposes, too.  For instance, it could keep people off planes who were suspected of terrorist affiliations but not suspected of plotting an imminent attack on a specific aircraft, carrier or route.  Likewise, it could be used to disrupt networks of suspected terrorists by making it much more difficult for them to travel and meet.  Needless to say, the current criteria to add a name to the list are closely guarded secrets.  But the test is no longer narrowly confined to “specific and credible threats” to civil aviation as that term was used before 9/11.  The No-Fly List (and its cousin, the Selectee List used to identify passengers for heightened scrutiny at checkpoints) now have multiple purposes as part of a multi-layered approach to aviation security.

(Incidentally, although the No-Fly List is used by the TSA, it is created and maintained by a different, multi-agency, government organization, the Terrorist Screening Center (TSC).  The TSC is the central repository that consolidates the government’s different terrorism databases and manages the nation’s many specialized watchlists.  The Abdulmutallab case tests whether this system for consolidation is working as it should.  But that is a story for a future post.)

It is this broader use, and the broader criteria that facilitate it, that unnerves some people.  The whole enterprise is possible, of course, because nobody (citizen or foreigner, at home or abroad) has a constitutional right to fly on an airplane.  Although most Americans take their freedom of movement for granted (and it should be noted that, according to recent congressional testimony, the No-Fly List includes only about 170 U.S. persons out of a total of approximately 3,400 individuals), the actual constitutional protection for that abstract concept is rather narrow and not particularly modern in its origins.  It is black-letter law, and has been for some time, that although the right to travel is generally protected in our society, there is no right to travel by any particular mode of transportation.

In future posts, I’ll discuss three issues raised by this current system:

(1) “Déjà vu all over again.”  In its broadest uses, the No-Fly List seems virtually indistinguishable from past restrictions on travel during the hottest early years of the Cold War and the Red Scare.  In those days, paper passports were denied (instead of electronic boarding passes) to those whose travel was deemed by a small office in the State Department to be (in the official parlance of the day) “not in the interests of the United States.”  Is this a good analogy?  If so, what can we learn from this past?

(2) “You can’t get there from here.”  Is it time to reconsider the caselaw that distinguishes the abstractly protected general right to travel from the right to travel by plane (weakly protected, if at all)?  This caselaw emerged at a time when air travel was the privilege of an elite few.  Is it appropriate in the twenty-first century to make this distinction?

(3) “Alphabet Soup.”  What is the Terrorist Screening Center (TSC), how does it relate to the Transportation Security Administration (TSA), the National Counterterrorism Center (NCTC), and other new agencies that are sometimes hard to find but don’t have a hard time finding you.

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 [...]]]> 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:

(1)  War.  Wrote Kinsley: “At [President Obama's] direction, thousands of American soldiers in Afghanistan and Iraq are now doing their best to kill terrorists, would-be terrorists and terrorists in training with no thought whatsoever to the legal niceties.”  In other words, inter arma silent leges.

Absolutely wrong.  American soldiers in those countries are now doing their best to kill terrorists with more attention to legal “niceties” than ever before.  But they’re applying a body of law with which most of us are unfamiliar: international humanitarian law, a.k.a. the laws of war.  Law matters more now partly because of the terrible legal mistakes that were made early in the “War on Terror,” when policy-makers and their lawyers sought convenient deviations from a respected body of law that has been distilled, practiced, and improved over time.  Law also matters more now in our era of instant information, when reports of unlawful conduct by our soldiers can snatch damaging defeats from the jaws of discrete military victories.  So everything from targeting to interrogation is done with legal advice.  One of my first blogs will be to promote the best book you can read on the subject, authored by a group of scholars who collectively have more than a century of experience giving and taking such advice.

(2)  Rights.  Should the suspected terrorist, once captured, be tortured in a secret prison (because he has no right to constitutional rights) or tried in a public courtroom (with all our Constitution’s protections)?  Kinsley: “A line has to be drawn somewhere to determine which of these utterly different standards of government behavior is applied where — and the nation’s border is as good a line as any.”

Wrong again (although Kinsley seems to know that).  When should the Constitution follow the flag?  The question is old, and asking it is much easier than answering it.  But this strict territorialist view, to borrow a phrase from then-White House Chief Counsel Alberto Gonzales, is a bit “quaint” in the twenty-first century.  In an article to be published in March in the Michigan Law Review, I analyze one problem with the hoary idea that the Constitution shouldn’t get its feet wet.  Kinsley is certainly aware of this (the general problem, of course, not my article), and the quote above is a bit of a straw man for him.  But although he ultimately concludes that the circle of rights should be drawn broadly, there is no doubt that he wants a solid line drawn somewhere.  I’ll be blogging about the problem of pat answers to that tough question, and the nauseating frequency with which we’ve had to deal with them again and again in our history.

(3)  Travel.  The article’s lead was, of course, the arrest of Umar Farouk Abdulmutallab.  He delivered the first political scandal of the new year with his apparent evasion of numerous terrorist watchlists allowed him to obtain (and retain) a U.S. visa and attempt to blow-up a Detroit-bound airliner.  Since I’m writing a book on watchlists in general, and international travel in particular, I’ll be blogging a lot about the issues presented by his case and others.  How did we come up with something like a No-Fly List anyway?  What came before?  What lies ahead?

And, in the course of it all, I’d like to introduce you to one of the most interesting and powerful women in American history that you’ve probably never heard of: the indomitable Mrs. Ruth Shipley.

Thanks for the opportunity, Danielle!  I’m looking forward to the month ahead.