Journal of National Security Law & Policy

Professor Wasserman offers several evaluations of the Supreme Court’s 1872 decision in Klein. In places he states that it was issued in a “pathological period,” is confusing to read, and therefore difficult to apply. Yet elsewhere in his article he finds the decision to be understandable and recognizes that it offers several clear separation of powers principles. Between those two competing and conflicting positions, the latter analysis is on firmer ground.

No one seriously claims that the Supreme Court’s 1872 decision in United States v. Klein is a model of clarity. Justice Field’s opinion for the Court is as enigmatic as it is intriguing, providing the only pre-2008 example of a Supreme Court decision invalidating an Act of Congress for unconstitutionally depriving the federal courts of jurisdiction. The million dollar question, of course, is why the Court so ruled, and no amount of scholarship, no matter the quality of the analysis or the intellectual abilities of the author, has managed to settle the issue to any meaningful degree.

Many labels have attached to United States v. Klein, the venerable Reconstruction era Supreme Court decision that established some undefined limits on congressional control over federal law and federal courts. It has been called “opaque,” “deeply puzzling,” “disjointed,” “Delphic,” “generally difficult to follow,” “exaggerated,” and “dead wrong.” Klein is a case of substantial significance, although [...]

Early in the morning of June 21, 1957, almost exactly fifty-three years before the June 2010 arrests, Special Agents Edward Gamber and Paul Blasco of the FBI pushed their way into Room 839 at the Hotel Latham in Manhattan. The FBI agents sat a sleepy and half-naked Abel on his bed, identified themselves as charged with investigating matters of internal security, and questioned him for twenty minutes, insinuating knowledge of his espionage activities by addressing him as “Colonel.” The FBI agents told Abel that “if he did not ‘cooperate,’ he would be arrested before he left the room.” When Abel refused, the FBI signaled to agents of the Immigration and Naturalization Service (the INS, then under the authority of the Department of Justice), who were waiting outside. Under the close observation of the FBI agents, the INS agents arrested Abel, searched him and the contents of his room, and seized several items as evidence of Abel’s alienage.

The filling of a judicial vacancy provides a unique opportunity to examine not only the appointment or election process, but also the court itself and its work. For obvious reasons, this has been recognized in connection with the Supreme Court of the United States,1 where vacancies are often the subject of much conjecture but, because of life tenure, remain essentially unpredictable. On a less lofty plane, the opportunity to take stock also occurs in other courts, and the timing, at least, is less a matter of speculation in non-Article III courts, where judges serve for fixed terms.

The assessment of facts to determine if peacetime law or the law of armed conflict is the correct choice involves the same analysis used in resolving other choice of law questions. Lawyers and judges constantly make choice of law decisions.

The practical consequence of the Constitutional Court’s balancing approach to maintain both security and liberty has been a shifting jurisprudence, a fact that is bound to buoy and bother American conservatives and progressives in equal measure.

I am proud to be asked by the Journal of National Security Law & Policy to introduce this important and impressive issue. The timing could not be more critical.

The cyber threat is the most pervasive and pernicious threat facing the United States today. Its mention does not immediately conjure visions of the catastrophic horrors that would result from an attack using a weapon of mass destruction, but today’s cyber threat is a very real and present danger.

As the United States continues to fight on multiple fronts to disrupt the efforts of al Qaeda and its affiliates, the U.S. government has slowly come to realize that military force alone cannot defeat radical Islamist extremism (hereafter “radical extremism”). Today, there is a growing consensus that countering the ideology that drives this extremism is a critical element in the overall effort to prevent extremist acts of violence. Despite this greater realization, developing a precise strategy to counter extremism effectively and empower mainstream alternatives has proved challenging. This issue posed a difficult challenge to the Bush administration and remains a daunting and urgent task for the Obama administration.

By any measure, the period between September 11, 2001, and the 2008 presidential election witnessed an unprecedented tangle of controversies at the intersection of national security law and policy.

The opening phrase in Charles Dickens’s Tale of Two Cities nicely captures the national security challenges confronting the nation as a new administration takes office.

Debate continues as to the transformations in terrorism evidenced by the September 11 attacks and since that time. Some, including the former U.S. President, point to changes in the nature of terrorism and argue that September 11 constituted a wholly new form of terrorism that demanded a novel response. Given the prior events of the World Trade Center bombing in 1993 and the East African embassy bombings in 1998, it would appear more appropriate to depict a transformation in scale and tactics rather than nature. This article seeks to explore a third perspective. It accepts the fact that there have been transformations in terrorism, but it focuses on the actors rather than on their actions. It suggests that one’s neighbor has become a potential foe and that this trend became apparent only gradually after September 11. There are important consequences for law enforcement beyond the major adaptations already incurred. The move toward neighbor terrorism has perhaps been masked by the other more brutal changes, but it is this trend that has the potential to cause the most lasting and insidious impact on everyone’s lives.

For more than thirty years, our country has struggled to delineate the boundaries of domestic intelligence operations. Americans tend to regard those government components exercising national security powers within the borders of the United States (whether under clear authority or not) with an inherent suspicion bolstered by historical experience. We tolerate the existence of such components but insist that they be highly regulated, particularly with respect to any activities that impinge upon civil society. Historical circumstances influence, but never erase, this regulatory imperative. Despite this imperative, components may occasionally escape regulation – at least for a time – because they are unknown, their missions remain mysterious or only partially understood, or because (intentionally or not) a convincing illusion of sufficient regulation is presented to the examining eye.

American anti-terrorism laws are insufficient to address the next wave of global terrorism. When President Bush declared that the United States had begun a “war on terror,” the entire government began to reorient itself to tackle America’s newest “generational challenge.” The Department of Justice (DOJ) joined this massive effort, declaring in a new Strategic Plan that its focus was not simply to prosecute terrorists for crimes, but to “[p]revent, disrupt, and defeat terrorist operations before they occur.” Despite its constant talk of reorientation, however, DOJ has been limited in its ability to creatively address the war on terror for one simple reason: many of the relevant federal criminal statutes are poorly constructed. Prior to September 1994, there were no federal criminal prohibitions that specifically punished material support for terrorism. Prosecutors had to rely instead on generic federal crimes, such as murder and money laundering, or on a variety of statutes condemning specific acts of terrorism, such as air piracy or hostage taking. After the 1993 terrorist bombing of the World Trade Center, this situation rapidly changed. Legislators hastily drafted a number of statutes and amendments that sought to address the domestic terrorist threat. Acting in response to public demand for quick, decisive action, Congress generally maximized the scope of anti-terror prohibitions while overriding any legal obstacles to quick prosecution that were presented by the judiciary.

If, as de Tocqueville observed, everything in America eventually becomes the province of lawyers, it should not be surprising that the conduct of lawyers has become a salient aspect of the war on terror. While terrorists typically express contempt for the rule of law, lawyers in a democracy should know better. Unfortunately, crises sometimes push lawyers from their traditional roles as advocates and counselors into less auspicious roles as enablers of overreaching. The legal response to the attacks of September 11 has highlighted the ethical pressures imposed on lawyers in crisis situations. The contributors to this symposium focus on two important subjects: (1) the ethical issues triggered by the recommendations of government lawyers on treatment of detainees (the so-called “torture memos”), and (2) the debate over the ethics of the government’s placement of restrictions on civilian defense lawyers representing alleged terrorists in government-dominated fora such as military commissions. The torture memos represent a conflict between the lawyer’s role as advocate for a client’s position and the attorney’s role as advisor offering an accurate account of the law as it exists. Symposium contributors argue that lawyers in the Office of Legal Counsel of the Department of Justice are advisors charged with the latter role. They argue further that these attorneys failed in that obligation.

What are the professional responsibilities of lawyers who provide legal advice to the executive branch, particularly in times of crisis? Who, exactly, is their client? Do professional responsibility standards shed any light on the circumstances that faced executive branch lawyers in the months following 9/11? What can we learn from the experience of those lawyers about competing principles of professional responsibility?

In Grutter v. Bollinger, law student amici provided significant support for the University of Michigan’s use of race as a factor in law school admissions. Although Grutter did not specifically refer to any of the briefs submitted by law students, the Court’s reliance on diversity interests echoed the students’ emphasis on the educational benefits of a diverse classroom and the instrumental benefits of a diverse legal profession. On the whole, the Court’s analysis in Grutter broke relatively little new ground, since it closely followed Justice Powell’s endorsement of diversity as a compelling interest in Regents of the University of California v. Bakke twenty-five years earlier.

New periodicals and law journals, if not commonplace, are still far from unknown. The arrival of this inaugural issue of the Journal of National Security Law & Policy is particularly noteworthy, however, because of the circumstances that have produced it and the need it seeks to address: bringing national security practitioners, lawyers, and scholars into conversation about the evolving relationship between law and national security. It is worth reflecting on the circumstances that make the arrival of this new journal so timely and important.

Two innovative federal crimes, 18 U.S.C. §2339A and §2339B, have been frequently charged in prosecutions since September 11, 2001, becoming key elements in the government’s anti-terrorism efforts. Section 2339A makes it a federal crime knowingly to provide material support or resources4 in preparation for or in carrying out specified crimes of terrorism. Section 2339B prohibits knowingly providing material support to a foreign terrorist organization. These statutes bear some resemblance to criminal liability for complicity, but they are being used like a new kind of conspiracy charge, the familiar “prosecutor’s darling.” Unlike conspiracy, they are framed with a mens rea of knowledge rather than of purpose, and because they are substantive offenses, they can be combined with traditional conspiracy charges. These provisions can be used to impose punishment for conduct remote from the commission of criminal harms, often conduct involving minimal and outwardly non-criminal acts.