• September 14, 2016
    Guest Post

    by Margo Schlanger, Henry M. Butzel Professor of Law, University of Michigan.  In 2010 and 2011, she served as the presidentially appointed Department of Homeland Security Officer for Civil Rights and Civil Liberties. 

    *This post is part of the ACSblog symposium: The Fifteenth Anniversary of Sept. 11, 2001. 

    In the fifteen years since that terrible day in 2001, we have seen significant threats to civil liberties—augmented surveillance, a cramped vision of the Fourth Amendment, abridgements to habeas corpus, aggressive use of material support laws, etc.  Sometimes prompted by public dismay, we have also seen the courts, Congress and the President moderate the government’s course on some of the most aggressive practices. In addition to more well-known interventions, a less-known response (though one I have written about at length) is that the Congress and the President have institutionalized, inside of the government, somewhat domesticated civil libertarian voices on national security topics. In the 2004 Intelligence Reform and Terrorism Prevention Act, Congress instructed the lead Intelligence Community elements to establish Civil Liberties Protection Offices and in the years since, several more have been added. There is an office along these lines in the Office of the Director of National Intelligence, one in the CIA, the NSA, etc. These offices are supposed to ensure that “civil liberties and privacy protections [are] integral considerations in the planning of intelligence activities” and that “[i]ntelligence activities [are] conducted in a manner that protects civil liberties and privacy.”

    In my view, the threats to civil rights are even more significant than the threats to civil liberties. There has been a palpable erosion of American equality as Arabs and Muslims, including American citizens, have been targeted for special law enforcement, intelligence and immigration attention. Two examples, which could be multiplied many times over: It is commonplace, now, for non-Muslims who express fear of their Muslim fellow airline passengers based on innocuous phrases or ordinary behavior to have those fears ratified rather than rebutted when the Muslims (and the occasional Sikh) are pulled off the plane, facing questioning by the FBI. And Muslim students have to worry that their associations may be monitored, their conversations reported to police, perhaps twisted and used to their detriment.

    And yet we have seen far less civil rights than civil liberties recalibration. Take, for example, the issue of selective immigration enforcement. The Supreme Court in 1999 left the door for challenges to this practice only the tiniest bit ajar, noting that in general selective immigration enforcement was lawful, though the Court “need not rule out the possibility of a rare case in which the alleged basis of discrimination is so outrageous” as to justify an exception. In the years since, I am not aware of any court that has found any case sufficiently “outrageous” to support a challenge.

  • September 13, 2016
    Guest Post

    by Deborah Pearlstein, Associate Professor of Law, Benjamin N. Cardozo School of Law

    *This post is part of the ACSblog symposium: The Fifteenth Anniversary of Sept. 11, 2001. 

    When ACS asked whether I might contribute to its blog symposium marking the 15th anniversary of the attacks of 9/11, I thought immediately of the many works I have already seen trying to assess what has happened to national security law or to the separation of powers more broadly, in the years since the attacks.  A great many of these writings have aimed to tell linear stories of the lessons that the U.S. response to the attacks have taught or reinforced, about the nature of the U.S. government in times of conflict – courts defer to the executive in wartime, for example or executive power only grows in wartime. Others have focused on characterizing thematic changes in the substantive law, identifying a categorically “new normal” in which war never ends and neither (therefore) does the application of the law of war, in which lethal targeting and detention without trial are uniquely permitted.

    Yet the complex reality of the past 15 years has repeatedly challenged the notion that we might accurately tell a singular thematic story of the current legal age. Take the expectation that wartime will feature repeated bold assertions of executive power, assertions no other branch will move to rein in, with the effect that the power of the U.S. executive only increases over time. There are indeed repeated, important historical examples of wartime executives making broad claims of power and little question that both post-9/11 presidents have at times done so too. President Bush claimed, for example, that the president’s power as commander-in-chief could not be constrained by a federal statute criminalizing torture. Making an argument of different magnitude in one sense, President Obama, likewise, sought to evade federal War Powers Act requirements of congressional authorization for the continued use of U.S. military force in Libya by arguing that, notwithstanding a then deepening U.S. air war in Libya, the United States was not engaged in “hostilities” within the meaning of the Act. 

  • September 13, 2016
    Guest Post

    by Aziz Z. Huq, Frank and Bernice J. Greenberg Professor of Law, the University of Chicago. 

    *This post is part of the ACSblog symposium: The Fifteenth Anniversary of Sept. 11, 2001. 

    What have we, as legal scholars, learned and contributed on national security law during the past 15 years? And is the scholarly lens rightly focused today? Not long ago, I had cause to reflect on these questions. I was attending a conference at a highly regarded law school at which some of the most respected commentators on national security presented new papers. Expertly curated, uniformly characterized by thoughtful, penetrating scholarship, the conference nevertheless left me sobered and uncertain.

    Two traits of the papers presented leapt out. First, a supermajority of papers eschewed a focus on either the substance of primary conduct rules (say, who can be detained, or when surveillance requires a warrant), the interaction of the branches, or social or political dynamics in the world beyond Washington. Rather, they trained on what scholars call “the internal separation of powers” – arrangements within the executive branch that purport to promote desirable normative values such as legality, rights, and accountability. Although I’ve made no careful quantification, it seems to me this is a trend. The papers I saw presented trail in the wake of many recent articles on internal topics ranging from inspectors general, information leaks, departmental ‘offices of goodness,’ and the ‘administrative governance’ of the Fourth Amendment.

  • September 13, 2016
    On Friday the Supreme Court refused to revive a Michigan law that barred straight-ticket voting, reports Adam Liptak of The New York Times.
    Sen. Bob Casey posted an editorial to Medium in which he calls for an end to the senatorial obstruction leaving judicial vacancies unattended on federal courts.
    Constitutional scholar Akhil Reed Amar is featured on an episode of the Diane Rehm Show during which he describes how to interpret the pressing issues Americans face today through the lens of the constitution.
    University of Texas at Austin Law Professor Stephen Vladek stresses the importance of trusting existing institutions. In an op-ed for Star-Telegram, Vladek asserts that civilian courts, not expensive military commissions, are the best places to bring justice to enemies of the United States.
  • September 6, 2016

    by Caroline Fredrickson

    Last year, Sen. Sheldon Whitehouse shed light on the fossil fuel industry’s “massive and sophisticated campaign” to deceive the American public about the harmful impacts of greenhouse gas emissions on the environment. Big Oil’s strategy to create doubt about their products’ ability to cause widespread and lasting harm is eerily familiar to Big Tobacco’s tactics in downplaying the harm caused by cigarettes uncovered in United States v. Phillip Morris.

    Sen. Whitehouse, who has given 143 “Time to Wake Up” speeches on climate change on the floor of the Senate, explained in a recent speech how “phony climate denial” is the result of the fossil fuel industry actively misleading the public to protect their profits: “Phony-baloney front organizations are set up by the score to obscure industry’s hand. Phony messaging is honed by public relations experts to sow doubt about the real scientific consensus.”

    Big Oil, Sen. Whitehouse argues, is borrowing a page from the tobacco industry’s playbook in defrauding the American people. In February, Sen. Whitehouse gave remarks at the ACS event, “Combatting Climate Change in the Courts.” Speakers explored whether the Racketeer Influenced and Corrupt Organizations (RICO) Act could be applied to Big Oil in the way it was applied to Big Tobacco.

    In a recent ACSblog post, Sen. Whitehouse highlighted an example showing the fossil fuel industry is literally borrowing tactics from the tobacco industry. Last year, coal mining executives attended a workshop at the annual Rocky Mountain Coal Mining Institute titled, “Survival is Victory: Lessons From The Tobacco Wars.” The fossil fuel industry is gearing up for the slew of lawsuits coming their way.