National security and civil liberties

  • April 12, 2017
    Guest Post

    *This piece is part of the ACSblog symposium: "The Future of the U.S. Constitution

    by Shirin Sinnar, Associate Professor of Law, Stanford Law School

    The Trump presidency has put into sharp relief fundamental constitutional questions about national security and the role of courts. In the travel ban cases, for instance, courts question the degree of deference they owe the executive’s national security assertions where there is unprecedented evidence of discriminatory animus. Significant as such questions are, the current political moment also invites us to reflect on a deeper question: how we conceptualize the very notion of “national security” in the face of official policies and rhetoric that subject certain communities within the nation to radical insecurity. 

    In and out of court, “national security” is invoked prolifically with the assumption that its scope is self-evident and its importance unparalleled. “It is ‘obvious and unarguable’ that no governmental interest is more compelling than the security of the nation,” the Supreme Court proclaimed in Haig v. Agee in 1981. In the last Supreme Court argument of the Obama presidency, the Justice Department asked the Court to preclude a damages remedy for constitutional violations by federal officials arising at the intersection of immigration and national security policy. In so doing, administration officials again postulated the coherence of the “national security” category and the appropriateness of insulating certain constitutional violations within it from judicial review.

    The term “national security” seems to invoke some set of implicit associations: perhaps the idea that state sovereignty or the preservation of governmental institutions is threatened; perhaps the notion that a threat implicates foreign relations; perhaps the idea that an issue involves especially high stakes, even of an existential nature. In political and legal speech, the connection between any particular issue and these ideas is often implied but rarely defended.

  • March 15, 2017
    Guest Post

    *This piece is part of the ACSblog Symposium: 2017 ACS National Convention. The symposium will consider topics featured at the three day convention, scheduled for June 8-10, 2017. Also, this piece was written in response to the March 9 ACS National Symposium on Policing in a New Political Era. The full video of this event can be found here.

    by Thomas Nolan, Associate Professor of Criminology, Merrimack College; 27-year veteran of the Boston Police Department

    One of the attendees at last week’s symposium on “Policing in a New Political Era,” co-sponsored by the American Constitution Society and New America, asked whether we should consider the abolition of policing in America. My fellow panelist, Cardozo School of Law Professor Ekow Yankah, deftly responded that it may indeed be time to “reimagine” policing in America. And so it is.

    An insightful March 12 Washington Post article by Katie Zezima observed “police officers [are] acting as drug counselors and medical workers and shifting from law-and-order tactics to approaches more akin to social work” and that the police now envision their roles as mental-health workers and doctors. In fairness to the police, these are roles into which they have been, unwittingly and perhaps unwillingly, thrust in a societal expectation that the police are the default “responders” with responsibilities for dealing with the social marginalia that they are neither properly trained or qualified to undertake.

    The police are deserving of praise for adopting strategies in dealing with the opioid crisis that no longer see enforcement strategies as the only tactics in dealing with drugs and drug abusers, but it is fair to question whether or not policing in this nascent political era should include having police “generalists” providing medical, mental health and social work services to vulnerable populations of people, throwaways whom those charting course in this political era would just as soon see disappear. The police are filling voids here in professional disciplines and in providing medical and mental health services that will almost invariably be inadequate to the task. Reimagining the role of the police recognizes that these vital services need to be provided to those who need them the most by professionals trained to treat the sick, the broken and the mentally ill.   

  • March 13, 2017
    Guest Post

    by Shoba Sivaprasad Wadhia, Samuel Weiss Faculty Scholar & Clinical Professor of Law; Director, Center for Immigrants’ Rights Clinic, Penn State Law

    On March 6, 2017, President Donald Trump issued a “revised” Executive Order titled “Protecting the Nation from Foreign Terrorist Entry in the United States” in an attempt to avoid the catalogue of lawsuits brought against the first. However, the revised EO suffers from the same legal and policy flaws as the first by shutting the door on Muslims and refugees. Every country targeted by the revised EO is comprised of Muslim majority populations: Iran, Libya, Somalia, Sudan, Syria and Yemen. While the revised EO no longer lists “Iraq,” nationals from the country are singled out for special review in another section of the EO. Whether the list of countries is six or seven, Muslims remain the target.

    The revised EO applies specifically to those outside the United States without a valid visa at 5:00 p.m. on Jan. 27, 2017 and on the effective date, which begins one minute after midnight on March 16, 2017. The revised EO makes a few adjustments to the first by carving out exceptions for select people like green card holders, dual nationals and those already granted refugee-related protection. It also creates a waiver process for nationals of the six countries who seek entry during the 90-day ban. Waivers may be issued on a case-by-case basis for those who at a minimum prove that denial of entry would cause “undue hardship,” entry would not pose a threat to national security and entry would be in the “national interest.” How these waivers will be implemented is unknown but the revised EO lists nine scenarios where a waiver may be appropriate like those with previous “significant” contacts,” business, or professional obligations in the United States and those coming to visit a close family member. Despite the long list of examples contained in the EO there is no assurance that people will actually receive waivers or that agencies will be equipped to adjudicate them. The revised EO maintains the 120-day suspension to the refugee program and slash in the total number of refugees by over one-half from 110,000 to 50,000. Exceptions are available on a case-by-case basis for qualifying refugees through a “national interest” formula. Unlike the first EO, the revised version no longer contains an exemption for religious minorities or an indefinite ban on Syrian refugee admissions. Notably, all refugees, including those from Iraq and Syria are affected by the revised EO.

  • March 9, 2017
    Guest Post

    by Rep. Jerrold Nadler

    On Tuesday, Feb. 28, 2017, the House Judiciary Committee, voting along party lines, rejected my Resolution of Inquiry, H.Res. 111 directing the Department of Justice to provide the House of Representatives with any and all information relevant to an inquiry into President Trump and his associates’ conflicts of interest, ethical violations—including the Emoluments Clause—and connections and contacts with Russia. The Resolution of Inquiry, which was reported unfavorably out of the House Judiciary Committee in a party-line vote of 18-16, was the first time Members of Congress had a recorded vote on legislation concerning an investigation of Donald Trump's conflicts and Russia ties.

    Each day, more questions arise concerning President Trump’s foreign business entanglements and his inexplicably cozy relationship with Russia. Each day, Democrats on this Committee, and on other committees, have requested hearings and investigations into these serious issues. And yet, each day, with a few exceptions, we have been met with a deafening silence from our Republican colleagues.

    But my resolution was only a first step to demand accountability from this administration. It must be followed by similar resolutions in other committees. Every day there are new revelations that reveal deeper conflicts. Already, Attorney General Sessions has been forced to recuse himself from any investigation into Russian contacts with the Trump campaign. That recusal does not relieve Congress of its independent obligation to do its job as an independent check on the executive. We must keep up the pressure.

  • February 14, 2017
    Guest Post

    *This piece originally appeared on Just Security.

    by Ryan Goodman, Co-Editor-In-Chief of Just Security and Anne and Joel Ehrenkranz Professor of Law at New York University School of Law and Steve Vladeck, Co-Editor-In-Chief of Just Security and Professor at The University of Texas School of Law

    The news from overnight that National Security Adviser Michael Flynn has resigned over his inappropriate pre-Inauguration dealings with Russia has also reinvigorated the debate over whether he can and should be prosecuted for violating the Logan Act, 18 U.S.C. § 953. Although Steve has previously suggested that the Logan Act could not be used to prosecute members of the presidential transition team (if it could be used at all, given that it has been moribund for over 200 years and is, in any event, a content-based restriction on speech), an exchange over e-mail between us about Steve’s prior post led to this Q&A that more fully fleshes out those arguments:

    Ryan to Steve: You wrote that the spirit of the Logan Act, if not its letter, would not apply to members of an incoming presidential transition team. But the White House appears to be saying that Flynn was going rogue on those phone calls, that he never cleared it with them to speak about the sanctions, and that he lied to them about the content of the calls afterwards. If that is true, would it not throw out the window an analysis that says a person acting in their capacity as a presidential transition team member does not come under the Logan Act? Flynn would have been acting not only “without authority of the United States,” but also without authority of the presidential transition team.

    Steve to Ryan: It might. But the absence of any Logan Act prosecutions means that there has been no judicial analysis of what it means to act “without the authority of the United States” in this context. For example, it is not clear to me that a serving Cabinet officer—who we all agree would ordinarily exercise the “authority of the United States”—would violate § 953 if he engaged in unauthorized communication with a foreign government with the “intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States.” The question is whether “authority of the United States” in this case literally requires the president’s (express or tacit) approval of the content of the communication (which, contra another post of mine, would likely mean that members of Congress would often act without such authority), or whether it just means under color of U.S. authority. I think the better reading of the Act’s text is the latter—but that is especially true if the former reading would potentially raise some of the constitutional concerns to which I have previously alluded.