National security and civil liberties

  • December 4, 2017
    Guest Post

    Sudha Setty is a professor of law and associate dean at Western New England University School of Law. Her book, National Security Secrecy: Comparative Effects on Democracy and the Rule of Law, was recently published by Cambridge University Press.

    For decades, the balance of national security power has become progressively unmoored from the basic democratic premise that the power to decide what the government does resides with the people through their representatives. Yet post-September 11 national security-related policies have distorted both of these concepts of democracy: exceptionalism and emergency are consistently invoked in the national security context to justify programs that would otherwise be viewed as outside of the legal, structural, and value constraints that society places on government—like extraordinary rendition, torture, and the targeted killings of Americans overseas. On top of that, the secrecy with which certain programs are conducted inverts the democratic structure of transparency in ways that undermine the effectiveness of our governmental structures and lessens our commitment to a society based on the rule of law.

  • October 31, 2017
    Guest Post

    by Barbara McQuadeProfessor from Practice, University of Michigan Law School, and former U.S. Attorney for the Eastern District of Michigan

    *This piece was originally published on The Daily Beast.

    The unsealing of the indictment charging former Trump campaign chairman Paul Manafort was only the second-most significant piece of news Monday. 

    The more significant news was the guilty plea of former Trump campaign adviser George Papadopoulos, who was arrested in July and entered a guilty plea about three weeks ago. The documents revealing those facts were also unsealed today. And the timing of the two being filed on the same day is likely no coincidence.

    While the Manafort charges are important because of the role he played as one-time Trump campaign chairman, the charges themselves allege improper financial transactions and failure to disclose foreign lobbying activities, offenses that are unrelated to the Trump campaign. Rick Gates, Manafort’s business partner and a Trump campaign official, was also charged. The charges against Manafort may provide leverage to encourage him to cooperate in the investigation, but the charges against Papadopoulos relate directly to connections between the Russian government and the Trump campaign.

  • July 19, 2017
    Guest Post


    by Raha Wala,  Director of National Security Advocacy, Human Rights First

    President Trump during the campaign said he wanted to bring back waterboarding and "much worse.” He went so far as to say that even if torture doesn’t work, we should still use it on suspected terrorists, because “they deserve it anyway.”  Still, he has so far deferred to Secretary Mattis and his other top national security advisors, who have advised that waterboarding and other torture tactics are unlawful and inappropriate.  Just last week, Christopher Wray, president Trump’s nominee for FBI Director said: “torture is wrong, it is unacceptable, it is illegal and I think it is ineffective.”

    Unfortunately, that important statement of principle will be undermined if the Senate confirms Trump’s nominee for a key legal post in his administration. Steven Bradbury is most prominently known as one of the infamous “torture memo” authors for his role in providing legal justification for the CIA’s so-called “enhanced interrogation” program in the George W. Bush administration.  As head of the Office of Legal Counsel (OLC) at the Department of Justice from 2005-2009, Mr. Bradbury wrote legal memoranda justifying waterboarding; sleep deprivation for up to 180 hours; holding detainees in painful, prolonged stress positions; forced nudity; locking detainees in cramped boxes the size of dog crates; physically assaulting detainees by slapping them or slamming them into walls; and other forms of torture and abuse. He should not now be rewarded with confirmation to a general counsel post.

  • June 14, 2017
    Guest Post

    *This piece originally appeared on Zuckerman Law’s Whistleblower Protection Law Blog.

    by Jason Zuckerman, Whistleblower Advocate, Zuckerman Law

    For me, the most telling moment of former FBI Director Jim Comey’s June 8 testimony occurred early in the hearing, when Mr. Comey choked up as he recalled the White House’s publicly stating that the president had fired him because the “FBI was in disarray.”

    This emotional display seemed out of character for Mr. Comey. While U.S. Attorney for the Southern District of New York, he successfully prosecuted organized crime. As Deputy Attorney General during the George W. Bush Administration, Mr. Comey refused to sign an extension of the warrantless domestic spying program and defied the White House Counsel and Chief of Staff. Mr. Comey can fairly be described as a “tough guy.” So how did he go from leading the most powerful law-enforcement agency worldwide to being labeled a “leaking liar”?

    To an experienced whistleblower advocate, Mr. Comey’s predicament is not surprising. Mr. Comey’s experience, unfortunately, is like those of many whistleblowers I have represented over more than a decade. President Trump promised to bring a business approach to government—and his retaliation against Mr. Comey is straight out of the corporate defense playbook. Corporations typically take the following steps of escalating retaliation to silence whistleblowers:

  • 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.