Bypassing the Texas Two-Step to Save Reproductive Rights

Last week, when the Supreme Court refused to halt the new Texas abortion law from taking effect, President Biden directed the Departments of Justice and Health and Human Services to examine whether they have the legal means with which to protect the reproductive freedom of pregnant people in Texas.  Calling this objective a “whole-of-government effort,” the president condemned the Texas law as “pernicious” and “almost un-American.” It “creates a vigilante system,” the president observed, in which people having no personal connection to the situation can file a state-court claim for $10,000 in damages against both abortion providers and those who help pregnant people seek such services.

This clever Texas two-step manages to dance around the traditional way in which people, whose constitutional rights are violated by a state statute, may sue to stop the law from ever going into effect. A deeply-rooted principle of American jurisprudence is the concept of “sovereign immunity.” The doctrine of sovereign immunity provides that a state, as a supreme governing entity, cannot be sued for any purpose without its consent.  It derives from the British common law idea that the King could do no wrong.  Generally speaking, this rule means that the sovereign state of Texas is not answerable in the courts unless it legislatively agrees to be. As the Supreme Court stated long ago, a state’s sovereign immunity is “a personal privilege which it may waive at pleasure.”

But government officials charged with administering state laws do not enjoy that pleasure.  Sovereign immunity does not apply to them. Consequently, people can haul state officials into court to stop them – in advance – from enforcing an unconstitutional measure.  That’s why you see so many governors, attorneys general, and other government officers named as defendants in cases challenging the constitutional validity of state statutes and regulations.

Here, it occurred to the Texas legislature that if its new abortion statute prohibited any state official from enforcing it (which it does), opponents of the law would have no one to sue preemptively to strike it down. After all, opponents of the abortion law cannot sue the State of Texas – sovereign immunity forecloses that option. In devising the legislation, Texas lawmakers also bet that reproductive health providers would be too frightened by the expected tidal wave of private lawsuits to remain open.  It was a smart bet.  Already, some Texas clinics are unfortunately turning away pregnant people in need of care.

True to its promise, the Biden administration sued Texas this week in federal court seeking both a declaration that the state’s new abortion statute violates federal law and an injunction essentially barring private parties from prosecuting all claims created by the legislation. Unlike individuals personally affected by the statute, the federal government is not barred by sovereign immunity from suing Texas directly. This is because the U.S. Constitution subordinates state sovereignty to federal action. That said, the unprecedented private enforcement mechanism adopted by Texas still presents the federal government with a unique challenge.

The complaint filed by the U.S. Justice Department seeks injunctive relief against Texas —“including all of its officers, employees, and agents, including private parties who would bring suit under [the abortion statute] – prohibiting any and all enforcement of” the law (emphasis added). When presented with novel circumstances involving deprivations of constitutional rights, courts try “to plot a line between state action subject to Fourteenth Amendment scrutiny and private conduct (however exceptionable) that is not.” Our legal system  primarily safeguards individuals from constitutional violations committed by the government, or agencies of government.

The federal government’s complaint makes a compelling argument that – under this statutory scheme designed to repel judicial challenge – private actors should be treated as state actors in the constitutional analysis.  The Supreme Court has never ruled, however, that private claims, which all members of the general public are statutorily empowered to bring, can actually constitute state action.  Considering that the present Supreme Court has already refused to stay the implementation of the Texas law – even on an interim basis – it is far from certain that a majority of the justices would extend the state action doctrine in aid of pregnant people in Texas.

Under these circumstances, the Biden administration may want to consider a belt and suspenders approach – that is, devise a back-up strategy in case the litigation gets tangled up in remedial knots.  The one that I suggest is more mundane than a sweeping injunction, but it could nevertheless achieve much the same result.

In designing this abortion law, Texas legislators may not have considered that two sovereigns can play the immunity game.  The United States of America also enjoys sovereign immunity. And you know who else does, too?  Private contractors who perform services for the federal government.

Over 80 years ago, in Yearsley v. W.A. Ross Construction Co., the Supreme Court made clear that contractors performing work “authorized and directed by” the federal government are immune from liability provided that the “authority to carry out the project was validly conferred, that is, if what was done was within the constitutional powers of Congress.”  More recently, the Supreme Court has referred to this liability shield as “derivative sovereign immunity.”

If the Biden administration is looking for a practical, administrative way to defend the constitutional rights of pregnant people in Texas (and everywhere else in this country), it might seriously consider putting derivative sovereign immunity to work. The president could promptly direct that appropriate federal agencies contract with Texas abortion clinics simply to remain open and to help arrange for patients’ transportation when necessary.  This assistance cannot include paying for any actual medical procedures other than those already funded by federal law because Congress has restricted such payments through prior legislation. But the U.S. Departments of Justice, Health and Human Services, Labor, and Defense, as well as the Office of Personnel Management, arguably have statutory authority – through existing funding programs – to make a sovereign immunity play.

For example, the Justice Department’s lawsuit lists federal programs involving the Jobs Corps, refugee resettlement, prison healthcare, Medicare and Medicaid Services, federal employee health insurance, and military healthcare that are all stymied by the new Texas law. Most, if not all, of these programs are serviced by private contractors that work to ensure pregnant people can exercise their existing constitutional right to access abortion care. And as parties performing authorized federal contracts, Texas healthcare providers should be immune from the new Texas statute.

After 80 years, the operative theory here is not particularly controversial.  That’s good.  Sometimes the most effective and enduring solutions are the least exciting.  And by keeping “vigilantes” at bay, a federal response along these lines could maintain access to critically-needed medical services in Texas while the Supreme Court again revisits the scope of a pregnant person’s right to choose.

Daniel S. Alter is a practicing attorney in New York.  Earlier in his career, Mr. Alter was a Coker Fellow in Constitutional Law at Yale Law School, adjunct professor at NYU Law School, and an Assistant U.S. Attorney for the Southern District of New York.

The Espionage Act and Media Sources After 9/11  

This blog is part of ACS’s Blog Symposium exploring the Legal Legacy of 9/11. 

In December of 2005, the New York Times published a blockbuster story by James Risen and Eric Lichtblau entitled Bush Lets U.S. Spy on Callers Without Courts. Risen and Lichtblau reported that the Bush Administration had, since shortly after 9/11, authorized the National Security Agency to wiretap certain calls between the United States and abroad without warrants, despite a longstanding statutory prohibition on warrantless wiretapping of calls between the United States and other nations. Risen and Lichtblau won a Pulitzer Prize for the series, which the Pulitzer committee described as “carefully sourced stories on secret domestic eavesdropping that stirred a national debate on the boundary line between fighting terrorism and protecting civil liberties.”

A key source for the Times story, and a second person who was wrongly suspected of being a source, fared considerably less well than the reporters. Former Justice Department lawyer Thomas Tamm discovered the secret NSA program in 2004. Troubled by what he had learned and dissatisfied with the responses he received when he questioned his supervisors and a Senate Judiciary Committee staffer about the program, Tamm contacted the New York Times and became a source for the series that Risen and Lichtblau eventually published. After investigating Tamm and discovering his communications with the former Senate staffer, the FBI raided Tamm’s house in 2007. Tamm remained under criminal investigation until the Obama Administration dropped the matter in 2011. During the same time period, the FBI also came to suspect former NSA employee Thomas Drake of being a source for the New York Times series. The suspicion apparently stemmed from Drake’s cooperation with a complaint made by several of his colleagues to the Defense Department’s Inspector General, despite the Department’s obligation to protect complainants’ identities. Although Drake was not a source for the Times story, he was a source for a different story in the Baltimore Sun, and the Justice Department eventually threatened to prosecute him for leaking classified information to the Sun reporter. The Justice Department raided Drake’s home in 2007, and in 2010 indicted him for unlawfully retaining classified information. In 2011, Drake pled guilty to a single misdemeanor count of exceeding his authorized access to government computers. At the sentencing hearing, Judge Richard D. Bennett called it “ ‘unconscionable’ that Drake and his family were dragged through ‘four years of hell’ only to have prosecutors ultimately back down on all felony charges.’”

The Tamm and Drake investigations, and Drake’s prosecution especially, were early harbingers of a government crackdown on leaks of classified information to the media. Prior to 9/11, the U.S. government had undertaken only three prosecutions of former government employees or contractors suspected of engaging in such leaks. In the past twenty years, that number has more than quadrupled. The reasons for this dramatic rise in prosecutions are debatable, and no simple, single answer suffices. But 9/11 and its aftermath are surely parts of the story. The national security state expanded substantially after 9/11, including the amount of information classified and the number of people with security clearances. Additionally, a host of controversial new programs – like the surveillance programs that alarmed Tamm and Drake -- generated unease within the government and corresponding temptations to leak. Indeed, Yochai Benkler observed in 2014 that many of the post-9/11 leak prosecutions have involved “accountability leaks,” which he defines to mean “unauthorized national security leaks and whistleblowing that challenge systemic practices.”  The same may be said of more recent leaks. The combination of such leaks with a growing national security state bearing heightened surveillance capacities is a combustible one. These factors are compounded by additional developments, including technology that makes it easier than ever before both to leak and to catch leakers through digital footprints.

Although the exponential rise in media leak prosecutions is a post-9/11 phenomenon, the main legal authority on which prosecutors rely in such cases – the Espionage Act of 1917 -- is a relic of the first world war. Indeed, the Act was enacted decades before the United States had a permanent classification system, and its major amendments were passed in 1950, a year before such a system was initiated. More so, the Act’s legislative history – detailed most exhaustively in a landmark law review article by Harold Edgar and Benno C. Schmidt, Jr. – makes plain that a majority of the congresspersons who passed the Act did not intend to criminalize leaks to or publications by the press. Their targets, rather, were spies and saboteurs.

The Act’s sweeping language, however, can support its application to media leaks. In provisions now codified at 18 U.S.C. §§ 793(d) and (e), the Act makes it a crime for anyone who possesses information “relating to the national defense” to “willfully” communicate it to an unauthorized person or to fail to return it on demand, if the possessor “has reason to believe” the information “could be used to the injury of the United States or to the advantage of any foreign nation.” When the communicated items are tangible – such as documents or photographs, rather than orally conveyed information – the Act does not require a “reason to believe” in the materials’ potential injuriousness. Courts have read into the Act a requirement that the information be “closely held,” and they use classification status to inform whether the requirement is met. The Act thus can plausibly be read to cover virtually any unauthorized communication of classified information, including those to or by the press. By the Act’s terms, it simply does not matter whether the information reveals wrongdoing, generates policy debates, or otherwise is in the public interest.

The U.S. Court of Appeals for the Fourth Circuit agreed that the Act authorized media leak prosecutions in the 1988 case of U.S. v. Morison.  In addition to its statutory analysis, the Morison Court dismissed the First Amendment and vagueness concerns raised by the defendant. The Court’s constitutional analysis was grounded partly in earlier case law regarding Espionage Act prosecutions that involved not media leaks, but international spying and sabotage. Those cases themselves relied on still older precedent that arose well before the classification system took its modern, bloated form. Indeed, a key Espionage Act precedent involving spying – Gorin v. United States – was decided in 1941, at a time when the United States had only a wartime military classification system, rather than the enormous, permanent, government-wide system that exists today. Gorin was cited by later courts to support subsequent spying cases. Those later cases, in turn, were cited by the Morison Court to bolster the Act’s application to media leaks in a world of increasingly ubiquitous classification.

Two of the three judges on the Morison panel themselves took solace in a contingency of their own time – that is, in the relative scarcity of media leak prosecutions in the 20th century. Judge Wilkinson, who joined the majority opinion, wrote a concurrence in which he deemed it unlikely that sources of information about “corruption, scandal, and incompetence” would be prosecuted. Judge Phillips penned a separate concurrence in which he agreed with Judge Wilkinson’s prediction and deemed it the “critical judicial determination forced by the [F]irst [A]mendment arguments advanced in this case.” Of course, these optimistic assessments have not held in the post-9/11 years. Although Morison remains the only federal appellate court authority on the constitutionality of media leak prosecutions under the Espionage Act, a growing body of District Court precedent has relied on it to reject challenges to post-9/11 prosecutions.

That the Espionage Act is increasingly wielded like an official secrets act thus stems more from accident and inertia than from democratic design or constitutional deliberation. The Act was created on the eve of the U.S. entry into World War I as a means to target spies and saboteurs, in an era when our sprawling classification system was barely conceivable. It took nearly four decades for prosecutors to wield it against a media leak, and a few more decades – until United States v. Morison – for such a prosecution to succeed. Yet Morison, which itself drew on inapposite caselaw, laid the doctrinal groundwork for what was to follow after 9/11. The result is our status quo – an increasingly normalized system of media leak prosecutions in which the public interest, whether in an absolute sense or relative to any national security harm from a leak, is legally irrelevant.

As we reflect on 9/11 and its aftermath, then, we would do well to take a fresh look at the use of the 1917 Espionage Act as a tool to punish and deter leaks of information to the media. Elsewhere, I and others have argued in detail that the rising tide of media leak prosecutions is deeply troubling from First Amendment and public policy perspectives. We have urged judicial innovations to account for these problems at both the liability and sentencing stages, and we have also called for statutory reform. Whatever changes might eventually be adopted or rejected, however, one point is plain: we are well past due for meaningful deliberation regarding the constitutionality and wisdom of prosecuting leaks of information to the media. The issue is simply too important to be resolved through happenstance or historical accident.

The Triumph of the Securocracy

This blog is part of ACS’s Blog Symposium exploring the Legal Legacy of 9/11. 

Who has gained from the various legal, policy, and institutional changes set in motion by the 9/11 attacks? The question seems crass, even slightly repulsive. But that makes it no less important.

The September 11 attacks were a policy shock—in form, at least, a surprise despite some hints in past conspiracies. Surprises often shake loose calcified institutional and policy arrangements, both domestically and geopolitically: The resulting rhetorical, legal, and policy spaces are novel. They are prone to colonization by those most capable and ready to address the felt gaps in law, policy, and ideas. In part, this allows these actors to formulate what, exactly, the crisis entails, and what responses are in fact needed. In part, as Paul Pierson has explained, the policies that ensue become the foundation for politics—coalitions of bureaucrats, politicians, and aligned interest groups that can beat back challenges to a profitable new dispensation.

The most notorious example of an off-the-shelf policy being rushed to address the felt need to do something is, of course, the Iraq war (although Robert Draper’s recent book suggests a somewhat more complicated story). But turn to post-9/11 domestic policy and a similar picture emerges: the gaps in policy and rhetoric identified in the wake of the attack have been filled by interest groups and governmental actors that were well-positioned in late 2001 and the days thereafter to make the case that they had the needed expertise in responding to national security concerns.

In particular, actors within the government have been remarkably successful in accruing resources—and hence institutional heft—while at the same time sloughing off oversight that might determine whether they are in fact advancing some plausible public good. And the question whether these agencies, in defining and pursuing their new missions, are imposing unacceptable harms to the public is also left unanswered.

Yet the resulting new or newly empowered bodies have dominated the policy space created by the 9/11 attacks. Their experts dominate the airwaves; their alumni account for a significant share of law school hiring, since some deans and hiring committees tend to cultivate a proximity to state power. These agencies continue to soak up public resources, at a time when vital public health and education mandates go unfunded. They are in the business too of defining the policy problem requiring action in imperfect, arguably discriminatory, ways. And they have escaped efforts to impose a serious accounting of their expenditures and actions—even when these entail serious violations of constitutional and human rights.

We suspect that the prestige, and sheer scale of their agencies (which bring jobs and income to congressional districts to the predictable boon of their elected representatives) ensure that legislative oversight will often be anemic at best.

Let’s call the resulting institutions a securocracy—a set of governance arrangements, overlapping the public-private divide, extracting both money and resources from government to define and then implement their own visions of ‘security.’ This is done largely without congressional oversight, the conventional constraints associated with the Fourth Amendment’s system of warrants, or any other meaningful system of external auditing or control. The resulting arrangement perpetuates itself by dint of oversize influence in the legislative process, avoiding either serious debate on their self-conceptions or their effects on public finance, constitutional norms, or security as experienced by Americans of all races, ethnicities, and economic class.

Our aim in this blog post is to offer two examples of the securocracy in the national security context (although the same could be done for ordinary policing). Attention to this political economy is largely wanting in the legal academy. Theorists in the rational choice tradition, who have dominated much of the scholarship in the legal academy on national security, conspicuously and comprehensively ignore the fact that at a moment of crisis, there is no shared ideal of the common weal. (See the current debate on masks and vaccination mandates for a reminder of how disagreement abides even in the face of unequivocal scientific evidence). It is precisely what the public good requires that is up for grabs—a problem on which rational choice models offer little guidance. It is precisely the power to define what counts as a threat that is the prize to be seized.

To see the problem, consider first the FBI. As this chart shows, the 9/11 attacks triggered a significant and sustained rise in resources—a doubling in just under a decade.

Yet justifications for this large—and continually growing—injection of resources are open to question. According to the Bureau’s most recent report on domestic terrorism (coproduced with the Department of Homeland Security and published in May 2021), the number of terrorism arrests has been dropping since 2015, halving by 2019. Many of the arrests that have occurred, moreover, have resulted from the use of “stings” targeting individuals who lack any prior connection to terrorist movements. If the domestic terrorism threats from groups such as al Qaeda and ISIS were continuing to rise as substantially as the FBI’s resource-allocation, one would expect to see these numbers rising, not falling. One would also not obviously anticipate that the Bureau would need to manufacture prosecutions to keep its numbers up. It is also hard to imagine that the Bureau has effectively deterred terrorists given their ideological motives.  If one wants to explain the absence of another 9/11-style attack (indubitably a policy success), one must look elsewhere.

At the same time, the Bureau reports that 2019 was the most lethal year for domestic violent extremism attacks since 1995. Between 2017 to 2019, there were 57 domestic terrorism-related deaths. Of these, 47 were racially motivated; most perpetrators were white supremacists. In 2020, the Center for Strategic and International Studies found that some two-thirds of the terrorist plots and attacks in the United States in 2020 were conducted by White supremacists and other like-minded extremists, and largely targeted African Americans, immigrants, Muslims, and Jews. In 2018, one journalist’s close study of the FBI found that the attitude of the Bureau to white supremacism was fairly characterized as one of “willful indifference” that had allowed the violent right-wing to grow and “metasta[cize].”  To the targets of such violence, the FBI’s post-January 6 pledge to pivot to address this threat may seem too little, too late.

Diverting resources to the FBI—and allowing the FBI to define the problem of ‘national security’—has gifted us with a massive, cumbersome  bureaucracy—a securocracy—that is unable to change course even when the environment changes—even, indeed, when disaster looms in plain sight.

Here’s a second example: The vast electronic surveillance state built on the foundations of 9/11. For the first three decades of its existence, the Foreign Intelligence Surveillance Act (FISA) remained a relatively obscure, rarely controversial statute. It offered a highly structured warrant procedure to constrain the discretion of intelligence officials. It used reticulated statutory definitions of who qualified as a target; the acceptable purposes of intelligence-collection; and the specific showings required for a federal judge on the Foreign Intelligence Surveillance Court (FISC) to allow collection on U.S. soil.

Like the FBI’s budget, however, the scope of surveillance authorities ballooned after the September 11th attacks, spurred by fears of “sleeper cells” in the U.S. and the intelligence-community’s clamoring for FISA “modernization” (read: expansion).

The result was predictable: new, more expensive programs targeted the contents of communications into and out of the United States, but also swept in vast swaths of Americans’ phone and internet metadata. This included non-content information such as phone numbers or email addresses, the duration of phone calls, and the IP addresses from which emails originated.

Initially, these programs were undertaken pursuant to presidential fiat, but ultimately (at securocrats’ urging) Congress provided them with legislative foundations—expanding the scope of authority conferred by FISA to accommodate the most fervent wishes of the intelligence community. The FISA Amendments Act (FAA), which authorized the collection of the electronic communications of non-U.S. citizens or residents located outside the United States, epitomizes the expansion of securocrats’ power and claims on resources.

The original FISA statute included familiar constitutional protections, such as individualized suspicion and judicially enforced probable cause rules. FAA orders look more like the results of notice and comment rule-making—but without any notice and comment, or any of the other rule-of-law safeguards of agency action.  The FAA has no requirement of probable cause; no target need be identified with particularity. Instead, intelligence agencies submit to the FISC their proposed procedures—for selecting their targets and for how they will use the information they collect. The FISC determines whether those procedures satisfy the requirements of the Fourth Amendment.  Agencies then engage in surveillance with those procedures for a year before needing reauthorization.

That targets of the surveillance must notionally be non-U.S. persons abroad does not mean that FAA surveillance poses no threat to the privacy of Americans.  Quite the opposite: While the target may be overseas, one side of many—if not most—of those conversations is often inside the United States.  This “incidental” collection, as the government calls it, entails collection of millions of communications to or from Americans inside the U.S. every year. These are then deposited in a database, to which multiple federal agencies have access.  Indeed, the FBI may search that database not only for foreign intelligence information—the purpose for which the surveillance took place—but also for evidence of crime. The result is a large expansion in bureaucratic power cemented into the resources used to create and manage this enormous database.

Even if the scope and permissiveness of this surveillance regime is itself not problematic, its track record of compliance with the FISC-approved procedural rules is abysmal.  Each FISC opinion reauthorizing surveillance for another year notes numerous “compliance incidents”—securocracy-speak for Fourth Amendment violations.  Agencies regularly access databases filled with electronic communications without satisfying the applicable rules.  They collect data for which collection is not authorized—sometimes for years at a time without notifying the FISC.  They grant access to individuals who are not authorized to access the databases.  They disseminate information to other federal agencies in violation of the rules designed to minimize the dissemination of information about innocent Americans.  They fail to implement procedures to protect attorney-client privilege. They decline to maintain proper records of their collection and database search activities.

Yet the FISC has never required the intelligence agencies to discontinue its FAA collection activities.  (On one occasion, after realizing that it had been operating in violation of FISC-required rules for over five years, the government voluntarily ended one form of collection.)  Instead, the FISC and the government agree on some token remedial efforts, which may or may not prove effective, and the collection continues.  Securocrats, once more, command resources and authorities without an accounting (legal or otherwise) for their uses.

The FBI and the agencies exploiting FISA and the FAA are hardly the only instances of ‘securocrats’ triumphant. Similar stories, indeed, can be told for more mundane police, immigration-enforcement, and carceral institutions. But we offer them here to suggest the kind of questions we should ask about the post-9/11 world: Not just questions of legality, but matters of power—and who has seized it, through what means, and to what end.

 

 

The Threat We Face is Unbridled Hate

This blog is part of ACS’s Blog Symposium exploring the Legal Legacy of 9/11. 

Where were you on 9/11?

Twenty years later, it’s a question that I and millions of Americans are asking today. My 9/11 story began like many other Americans. It seemed like another ordinary day.

I was working at UBS Financial Services in Washington D.C. – a brief stint before returning to public service. After surviving the District’s notorious rush hour traffic, I made it to the office by 8 a.m. Then, I saw the breaking news alert – a second airplane struck the South Tower of the World Trade Center.

A week later, I went up to New York to volunteer with the relief effort by providing food and supplies to first responders. The mood was somber, but it was also filled with a sense of resilience and perseverance. During those dark days, our country was united. In the days and months that followed, we didn’t see each other through our traditionally prescribed political labels – instead, we were Americans. Americans who felt connected by our common humanity.

In the two decades that followed, our country waged a global war against terrorism to eliminate terrorism at its source. As we’ve learned, however, terror and hate know no boundaries and are pervasive and growing threats here at home. The domestic threat may be cloaked in different clothes, rituals, and names but is just as insidious and destructive. And we have yet to unite around confronting hate at its source.

For those impacted by hate, their loved ones, and their communities, the ramifications of hate are very real and will never be forgotten.

I’m thinking of: Satwant Singh Kaleka in Oak Creek, Maura Binkley in Tallahassee, and Heather Heyer in Charlottesville, all killed at the hands of domestic terrorists.

I’m thinking of the attack on Mother Emmanuel AME Church in Charleston, South Carolina that killed nine Black churchgoers.

I’m thinking of the attack at the Tree of Life synagogue in Pittsburgh, the Walmart in El Paso, or the Atlanta-area spas just earlier this year.

And then there’s Brian Sicknick – a brave member of the U.S. Capitol Police who tragically died the day after he fought off domestic terrorists trying to infiltrate the Capitol on January 6.

To honor those we’ve lost, we must come together to address the threat of domestic terrorism and more dangerously – the threat of unbridled hate. Hate has been part of our country’s history and our present, but it doesn’t have to be our future. It seems like a daunting task to stop the spread of hate – but we must try. That’s why as the 2021 president of the National Association of Attorneys General, I’ve been conducting a year-long inquiry into hate and what I’ve learned is there are tangible steps that we can take to address hate.

First, we must understand the full extent of the threat, and the mechanisms that allow hate to flourish. Next, we must repair the harm hate has caused and the societal cleavages that allow hate actors to exploit our fissures. I don’t believe we can eradicate hate, but we can create a society that resists the allure of hate regardless of its mask, supports those who have experienced it, and bends toward cohesion in the midst of adversity.

 Understanding the Threat

To understand the threat hate portends, we must address gaps in hate crimes data at the state and federal levels. The FBI recently reported that the number of hate crimes in the United States rose in 2020 to the highest level in 12 years – propelled by increasing assaults on Black and Asian-Americans. In all, the bureau counted 7,759 hate crimes last year marking a six percent increase from 2019 and the most since 2008. While this data gives a fuller picture of the problem, the majority of hate crimes go unreported by both the people who experience them and by law enforcement who do not provide this data to the federal government. These gaps leave various levels of law enforcement with an incomplete picture and ill-equipped to allocate appropriate resources.

Earlier this year, I led 34 other attorneys general in advocating for the passage of the federal No Hate Act, which authorizes necessary resources for each state to improve reporting and increase community awareness. It’s an important first step, however, each state should legislate mandatory hate crimes reporting to the federal government to help fill this gap. However, data collection and reporting are just the beginning.

Denying Hate a Host

We must confront the factors that facilitate hate and allow hate actors to radicalize and recruit. The most obvious culprit here is social media. For too long, big tech has created a virtual safe haven for hate actors. Advocacy groups and think tanks like the Anti-Defamation League, Counter Extremism Project, Center for Countering Digital Hate, and dozens more agree that big tech fails to act even when they know extremists are using their platforms to peddle misinformation to fan the flames of hate. In each of the horrific acts of terror previously mentioned, the perpetrator engaged with or sought inspiration from hate actors online.

Even worse, big tech profits from online hate. For example, in the wake of the January 6 attack, Facebook targeted advertisements for military tactical gear and weapon accessories to users who were following extremist content. They were quietly profiting from these advertisements despite their claims that they would not tolerate their platform being used to incite violence. I joined forces with other attorneys general to shine light on this duplicity and urged them to halt these advertisements until after the inauguration. Big tech has proven that they value profit over public safety and there must be accountability and change.

Repairing Harm and Supporting Survivors

Finally, where hate has already taken place, we must work to repair the harm. The impact of resulting trauma – be it hate crimes or institutional racism – can be long-lasting and generational. In both cases, the trauma inflicted on individuals and communities can leave them, and their children and grandchildren, crippled with despair and grief that can impact their ability to flourish.

Restorative justice can be a mechanism through which healing begins both for the survivor and the perpetrator. Restitution is also a means to support survivors. My office worked to pass local legislation to give us the authority to bring civil-charges against perpetrators of bias-motivated crimes. Combined with our restorative justice program, I’m confident that we can ensure accountability and begin to repair harm. There is no one size-fits-all approach to survivor support but these are tools that should be in each state’s toolkit.

On this 20th anniversary of 9/11, we solemnly remember the lives of those we lost, and we should also remember that our country has the capacity to come together to solve big challenges. While foreign threats are still prevalent, we must acknowledge that today, the biggest threat to the fabric of our nation is unbridled hate and we must unite to address the systems, policies, and actors that perpetuate it.

To address acute and institutional forms of hate, all of us must commit to acknowledging these basic truths of our past, work to address the legacies of hate that exist today, and repair the damage that has been done to our communities. We must commit to shedding our role as passive bystanders and instead, take action.

What’s at stake is nothing less than our common humanity – we must stand up for it.

 

 

Post-9/11 Reflections on American Military Justice

This blog is part of ACS’s Blog Symposium exploring the Legal Legacy of 9/11. 

Since 9/11, confidence in the military justice system has eroded, most disturbingly within today’s junior ranks. This shouldn’t be surprising, given that twenty years of combat has strained all aspects of military operations, along with the public’s trust. However, we can’t blame combat for the military justice system’s current problems. Indeed, ills plaguing our modern U.S. military justice system – like that it is slow, bloated, vulnerable to corruption through undue command influence, and overseen by those who lack independence, impartiality and experience – existed prior to 9/11, though far less attention was paid to them outside of periodic scandals. But with a greater number of Americans exposed to the military following 9/11—including more women—coupled with social media and greater Congressional interest in its oversight role, the military justice system receives far more scrutiny today than it once did.

There is little argument about the basic need for a functional criminal justice system for the armed forces that is respected by those in uniform and the nation it serves. Without one, military discipline, morale, and effectiveness suffer, along with national security. Indicia that the current system is dysfunctional include sustained failures to stem sexual assault and harassment within the ranks; disturbing racial disparities in the prosecution of courts-martial and non-judicial punishment; reports of rampant misconduct within the Navy SEALS community; and upended, politicized war crimes convictions (with several former U.S. service members, convicted by their military peers of serious battlefield criminality, lauded as heroes and pardoned by former President Trump, the same commander-in-chief who wanted Sergeant Bowe Bergdahl summarily executed).

Added to this list is international concern that the U.S. military does not appropriately deal with allegations of detainee abuse and other battlefield criminality, as demonstrated by the International Criminal Court’s actions concerning U.S. military (and CIA) conduct in Afghanistan, as well as outrage following the military’s milquetoast response to its 2015 botched airstrike against a Médecins Sans Frontières hospital in Kunduz, Afghanistan.

Even former Secretary of Defense (and retired four-star general) James Mattis, in 2018 strongly urged his military commanders to provide appropriate accountability for service members’ crimes by using the military justice system instead of avoiding it. Mattis wanted more criminal court-martial prosecutions, instead of commanders bypassing the justice system through more expeditious, less transparent and non-criminal processes to administratively discipline or admonish subordinates and, at times, quickly separate them from the service – without appropriate accountability for their alleged crimes. The fact that Mattis made this plea reveals the system’s greatest structural defect:  the fact that senior military commanders control the military justice system and decide who gets court-martialed, and who doesn’t, for all offenses, instead of independent, impartial and experienced prosecutors.

Since 9/11, Congress has responded to one of the symptoms of a diseased military justice system—rampant military sexual assault and harassment—with numerous, incremental reform measures that included both procedural as well as substantive changes. For example, commanders have had their clemency powers greatly curtailed – no longer can a commander set aside an entire court-martial conviction simply because he thinks he knows better than the entire military jury that actually heard from witnesses. Congress also revised sexual assault crimes, plus added new enumerated offenses in the military penal code, such as the crime of retaliation. The most significant reforms, however, have institutionalized victims’ rights in military justice for the first time. These include the creation of special victims’ counsels and advocates, and codification of the right of victims to be heard regarding the disposition of criminal allegations. Victim-centered reform also has included significant changes to the military’s preliminary hearing process, and the addition of mandatory minimum sentences for certain sexual assault offenses.

These reforms, while important, have merely tinkered around the edges. What is really needed is systemic reform that eliminates command control. While the list of necessary incremental reform remaining is long, such as allowing greater access of appeal to the Supreme Court, the key overhaul required is elimination of the central role played by military commanders. Those who maintain and operate our commander-centric system should no longer be allowed to do so. Currently, and since 1775, military commanders (not lawyers) choose whom within their units to court-martial and for what crimes; they also choose the jury members for each prosecution, with little to no accountability for their decision-making along the way. This is King George III’s system in our 21st Century world, despite that many of our allies, including the United Kingdom, have replaced commanders with independent lawyers for dispositional decision-making regarding allegations of serious crimes.

This is not a critique of individual commanders, taxed with meeting our nation’s war-fighting objectives set by civilian leaders. This is a structural observation that military commanders, by virtue of their positions, lack the requisite independence, impartiality, and experience for optimal decision-making when it comes to the prosecution of serious crimes. This doesn’t mean taking away command authority to discipline minor misconduct through non-criminal accountability mechanisms. Removing commanders from criminal justice means that when it comes to sending soldiers to jail with criminal convictions, decision-makers should be impartial, legally experienced, and accountable for their decisions, three attributes military commanders uniformly lack. Indeed, most of the existing military commanders already do not possess authority to court-martial their subordinates for serious offenses; the roughly 140 who do all face inherent  structural conflicts of interest as well as a lack of expertise and certainly of accountability for decisions in this realm.

While Congress is set to soon enact some change, the question is how far will legislators go? The reform measure most likely to pass this year, focused almost exclusively on sexual assault and related crimes, leaves much of the defective commander-centric system in place. While the Senate version of the National Defense Authorizations Act (NDAA) contains a more sweeping overhaul, the House version does not. Instead, the House’s version transfers only the authority to prosecute sexual assault and related offenses to independent military lawyers, leaving all other crimes, including those that carry the death penalty, with conflicted commanders. This sort of half measure is a true failure of courage (so is not changing the composition and selection process of the military jury, and other necessary reform).

Here’s the bottom-line: if we can’t trust military commanders to dispose of allegations of sexual assault because of structural dynamics, why is Congress going to continue to trust them with the disposition of allegations of all other serious offenses, including those that carry the death penalty?

  • Is the military victim of an alleged beating, or threats, or computer fraud at the hands of a fellow military member, less deserving of fairness in disposition and handling of the allegations than a victim of sexual assault? No.
  • Are the evidentiary issues frequently present in sexual assault cases limited to only such cases? No.
  • Are commanders legally trained and experienced to deal with evidentiary issues across the range of potential crimes? No.
  • Do commanders possess conflicts of interest by virtue of their command billets? Yes.
  • Is the system currently plagued with disturbing racial disparities regarding who goes to courts-martial? Yes.
  • Can and should commanders have input into the disposition decision, regardless of who makes it, by way of written advice? Yes.
  • Is it time to transfer prosecutorial discretion from commanders to independent, experienced, and accountable military lawyers for all serious offenses, even those that are “military-unique,” such as desertion or disobedience of orders? Yes.

Fundamental fairness demands wholesale structural reform of the military justice system by removing commanders from their central role, though politics and the power of the military in our government make such an overhaul an incredibly tough hill to climb. Courage and vision are required to do right by today’s service members, to help create a military justice system that works as well in reality as it does on paper. While neither are strong hallmarks of today’s political scene (with notable exceptions), nor, as one reads items such as the Washington Post’s The Afghanistan Papers, of some military leaders, hope springs eternal.

Congress is not limited to what is in the pending FY22 NDAA if it wants greater reform. Stand-alone bills like Senator Gillibrand’s bipartisan Military Justice Improvement and Increasing Prevention Act can and should be brought to a vote, along with the equivalent in the House. Perhaps our elected leaders will go even farther than these proposals and see that all allegations of serious crimes, including military ones like desertion and malingering, should be disposed of by those with the impartiality, experience, and requisite independence to handle them. It’s the right thing to do, is long overdue, and is the least Congress can do to honor the many sacrifices made in the long last twenty years of war and help re-build some of our military’s lost legitimacy, both home and abroad.

 

Justice in America: The War on Terror’s Damaging Legacy

This blog is part of ACS’s Blog Symposium exploring the Legal Legacy of 9/11. 

From the very beginning of the war on terror, the United States confused the distinction between justice and war. “Justice will be done,” President George W. Bush promised Congress and the American people on September 20, 2001. "How will we fight and win this war?” he asked, answering, “We will direct every resource at our command” to the war effort. As it turned out, the institutions of justice were an integral part of the U.S. arsenal in the war and the response to the war on terror transformed justice in America in ways that persist to this day.

In the weeks following the 9/11 attacks, Attorney General John Ashcroft signaled his conviction that the Department of Justice could be a useful arm of the war on terror.  He began with immigration policy. Under the auspices of the DOJ’s Immigration and Naturalization Service, the government detained an estimated 2,000  individuals, most held on immigration charges, relatively few on federal criminal charges and a handful on material witness charges. Most were Muslim or Arab, but the names and precise number of those detained- as well as their locations - were kept secret. Protections of law – including due process, speedy trial, habeas corpus, and more - were summarily tossed aside in order to keep the nation safe from the “enemy.”

More formally, the Patriot Act, submitted in its final version by Ashcroft, and passed by Congress in late October 2001, institutionalized the internalization of war by law enforcement. The new counterterrorism law codified a rights-reducing trend in the name of the war on terror. Riding on the coattails of the anger and fear that had been unleashed in the wake of 9/11, it embraced expanded powers for law enforcement. Ashcroft subsequently summed up its purpose, invoking war-laden terminology, “In order to fight and to defeat terrorism,” he announced, the department had shifted course. “[T]he Department of Justice,” he explained, “has added a new paradigm to that of prosecution—a paradigm of prevention.”  The preventive paradigm created new authorities for investigation, including reduced thresholds for investigation, an unprecedented scope of surveillance, and broader application of terrorism statutes. Under the auspices of these new authorities, over 300 individuals were charged as terrorists in the course of the first decade of the war on terror,  the vast majority of the cases resulting in findings of guilt.

Putting a fine point on the merger of war and the institutions of justice, the Patriot Act also cleared the way for the demolition of the FISA wall, a norm which had previously regulated the sharing of information collected in foreign intelligence investigations with law enforcement authorities. Without the wall in place, national security concerns were poised to triumph over Fourth Amendment concerns and those national security standards would be applied to ordinary cases and investigations.

But the insertion of the war paradigm into domestic laws and norms did not fully cover the changes that followed 9/11.  In fact, one could argue, the most serious damage to ideals and institutions of justice took place outside both the courts and the law.

Two and a half weeks after the passage of the Patriot Act, President Bush, decided to separate the institutions of justice from the war effort. In a “Military Order” he laid out how the country would deal with individuals who were captured on the global battlefield of the war on terror and detained at the U.S. military prison at Guantanamo Bay, Cuba. The captured suspects would not be tried within the federal courts, as jihadist terrorism cases – including the successful prosecution of the 1998 Embassy Bombings that had concluded earlier in 2001 -  had traditionally been handled, but via military commissions, a system that did not yet exist.

The military commissions, formally codified by Congress in 2006 and again in 2009, have failed miserably. After fifteen years, and eight convictions, three of which have been overturned, and three of which are pending appeal, the major cases involving lethal terrorist attacks remain to be tried. As a result, rather than create a distinction between war and justice, the commissions conveyed the message that, when pitted against one another, war annihilates justice. Notably, even now, the trial of those charged with involvement in the attacks of 9/11 has yet to begin.

But perhaps, the most concerning pivot of all when it came to the confounding of war and justice after 9/11, was the role that the Department of Justice’s Office of Legal Counsel (OLC) played in undermining the integrity of the justice system in the name of war. Starting in the weeks after 9/11, OLC lawyers drafted memoranda authorizing among other things, the practice of torture referred to as “enhanced interrogation techniques", the use of warrantless surveillance, the use of lethal force against Americans abroad as part of the “lawful conduct of war” and therefore exempt from constitutional protections, and less dramatically perhaps, the refusal to draw a distinction between peaceful protests and terrorist activity.

As the war on terror abroad has persisted for decades, so too has the legacy of these degradations of justice persisted. Admittedly, some steps have been taken towards reversing and reforming the changes that occurred post 9/11 which comingled war and justice. Notably, the Freedom Act, passed in 2015 and reauthorized in 2020, enacted several reforms. For example, under the new law, the government could no longer conduct bulk telephone metadata collection. The new law also allowed for challenges to nondisclosure orders pertaining to those under surveillance, and it curtailed the breadth in issuing National Security Letters. While much remains of concern, it took a step forward in disentangling  the law from the strategies attached to war.  And, notably, the military commissions have held their first hearings since the onset of COVID, but the start date for the signature trial – the 9/11 trial – is still likely several years away.

A July 31st memo issued by Attorney General Merrick Garland initiates reforms in one of the chief tactics used to confound war and justice – namely, the forfeiture of DOJ independence in deference to the White House. The memo responds most immediately to the Trump administration’s use of the Justice Department to defy laws and norms, although a more accurate analysis would date the DOJ’s capitulation to inappropriate White House prerogatives to the war on terror. Garland’s memo acknowledges, without specifically naming, the very aberrations that the war on terror initiated. He addresses national security pressures on the law, noting that when it comes to “matters relating to foreign relations and national security, including counterterrorism and counterespionage,” communications need to be more open than in other areas.

But Garland is not content to leave it at that. Instead, the memo calls for “further supervisory guidance” meant to ensure the DOJ’s independence. Moreover, the memo is noteworthy for pointing specifically to the role of the OLC, Attorney General  and the Deputy Attorney General in preventing “improper attempts” to influence the OLC. The memo attests, essentially, to the lasting effects of the mingling of war and justice.

When historians look back on the institutional casualties of America’s war on terror, the toll taken on the justice system will doubtless rise to the top of their list. Efforts to disentangle war and justice from one another, however careful and constrained, are important. But even more important would be forward-looking measures to insulate the aims of war from overtaking the laws, principles and institutions of justice in the future.

Karen J. Greenberg is the Director of the Center on National Security at Fordham Law and the author of Subtle Tools: The Dismantling of American Democracy from the War on Terror to Donald Trump (2021). Her book Rogue Justice: The Making of the Security State (2016) explores the transformations of Justice in the name of the war on terror.