Can the militarization of the police be justified?

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

To most Americans, the thought of shields, helmets, batons, rifles, camouflage clothing, and armored personnel carriers conjure images of war far from U.S. shores. Yet, over the past few decades military-grade items like these have become commonplace domestically among local policing agencies. So commonplace, in fact, that our collective memory is seared with images of police wearing riot gear, carrying rifles, and deploying force against protestors following the police killings of Michael Brown, Breonna Taylor, and George Floyd.

How is it that police officers have come to look like members of the U.S. military?

The main culprit of police militarization has been understood to be the Department of Defense’s “1033 Program”—by which the federal government provides surplus military equipment to local policing agencies at little to no cost. Since its inception in 1990, the 1033 Program has transferred more than $7.5 billion worth of surplus military equipment to sub-national policing agencies. To date, out of the approximately 18,000 policing agencies in the U.S., over 11,000 have registered with the 1033 Program, and 8,000 use acquired equipment.

Congress first authorized the Department of Defense (DOD) to sell or donate excess military property to local policing agencies in 1990, through the National Defense Authorization Act (NDAA). The act initially was intended to assist agencies in the “War on Drugs” by providing necessary equipment to combat drug production and trafficking. Congress reauthorized the NDAA in 1997 and formally established the 1033 Program—the name of the program reflects the section number (1033) of the 1997 Act. Under the reauthorization, policing agencies could acquire excess military property for a wider range of law enforcement purposes, including counterterrorism activities.

The inclusion of counterterrorism activities in the 1997 reauthorization was a harbinger of events to come. On September 11, 2001, Al Qaeda extremists hijacked four commercial airplanes and carried out suicide attacks against targets in the U.S., killing thousands of Americans. In response, then-President Bush declared the War on Terror, which involved increased global surveillance and intelligence sharing, economic and military sanctions against countries with known terrorist networks, and eventual wars with Iraq and Afghanistan.

America’s engagement in the War on Terror yielded large quantities of excess military-grade equipment, which eventually found its way into domestic policing agencies’ hands through the 1033 Program. A 2020 report out of Brown University found that the 1033 Program transferred roughly $27 million worth of military-grade equipment prior to 9/11 compared to $1.6 billion in the years following. In terms of quantity, the 1033 Program transferred approximately 17,000 items before 9/11 compared to 520,000 items in the years after.

Despite an increase in 1033 Program participation in the years following 9/11, it is not obvious that the acquisition of military-grade equipment actually was used to help combat terrorism. In other words, the War on Terror generated more surplus military goods that came into the possession of policing agencies, but we have very little evidence to support the idea that those goods were used to fight terrorism.

For one, the nature of most of the equipment being transferred had little to do with counterterrorism activities. The bulk of what policing agencies acquired, and still do, was “uncontrolled” surplus equipment—such as blankets, office furniture, refrigerators, and power tools. A report that the Policing Project at New York University School of Law plans to release in the coming month will show that “controlled” surplus equipment, which includes things like weaponry and armored personnel carriers, makes up only about 10 percent of all transferred equipment.

For another, the kinds of places that acquired items from the 1033 Program are not where we would expect foreign extremist groups to attack. A survey of 1,205 policing agencies from all fifty states finds that participation in 1033 is higher among smaller agencies with ten or fewer officers, while larger agencies with 501 to 1,000 officers participate the least. Moreover, these survey data show that program participation is greater in agencies located in the Great Lakes and Southeast regions.

Why is it that policies agencies in major metropolitan areas on the eastern seaboard—areas ripe for attack—are not the heaviest users of 1033? The answer to this question is important, for it suggests that people concerned about the militarization of the police in general may be looking in the wrong place when they focus primarily on the 1033 program.

It turns out that policing agencies get much of their militarized equipment not from 1033, but from a raft of other sources—many of which policing agencies, especially well-resourced ones, prefer because the equipment is newer than what they acquire from 1033. One source of militarized policing is police budgets themselves. Another is federal programs outside of 1033, such as the Department of Homeland Security’s Urban Areas Strategy Initiative and the Byrne Justice Assistance Grant. A problem with the focus on 1033 is that these other federal programs do not receive the scrutiny they deserve. Police even acquire militarized equipment using off-the-books funds they receive from private philanthropic foundations, such as local police foundations. For these reasons, no one should believe that by adjusting or abolishing the 1033 program, militarization will come to a halt.

In 2021, overriding a veto by President Trump, Congress enacted the latest NDAA reauthorization for the 1033 program. Now, in addition to counterdrug, counterterrorism, and border security activities, policing agencies can acquire surplus military equipment for “disaster related emergency preparedness activities.” The act even prioritizes natural disaster related requests: “Applications that request vehicles used for disaster-related emergency preparedness, such as high-water rescue vehicles, should receive the highest preference.” Just as the act evolved to include counterterrorism activities in the years preceding 2001, it now reflects the latest existential threat facing the globe: The War on Climate. The verdict is still out on whether military-grade equipment will prove useful in assisting with the natural disasters caused by climate change.

What we can conclude from these ever-shifting rationales for disposing of military surplus is that the forces who support the legislation seem to care more about getting the equipment in police hands, than they do about why. This should concern us. Local governments, rather than legislators in Washington, DC, should be asking why their policing agencies need military-grade equipment, and regulating acquisition patterns. Unfortunately, such a degree of local oversight is lacking.

Although section(b)(5) of 10 U.S. Code § 2576a conditions 1033 transfers on policing agencies receiving annual authorization from their “relevant local governing body or authority,” all too often this does not amount to true democratic control, let alone encompass sources of militarization beyond the 1033 Program. The authorization process often is a formality designed to expedite the acquisition process in which bidders must respond swiftly to secure goods. In California, lawmakers are trying to strengthen local oversight through proposed AB 481; however, they have met staunch opposition on the Senate Public Safety floor from the Peace Officers Research Association of California and the California Sheriff’s Association who argue that such measures would interfere with the ability of police officials to acquire necessary equipment quickly.

Wars create military surplus, and in a rather unthinking way we have used that surplus to bulk up domestic policing and militarize it. Foreign wars should not influence domestic policing in any way. Focus on the 1033 program is appropriate, as is the need for greater democratic accountability of the program, but to address police militarization we also need to look more broadly and address these issues with more thought

 

Protecting Abortion Means Reforming the Supreme Court

On September 1, the U.S. Supreme Court allowed a Texas law known as Senate Bill 8 (SB8), that bans abortion after embryonic cardiac activity can be detected (typically at 6 weeks) to go into effect. Not since Roe v. Wade was decided in 1973 has the constitutional right to abortion been in such dire peril as it is now, along with the nearly fifty years of precedent built upon Roe. As grim as this new reality is for abortion, what this says about the state of our highest court could be equally damning for other core constitutional rights.

Texas is not the only state to have passed a so-called “heartbeat bill,” so why is this one particularly dangerous?  Let’s start by noting that six weeks is before most people even realize they are pregnant, much less have the opportunity to receive abortion care from one of few providers in the state by the state-imposed deadline.  As a result of SB8 taking effect, Texas abortion clinics are estimating that they will be forced to turn away about 80 percent of all patients.

But more alarming, SB8 goes further than simply banning abortion. It turns private citizens into bounty hunters, incentivized by a $10,000 bounty from the state to turn in anyone who helps a pregnant person obtain an abortion in violation of SB8. Today, in the state of Texas, abortion is essentially banned, and the state has turned its citizenry into state-sponsored vigilantes.

As Ian Millhiser noted, “SB8 is unlike most other laws in that it was written to prevent courts from blocking it before it takes effect.”  Anti-abortion activists designed one of the most restrictive bans in the country, empowered private citizens to recklessly enforce it, and created a procedural trap door through which ultra-conservative judges can escape without technically overturning Roe.

Our highest court was given the opportunity to stay the law, preventing it from taking effect while legal challenges worked their way through the court system. It took nearly 24 hours for the Court to formally announce that it was, instead, allowing SB8 to remain in place, in an order released in the dead of night on what is called the “shadow docket.”

The shadow docket is what Professor William Baude has defined as “a range of orders and summary decisions that defy its normal procedural regularity.” For a majority of justices on our highest court to not just nakedly disregard fifty years of precedent, but to do so on the shadow docket, is particularly damning and telling of how far this conservative majority will go to reshape jurisprudence according to their political whims.

The Court’s decision on SB8 completely disregards the real impact that this law will have on pregnant people, particularly marginalized people. As many commentators have noted, pregnant people with financial means will retain access to abortion by being able to travel out of state. Instead, SB8’s greatest harm will be to pregnant people of color and other pregnant people who are marginalized and lack the resources to cross state lines to access an abortion. As Justice Sotomayor wrote in her dissent, “a majority of Justices [] opted to put their heads in the sand” about this real-world impact and hide behind procedural fig leaves.

With the Supreme Court’s unwillingness to protect Texans’ constitutional rights, other conservative state legislatures are expected to enact similar bills. State legislators in Florida already announced that they intend to pass an identical bill. We are in unchartered territory for the twenty-first century.

Abortion advocates sounded the alarm early on when the Court took up Dobbs v. Jackson Women’s Health Organization on the sole question of “whether all pre-viability prohibitions on elective abortions are unconstitutional.” Now they and many more legal scholars believe that the Court’s treatment of SB8 bodes poorly for what is to come later this term.

In 2019, Chief Justice Roberts was the deciding vote in preserving Roe, but his concurring opinion in June Medical Services v. Russo opened the door to even greater regulations on access to abortion care.  Since 2019, Justice Amy Comey Barrett replaced Ruth Bader Ginsburg on the Court, creating a conservative super majority wherein Chief Justice Roberts is no longer the deciding vote. With five ultra-conservative justices now on the Court, the wheels may be fully off. This week, these five justices gutted Roe by allowing SB8 to go into effect, and they will soon have the opportunity to formally overturn Roe when the Court rules in Dobbs later this term.

This new reality did not come about by happenstance. These recent blows to reproductive rights are the result of a decades-long campaign by anti-choice conservatives. Since the decision in Roe was first announced, anti-choice activists and donors have targeted state legislatures and the federal judiciary with ruthless efficiency. Senator Mitch McConnell’s machinations, often flying in the face of senate history and democratic norms, enabled then-President Donald Trump to appoint three anti-choice justices, who now make the difference in these cases.

McConnell and Trump’s unwavering commitment to overtaking the federal judiciary did not stop with the highest court in the land – the pair flooded lower courts with anti-choice judges, flipping the balance of power of many circuit courts in the process. With strangleholds on these levers of power, buttressed by gerrymandering, voter suppression, and unlimited dark money, anti-choice advocates launched what Representative Ayanna Pressley has described as a “coordinated, systemic attack” on reproductive rights, particularly the right to abortion care.

Even while Roe remained respected precedent before now, the Court has been increasingly willing to allow restrictions on access to abortion, turning the right to abortion into a right in name only for many.  As anti-choice advocates won majorities at the state legislative level, they have passed more and more restrictive abortion laws, called TRAP laws (short for Targeted Restrictions on Abortion Providers). These laws seek to impose strict regulations on abortion providers, which experts say go “beyond what is necessary to ensure patients’ safety,” with the effect of driving abortion providers out of business and thus practically restricting access to abortion care in that state. Many states have also passed “trigger laws,” laws which would immediately ban abortion in those states in the event that Roe is overturned.

Federal courts matter for reproductive rights. The Right has understood this for decades and has finally succeeded in flipping the table to where many federal courts are anti-choice enforcers. Without changes to our judiciary, including Supreme Court reform, the courts may soon serve more to obstruct reproductive rights than to protect them. As long-time advocates Kitty Kolbert and Julie Kay have said, “we need to stop banging our heads against the supreme court’s marble walls.”

Federal legislation could codify Roe, make medication abortion more accessible, end the prohibition on federal funding for abortion care, and make many other improvements to increase access to and better protect the right to abortion, but such legislation would currently need to make it past a filibuster in the 50-50 Senate. As federal courts prove hostile to reproductive rights, advocating for abortion care will become increasingly tied to advocating for filibuster reform, voting rights, and independent redistricting.

Progressives should not give up on the courts, however. While the focus is currently on abortion rights, if a majority of justices are willing to disregard Roe, one of the most well-known and enduring precedents of the modern era, it is hard to imagine what precedent is safe. Any legislative win will be vulnerable if progressives’ pro-choice strategy does not include and achieve Supreme Court reform. To advance progressive policies, whether they be reproductive rights, voting rights, or labor rights, progressives must support and advocate for Supreme Court reform.

The Power of Language in Combating Islamophobia

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

Twenty years ago, America experienced the worst terrorist attack in its history, triggering a “War on Terror” against Muslim communities. Today, our nation is undergoing a moment of racial reckoning. Tens of millions of Americans, especially our youth, are recognizing that systemic racism is pervasive. Their attempts to upend such systems offers an important insight: words matter.

How we describe a particular act can skew public opinion in support of government programs designed to subordinate specific minority communities.

Take the word terrorist, for example. For the 97 percent of Americans who are not Muslim or Arab, the word is a seemingly accurate description of a Muslim who engages in political violence  — not a racial slur. In the past twenty years, terrorist has been written countless times in news articles, indictments, government press releases, and court cases on terrorism. Politicians repeat them frequently in campaign speeches, States of the Union, media interviews, legislative hearings, and any discussion on national security.

The word, however, is not uttered in a power vacuum. Terrorist almost always accompanies pictures of Muslim men who ‘look’ Middle Eastern and North African. Terrorist is often stated when Mohamed, Ahmed, Omar, Osama, Khaled, Hussain, and other common Muslim male names are in the same sentence.

According to Media Tenor International, in 2011 nearly twenty-five percent of stories about Muslims in Western media used the image of a militant while only 0.1% of media stories about Islam presented images of ordinary Muslims. Subsequent reports by the Institute for Social Policy and Understanding found these trends worsened with each passing year.

In schools and textbooks, terrorism is erroneously discussed as an exclusively “Islamic problem” that occurs only in Muslim-majority countries. Indeed, this pathology is so embedded in the FBI that it failed to prevent an unprecedented domestic right-wing siege on the U.S. Capitol aimed at forcibly reversing the valid election of Joe Biden as president.

Terrorism is often associated with another loaded phrase “Sharia law” – which encompasses multiple schools of jurisprudence – to defame Islam as sanctioning violence.  Students, as a result, have been called terrorists by teachers and students.

The word terrorist is so effective in conjuring up an image of a dangerous, Muslim, Arab-looking bearded man, that in civil rights parlance, it’s become a form of racial profiling. Muslims are presumed to be terrorists by their neighbors, co-workers, and law enforcement.

This result is no accident. As I explain in The Racial Muslim, after September 11th, the U.S. government intentionally orchestrated an aggressive propaganda campaign to persuade Americans that occupying Afghanistan and invading Iraq was necessary.  But for men to be willing to die for their country, there must be an enemy seeking to kill them first. In the so-called “War on Terror,” that enemy was the Muslim terrorist.

For twenty years, the government has effectively kept up this act.

From the two-decade war in Afghanistan to the continued bombing of Yemen, it makes no difference who the target really is. They are all homogenized as an existential national security threat. That political move to associate Muslims (and Islam) with terrorism granted the U.S. government license not only to invade foreign lands, but to also persecute Muslims in the United States under the cover of law.

As a result, millions of people in the United States have lived in fear, anxiety, and anger as their religious identity is criminalized and their sense of belonging is shattered.  Each time they hear the word ‘terrorist,’ they can’t help but cringe. It is one more cut of the thousands contributing to their sense of political marginalization and vulnerability.

While it may be easy for non-Muslim and non-Arab Americans to dismiss such feelings as unreasonable or exaggerated, they speak from a position of privilege.  The privilege of not having your financial transactions, religious practices, social associations, and travel scrutinized through a political lens that presumes you are a terrorist — unless you can individually prove otherwise.  The privilege of not having your hijab torn off your head, being physically attacked by strangers, taunted as a terrorist by teachers and students, and feeling unsafe in your house of worship.

Alas, the adage taught to school children that “sticks and stones can break my bones, but words will never hurt me,” is not a truism. When a racial epithet is gratuitously stated, minorities are not merely experiencing hurt feelings.  They are reminded of their relative powerlessness to prevent the racism, sexism, Islamophobia, or anti-Semitism inflicted upon their communities on a regular basis.

Public debates around what is acceptable – and what isn’t – often center on the literal meaning of a word. Inevitably, we then enter yet another round of debate about free speech and academic freedom.

But this debate misses an important factor: power.

Debating whether racial epithets should be taboo is certainly worthwhile in a rapidly diversifying society but focusing exclusively on free speech or academic freedom misses the mark. Instead, we should be discussing the societal power disparities that produce loaded words that wound.

A new generation of Americans is demanding systemic changes to power structures that privilege Whites and Christians in various fora.  Such power lies as much in the language we choose as it does in law and policy.

Sahar Aziz is a professor and Chancellor’s Social Justice Scholar at Rutgers University Law School. She is the author of The Racial Muslim: When Racism Quashes Religious Freedom.

The Introduction of Ranked Choice Voting in New York City Elections

In the June 2021 municipal primary elections, New York City implemented for the first time a system of ranked choice voting. Despite various concerns voiced by some political figures and community groups, the use of ranked choice voting appears to have been a success. According to the data so far available, voters understood the system and got the opportunity to express their preferences; a diverse group of candidates competed in and won their primary elections; and there were no material differences in support for the system among ethnic or racial groups.

Ranked choice voting was adopted in New York City as a result of a successful 2019 referendum, following a proposal of the Charter Revision Commission. The proposal was approved overwhelmingly by the voters in an off-year election. The Final Report of the Charter Revision Commission set forth a number of reasons for the proposed change. First, ranked choice voting would save the City money by eliminating runoff elections for city-wide offices in the event that no candidate obtains 40% of the vote as required by state law. Second, the elimination of runoff elections would also boost voter participation by permitting voters in the primary election to determine the outcome without having to vote a second time in the event of a runoff. The data from past runoff elections showed that there was a large drop-off in voter participation between the primary and the runoff and that voters in the runoff election were less diverse in terms of race and ethnicity, and were older and more highly educated than the primary voters. Third, ranked choice voting would achieve a better expression of voters’ real preferences by eliminating vote-splitting (when two like-minded candidates split votes) and strategic voting (when a voter decides to support a candidate other than the voter’s first choice preference in order to prevent a third undesirable candidate from winning). Fourth, because candidates would have to compete for votes other than first-choice votes, they would be more likely to reach out to a broader voting population beyond their base and less likely to engage in negative campaigning against other candidates. Fifth, ranked choice voting is likely to result in the election of more female and minority candidates which in turn would produce a more diverse pool of candidates willing to compete for public office. Finally, ranked choice voting would ensure that the winner obtains the support of a majority of voters. Under the prior system, candidates for city-wide offices could win with 40% of the vote (anything less required a runoff), and candidates for other offices could (and often did) win with less than 40% of the vote, and in some cases, less than 30% of the vote.

Many of the reasons favoring ranked choice voting discussed in the Report were based on studies of other jurisdictions that employed it. Those studies also demonstrated that educational campaigns could be effective in helping voters understand ranked choice voting regardless of level of education, age or race and that there was no difference among racial groups in understanding voting instructions in a ranked choice voting election. In addition, they provided evidence that ranked choice voting increased turnout without adverse effect on minorities.

The Charter amendments approved by New York City voters in 2019 mandated that the the Campaign Finance Board (“CFB”) conduct an educational campaign to familiarize voters with ranked choice voting. Beginning in early 2017, the CFB partnered with numerous community and good government organization and with the Office of the Mayor (which increased funding by $15 million) to undertake a broad-based educational campaign, including webinar training, websites and web videos in multiple languages, voter guides, and ads on TV, radio, and social media, as well as a volunteer peer-to-peer text messaging campaign. These educational efforts appear to have achieved their purpose. Exit polls demonstrated that voters overwhelmingly found the ballot easy to complete and understood ranked choice voting well or extremely well, with little variation among racial and ethnic groups in these respects and that they would like to retain ranked choice voting in future elections. In addition, voters reported that they took advantage of the opportunity to express multiple preferences.

The results of the election show the success of ranked choice voting in achieving its predicted benefits. The city avoided the need for a runoff election for a number of offices, including mayor, which would have resulted in additional expense and a likely reduction in voter turnout. Furthermore, all of the candidates who won did so because they gained a majority of the votes cast; none won with a mere plurality. In addition, the primary resulted in the nomination and almost certain election of a Black mayor and will greatly increase the number of women and minority members of the City Council. In fact, the Council is poised to have a majority of women members for the first time in the City’s history. A record number of candidates ran for office. And the turnout for the primary election was the highest in 30 years. Of course, not all of this was due to ranked choice voting. Because term limits prevented most incumbents from running again, there were a very large number of open seats, and the City’s system of public financing of elections for city office had been made more generous. However, the results clearly disproved predictions that ranked choice voting would depress voter turnout and hurt minority candidates.

A number of minority candidates and voting rights advocates have come out in support of New York City’s system of ranked choice voting. Notably, unsuccessful mayoral candidate Maya Wiley wrote praising the system as benefiting women and minority candidates and urging its continued use, as did two successful Black female candidates for City Council, and the Executive Director of the Center for Law and Social Justice.

Not surprisingly, there continues to be some criticism of ranked choice voting in New York City. Some of it relates to issues that are unrelated to ranked choice voting itself. First, the New York City Board of Elections erred in deciding to release interim results before all of the ballots had been fully counted, candidates eliminated and votes redistributed. The Board of Elections then compounded the confusion by issuing incorrect figures that wrongfully included test ballots. Second, the results of the election were not announced for several weeks largely due to provisions of New York election law that prevent the Board of Elections from counting absentee ballots until seven days after election day and permit voters to cure defects in absentee ballots for seven days after being notified of them.

Other criticism focuses on the claim that ranked choice voting disadvantages minority voters and makes it more difficult to elect minority candidates. As noted above, the results of the primary elections in New York City do not support that view. Some concern was expressed when, in the waning days of the campaign, mayoral candidates Andrew Yang and Katherine Garcia campaigned together, with Yang urging his followers to rank Garcia second. In response, mayoral candidate Eric Adams stated that this coalition “sent the wrong message” and appeared to be “disrespectful to efforts to elect Black and Latino leaders.” However, by avoiding negative campaigning and seeking the support of voters whose first choice was another candidate, Yang and Garcia were acting in ways that the system was designed to encourage. In fact, that may explain Garcia’s success in closing the gap in subsequent rounds of vote counting after first-place votes were announced. Moreover, under the prior system, one of the losing candidates for a city-wide office might, and often did, throw his or her support to one of the two candidates who made it to the runoff. There is nothing about this practice that is unique to a system of ranked choice voting (other than its timing) or necessarily disadvantages minority candidates. Indeed, it is noteworthy that the prior law was itself challenged as a denial of the Equal Protection Clause of the 14th Amendment and Section 2 of the Voting Rights Act; the law was upheld because there was no evidence that the runoff requirement had either a discriminatory purpose or a racially disparate impact on the election of black candidates. The same is true for ranked choice voting.

Mayor Bill de Blasio has suggested that ranked choice voting should be reconsidered if the data from cast ballots show that Black and Hispanic voters ranked fewer candidates than White voters. However, even if it turns out that there is such a differential, it is not possible to know its meaning or significance without data as to the understanding and motive of voters who chose to rank fewer than five candidates. If some voters understood ranked choice voting but nevertheless decided to express their preference for only one candidate, or fewer than five candidate, it is true that they would not have utilized the system to achieve the full power of their vote. However, that is not a reason to reconsider the merits of the system, much less to view it as discriminatory. Moreover, to the extent that a racial differential in the number of candidates ranked may, in the aggregate, diminish minority voting power, the solution would appear to be a stronger campaign of political education rather than the elimination of ranked choice voting.

In the final analysis, it is natural that politicians will tend to favor the system under which they got elected whatever their race, ethnicity or political persuasion; change creates uncertainty and risk. However, as a new generation of politicians come of age, and get elected, under a system of ranked choice voting, it may be anticipated that resistance will dissipate. The results so far in New York City demonstrate the merits of that system, and other jurisdictions are also considering its adoption.

Re-thinking Procedure And How It Is Taught

Next month our book, Pretrial Advocacy (National Institute for Trial Advocacy/Wolters Kluwer) will be in print. Not surprisingly, the process of reducing to written word what can best be described as the culture of the pretrial process has caused us to rethink pretrial advocacy and how it is taught.

Cases today are front-loaded—counsel can no longer rely on discovery to make the case.

The pleading standard articulated in Iqbal and Twombly has forced plaintiffs to be more diligent in case investigation, assembling facts, and alleging a cause of action that is plausible to even a judge with perhaps a gimlet eye view of a plaintiff’s grievance. Of course, the word “facts” refers to pure facts and not things that look like facts but are really conclusions as in the difference between saying “Saturday was a wonderful day,” and “Saturday was the day I won the lottery and will receive $20 million.”

While those putting cases together view the rules of evidence as a lesson for another day, the opposite is better practice. Appreciating that FRE 401 does not distinguish between circumstantial and direct evidence opens a new world of collecting the bits of facts we call circumstantial evidence and building cases out of tiny nuggets of information. And if one begins to apply the rules of evidence to information collected at the complaint development stage, counsel will be better prepared for trial and more focused on how to fill the information gaps through discovery.

Understanding the difference between facts and conclusions is, of course, essential to witness interviews. Humans gather facts and wrap them up in conclusions, but many times the conclusion is not accurate. Consider the witness who is asked, “How was your Saturday?” and answers, “It was lovely.” But a factual inquiry - as in “tell me everything you did on Saturday from the moment you woke up”- might lead to the response: “I got dressed to go to my best friend’s funeral.”

Of course, the pretrial process is not just about how we deal with witnesses, but also how we deal with judges, opposing counsel, and co-counsel. Law schools sort of teach this under the rubric of “professionalism.” The takeaway for law students is that professionalism is some sort of “code of honor.” Perhaps, lawyers honor that “code” just because they do. Yet, professionalism is also about efficiency. Treat those around you with decency and integrity because sooner or later you will need their help in resolving the case and to do otherwise makes you - as a lawyer - the impediment. Be honest with the court and others around you because an honest advocate is a more credible advocate—a more powerful advocate.

There is a human element to all of this. The rule of law is not a process developed and implemented by robots or machines. Our research found multiple examples of where humans - sitting as judges - wrote opinions citing Dr. Seuss and movies like "My Cousin Vinny" - perhaps because these jurists understood that the law regulates humans. Hence, it must be understood by laymen.

The beauty of our legal system is that, on any given day, an individual without means and even represented by a young inexperienced lawyer (only because more experienced practitioners would have nothing to do with the case), can change the playing field for countless others. Our legal history is replete with these cases.

While the law is about the human experience, somewhere along the way we began teaching law as if humans were an afterthought. Most law schools do not equally value faculty for their work in the courtroom or with clients. Those who partake in what is perceived as pure scholarship frequently are rewarded with higher salaries, more prestigious titles, and more control over the law school curriculum. We have seen a rise in scholars relying on empirical data which can be a good thing; but could that also mean that some scholars are relying on empirical data because they lack hands on legal experience?

Our teaching has also become wedded to norms; some of which need improvement. We teach legal writing but assume, in an age of Twitter and emojis, the average college graduate is a master of the written word or - as the late New York Times sportswriter, Red Smith might say, mastered the art of making the words behave on a page even if the rules of grammar are somewhat foreign. Legal writing programs also require students to synthesize a set of facts and apply them to the law. Yet, most programs do not even introduce the concept of evidence as the lens for choosing relevant facts.

We teach procedure and evidence in isolation even though the rules at times reference one another. And nowhere do we remind students that judges are humans, and the art of lawyering is to master an area of fact and law and explain it to someone who has a docket of hundreds of cases.

In teaching the rules of procedure and evidence we somehow neglect FRE 102 and FRCP 1 which implore interpreting the rules in the interest of fairness and efficiency. In failing to do so, we neglect an opportunity to teach students the art of helping judges solve procedural problems. This can help cases move more efficiently. For example, “Your Honor, I understand the court’s concerns, may I propose a solution?”

To think about the legal process and how it can be used is exciting. To think about how teaching can be improved so others can represent the countless individuals who need representation is empowering.

In our lifetime it was once a challenge for a lawyer without clerical staff or an office with a law library to compete with the well-heeled counsel -- times have changed and these barriers to practice no longer exist. We just need to do a better job of training lawyers who now - more than ever - have an opportunity to go forth and make a difference.

It’s Time to Tear Up the Executive Branch’s Blank Check

This piece was originally published by the Brennan Center for Justice as part of its series, "9/11 at 20."

The 20 years since 9/11 have seen sweeping changes to how we think about national security and go about protecting it. Some of the changes, like increased intelligence sharing among executive branch agencies, are positive. But others have had a detrimental impact on civil rights and the separation of powers. One of the less conspicuous but more consequential changes is the near monopolization of national security by the executive branch.

The Constitution explicitly grants the legislative branch the power to declare war, raise and support armies, suspend habeas corpus in times of invasion or rebellion, “provide for the common defence and general welfare of the United States,” and “provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” These provisions envision a prominent role for Congress in all aspects of national security. And yet, Congress has ceded much of its power to the executive.

Since 9/11, Congress has repeatedly expanded the executive’s authorities by delegating its own powers through legislation and then acquiesced to the executive stretching the limits of those authorities beyond recognition. Put simply, Congress too often has become more spectator than participant in our country’s national security, to the detriment of both institutions.

A prime example is Congress’s rushed passage of the Patriot Act. The law amended 15 existing federal statutes, broadened the definition of terrorism, and laid the groundwork for our modern surveillance state. It was impossible to fully understand the ramifications of this far-reaching legislation in just two weeks, and yet the House passed it anyway with a vote of 357 to 66, and the Senate with an overwhelming vote of 98 to 1, myself the lone dissenter.

At the time, I cautioned that the law “contained vast new powers for law enforcement, some seemingly drafted in haste and others that came from the FBI’s wish list that Congress has rejected in the past.” The Patriot Act did not just expand executive powers by authorizing widespread wiretapping, increasing the scope of search warrants and subpoenas, and emboldening the worst tendencies of overzealous law enforcement. It did so in a way that the executive had wanted for some time, with 9/11 finally providing the apparent urgency needed to secure congressional acquiescence.

In the two decades since its passage, the Patriot Act has become a symbol of the massive expansion of government surveillance post-9/11 and has led to international rebuke over executive overreach. Although some changes to the law have been made during its three subsequent reauthorizations, Congress has done too little to change the overall balance between surveillance and civil rights, consistently deferring to executive branch assessments of the country’s national security needs.

As with surveillance, Congress has also largely abdicated its role in controlling the use of military force. The 2001 Authorization for the Use of Military Force (AUMF) grants the president the authority to use all “necessary and appropriate force” against those whom he determined “planned, authorized, committed or aided” the September 11 attacks, or who harbored said persons or groups. But since then, Congress has stood idly by as the executive turned the law into a catchall for anything remotely related to counterterrorism. And until recently, Congress did little to push back on presidential war-making unauthorized by any law, such as military operations in Libya and Syria and the targeted killing of an Iranian official.

Emergency powers are another area of concern. Through the National Emergencies Act of 1976, Congress gave the president nearly unlimited discretion to declare a national emergency and access sweeping statutory powers. The law originally allowed Congress to terminate emergency declarations through a “legislative veto” — a bicameral congressional resolution that nullifies executive action and cannot be vetoed. But shortly after the law’s passage, the Supreme Court ruled in INS v. Chadha that legislative vetoes are unconstitutional. That leaves in place a vast delegation of extraordinary power with no meaningful checks to protect against abuse. While this problem began before 9/11, it has only intensified since.

The executive’s monopolization of national security is compounded by Congress’s parallel abandonment of its oversight responsibilities. It is one thing to give the executive authority and another to do so with no meaningful oversight for the misuse or overreach of that authority. While courts can provide case-specific oversight, the entity with the capacity and requisite access to classified information to consistently and substantively keep watch over the executive’s national security agenda is the first branch of government: Congress.

There are examples of Congress fulfilling its oversight responsibilities. The Senate Select Committee on Intelligence, for instance, did an admirable job investigating and reporting on the CIA’s Detention and Interrogation Program, once Congress finally overcame executive branch efforts to withhold the Torture Memos. This type of investigation, however, has been the exception rather than the rule over the past 20 years.

As national security becomes more and more defined by prolonged and amorphous fights against international terrorism, domestic extremism, and cyber warfare, it is particularly important to reestablish Congress’s role as a coequal branch of government with shared responsibility for our country’s national security.

At the most basic level, Congress should stop delegating and start legislating. The words “national security” should not be a trigger to grant unfettered discretion to the executive. Indeed, the potential impact of national security policies on Americans’ civil liberties makes it all the more important for Congress to craft careful safeguards. This will require Congress to amend existing laws, taking back some of the powers it gave away — as in the case of the Patriot Act and the National Emergencies Act.

This might seem impossible in a time where politicians’ loyalty to party seems to override loyalty to their branch of government. But national security is one of the only areas in which Congress has begun to show some signs of bipartisan pushback against the executive. In the last Congress, both the Republican-controlled Senate and the Democratic-controlled House voted to terminate the border wall emergency declaration, stop arms sales to Saudi Arabia, end our support for hostilities in Yemen, and limit military operations against Iran. Congress was unable to overcome President Trump’s vetoes of these measures, but they nonetheless show promise for an institutional reassertion of power. So does the fact that 49 House Republicans recently joined nearly all Democrats in voting to repeal the 2002 Iraq AUMF.

Moreover, short of passing, amending, or repealing legislation, Congress has an ample toolbox for restoring its constitutional prerogative in the national security sphere. First, Congress holds the purse strings, appropriating every dollar that executive agencies spend. That funding can be withheld, including for certain programs or agencies if executive officials refuse to cooperate with congressional oversight or abuse the authorities given to them by Congress.

Second, the Senate can block the confirmation of executive nominees, of which there is generally a steady stream throughout the tenure of an administration. This might be particularly useful when agencies are trying to withhold documents from congressional review. While these practices should not become the norm, Congress should certainly make use of such tools when necessary.

Third, Congress could establish specific rules for votes on national security matters — for instance, requiring that national security votes be preceded by a minimum amount of debate and deliberation, not unlike the rules adopted for the past two impeachment hearings. This could prevent votes, like those on the Patriot Act, that are rushed in the immediate wake of a crisis without proper consideration of their consequences.

The anniversary of 9/11 is an opportunity to take stock of the growing imbalance in power between the political branches. The Constitution envisions Congress having a robust role in all matters of war and peace, and our democracy depends on checks and balances being more than just symbolic. Congress can and must ensure our national security establishment has the authorities it needs while also imposing proper guardrails and conducting rigorous oversight.

This piece was originally published by the Brennan Center.