Volume 31, Issue 1

Even in a Time of Terror

Owen Fiss

Our nation’s recent enlargement of the power of surveillance began with an executive order issued in the fall of 2001, shortly after the terrorist attacks of September 11, but culminated in a statute–enacted first in 2007 and then again in 2008. This statute severed the analytic connection between international terrorism and wiretapping and justified such surveillance as a form of foreign intelligence gathering, which included, but was not limited to, the surveillance of persons suspected of international terrorism directed against the United States. Presented as an amendment to the Foreign Intelligence Surveillance Act of 1978, the 2008 FISA Amendments Act retained the original requirement of court approval but significantly lowered–almost to a vanishing point–the standards for obtaining that approval for international telephone calls between persons in the United States and foreigners abroad.

The Institutional Politics of Federal Judicial Conduct Regulation

Dana A. Remus

The conventional story of the federal judiciary’s institutional growth begins with Marbury v. Madison and Chief Justice Marshall’s establishment of judicial review. From there, it proceeds through the history of landmark Supreme Court decisions that pushed back against the power of the political branches and advanced the judiciary’s institutional position. In this familiar story, the judiciary participates in the separation of powers through its case law.

Transparency With(out) Accountability: Open Government in the United States

Jennifer Shkabatur

The administration of Barack Obama has been marked by its stated quest for transparency. On his first full day in office, President Obama signed the Open Government Memorandum, declaring that he was “committed to creating an unprecedented level of openness in government” and that he aimed to “promot[e] accountability and provid[e] information for citizens about what their Government is doing.” Following this ambitious commitment, the Obama Administration engaged in a frenzy of transparency-related activities, bringing to light thousands of data sets that contained previously unavailable information in a wide variety of regulatory domains. Dozens of other countries have enthusiastically followed the American example, vowing to release unprecedented amounts of regulatory information to the Internet.

National Security Law, Lawyers, and Lawyering in the Obama Administration

Jeh Charles Johnson

“Just before becoming President, Barack Obama told his transition team that the rule of law should be one of the cornerstones of national security in his Administration. In retrospect, I believe that President Obama made a conscious decision three years ago to bring into his Administration a group of strong lawyers who would reflect differing points of view. And, though it has made us all work a lot harder, I believe that over the last three years, the President has benefited from healthy and robust debate among the lawyers on his national security team, which has resulted in carefully delineated, pragmatic, credible, and sustainable judgments on some very difficult legal issues in the counterterrorism realm—judgments that, for the most part, are being accepted within the main- stream legal community and the courts.

“This afternoon, I want to summarize for you, in this one speech, some of the basic legal principles that form the basis for the U.S. military’s counterterrorism efforts against al Qaeda and its associated forces. These are principles with which the top national security lawyers in our Administration broadly agree…”

The Distance Between Principle and Practice in the Obama Administration’s Targeted Killing Program: A Response to Jeh Johnson

Pardiss Kebriaei

The United States has carried out dozens of operations in Yemen as part of an expanding program of “targeted killing.” While the government deployed cruise missiles in the strike in al-Majalah in 2009 and today relies largely on unmanned drones in targeted killing operations, its underlying claim of authority is the same—that pursuant to the Authorization for the Use of Military Force passed by Congress in response to 9/11 and pursuant to international law, the United States may kill suspected terrorists outside of the usual constraints on the use of lethal force, potentially anywhere targets may be found. As high-ranking Administration officials have discussed, the government may conduct such killings on the premise of a global armed conflict with al Qaeda, the Taliban, and “associated forces,” and as a matter of national self-defense. Conducted by the CIA and the covert Joint Special Operations Command (JSOC) of the U.S. military, these operations target individuals not just in the battlefield in Afghanistan, but also routinely or increasingly in Pakistan, Yemen, Somalia, and perhaps beyond.

The Ethics of National Security Lawyering: A Response to Jeh Johnson

Jamil N. Jaffer

In a February 2012 Dean’s Lecture at Yale Law School titled “National Security Law, Lawyers, and Lawyering in the Obama Administration,” Jeh Johnson, then-General Counsel of the Department of Defense, undertook a strong defense of the Obama Administration’s legal regime and policies supporting the U.S. military’s counterterrorism efforts against al Qaeda and its associated forces. Scholars and lawyers of reasonable minds can — and ought to— rationally debate many of the finer points of Johnson’s legal analysis, including the limitations he argues are placed upon the United States government’s use of force by certain precepts of international law. The goal in this short Essay, however, is not to consider the merits of Johnson’s legal analysis. Instead, this Essay highlights the various roles that national security lawyers in the executive branch play and the variety of ethical responsibilities those roles entail.

Evidentiary Rules Governing Guantánamo Habeas Petitions: Their Effects and Consequences

Jasmeet K. Ahuja and Andrew Tutt

Since Boumediene, the courts within the D.C. Circuit have heard over sixty habeas petitions from detainees at Guantánamo Bay. At first, many writs were granted. The lower courts applied a functional framework for determining the admissibility, credibility, and probity of evidence, holding the government to the ordinary burden of preponderance of the evidence. However, as the government and detainees began to appeal habeas decisions on the basis of adverse evidentiary rulings, the Court of Appeals announced binding evidentiary rules limiting the district courts’ discretion to admit, exclude, weigh, and consider evidence as the district courts saw fit.

This Note argues that these evidentiary rules deny detainees a “meaningful opportunity” to contest the factual basis of their detention. The D.C. Circuit maintains that it holds the government to a preponderance standard and has cast its reversals of the District Court’s grants of habeas corpus as mere corrections in judging evidentiary probity. However, in substance, the Court of Appeals’ evidentiary rules have quietly but significantly eroded the evidentiary burden.

Toward a Constitutionalized Theory of Immigration Detention

Travis Silva

Immigration detention is authorized by a complex statutory and regulatory scheme. With one notable exception, the Supreme Court has largely upheld the system that Congress has designed, bowing to traditional congressional primacy in the regulation of immigration. The Court has relied on the plenary power doctrine—an extratextual, judicially created doctrine granting the political branches great deference in the immigration sphere—to sustain our nation’s present immigration detention system.