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Abstract:
The state secrets privilege has played a central role in the Justice Department's response to civil litigation arising out of post-9/11 policies, culminating in a controversial decision by Judge T.S. Ellis concerning a lawsuit brought by a German citizen - Khaled El-Masri - whom the U.S. allegedly had rendered (by mistake) from Macedonia to Afghanistan for interrogation. Reasoning that the entire aim of the suit is to prove the existence of state secrets, Judge Ellis held that the complaint had to be dismissed in light of the privilege. The government also has interposed the privilege in connection with litigation arising out of the NSA's warrantless surveillance program, albeit with mixed success so far.

These events amply demonstrate the significance of the state secrets privilege, but unfortunately much uncertainty remains regarding its parameters and justifications. Is it being used by the Bush administration in cases like El-Masri, as some critics have suggested, in a manner that breaks with past practice, either in qualitative or quantitative terms?

I address these questions through a survey of the origin and evolution of the privilege, compiling along the way a comprehensive collection of state-secrets decisions issued since the Supreme Court's seminal 1953 decision in United States v. Reynolds (the collection appears in the article's appendix). With respect to the quantitative issue, I conclude that there is little point to the inquiry in light of the variation in the number of occasions for asserting the privilege from year to year. With respect to the qualitative issue, I find that the Bush administration does not differ from its predecessors in its use of the privilege. Since the early 1970s the privilege has frequently been the occasion for abrupt dismissal of lawsuits alleging government misconduct. Recognizing that the privilege strikes a harsh balance among the security, individual rights, and democratic accountability interests at stake, however, I conclude with a discussion of reforms Congress might undertake if it wished to ameliorate the privilege's impact. In particular, I suggest that (i) opportunities exist to provide assistance to judges in assessing the potential impact of disclosures and (ii) even where the privilege properly attaches special procedures might be adopted to permit litigation to continue in a classified, quasi-adversarial setting, at least where unconstitutional government conduct is alleged.

state secrets, privilege, rendition, warrantless surveillance

Abstract:
Six years after the 9/11 attacks, U.S. policy concerning the detention of alleged terrorists remains legally uncertain and politically contested. Neither the criminal nor the military model in its traditional guise can easily meet the central legal challenge of modern terrorism: the legitimate preventive incapacitation of uniformless terrorists who have the capacity to inflict mass casualties and enormous economic harms and who thus must be stopped before they act. The traditional criminal model, with its demanding substantive and procedural requirements, is the most legitimate institution for long-term incapacitation. But it has difficulty achieving preventive incapacitation. Traditional military detention, by contrast, combines detention criteria and procedural flexibility that makes it relatively easy to incapacitate. But because the enemy in this war operates clandestinely, and because the war has no obvious end, this model runs an unusually high risk of erroneous long-term detentions, and thus in its traditional guise lacks adequate legitimacy.

The main goal of this essay is to show how the two systems have moved to rectify their inadequacies, and to some extent have converged on procedural and substantive criteria for detention. During the past five years the military detention system has instituted new rights and procedures designed to prevent erroneous detentions, and some courts have urged detention criteria more oriented toward individual conduct than was traditionally the case. At the same time, the criminal justice system has diminished some traditional procedural safeguards in terrorism trials, and has quietly established the capacity for convicting terrorists based on something very close to associational status. Each detention model, in short, has become more like the other.

Despite these changes, the post-convergence status quo may prove unsustainable with respect to military detention. Courts may mandate change. Congress may pursue reform as a matter of policy. Both may occur. The prospect of change, in any event, has given rise to a debate regarding the proper calibration of the non-criminal detention model. In hopes of informing that debate, we conclude by drawing on the lessons of convergence to identify the specific questions that would-be reformers must address with regard to both substantive detention criteria and procedural safeguards, highlighting the range of policy choices available and the extent to which the convergence process has paved the way toward consensus on at least some difficult issues.

terrorism, military detention, enemy combatant, conspiracy, material support

Abstract:
What choices are available when government agents believe they have identified a sleeper cell within the United States in circumstances that would not support a traditional inchoate crime prosecution for conspiracy or attempt, but senior policymakers nonetheless insist upon incapacitating the suspects rather than engaging in continued surveillance? More to the point, is there a plausible criminal justice alternative to the type of military detention illustrated by the case of Jose Padilla?

In this article, I address this question in three stages. First, I argue that the Justice Department has responded to the demands of prevention and the related emergence of institutional competition from the military by quietly establishing the ability to prosecute suspected sleepers under 18 U.S.C. 2339B, the law banning the provision of material support or resources to designated foreign terrorist organizations. In particular, I argue that the government since 9/11 has adopted interpretations of that statute enabling it to prosecute persons who have received training from such groups or who have provided themselves as personnel to them - acts which serve as a proxy for future dangerousness in the sleeper scenario.

Having identified this development, I next examine whether we ought to be concerned about it from either a civil liberty or a national security perspective. The answer is yes on both counts. On one hand, interpreting the material support law in this manner generates serious (but curable) constitutional problems (including vagueness and mens rea-related due process concerns). On the other hand, even in the absence of these problems the material support law is at best an incomplete solution to the threat posed by persons who travel overseas to receive training in the use of weapons and explosives.

Building on these criticisms, I conclude the article by identifying the legislative reforms needed both to preserve the constitutionality (and thus the dependability) of the material support law and to close its coverage gaps. As an example of the latter, I argue that Congress should make it a crime for any U.S. person to obtain firearms or explosives training outside the United States without an ex ante license. As an example of the former, I propose that Congress either replace the material support law framework with an ex ante licensing scheme or calibrate the level of punishment under the existing framework to the level of the defendant's mens rea.

Along the way to these proposals, the article provides a few other items that may be of more general interest. Most notably, I include as an appendix a survey of the charging decisions that federal prosecutors have made in terrorism-related cases in the three-year period since 9/11 (I include in my set only those cases in which at least one charge overtly relates to terrorism). Also, I provide a comprehensive legislative history of the material support law and related terrorism-support legislation, something previously unavailable in the literature. Additionally, I embed my discussion of how the material support law has been used within a broad overview of the Justice Department's multi-tiered strategy for prevention (comparing and contrasting the role of material support charges, for example, with the use of the material witness detention statute and with the use of prosecutorial discretion to prosecute suspects on unrelated grounds). Finally, I review legislative proposals currently pending in Congress which relate to the sleeper scenario, finding that they answer some but by no means all of the concerns outlined above.

I invite any criticisms or suggestions readers may have at rchesney@law.wfu.edu or (336) 758-5723. Note that this article builds on a working paper I previously posted to SSRN (Antiterrorism Prosecutions and the Demands of Prevention in Post-9/11 America).

terrorism, sleepers, material support, prevention, detention, institutional competition

Abstract:
Revelations about the C.I.A.'s extraordinary rendition program have generated heated debate regarding the legal issues that come into play when the United States transfers an individual to the custody of a foreign state in circumstances involving an appreciable risk that the person will be tortured. Relatively little attention has been paid, however, to the related issues that arise when the U.S. military transfers Guantanamo (GTMO) detainees to the custody of their own governments. Dozens of such transfers have occurred over the past several years, and the Pentagon has announced that hundreds more are in the offing as the United States whittles the GTMO population down to a core group of relatively high-value detainees. Meanwhile, against a backdrop of heightened public interest in torture issues, in the spring and summer of 2005 nearly 100 of the detainees moved for preliminary injunctive relief in anticipation of a potential transfer, citing risk-of-torture concerns. These motions prompted a little-noticed intra-circuit split among the judges of the federal district court in D.C., and in the process demonstrated that the constitutional, statutory, treaty, and administrative law concepts applicable to this issue are not yet well-understood.

My article aims to fill this gap, with particular attention paid to issues of judicial enforceability and the special circumstances associated with GTMO (taking into account Rasul v. Bush). In Part I, I orient the reader with a survey of the transfers and litigation that have occurred up to this point (including an online appendix providing detailed information relating to the detainees and their habeas petitions). Part II analyzes Article 3 of the Convention Against Torture, its implementing legislation, and a host of related issues ranging from diplomatic assurances to the Administrative Procedure Act. Parts III and IV consider the impact of the law of war on the transfer issue, with particular attention paid to conflict-status and detainee-status issues. In Part V, I draw on the state-created danger doctrine to explore the consequences for the transfer issue should the courts ultimately conclude that GTMO detainees have federal constitutional rights.

Torture, GTMO, Guantanamo, rendition, transfer, diplomatic assurances, convention against torture, Geneva, law of war, lex specialist, substantive due process, state created danger

Abstract:
The events of September 11 prompted the adoption of a broad set of laws and policies aimed at preventing terrorist activity, and this in turn has spurred a fierce debate concerning the impact of these antiterrorism measures on civil liberties. Participants approach this debate from a range of theoretical perspectives, including the social learning model, the pathological perspective, and moral panic. Another perspective meriting special attention is a pessimistic variant of the social learning model, which I refer to as adaptive learning. The adaptive learning model posits that in times of perceived national security crisis government actors attempt to circumvent civil liberties bulwarks while still paying lip service to them.

Two recent books by David Cole, one co-authored by James X. Dempsey, employ an adaptive learning perspective to take issue with a wide range of current antiterrorism measures. To assess the merits of this approach, I consider a representative aspect of their critique: the claim that the law banning material support for designated foreign terrorist organizations subtly resurrects the discredited Cold War concept of guilt by association. I conclude that this objection is misplaced as to most applications of the material support statute.

There is, however, a caveat. Close examination reveals that the government interprets the material support law to prohibit more than the provision of money, weapons, equipment, and services to designated groups; in the government's view, the law also prohibits membership itself in certain circumstances. In this limited respect, the material support law does implicate guilt by association (although no court to consider the issue thusfar has acknowledged as much). The guilt by association critique accordingly bears out to a limited degree the predictions of the adaptive learning model.

Civil liberties, Freedom of Association, National Security

Abstract:
[Note: This is a substantially revised version of a draft that previously appeared under the name "Unraveling Deferrence".]

For more than a century, the Supreme Court has maintained that federal judges should give deference to the views of the executive branch with respect to the interpretation of ambiguous language in international instruments. The Court has never adequately explained the theoretical justifications for such deference, however, and the doctrine is plagued with uncertainty and inconsistency as a result. Making matters worse, the Supreme Court's most recent forays into this area - especially Hamdan v. Rumsfeld - have exacerbated this instability. My aim in this article is to explain why the deference doctrine presents one of the most significant, yet least appreciated, problems in foreign-relations law today, as well as to offer a suggestion for solving the puzzle it presents.

Part I frames the discussion that follows by examining the controversial treatment of the deference issue in Hamdan.

Part II provides a thorough descriptive account of the doctrine. This section begins with a review of basic principles of treaty interpretation methodology, emphasizing the use of post-ratification practice as evidence of the understanding of treaty parties. This is followed by a brief recitation of the transformation of U.S. foreign relations law in the early-to-mid 20th century. Against this backdrop, I then trace the evolution of the deference doctrine in the Supreme Court from its late 19th century roots through to the present day. I conclude that the doctrine originally rested at least in part on the evidence-of-intent method of treaty interpretation, but that this aspect of the doctrine became obscured during and after the transformational era. Finally, in response to competing claims that the doctrine is either entirely dispositive or entirely rhetorical in terms of impacting case outcomes, I conclude the descriptive component of the paper by reporting the results of a survey of deference decisions at all levels of the federal judiciary during the Rehnquist era. The results demonstrate that the doctrine does not always result in victory for the executive viewpoint (though it usually does), but they are inconclusive with respect whether the doctrine ever serves as more than a rhetorical gloss on decisions that would have reached the same result in any event.

Part III then examines the normative arguments for and against deference, canvassing the many theoretical models that scholars have advanced in recent years. These models turn in significant part on underlying disagreements concerning the relative priority of competing constitutional values including functional efficiency and checking of power. I conclude with a proposal for a hybrid model of deference that attempts to reconcile these interests by, among other things, distinguishing between true deference and the mere use of post-ratification practice as proof of intent.

deference, treaty interpretation

Abstract:
How early does criminal liability attach along the continuum between planning and committing a terrorist act? And in light of the answer to that question, have we struck an appropriate balance between the benefits of prevention and the off-setting costs in terms of a potentially-increased rate of false-positives and foregone opportunities to gather additional intelligence and evidence? These questions are pressing, particularly in light of statements from senior government officials that the Justice Department will be forward-leaning in its interpretation of its anticipatory-prosecution powers. My aim in this article is to establish a shared understanding regarding the first question in order to facilitate an intelligent debate regarding the second.

In some respects, this is well-trodden ground. I and others have written previously of the government's sweeping capacity under 18 U.S.C. Section 2339B to prosecute potential terrorists who can be linked in some fashion to a designated Foreign Terrorist Organizations (FTOs). But it is becoming clear that the utility of Section 2339B is eroding in the face of several developments, most notably the ongoing decentralization of what might be called the global jihad movement. Simply put, it is becoming less common for a suspected terrorist to be vulnerable to a Section 2339B FTO-support prosecution. What, then, is the government's capacity for anticipatory prosecution when confronted with unaffiliated terrorism?

Setting aside the possibility of a pretextual charge based on some unrelated offense by a suspect, the basic options are a conspiracy charge under a terrorism-related provision such as 18 U.S.C. Section 956(a) or a charge under 18 U.S.C. Section 2339A, the lesser-known of the two material-support statutes. The article identifies the earliest plausible point of intervention under both options, and examines the extent to which indictments in post-9/11 prosecutions have stayed within these boundaries. My most notable conclusion, perhaps, is that Section 2339A can be and arguably has been used to create a capacious form of inchoate liability in circumstances that otherwise would have to be charged under the relatively-demanding standards of attempt.

terrorism, prosecution, conspiracy, material support

Abstract:
In the aftermath of the 2008 election, change is in the air with respect to counterterrorism law and policy. The Obama administration almost certainly will terminate the military commission system, and it likely will take steps at least to reduce reliance on the underlying practice of long-term military detention. Against this backdrop, the debate regarding how best to reform detention policy has sharpened. Some contend that federal criminal prosecution should supply whatever long-term detention capacity may be required, while others contend that it would be better to design a detention system (such as a national security court) specifically tailored to the problem of terrorism prevention.

I do not propose to resolve this debate here. Rather, my aim in this symposium article (also to appear as a chapter in a forthcoming collected volume published by Brookings) is to enrich the debate with a candid and precise assessment of the capacities and limitations of the federal criminal justice system as it relates to terrorism, with a particular focus on the prevention scenario.

Part I examines a variety of charges available to prosecutors in that scenario. I conclude that these charges are far more prevention-oriented than critics often admit, though I also note a handful of limitations on their scope. Most significantly, perhaps, I draw attention to limits on the extraterritorial scope of the two material support laws as they stood prior to amendment in 2001 and 2004, respectively. That caveat aside, the scope of the charges available to prosecutors today compares well to the grounds for detention in the military detention system, and very favorably to the charges available in the military commissions system.

Part II surveys several of the procedural and evidentiary considerations that critics have cited as grounds to doubt the ability of the criminal justice system to provide an adequate capacity to incapacitate suspected terrorists. By and large, my analysis concurs with the much-cited white paper that Richard Zabel and James Benjamin recently produced for Human Rights First, which is to say that I agree with them that many of the leading concerns in this area are overstated. I differ from them to some extent, however, insofar as I emphasize three sets of procedural safeguards that do tend to limit the reach of the criminal justice system in comparison to existing or proposed alternatives. Each is a familiar and much-lauded component of the fairness that characterizes our criminal justice system, and none should be set aside lightly. Specifically, I refer to (i) mandatory disclosure concepts (e.g., Brady and Giglio); (ii) Confrontation Clause (and hearsay) concerns (a topic which subtly imports the troubled question of interrogation methods); and (iii) the burden of proof itself. These are the features that do the most work in accounting for the difference in reach among the criminal justice system and its competitors, and I suggest that they should be the focus of the debate going forward.

Because no one seriously doubts that criminal prosecution will continue to be an important tool of counter-terrorism policy going forward - whatever becomes of military detention and proposals for alternative detention systems - I conclude in Part III with a discussion of modest steps Congress might take to optimize the criminal justice system for the task of prevention-oriented prosecution.

terrorism, preventive detention, national security court, material support, guantanamo

Abstract:
Philip Heymann's most recent contribution to the post-9/11 policy debate, Terrorism, Freedom, and Security: Winning without War, endorses a nuanced approach to counterterrorism policy emphasizing the use of cost-benefit analysis with respect to both the short-term and long-term impacts of particular policy choices. Arguing from this perspective, Heymann concludes that certain aspects of current policy (particularly the use of military detention) place undue emphasis on military methods at the expense of legal, diplomatic, economic, and intelligence community alternatives.

This review essay provides an overview of Heymann's argument, locating it along the spectrum of criticisms of current counterterrorism laws and policies. Reflecting the fact that Heymann's argument critiques the emphasis on "war" in the "war on terrorism," the essay also provides a short history of the manner in which that familiar phrase has been used since at least the early 1980s as a marshaling and signaling device, usually in connection with policies that were decidedly non-military in emphasis.

terrorism, terrorist, counterterrorism, war on terrorism, military detention

Abstract:
Political liberties and the needs of security have clashed often in American history. When asked to identify the seminal incident in this cycle, many if not most of us are inclined to look to the passage of the Alien and Sedition Acts and the series of federal seditious libel prosecutions which took place beginning in 1798. But this overlooks the events of 1794, when Federalists first made a concerted effort to assert the illegitimacy of political criticism of the government. The effort did not take the form of prosecution or legislation, but nonetheless presented a significant challenge to constitutional values.

The moment came in the tense, patriotic aftermath of the Whiskey Rebellion, and was directed at the Democratic-Republican societies - a loosely-affiliated network of voluntary associations engaged in sharp criticism of Federalist policy. From the Federalist perspective, the societies were inherently illegitimate because the tendency of their speech - indeed, of their very existence - was to foment insurrection and to undermine representative government. Federalists also feared the societies were influenced by, if not subject to the direction and control of, a subversive foreign power - Revolutionary France. Building on these perceptions, President Washington used his annual address to Congress to denounce the existence of the societies. The censure produced an immediate echo in the Senate, and a fierce debate in both the House and the partisan press. Republicans insisted upon the right of private citizens to organize and to criticize the actions of elected officials, while Federalists branded political criticism from private groups as inherently disloyal and seditious. It was America's first sustained debate concerning freedoms of expression, assembly, and the press, but ultimately the decentralized nature of the debate prevented it from reaching a clear resolution. James Madison wrote at the time of his concern that the public failed to appreciate that the principle advanced by the Federalists could as well be applied in support of more direct intrusions on political liberties. This, of course, is precisely what happened just a few years later during the Sedition Act controversy.

Freedom of association, freedom of speech, American legal history

Abstract:
This chapter, part of an edited volume on the changing role of the American prosecutor, discusses the manner in which the Justice Department has implemented the goal of terrorism prevention in the years since 9/11. It will be of interest primarily to those who seek a relatively brief introduction to the various methods by which federal prosecutors may intervene preventively in the terrorism context (and how those methods relate to one another conceptually), with an emphasis on prosecutions under the material support statutes and the tension that such prosecutions may generate between the benefits of harm prevention and the costs of false positives. Those interested in a more sophisticated treatment of these issues should instead refer to the articles posted here (http://papers.ssrn.com/abstract=587442) and here (http://papers.ssrn.com/abstract=932608).

terrorism, prosecution, material support

Abstract:
This symposium article examines two critiques associated with post-9/11 criminal prosecutions in terrorism-related cases. The data-reliability critique attacks the reliability of the statistics reported by the Justice Department in connection with such cases, while the soft-sentence critique suggests that claims of success in such cases might be overstated in light of the relatively short sentences they produce.

I conclude that the data-reliability critique largely reflects disagreement regarding the types of cases that ought to be coded as terrorism-related. This dispute came to a head in the spring of 2007 in connection with a report issued by the Department's Inspector General, prompting the Executive Office for United States Attorneys (EOUSA) to revise its case code definitions. Whether the revised codes will suffice to resolve the data-reliability critique remains to be seen.

The soft-sentence critique in turn reflects the definitional dispute underlying the data-reliability critique; the Department's inclusion of preventive charging cases (and other such cases not involving overt allegations of involvement with terrorism) in its terrorism-related statistical categories inevitably leads to relatively brief aggregate sentences. It does not follow, however, that the Department has obtained similarly-brief sentences in cases that do involve allegations of conduct relating in some fashion to terrorism. Rather than examining disposition and sentencing data solely based on the controversial EOUSA case categories, therefore, I advocate reliance also on data developed on a per-offense basis. I conclude the paper with an example of such a study, focused on two statutes: 18 U.S.C. - 2339B (prohibiting the provision of material support to designated foreign terrorist organizations) and 50 U.S.C. - 1705 (criminalizing transactions in violation of sanction orders issued under the International Emergency Economic Powers Act). The study includes all prosecutions under both statutes between 9/01 and 7/07 (for the IEEPA statute, it lists only those prosecutions arising out of terrorism-related IEEPA orders), and finds that they yield sentences considerably more substantial than the low numbers emphasized in the soft-sentence critique.

terrorism prosecution statistics

Abstract:
The executive branch often urges judges to defer to it regarding disputed questions of fact in cases involving national security. Judges frequently comply, but they do not frequently offer a coherent justification for doing so. This bespeaks uncertainty and disagreement regarding the nature of such claims and the considerations that ought to inform resolution of them. My aim in this article is to alleviate this uncertainty, in hopes of shifting the practice of national security fact deference onto more defensible grounds.

I begin in Part I by illustrating how litigants and judges have approached national security fact deference claims in actual practice. The case studies provided in this section suggest not only that such claims can have a significant impact on the merits of a case, but also that judges and litigants are not entirely certain what to do with them. Fact deference claims in the national security setting more often are resolved with cliches than with detailed justifications as to why deference makes sense (or not) in a particular instance. This may be true for fact deference claims generally, of course, but it seems particularly pernicious that it should be so in the national security setting.

The remainder of the paper responds to this concern. Part II begins by offering an account of the nature of a fact deference claim. I contend that such claims are best understood as a species of decision rule. This account, derived from the literature of constitutional theory, is useful in that it draws our attention to a series of arguments and considerations that judges might consider in determining whether to defer in a particular instance. I collect these under the headings of core accuracy, weighted accuracy, prudence, and legitimacy. Part III follows with a discussion of potential objections to this project.

Part IV is the heart of my analysis. In it, I explore how the arguments identified in Part II might (or might not) apply in the setting of national security litigation. Because these considerations for the most part are sensitive to the circumstances of particular cases, we cannot and should not pursue a single model for resolving fact deference claims. We can, however, develop a number of insights that collectively point the way toward a more coherent approach to resolving national security fact deference claims. Among other things, for example, the analysis suggests that: (i) fact deference claims primarily turn on comparative institutional accuracy concerns, along with concerns about democratic accountability and institutional self-preservation; (ii) judges conducting comparative accuracy inquiries must account separately for the possibility that the executive has superior access to information and to expertise, and should require a showing that the executive actually and reliably exploited such advantages; (iii) arguments regarding the relative strength of the governmental, private, and social interests at stake in national security litigation frequently will be indeterminate, thus undermining the case for weighting the comparative accuracy inquiry so as to encourage false positives or false negatives; (iv) efficiency and secrecy concerns are better addressed through doctrinal mechanisms other than fact deference; and (v) arguments involving comparative institutional legitimacy, though quite common, do little or no separate work once one accounts for comparative accuracy, democratic accountability, and institutional self-preservation.

These insights of course will not eliminate disagreement in connection with national security fact deference claims. By providing a coherent theoretical justification for supporting such claims in limited circumstances, however, they will help to identify and curb unwarranted claims. The project thus contributes in a modest yet important way to the larger task of specifying the boundaries of the judicial role in national security affairs.

deference, national security, separation of powers