FedSoc Blog

In her concurrence in United States v. Jones, Justice Sotomayor wrote that it "may be necessary" for the Court to abandon its long-standing rule that an individual has no reasonable expectation of privacy under the Katz test in information voluntarily disclosed to third parties or to the general public. Sotomayor argued that such a rule was "ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks . . . I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is . . . disentitled to Fourth Amendment protection."

Should the longstanding Katz standard concerning information disclosed to third-parties be re-evaluated, either from a statuory or constitutional perspective? Alternatively, would Justice Sotomayor's proposed re-evaluation of this standard represent a huge boon for criminals who seek to keep their online conduct hidden from detection by law enforcement?

Tomorrow, June 13, FedSoc's Criminal Law & Procedure Practice Group will be hosting a teleforum on the case. The details:

Featuring:

• Prof. Orin S. Kerr, The George Washington University Law School
• Mr. Jamil N. Jaffer, Senior Counsel, House Permanent Select Committee on Intelligence

Start : Thursday, June 14, 2012 3:00 PM

End   : Thursday, June 14, 2012 4:00 PM

Registration details:

Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up here. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

At Forbes, Pepperdine Law professor Greg McNeal comments extensively on President Obama's allegedly unprecedented personal involvement in targeting decisions:

President Obama is personally involved in vetting targets and approving strikes, according to a recent article in The New York Times entitled “Secret ‘Kill List’ Proves a Test of Obama’s Principles and Will.”  The piece has received a substantial amount of attention with expert commentators such as Ben Wittes describing it as “rich and detailed” and Ken Anderson writing that it is “the most detailed insider account of how the administration has gradually evolved a process for vetting targets.”

I think the article amounts to a largely self-serving campaign piece, which is to be expected when the piece is sourced to interviews with President Obama’s “current and former advisers.”  For those not familiar with the targeted killing process, the article may seem to be filled with rich details that suggest that President Obama, the “liberal law professor” who “approves lethal action without hand-wringing” has taken on unprecedented authority and responsibility.  I’m not convinced that his actions are remarkable or unprecedented, let’s unpack what we learn from this story.

The times writes Obama’s “current and former advisers described Mr. Obama’s evolution since taking on the role, without precedent in presidential history, of personally overseeing the shadow war with Al Qaeda.”  I’m sure those advisers are very impressed with the President and their role in supporting him, but he’s hardly the first President to approve targeting decisions, and he’s not the first President to approve targeting decisions against Al Qaeda.

When a botched bombing operation presents the risk of strategic consequences, Presidents have frequently relied on strict rules of engagement and high level approvals of specific targets.  Most students of history are familiar with the tight controls over both target selection and nomination that were implemented during the Vietnam War.  (A great history of the process is available in this School of Advanced Airpower Studies thesis).  Even during Vietnam, targets were selected in Washington by a small team on the joint staff, and approved only at the presidential level.  Thus, contrary to the Times’ assertions, there are some precedents for outsized influence by the Commander in Chief in the targeting process — a fact that was true of Johnson and was also true of President Clinton. . . .

The Times piece tries to paint President Obama as the first President to take moral responsibility for the actions of the military he commands.  Obama, we learn from his aides is a “student of writings on war by Augustine and Thomas Aquinas, he believes that he should take moral responsibility for such actions. And he knows that bad strikes can tarnish America’s image and derail diplomacy.”  Moreover, “[w]hen a rare opportunity for a drone strike of a top terrorist arises – but his family is with him – it is the president who has reserved to himself the final calculation.”  This would be an unprecedented act of political leadership if it weren’t for the fact that there is some precedent for it that predates President Obama.

As I point out in this book chapter, since at least September of 2008 (e.g. during George W. Bush) the Rules of Engagement in Afghanistan required the President or Secretary of Defense to sign off on any pre-planned strike (e.g. targeted killing) where even one civilian casualty was expected.

For a more detailed examination of American policy on targeted killings, see Professor McNeal's article "The U.S. Practice of Collateral Damage Estimation and Mitigation."  Also, in January 2011, FedSoc's International & National Security Law Practice Group aired a podcast on "Predator Drones and Targeted Killings."  It featured Michael W. Lewis, Ben Wizner, and Dean A. Reuter. You can listen to it here.

The Wall Street Journal editorializes about Cyber Intelligence Sharing and Protection Act:

Internet activists who killed an antipiracy campaign on Capitol Hill in January are back on the virtual warpath against efforts to improve America's cyber defenses. As then, the ferocity of the ire is disconnected from the modesty of the legislation.

Concern over the vulnerability of America's digital networks has grown with dependence on them. The government devotes tremendous resources to protect its systems from hackers, terrorists and states like China or Russia. Banks, electrical utilities and other private companies fend for themselves, however, even though a successful attack could do enormous economic harm. Congress rightly thinks the government could lend a hand.

Mike Rogers, the Republican chairman of the House intelligence committee, wants companies to draw on the government's expertise and classified information to counter cyber threats. Companies can, in turn, share their concerns or proprietary information with the National Security Agency, FBI and others. This would all be voluntary.

Dutch Ruppersberger, the ranking Democrat on House intelligence, is co-sponsoring the Cyber Intelligence Sharing and Protection Act, or CISPA. Facebook, Microsoft, Oracle and other tech companies have endorsed the bill. Many of its supporters were on the opposite side during the fight this winter over the Stop Online Piracy Act, which addressed concerns about intellectual property.

Standing in the way, however, is the Obama Administration, which came out against CISPA before the House vote, citing supposed shortcomings on privacy protections. Having worked closely with Republicans to write the bill, Rep. Ruppersberger was blindsided by the White House and has said as much. The House passed the bill 248-168, with 42 Democrats defying the Administration's veto threat.

The online activists, who don't let facts get in the way of a good campaign, needed no invitation to sound the call to battle. The ACLU, privacy evangelists and tea party libertarian-types are in. Search #CISPA on Twitter to behold the Orwellian future of the National Security Agency prying into your Web affairs. But just because you're paranoid doesn't mean someone's out to get you.

One complaint is that the government could use the data provided by Internet service providers and companies to spy on people. But if this bill set out to create a surveillance program, voluntary information-sharing limited to "cyber threats" sounds like a pretty shoddy way to go about it. The bill's definition of "cyber threat" is vague, which is another netroot complaint, precisely to take account of the fast-changing nature of technology.

Listen to the audio here.

Last year, using a drone missile strike, the U.S. killed Anwar al-Awlaki. Questions were raised about the legal and constititional authority to target a U.S. citizen abroad. In recent remarks delivered by Attorney General Eric Holder, the administration offered its most detailed legal defense to date. On April 24, 20120, our experts discussed this legal rationale, and the future of targeting U.S. citizens.  Participating in the teleforum were:

• Prof. Michael W. Lewis, Ohio Northern University Pettit College of Law
• Prof. Stephen I. Vladeck, American University Washington College of Law
• Moderator: Mr. Dean Reuter, Vice President & Director of Practice Groups, The Federalist Society

You can listen to the International & National Security Law Practice Group podcast here.

The Washington Post reports:

The United States has begun launching drone strikes against suspected al-Qaeda operatives in Yemen under new authority approved by President Obama that allows the CIA and the military to fire even when the identity of those who could be killed is not known, U.S. officials said.

The policy shift marks a significant expansion of the clandestine drone war against an al-Qaeda affiliate that has seized large ­pieces of territory in Yemen and is linked to a series of terrorist plots against the United States.

U.S. officials said that Obama approved the use of “signature” strikes this month and that the killing of an al-Qaeda operative near the border of Yemen’s Marib province this week was among the first attacks carried out under the new authority.

The decision to give the CIA and the U.S. Joint Special Operations Command (JSOC) greater leeway is almost certain to escalate a drone campaign that has accelerated significantly this year, with at least nine strikes in under four months. The number is about equal to the sum of airstrikes all last year.

The expanded authority will allow the CIA and JSOC to fire on targets based solely on their intelligence “signatures” — patterns of behavior that are detected through signals intercepts, human sources and aerial surveillance, and that indicate the presence of an important operative or a plot against U.S. interests.

On April 5, 2012, at FedSoc's National Security Symposium, former Secretary of Homeland Security Michael Chertoff discussed the nature of intelligence gained from behavior patterns.  You can watch the video of his talk here.

On April 19, 2012, The Federalist Society and AEI hosted a panel discussion of John Yoo and Julian Ku's new book, Taming Globalization: International Law, the U.S. Constitution, and the New World Order.  The two authors--from Berkeley and Hofstra Law, respectively--were joined by Martin Flaherty of the Fordham University School of Law and Jeremy Rabkin of the George Mason University School of Law. Jennifer Rubin moderated.

You can watch a video of the entire event here.

The Federalist Society and AEI today hosted a panel discussion of John Yoo and Julian Ku's new book, Taming Globalization: International Law, the U.S. Constitution, and the New World Order.  The two authors--from Berkeley and Hofstra Law, respectively--were joined by Martin Flaherty of the Fordham University School of Law and Jeremy Rabkin of the George Mason University School of Law. Jennifer Rubin moderated.

Ku began by laying out three concepts they authors see as affecting the constitutional environment: 1) globalization, 2) global governance, and 3) sovereignty.  Globalization is exogenous, a neither good nor bad force.  It is leading to a change in global governance, including a deepening of legal and non-legal international cooperation, the rise of new and important international organization, and the expansion of international law, which formerly used to deal with diplomatic issues, to areas that used to be considered solely in the domestic sphere.  As for sovereignty, Ku claimed that our conception of it should depend on the U.S. Constitution’s understanding of sovereignty, not the conception of Westphalian sovereignty.

Yoo explained that globalization poses the same kind of stresses for the country as did the economic nationalization that occurred during the New Deal, which unfortunately lead to the creation of independent agencies given sweeping authority.  The solution he sees is to turn to the Constitution as the only means by which the government can exercise the power delegated to it by the people.  Laws implementing international law should largely be the domain of Congress, not the courts.  This would preserve popular sovereignty while still allowing the U.S. to engage in the kind of international cooperation the Framers envisioned.  Yoo proposed three doctrines: 1) Most treaties should be considered to be non-self-executing (meaning they require implementing legislation), 2) The political branches, especially the president, should take the lead role in interpreting international law, 3) the 50 states should play a larger role in international law given show it is becoming more difficult for the federal government to regulate international issue that impact state laws, such as the nature of marriage. 

Flaherty said he enjoyed the book, which he found stimulated, comprehensive, and lucid.  However, he said he found something to disagree with on virtually every page.  He claimed that the book’s ideas are so original as to be idiosyncratic.  He agreed with the authors the Constitution is the body of law that mediates how the U.S. engages with the rest of the world.  He also said he accepts Justice Scalia’s method of constitutional interpretations: start with the text, then move to original understanding, structure, custom, precedent, and maybe policy as a tie-breaker.  But using this method, he argued, poses problems for the book’s positions.  For example, the plain meaning of the text of the Constitution’s Supremacy Clause appears to strongly suggest that treaties are self-executing.  And if there is any doubt there, the original understanding of the Clause was that it was intended to solve the problem that America could not enforce its treaties—in particular, the states were not enforcing the Treaty of Paris that ended the Revolutionary War.

Rabkin followed by saying that much of the book is very attractive.  Above all, it sidesteps angry debates about what should or should not be America’s stance toward the world.  He said he was sympathetic to the authors’ underlying project, but he did not agree that globalization is an unstoppable force that we cannot change.  The implication of the authors’ view is that we will have more and more treaties going forward so let us just focus on process.  But can we make a treaty on just about anything?  He said “no.”  If we assume the opposite, then we can make treaties about international human rights.  Such treaties address not the relations between states, as treaties solely used to do, but what all states must do, including what states may do to their citizens.  International law thus becomes something like Natural Law, a brooding omnipresence in the sky that has moral urgency.

Yesterday at Harvard Law School, CIA General Counsel Stephen Preston delivered remarks on "The CIA and the Rule of Law."  Lawfare published the speech in full.  Here is how it begins:

For those working at the confluence of law and national security, the President has made clear that ours is a nation of laws and that an abiding respect for the rule of law is one of our country’s greatest strengths, even against an enemy with only contempt for the law. This is so for the Central Intelligence Agency no less than any other instrument of national power engaged in the fight against al-Qa’ida and its militant allies or otherwise seeking to protect the United States from foreign adversaries. And that is the central point of my remarks this afternoon: Just as ours is a nation of laws, the CIA is an institution of laws and the rule of law is integral to Agency operations.

***

Before we get to the rule of law, I want to spend a moment on the business of the CIA.

I will start off with two observations that I think are telling:

First, the number of significant national security issues facing our country may be as great today as it has ever been. Just think of what the President and his national security team confront every day: the ongoing threat of terrorist attack against the homeland and U.S. interests abroad; war in Afghanistan and, until recently, Iraq; complex relations with countries like Pakistan and India; the challenges presented by Iran and North Korea; the emergence of China and its growing economic and military power; the growing number of computer network attacks originating outside the United States; profound change in the most volatile area of the world, the greater Middle East, with new regimes in Tunisia, Egypt, and Libya, and continuing violence in Syria; the financial challenges faced by countries in the Euro zone; and the violence associated with drug trafficking in this hemisphere. And the list could go on.

Second, the national security issues facing our country today tend to be intelligence-intensive. Intelligence is fundamental to the efforts of policy-makers to come to grips with nearly all of the issues I have just listed – whether international terrorism, the proliferation of Weapons of Mass Destruction, the conduct of non-state actors and rogue states outside the community of nations, cyber security, or the rise of new powers. The nation’s leaders cannot fully understand these issues or make informed policy on these issues without first-rate intelligence.

Putting these two dynamics together – the multitude of different national security issues and the fact that intelligence is critical to almost all of them – it may be that intelligence has never been more important than it is today. At the very least, the intel business is booming.

The AP reports:

Britain can extradite a radical Muslim cleric and four other suspects to the United States to face terrorism charges, Europe's human rights court ruled Tuesday.

The case centering on Mustafa Kamal Mustafa, also known as Abu Hamza al-Masri, considered Britain's most recognizable extremist, has been closely watched as a sign of Europe's view on tough U.S. prisons.

The court said Britain would not violate EU human rights rules by extraditing the suspects, who could face life sentences in a maximum-security prison.

Al-Masri and the other suspects had argued that in the U.S. they could face prison conditions and jail terms that would expose them to "torture or inhuman or degrading treatment or punishment" in breach of the European human rights code.

The European Court of Human Rights in Strasbourg, France, rejected those claims, saying in a ruling Tuesday that "detention conditions and length of sentences of five alleged terrorists would not amount to ill-treatment if they were extradited to the USA."

At today's National Security Symposium, Michael Chertoff--co-founder and managing principal of the Chertoff Group and former Secretary of the Department of Homeland Security--spoke on the subject "National Security After U.S. v. Jones."  In Jones, the Supreme Court held 5-4 that attaching a GPS device to a vehicle and then using the device to monitor the vehicle’s movements constitutes a search under the Fourth Amendment.  (Listen to FedSoc's podcast on the case here.)  Chertoff said he thought the case was the most interesting one of the term.  It serves as an example of when legal structures that made sense at a prior time collide with current reality.  He interpreted the Court's various concurring opinions as effectively begging Congress to address the legal problem created by new technology and to come up with a solution.  He explained that the Jones demonstrates how the government's ability to collect, maintain, and make use of information has grown enormously over the last 10 years.  As for the issue of maintenance, the long-term storage of such information, he noted that Europeans are considering creating a "right to forget"--i.e., the right to request that the government or private parties delete what they know about you, at least after a certain amount of time has passed.  While he wasn't sure this was good policy, Chertoff granted that it raised an important question.  He also stressed that while there has been much attention paid to what sort of information the government may collect, an equally, if not more important, issue is toward what end the government may use that information.  He distinguished between using information to stop a terrorist attack with using it to enforce traffic laws.  The informational means, he suggested, should be proportional to the end. 

Today the Federalist Society is holding its National Security Symposium in Washington, D.C.  The welcome and introduction were delivered by Vincent J. Vitkowsky, adjunct fellow at the Center for Law and Counterterrorism.  Introduced by Prof. Glenn M. Sulmasy of the U.S. Coast Guard Academy, the first panel was on the subject of "Detention, Interrogation, and Trial of Terrorist Suspects--10 Years Later."  Benjamin Wittes, a senior fellow at the Brookings Institution, spoke on three significant themes: 1) The U.S.'s declining footprint abroad, which will lead to it reducing its involvement in detention and interrogation; 2) Despite the political rhetoric, there has been a real convergence between the three branches of government and between the two political parties as to the substance of what we should be doing in the war on terror; 3) As a result of that convergence, there has been a substantial degree of institutionalization of law and policy in this area. Regarding the first point, he claimed that it used to appear that detention would play an important role, but detention is highly unpopular politically.  Moreover, we are turning over much of the fight to locals, who are doing the detaining.  He noted that the U.S. is now killing far more terrorists than it is detaining.  As for his second theme, he said that the reality is that all three branches have agreed that a certain amount of non-criminal detention is reasonable.

Prof. Stephen I. Vladek of American University Washington College of Law, agreed with Wittes on points 1 and 3, but disagreed on point 2.  Vladek denied that there has been much convergence on when it is permissible to have targeted killings--e.g, when the target is an American citizen.

Prof. Nathan Sales of George Mason University Law School argued that the limitations we have placed on interrogation techniques could be leading to worse violations of civil liberties.  This is due to what economists call the substitutional effect--the increasing "cost" of interrogation is leading to alternatives, such as targeted killings.  Besides the obvious humanitarian concerns with such killings (which can include collateral damage), they prevent the U.S. from interrogating the terrorists and thereby gaining valuable information.

Charles D. Stimson, senior legal fellow at the Heritage Foundation and former Deputy Assistant U.S. Secretary of Defense (Detainee Affairs), warned that the recently announced military trial of Khalid Sheikh Mohammed doe not mean he will even have a trial (depending on how he pleas) or that it will occur soon.  Any trial, he predicted, would not occur until Romney's first term or Obama's second as president.

The Washington Post has the story:

A senior Pentagon official on Wednesday authorized a new trial for Khalid Sheik Mohammed and four others accused of orchestrating the Sept. 11, 2001, attacks, a step that restarts the most momentous terrorism case likely to be held at Guantanamo Bay, Cuba.

The suspects were first charged in a military commission in 2008, but the case was suspended when the Obama administration came into office and later moved to have them tried in federal court in New York.

That effort collapsed in the face of congressional and local opposition. In April 2011, Attorney General Eric H. Holder Jr. announced that he was reluctantly sending the case back to the military.

Military charges against the five men were re-sworn in June and, on Wednesday, Ret. Vice Adm. Bruce MacDonald, the official who oversees commissions and is known as the Convening Authority, sent the case for trial after reviewing and approving those charges.

The men face multiple charges, including murder in violation of the law of war, attacking civilians, attacking civilian objects, hijacking aircraft and terrorism. If convicted, they could face the death penalty.

For a Federalist Society online debate from 2010 on "The Civilian Trial of Khalid Sheikh Mohammed," click here.  On April 20, FedSoc's Syracuse Student Chapter will be hosting Glenn M. Sulmasy, professor of law at the U.S. Coast Guard Academy, for a talk on "Guantanamo Bay and the Trial of Khalid Sheikh Mohammed: A National Security Perspective"

On April 5th, the Federalist Society's International & National Security Law Practice Group will be hosting the 2012 National Security Symposium in Washington, D.C.  Please join us for an important update on law and policy issues related to America's national security. The conference will include a major keynote address by former U.S. Secretary of Homeland Security Michael Chertoff. The conference will also discuss cybersecurity and the limits of detention, interrogation, and trying of terrorist suspects.

Details below.

Start : Thursday, April 5, 2012 10:00 AM

End   : Thursday, April 5, 2012 3:00 PM

Location: Jones Day LLP, 51 Louisiana Ave. NW, Washington, DC

Agenda:

THURSDAY, APRIL 5, 2012

Welcome and Introduction
10:00 a.m.

• Vincent J. Vitkowsky, Adjunct Fellow, Center for Law and Counterterrorism

Panel One: Detention, Interrogation and Trial of Terrorist Suspects – 10 Years Later
10:10 a.m. - 11:45 a.m.

The legal ambiguities associated with the classification, interrogation and adjudication of al Qaeda members alleged to have committed war crimes continue to hamper the Obama administration’s national security policy. This confusion and the inconsistent application of laws to govern the conflict have exacerbated criticism of the U. S. approach to the war on al Qaeda. This panel will analyze, from myriad perspectives, U. S. policy and practice on these issues as we enter the second decade of the armed conflict.

• Prof. Nathan A. Sales, George Mason University School of Law
• Charles D. “Cully” Stimson, former Deputy Assistant U.S. Secretary of Defense (Detainee Affairs) and Senior Legal Fellow, Heritage Foundation
• Prof. Stephen I. Vladeck, American University Washington College of Law
• Benjamin Wittes, Senior Fellow, Brookings Institution
• Moderator: Prof. Glenn M. Sulmasy, U.S. Coast Guard Academy

Luncheon Address: National Security After U.S. v. Jones
12:00 p.m.

• Hon. Michael Chertoff, Co-founder and Managing Principal, The Chertoff Group and former Secretary, Department of Homeland Security

Panel Two: Cybersecurity and Critical Infrastructure
1:30 p.m. - 3:00 p.m.

Cybersecurity must address complicated and interconnected threats of cyberattacks on critical infrastructure sectors, cybertheft of personal data, cyberespionage, cyberwarfare and cyberterrorism. It raises challenging practical, legal and policy issues, including what proposals would be effective, the scope of regulatory authority, the nature of information sharing and liability protections, and the preservation of internet freedom and privacy.

• Hon. Stewart A. Baker, Partner, Steptoe & Johnson LLP and former Assistant Secretary for Policy, Department of Homeland Security
• Matthew J. Eggers, Senior Director, National Security and Emergency Preparedness, U.S. Chamber of Commerce
• Sharon Bradford Franklin, Senior Counsel, The Constitution Project
• Jamil N. Jaffer, Senior Counsel, House Permanent Select Committee on Intelligence
• Moderator: Vincent J. Vitkowsky, Adjunct Fellow, Center for Law and Counterterrorism

Registration details:

There is no fee but space is limited and registration is required.

CLE credits pending.