by Fiss, Owen
21. Detainee Treatment Act of 2005, Pub. L. No. 109-148 (2005).
22. President George W. Bush, “President’s Statement on Signing of H.R. 2863,” December 30, 2005, available at www.presidency.ucsb.edu/ws/index.php?pid=65259.
23. Jane Mayer, The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals (New York: Doubleday, 2008); see also Parliamentary Assembly of the Council of Europe, Alleged Secret Detentions and Unlawful Interstate Transfers of Detainees Involving Council of Europe Member States, Res. No. 1507 (2006) (estimating that “hundreds of persons” had been “entrapped” in a U.S. system of secret detentions and extraordinary rendition).
24. Mayer, Dark Side, 121.
25. Farmer v. Brennan, 511 U.S. 825, 833 (1994).
26. Arar v. Ashcroft, 585 F.3d 559 (2d. Cir. 2009).
27. 18 U.S.C. § 2340A.
28. Boumediene v. Bush, 553 U.S. 723 (2008).
29. Dorr v. United States, 195 U.S. 138 (1904); accord Balzac v. Porto Rico, 258 U.S. 298 (1922).
30. Dorr, 195 U.S. at 149.
31. Ibid., 148.
32. Declaratory Judgment Act, 28 U.S.C. §2201 (2006).
33. Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971).
34. Fed R. Civ. P. 54(c) (stating that every judgment “should grant the relief to which each party is entitled”).
35. United States v. Reynolds, 345 U.S. 1 (1953).
36. See El-Masri v. United States, 479 F.3d 296 (4th Cir. 2007).
37. 479 F.3d at 305.
38. Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070 (9th Cir. 2010).
39. Ibid., 1083. In 2012, the European Court of Human Rights ruled in favor of the victim of a rendition to torture who was the plaintiff in the case dismissed by the Fourth Circuit decision discussed in the text at footnotes 36 and 37. El-Masri v. The Former Yugoslav Republic of Macedonia, App No. 39639/09, Eur. Ct. H.R. ¶45 (2012). This decision not only reflects the independence of the European Court, but even more significantly for our purposes it indicates that El-Masri did not need the information possessed by the U.S. government to prevail.
40. See Aharon Barak, The Judge in a Democracy (Princeton, NJ: Princeton University Press, 2006), 246–47.
41. See Exec. Order No. 13,491, 74 Fed. Reg. 16 (January 27, 2009); Exec. Order No. 13,492, 74 Fed. Reg. 16 (January 27, 2009); Exec. Order No. 13,493, 74 Fed. Reg. 16 (January 27, 2009).
42. President Barack Obama, “Press Conference at the White House,” February 9, 2009, available at www.nytimes.com/2009/02/09/us/politics/09text-obama.html.
43. President Barack Obama, “Address to Joint Session of Congress,” February 24, 2009, www.whitehouse.gov/the_press_office/remarks-of-president-barack-obama-address-to-joint-session-of-congress.
44. Confirmation Hearing of Eric Holder, S. Comm. on the Judiciary, 111th Cong. 2009 (including the statements of Eric Holder and several members of the Senate declaring that waterboarding and other “shameful” techniques are torture).
45. “Panetta: No ‘Extraordinary Rendition,’” CBS News, February 5, 2009, www.cbsnews.com/news/panetta-no-extraordinary-rendition/.
46. See John Schwartz, “Obama Backs Off a Reversal on State Secrets,” New York Times, February 9, 2009, A12.
47. Obama, “Press Conference at the White House.”
48. “Panetta, ‘No Extraordinary Rendition.’”
49. See Nunca Más: The Report of the Argentine National Commission on the Disappeared, ed. Ernesto Sabato with an introduction by Ronald Dworkin (New York: Farrar, Straus and Giroux, 1986).
Chapter 8: Criminalizing Political Advocacy
This chapter is based on the Arlin M. and Neysa Adams Lecture in Constitutional Law at Temple University Beasley School of Law, which was delivered on March 1, 2011. It was later published as “The World We Live In,” Temple Law Review 83, no. 2 (2011): 295–308.
1. For these developments, see chapter 9, “Warrantless Wiretapping.”
2. 561 U.S. 1 (2010).
3. See generally Owen Fiss, “Aberrations No More,” Utah Law Review 4 (2011): 1085–99.
4. 18 U.S.C. §§ 2339A, 2339B (2006). The lineage of these statutes is outlined in Humanitarian Law Project, 561 U.S. at 7 (2010).
5. 8 U.S.C. § 1189 (2006).
6. 18 U.S.C. § 2339B(a)(1).
7. Ibid., § 2339A(b)(1).
8. Humanitarian Law Project, 561 U.S. at 23–24 (2010).
9. See, e.g., Jon Lee Anderson, “Death of the Tiger,” New Yorker, January 17, 2011, 41.
10. Humanitarian Law Project, 561 U.S. at 16–18.
11. Ibid., 33–39.
12. Ibid., 25–26.
13. Harry Kalven Jr., A Worthy Tradition: Freedom of Speech in America, ed. Jamie Kalven (New York: Harper & Row, 1988), 120.
14. 395 U.S. 444 (1969).
15. Confirmation Hearing on the Nomination of John G. Roberts, Jr. to Be Chief Justice of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 144–45 (2005) (statement of Senator Arlen Specter, chairman, Senate Committee on the Judiciary) (asking Judge Roberts whether Roe v. Wade qualified as a “super-duper precedent in light . . . of 38 occasions to overrule it”).
16. Brandenburg, 395 U.S. at 447.
17. See Kalven, chap. 8, n13, 119–236.
18. 376 U.S. 254 (1964).
19. Sullivan, 376 U.S. at 270–71.
20. Humanitarian Law Project, 561 U.S. at 39.
21. See generally Lloyd Corp., Ltd. v. Tanner, 407 U.S. 551 (1972) (holding that protesters dispersing handbills within a shopping center did not have First Amendment right to do so when alternative means—the sidewalks outside—were available).
22. Humanitarian Law Project, 561 U.S. at 38.
23. Ibid., 28.
24. Ibid., 36.
25. Ibid., 37 (internal quotation marks omitted).
26. Ibid. (internal quotation marks omitted).
27. Ibid., 15.
28. Ibid. (internal quotation marks omitted).
29. Ibid., 24.
30. Ibid., 36.
31. Ibid., 37–38.
32. Ibid., 37.
33. Dombrowski v. Pfister, 380 U.S. 479, 489 (1965). See also Owen Fiss, “Dombrowski,” Yale Law Journal 86 (1977): 1103–64.
34. Humanitarian Law Project, 561 U.S. at 26–27.
35. 391 U.S. 367 (1968).
36. 403 U.S. 15 (1971).
37. Humanitarian Law Project, 561 U.S. at 42 (Breyer, J., dissenting).
38. Ibid., 2740.
39. The citation was introduced by the signal “Cf.” Humanitarian Law Project, 561 U.S. at 57. This signal expresses an equivocation likely to be missed by the ordinary reader of the United States Reports. The Bluebook says that “cf.” supports a “proposition different from the main proposition but sufficiently analogous to lend support.” The Bluebook continues that “[l]iterally, ‘cf.’ means ‘compare.’” The Bluebook: A Uniform System of Citation, 19th ed. (Cambridge, MA: Harvard Law Review Association, 2010), R. 1.2(a), 55.
40. Humanitarian Law Project, 561 U.S. 38 (majority opinion).
41. Ibid.
42. Ibid.
43. Ibid.
44. See generally Geoffrey R. Stone, Perilous Times: Free Speech in Wartime (New York: W.W. Norton, 2004); Harry Kalven Jr., “Foreword: Even When a Nation Is at War,” Harvard Law Review 85 (1971): 3–37.
45. Humanitarian Law Project, 561 U.S. at 40.
46. Ibid., 38.
47. See Bruce Ackerman, Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism (New Haven, CT: Yale University Press, 2006), 171 (providing chart defining types of conflicts).
48. See chapter 6, “Imprisonment Without Trial.”
Chapter 9: Warrantless Wiretapping
This chapter is based on Owen Fiss, “Even in a Time of Terror,” Yale Law & Policy Review 1 (2012): 1–31.
1. Communications Act of 1934, Pub. L. No. 73-416, § 605, 48 Stat. 1064, 1103–4 (codified as ame
nded at 47 U.S.C. § 605 [2012]).
2. Compare Nardone v. United States, 302 U.S. 379, 381–83 (1937) with To Authorize Wire Tapping: Hearings on H.R. 2266 and H.R. 3099 Before Subcomm. No. 1 of the H. Comm. on the Judiciary, 77th Cong. 17–18 (1941).
3. Katz v. United States, 389 U.S. 347 (1967).
4. James Risen and Eric Lichtblau, “Bush Lets U.S. Spy on Callers Without Courts,” New York Times, December 16, 2005, www.nytimes.com/2005/12/16/politics/16program.html (correction appended).
5. Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95-511, 92 Stat. 1783 (codified as amended in scattered sections of 8, 18, and 50 U.S.C. [2012]).
6. Provision was also made for review of the decisions of individual judges by a specially designated three-judge appellate court. Given the secretive nature of the FISA proceedings, this right of review is available only to the government. Id.§ 1803(b).
7. Ibid., § 1801(e).
8. See Wartime Executive Power and the National Security Agency’s Surveillance Authority: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 10–15 (2006), www.gpo.gov/fdsys/search/pagedetails.action?granuleId=CHRG-109shrg27443&packageId=CHRG-109shrg27443.
9. President George W. Bush, “Statement on Signing the Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006,” December 30, 2005, available at www.presidency.ucsb.edu/ws/index.php?%20pid=65259.
10. 153 Cong. Rec. 1380–81 (2007).
11. “Your World with Neil Cavuto,” Fox News television broadcast, July 31, 2007, transcript available at www.foxnews.com/story/2007/08/01/house-minority-leader-john-boehner-on-dow-jonesnews-corp/ (quoting John Boehner’s understanding that, according to a judge, FISA “prohibit[ed] the ability of our intelligence services and our counterintelligence people from listening in to two terrorists in other parts of the world where the communication could come through the United States”); see also Mark Hosenball, “An ‘Intel Gap’: What We’re Missing,” Newsweek, August 6, 2007, 9 (“[I]ntel-collection officials concluded that FISA court authorizations should be obtained to eavesdrop not just on messages where at least one party is inside the country, but also for eavesdropping on messages between two parties overseas that pass through U.S. communications gear.”).
12. Greg Miller, “New Limits Put on Overseas Surveillance,” Los Angeles Times, August 2, 2007, articles.latimes.com/2007/aug/02/nation/na-spying2 (quoting officials confirming that FISA affected cases “ ‘where one end is foreign and you don’t know where the other is’—meaning warrants would be required even when it was unclear whether communications were crossing the United States or involved a person in the United States”).
13. Joby Warrick and Walter Pincus, “How the Fight for Vast New Spying Powers Was Won,” Washington Post, August 12, 2007, www.washingtonpost.com/wp-dyn/content/article/2007/08/11/AR2007081101349.html (“The decisions had the immediate practical effect of forcing the NSA to laboriously ask judges on the Foreign Intelligence Surveillance Court each time it wanted to capture such foreign communications from a wire or fiber on U.S. soil.”).
14. See U.S. Department of Justice, “Fact Sheet: Title IV of the Fiscal Year 2008, Intelligence Authorization Act, Matters Related to the Foreign Intelligence Surveillance Act,” news release, April 13, 2007, www.justice.gov/opa/pr/2007/April/07_nsd_247.html.
15. Protect America Act of 2007, Pub. L. No. 110-155, 121 Stat. 552 (codified at 50 U.S.C. §§ 1801, 1803, 1805 [2012]).
16. FISA Amendments Act of 2008, Pub. L. No. 110-261, 122 Stat. 2436 (codified at 50 U.S.C. § 1881a [2012]).
17. FISA Amendments Act Reauthorization Act of 2012, Pub. L. No. 112-238, 126 Stat. 1631 (codified in scattered section of 18 and 50 U.S.C.).
18. Nomination of Eric H. Holder, Jr., Nominee to Be Attorney General of the United States: Hearing Before the S. Comm. on the Judiciary, 111th Cong. 104 (2009).
19. Amnesty Int’l USA v. Clapper, 638 F.3d 118 (2d Cir. 2011).
20. Clapper v. Amnesty Intl. USA, 133 S. Ct. 1138 (2013).
21. 389 U.S. 347 (1967).
22. 277 U.S. 438 (1928).
23. 389 U.S. at 361 (Harlan, J., concurring).
24. Ibid., 358 (majority opinion).
25. Ibid., 356–57.
26. Ibid., 358n23.
27. Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, 82 Stat. 197 (codified in scattered sections of 5, 18, and 42 U.S.C. [2012]).
28. Ibid., § 2511.
29. United States v. U.S. District Court (Keith), 407 U.S. 297 (1972).
30. Ibid., 319.
31. Ibid., 321–22.
32. Ibid., 309n8.
33. Ibid., 308.
34. See, e.g., United States v. Duggan, 743 F.2d 59 (2d Cir. 1984); United States v. Nicholson, 955 F. Supp. 588 (E.D. Va. 1997).
35. See, e.g., United States v. Pelton, 835 F.2d 1067, 1075–76 (4th Cir. 1987).
36. Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act) of 2001, Pub. L. No. 107-56, 115 Stat. 272 (codified in scattered sections of 8, 12, 15, 18, 20, 31, 42, 47, 49, and 50 U.S.C. [2012]).
37. See FISA Amendments Act of 2008, 122 Stat. at 2437).
38. 50 U.S.C. § 1802(a)(1) (2012).
39. Ibid., § 1881a(a)–(g).
40. See William C. Banks, “Programmatic Surveillance and FISA: Of Needles in Haystacks,” Texas Law Review 18 (2010): 1633, 1635 (“The [2008 statute] codified a procedure to permit broad, programmatic surveillance focused on patterns of suspicious activities and not on a specific individual or the contents of their communications through changes in FISA that overcame the case-specific orientation of the original statute.”).
41. 50 U.S.C. § 1881a(a)–(g).
42. Intelligence Reform and Terrorism Protection Act of 2004, Pub. L. No. 108-458, 118 Stat. 3638 (codified in scattered sections of 42 and 50 U.S.C. [2012]).
43. Ibid., § 1071(e).
44. 50 U.S.C. § 1881a(a).
45. Ibid., § 1881a(a)–(g).
46. Ibid., § 1881a(i)(3).
47. Ibid., § 1881a(i)(1)(B).
48. Inspector General Act of 1978, 5 U.S.C.A. App. 3 (2010).
49. 50 U.S.C. § 1881a(l)(2).
50. Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring).
51. For example, in Berger v. New York, 388 U.S. 41 (1967), the Supreme Court overturned a bribery conviction based on evidence obtained without a warrant that met the Fourth Amendment standards of particularity. The Court also declared unconstitutional on its face the New York statute that established the scheme governing electronic surveillance under which the warrant was issued for failing to include a sufficient particularity requirement.
52. Some have suggested that FISA’s qualification of the probable cause requirement does not go far enough, and that further qualification or even elimination of that requirement would improve the statute (or replacement legislation). See, e.g., Stephanie Cooper Blum, “What Really Is at Stake with the FISA Amendments Act of 2008 and Ideas for Future Surveillance Reform,” Boston University Public Interest Law Journal 18 (2009): 269, 291–94, 308–12.
53. Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2088, n. 3 (2011) (Ginsburg, J., concurring in the judgment). In response to Justice Ginsburg’s observation, Justice Antonin Scalia indicated that he had a looser conception of probable cause, one that required “individualized suspicion,” but not tied to criminality. The case involved the arrest and imprisonment of an individual as a material witness. Scalia said: “No usage of the word is more common and idiomatic than a statement such as ‘I have a suspicion he knows something about the crime,’ or even, ‘I have a suspicion she is throwing me a birthday party.’” Ibid., 2082n2. Scalia did not offer any evidence, as might be expected from an Originalist, indicating that this contemporary or idiomatic usage was intended by the framers of the Fourth Amendment. In any event, Justice Scalia’s
understanding of probable cause should not be read as an authoritative gloss on the Fourth Amendment. Speaking for a majority, he held that when an individual is arrested and imprisoned as a material witness and the arrest warrant is based on a showing of probable cause, the motivation of the government in obtaining the warrant is irrelevant. The lawyers representing the individual arrested conceded that the warrant was valid and they did not object to the validity of the statute under which it was issued. For that reason, Justice Scalia did not rule on the validity under the Fourth Amendment of the warrant or of the statute authorizing it. This limitation on Scalia’s opinion was emphasized by Justice Kennedy in a concurrence, which was joined by Justice Ginsburg as well as Justices Breyer and Sotomayor. Justice Kagan did not participate in the case.
54. See note 6, above, and accompanying text.
55. Ibid., § 703 (codified at 50 U.S.C. § 1881b).
56. 494 U.S. 259 (1990).
57. Ibid., 274–75.
58. Ibid., 275 (Kennedy, J., concurring).
59. Ibid., 276–77.
60. Ibid., 277–78.
61. Ibid.
62. 553 U.S. 723 (2008).
63. Foreign Intelligence Surveillance Act § 102.
64. FISA Amendments Act of 2008 § 702 (g)(2).
65. See, e.g., United States v. Perillo, 333 F. Supp. 914, 919-21 (D. Del. 1971) (citing Alderman v. United States, 394 U.S. 165, 175 n.10 [1969]) (deeming constitutional the government’s use of conversations between the target of surveillance and a third party in a subsequent criminal prosecution of the third party, where the surveillance was conducted pursuant to a warrant applying only to the target of surveillance and the government had made no prior probable cause showing regarding the third party); see also United States v. Kahn, 415 U.S. 143, 157 (1974) (holding that the government’s interception of incriminating telephone calls by the wife of a target of surveillance, and the subsequent use of those calls in a criminal prosecution against the wife, did not violate the Fourth Amendment even though the government had not established probable cause regarding the wife before beginning surveillance).
66. U.S. Constitution, Fourth Amendment (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . .”).