by Fiss, Owen
67. Ibid. (“[A]nd no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”).
68. See, e.g., Akhil Reed Amar, The Constitution and Criminal Procedure: First Principles (New Haven, CT: Yale University Press, 1998), 31–45; Akhil Reed Amar, “Fourth Amendment First Principles,” Harvard Law Review 107 (1994): 757, 762, 774. But see Carol S. Steiker, “Second Thoughts about First Principles,” Harvard Law Review 107 (1994): 820–57.
69. 389 U.S. 347, 357–58 (1967).
70. Ibid.
71. See, e.g., United States v. Edwards, 498 F.2d 496, 499–500 (2d Cir. 1974).
72. Justice Blackmun introduced the phrase in New Jersey v. T.L.O., 469 U.S. 325, 351 (1985) (Blackmun, J., concurring in the judgment). See also MacWade v. Kelly, 460 F.3d 260, 268 (2d Cir. 2006) (acknowledging that United States v. Edwards exemplifies what later came to be known as the “special-needs exception”).
73. 50 U.S.C. 1881a(a) (2012).
74. Although the attorney general and the director of national intelligence must ordinarily wait for a judicial order before authorizing surveillance, the 2008 FISA amendments permit the institution of a wiretap without a judicial order where the attorney general and the director determine that “exigent circumstances” exist. Id. § 1881a(c)(2); see also id. § 1881a(a) (granting the attorney general and the director the ability to authorize surveillance). In such cases, the attorney general and the director must submit a certification for the interception within seven days of its commencement, if such a certification is not already pending. Ibid., § 1881a(g)(1)(B).
75. Ibid., § 1881a(g)(1)(A).
76. Transcript of Oral Argument at 4, Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013), www.supremecourt.gov/oral_arguments/argument_transcripts/11-1025.pdf (remarks of Solicitor Gen. Donald Verrilli, Jr.) (“Your Honor, under the statute, there are two clear examples of situations in which the individuals would have standing. The first is if an aggrieved person, someone who is a party to a communication, gets notice that the government intends to introduce information in a proceeding against them.”); see also ibid., 42–43. As it turned out, however, the notice promised by the solicitor general has seldom been furnished. See Charlie Savage, “Justice Dept. Defends Its Conduct on Evidence,” New York Times, February 14, 2014, www.nytimes.com/2014/02/15/us/justice-dept-defends-its-conduct-on-evidence.html; Adam Litpak, “A Secret Surveillance Program Proves Challengeable in Theory Only,” New York Times, October 29, 2013, www.nytimes.com/2013/07/16/us/double-secret-surveillance.html.
77. 132 S. Ct. 945 (2012).
78. Ibid., 957–64 (Alito, J., concurring in the judgment).
79. Ibid.
80. Ibid., 948 (majority opinion).
81. Ibid., 949–53.
82. Ibid., 958, 964 (Alito, J., concurring in the judgment).
83. Ibid., 964.
84. Ibid.
85. Ibid.
86. Ibid.
87. Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, § 6001(a), 118 Stat. 3638, 3742 (codified as amended at 50 U.S.C. § 1801(b)(1)(C) [2012]).
88. See Dombrowski v. Pfister, 380 U.S. 479 (1965).
89. As discussed earlier, see note 55, above. The Supreme Court in Berger v. New York, 388 U.S. 41 (1967), declared unconstitutional a New York statute establishing a process to obtain warrants allowing eavesdropping. The Court declared the statute invalid on its face and spoke of its “broad sweep,” ibid., 54, but did not formally invoke the First Amendment overbreadth doctrine.
Chapter 10: The Targeted Killing of Alleged Terrorists
1. Al-Aulaqi v. Obama, 727 F. Supp.2d 1, 17 (2010).
2. HCJ 769/02 Pub. Comm. Against Torture in Isr. v. Gov’t of Isr. (PCATI) (December 11, 2005), available at elyon1.court.gov.il/files_eng/02/690/007/a34/02007690.a34.pdf.
3. See chapter 1, “In the Shadow of War.”
4. See Owen Fiss, “Silence on the Street Corner,” Liberalism Divided: Freedom of Speech and the Many Uses of State Power (Boulder, CO: Westview Press, 1996): 47, 51.
5. Eric Holder, Attorney General, “Speech at Northwestern University School of Law,” March 5, 2012, www.justice.gov/iso/opa/ag/speeches/2012/ag-speech-1203051.html.
6. President Barack Obama remarks that “no civilians will be killed or injured—the highest standard we can set.” Note that the president used the words “killed or injured” rather than “targeted.”
7. Although Aharon Barak (see note 2, above, paragraphs 41–46) would allow the killing of civilians provided such killings were proportional to the gain to be achieved by the targeted killing, he fashioned this rule for a geographically limited area, specifically the Occupied Palestinian Territories.
8. Barack Obama, “Presidential Statement on Signing the National Defense Authorization Act for Fiscal Year 2012, 2011,” Daily Compilation of Presidential Documents, December 31, 2011, 1, 2 (Obama stated, “I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens”). The National Defense Authorization Act for Fiscal Year 2012 codified and affirmed the policy of imprisonment without trial, but declared that the act was not applicable to American citizens or lawful resident aliens of the United States. See the National Defense Authorization Act for Fiscal Year 2012, Pub. Law. No. 112-81, § 1021(e), 125 Stat. 1298, 1562 (2011). See chapter 6, “Imprisonment Without Trial.”
9. Owen Fiss, “Between Supremacy and Exclusivity,” Syracuse Law Review 57 (2007): 187–208.
10. Obama acknowledged that such an arrangement would raise “serious constitutional issues about presidential and judicial authority.”
11. In reaching that judgment, Justice Kennedy specifically pointed to the inadequacies of the procedures of the military tribunals set up in Guantánamo to determine the status of prisoners. Kennedy’s willingness to extend the writ of habeas corpus to the Guantánamo prisoners might not constitute an outright rejection of O’Connor’s proposal but only a rejection of the way in which the Department of Defense implemented that proposal. Boumediene v. Bush, 553 U.S. 723, 787–92 (2008).
12. See chapter 2, “The War on Terror and the Rule of Law.”
13. 403 U.S. 388 (1971).
14. Ashcroft v. al-Kidd, 131 S. Ct. 2074 (2011).
15. See chapter 7, “Torture and Extraordinary Rendition.”
16. See note 2, above, paragraph 59.
17. Vieth v. Jubelirer, 541 U.S. 267 (2004).
18. In addressing the standing issue, Judge Bates considered the possibility of Anwar al-Aulaqi’s “presenting himself to the United States Embassy in Yemen and expressing the desire to vindicate his constitutional rights in U.S. courts.” Bates appreciated that al-Aulaqi might be extremely hesitant to do so for fear that he would be endangering his life. At that point, Bates added that under these circumstances both international and domestic law would “prohibit using lethal force or other violence against him” and cited Tennessee v. Garner, 471 U.S. 1 (1985) as support for that proposition. Garner arose under the Fourth Amendment and in that context indicated that domestic law enforcement officers may use deadly force to prevent the escape of a suspected felon only if the officers have reason to believe that the suspect poses a threat of serious physical harm to themselves or others. Professor Jack Goldsmith pounced on this passage in Judge Bates’s opinion and declared it a minor victory for al-Aulaqi’s lawyers. He read Bates to suggest that there are constitutional limits on the president’s targeting practices and that some of these limits arise from the Fourth Amendment. See Jack Goldsmith, “What ACLU and CCR Won in al-Aulaqi,” Lawfare, December 7, 2010, www.lawfareblog.com/2010/12/what-aclu-and-ccr-won-in-al-aulaqi; Jack Goldsmith, Power and Constraint: The Accountable Presidency After 9/11 (New York: W.W. Norton, 2012): 198. As indicated by Holder’s Northwestern speech in March 2012 and Obama’s National Defense University speech in May 2013, the administr
ation fully acknowledges the constraints of the Constitution on their action, but treats the Fifth Amendment, not the Fourth, as the most relevant source of these constraints. What is disputed is the content of those constraints and who has the authority to formulate them.
19. Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).
20. See e.g., “Get the Data: Drone Wars,” Bureau of Investigative Journalism, www.thebureauinvestigates.com/category/projects/drones/drones-graphs/ (accessed October 14, 2013); “Drone Wars Pakistan: Analysis,” Year of the Drone Project: New America Foundation, natsec.newamerica.net/drones/pakistan/analysis (accessed October 14, 2013); “Air and Drone Wars Yemen: Analysis,” Year of the Drone Project: New America Foundation, natsec.newamerica.net/drones/yemen/analysis (accessed October 14, 2013); Bill Roggio and Bob Barry, “Charting the Data for US Air Strikes in Yemen, 2002–2013,” Long War Journal, www.longwarjournal.org/multimedia/Yemen/code/Yemen-strike.php (accessed October 14, 2013); and Bill Roggio and Alexander Mayer, “Charting the Data for US Airstrikes in Pakistan, 2004–2013,” Long War Journal, www.longwarjournal.org/pakistan-strikes.php (accessed October 14, 2013). See also “Numbers,” Living Under Drones: Stanford/NYU Project, www.livingunderdrones.org/numbers/ (accessed October 14, 2013) (analyzing the various drone strike data aggregators and their methodologies).
INDEX
Abdulmutallab, Umar Farouk, 162, 163
Abu Ghraib, 58, 67, 174
Addington, David, 229
Afghanistan, 24, 180
detention facilities in, 117, 119, 122, 152 (see also Bagram Air Field detainees)
Afghanistan, war in, 4, 38, 45–46, 67, 73, 117, 148–49, 151–53, 159–60, 227, 266
Bush administration and, 7–10, 12, 15, 20, 24, 31
Charter of the United Nations and, 8
legality of, 8, 9–10
Obama administration and, 104, 151, 171
prisoners of war and, 12–13, 119
Third Geneva Convention and, 149–50
unlawful combatants in, 21–22
al-Aulaqi, Anwar, 221, 260–61, 311–12n18
alleged terrorist activities of, 264
congressional hearings sparked by killing of, 274
court’s decision in suit of, 282–85
targeted killing of, 263–85
U.S. citizenship of, 261, 263, 272–73
al-Aulaqi, Nasser
standing to file suit, 284–85
suits filed by, 263–85, 311–12n18
Alien and Sedition Acts, 197
Alien Torts Claims Act, 291n34
Alito, Samuel, 96, 252, 255–57
Hamdan v. Rumsfeld and, 96
Katz v. United States and, 254
United States v. Jones and, 253–55
al-Marri, Ali Saleh Kahlah, 164
Al Odah v. United States, 12–15, 17, 20, 21, 30–31
al-Qaeda, ix, 73, 77, 129, 149, 201–2, 227, 229–30, 260, 266
Bush administration and, 7–8, 12–13, 15, 19, 22, 24, 39, 41
detention of members, 153–61, 162, 260
as enemy combatants, 21–23, 153, 155
imprisonment without trial and, 153–61, 162
Obama administration and, 104–7, 109, 111, 113
principle of freedom and, 153–61
war against, 39, 41, 118–19, 153–55, 159–60, 262–63, 267–68, 271 (see also War on Terror)
al-Qaeda in the Arabian Peninsula, 264, 265
American Society of International Law, 152, 159
Amman, Jordan, terrorist attacks in, 104
Arar, Maher, case, 180–95
Army Field Manual, 118, 175, 176, 193
Ashcroft, John, 29–30, 112–13
assassination, ban on, 260
See also targeted killing
Authorization for the Use of Military Force (AUMF), 46, 159–60, 164–65
Bagram Air Field detainees, 117, 119, 122, 123, 162, 163, 166, 189
Barak, Aharon, xiii–xiv, xvii, 7, 126, 128–39, 261, 265, 281–82, 310n7
approach to conflicting values, 132–33, 138
early life of, 128
fundamental values and, 135–36
human dignity and, 130–33, 138–39
inquiries into substantive rationality, 137–38
The Judge in a Democracy, 126
limits on deference due to the military, 133–34
“proportionality test” and, 135–36
question of necessary torture and, 132
retirement of, 126, 128
rulings on terrorism, 133
on security fence, 133, 138
on targeted killing, 133, 136–37
Basic Laws (Israel), 130–39
Bates, John, 264, 275, 282–83, 283–84, 311–12n18
Begin, Menachem, 128
Benghazi, Libya, terrorist attack on U.S. embassy in, 221
bifurcated exclusionary rule, 144, 157
Bill of Rights, 8–9, 14, 19–20, 41, 44, 62–64, 105, 116, 130
Detainee Treatment Act of 2005 and, 111
habeas corpus and, 145, 165
torture and, 178, 183
warrantless wiretapping and, 246
See also U.S. Constitution; specific amendments
bin Laden, Osama, ix, 81, 104–5, 148, 154, 219, 227, 262–63, 266, 267
Bivens v. Six Unknown Named Agents, 170, 184–85, 186, 188, 192, 195, 280–81
Blackmun, Harry, 64, 236
“black sites,” 118, 193
Boumediene v. Bush, xi, xii, xv, 4–5, 70–71, 116–17, 121–22, 165–67, 247, 278–79, 311n11
Brandeis, Louis, 98, 207
Brandenburg v. Ohio, xiv–xv, 197–98, 208, 209, 217
Brennan, William, xvi, 60–61, 62, 64–66, 236
Breyer, Stephen, 137–38
Boumediene v. Bush and, 279
Hamdan v. Rumsfeld and, 86, 90, 93, 96–97
Hamdi v. Rumsfeld and, 46–48, 278
Holder v. Humanitarian Law Project and, 216–18
as minimalist, 69
Rasul v. Bush and, 95, 96–97
United States v. Jones and, 255
Brown v. Mississippi, 169
Burger Court, xii, 170, 226
Bush, George W., 99, 103, 221
2001 executive order authorizing use of military commissions, 107, 112, 120
declaration of opposition to torture, 174
declaration of War on Terror, 227, 285
imprisonment without trial and, 164
Obama’s repudiation of, 99–100
policies on torture, 174–79
See also Bush administration
Bush administration, xi–xiii, 3–4, 33–37, 67, 104–17, 125, 149–50, 159, 178–79, 181, 202, 227, 259, 285
CIS interrogation and detention policy under, 171
Combatant Status Review Tribunals and, 111
constitutional rights and, 15–16
Detainee Treatment Act of 2005 and, 110–11, 178–79, 229
detention policy of, 33–35, 37–38, 46–47, 74–76, 105–6, 111–12, 161–62, 171, 272–73
enemy combatants and, 77
establishment of military commissions, 107–8
FISA and, 227–31
Guantánamo detainees and, 77–89
interrogation policy and, 171
Iraq War and, 10–11
Military Commissions Act of 2006 and, 88, 111–12
Obama administration’s continuation of Bush-era policies, 100–102, 103, 117–24, 143–44, 163, 194
targeted killing policy of, 273–74
Terrorist Surveillance Program and, 256–58
USA PATRIOT Act and, 12
violations of constitutional tradition by, 104–17, 124, 147
warrantless wiretapping and, 122, 201, 227–31
Bybee, Jay, 174, 176, 177–78
cellular telephone communications. See electronic communications; telephone communications
censorship, of violent political advocacy, 202–20
/> Charter of the United Nations, 7–8, 9, 265–67
Article 2, 266
Article 51, 266, 270
Iraq War and, 10–11
NATO’s humanitarian intervention in Kosovo and, 10–11
territorial sovereignty and, 272
Cheney, Dick, 177, 229
Church, Frank, 227–28
Christmas Day bomber, 264
CIA, 180, 189, 193, 236, 260
de facto granting of immunity to, 119
FISA Amendments Act of 2008 and, 242
interrogation and detention policy under, 171, 176–77
secret prisons abroad, 118
state secrets doctrine and, 189–90, 191, 194
use of torture by, 171, 194
citizens. See U.S. citizens
Cohen v. California, 216
Cole, David, 160, 198
Combatant Status Review Tribunals, 79, 80–82, 89, 111, 114, 115
constitutionalism, 37
constitutional rights, 4, 12–15, 51–52, 129, 135, 196
of citizens, 15–16, 22, 23–24, 106–7, 180, 272–73, 279–80
complicity of government branches in violating, 110–17
curtailed at times of war, 197–99, 200–220, 218
curtailed under Obama, 100–101, 103, 117–24
of enemy combatants, 15–16, 18–20, 22–25, 52–68, 120–21
extraterritorial reach of, 3, 13, 58–66, 246–50
federal judiciary and, 3–4, 110–17, 170
of Guantánamo detainees, 73–75, 107, 182–83, 278–79
of noncitizens, 22, 53–68, 74–75, 107, 112, 115–16, 180, 182, 272–73
cosmopolitanism, 60–61, 62, 63, 73–74, 94, 246–47
counsel, right to, 47–48, 80
courts-martial, 83–88
damages, suits for, 184–86, 188–92, 195, 280–81
declarations of war, 267–68
declaratory judgments, 184, 186–90
Defense Intelligence Agency, 23, 40
democracy, xvii
as a deliberative process, 77, 91, 93
and First Amendment, 210–11
and human dignity, 131–32
vs. majoritarianism, 77, 91
minimalism and, 70, 90–91
and political advocacy, 218
presidential system, 90–91, 134–35
statutory interpretations and, 76
U.S. Constitution and, 77