It’s great to be back at Concurring Opinions (and thanks to Danielle for the generous (re)introduction last week). This month, I plan to blog on a few ongoing projects and some upcoming news events. Here are two topics soon to come, with two more after the break.
(1) Spies. Immigration authorities seize a suspected spy in Manhattan on the grounds that he entered the country unlawfully. Rather than process him through the immigration system, or transfer him to the criminal justice system, he is secretly flown more than a thousand miles away, interrogated without a lawyer, and kept virtually incommunicado for almost seven weeks in a government facility on the Texas-Mexican border. When he doesn’t break, he is transferred back to New York to be tried in federal court for a capital offense. The evidence from his warrantless arrest and secret detention helps to convict him.
When did this happen?
No surprise that the story resonates with our national security debates today. But it all happened during the Eisenhower Administration. Rudolf Abel was the top Soviet spy in North America before he was convicted of atomic espionage. Thanks to his lawyer, his life was spared (and he was later exchanged for U-2 pilot Francis Gary Powers). I think that there are lessons to be learned from this history today, but mine seems to be the minority view.
(2) Lies. Okay, not lies exactly, but pretext. (You try rhyming pretext with anything. You’ll wind up perplexed, if not vexed, with the text that comes next.) Pretextual use of the law is all around us. The most common example is the law governing arrests. In Whren v. United States, the Supreme Court unanimously agreed that the police were free to do “under the guise of enforcing the traffic code what they would like to do for different reasons,” namely, stop and search Whren’s car for drugs. Abel’s case (referenced in Whren) presented another classic instance of pretext: his detention for an immigration violation was used for the unintended purpose of counterespionage, neatly skirting in the process constitutional protections against warrantless searches and seizures, not to mention official disappearances. When Abel’s able lawyer argued pretext, however, the Supreme Court sustained the conviction.
Sometimes the law abhors pretext. For example, in Kelo v. City of New London, the Supreme Court categorically rejected the idea that the state may take property under the pretext of a public purpose. How should citizens regard the pretextual use of the law by state officials? Does such use tend to weaken the rule of law in ways that should matter to us as individuals or as a society? When tempted to use a law for an unintended purpose, how should the “good” official distinguish an innovative pretextual use from a destructive one? The Supreme Court dodged these questions just last term in Ashcroft v. Al-Kidd and I’d like to think hard about why.