Category: Constitutional Law

1

Regulating Private Military Companies

privatemilitary.jpgBlackwater has of course been in the news. And the House has acted twice in the past week to regulate private military companies. One, H.R. 2740, according to the Times “would bring all United States government contractors in the Iraq war zone under the jurisdiction of American criminal law. The measure would require the F.B.I. to investigate any allegations of wrongdoing.” The other, H.R. 400, is designed “to make it easier to convict private contractors of defrauding the federal government during wartime.”

A couple of years ago I wrote an article about this area. One thing is clear: the use of private military contractors is not going away soon and can often have benefits. As such I proposed that rather than looking to legislation alone, the U.S. government, which accounts for massive portions of many private military contractors income stream, should take an old school contract approach to the jurisdiction problem. In short if the government wants to be serious about the issue, it can simply demand that any contractor adhere to human rights and international laws and agree to U.S. jurisdiction over common crimes. An additional legislative layer is required, however. Protection for whistleblowers is vital for any criminal or profiteering law to have teeth. These events occur far away and when people have come forward as happened in Bosnia, the company involved was quick to try and paint those who spoke up as trouble makers with all the usual employment repercussions. Peter Singer’s work in the area details much of the problem and is worth a read. My paper, Have Your Cake and Eat It Too: A Proposal for a Layered Approach to Regulating Private Military Companies, covers some of the history of the use of PMCs by governments and NGOs, the way PMCs can be used well, the reasons international law falls short of addressing many of the issues that are bound to arise, and then offers a possible solution to at least make sure that when crimes occur people know about them (a real problem in many cases), and they can be prosecuted. There is of course much to do in this area. The paper seeks to be a starting point.

6

California’s Electoral Votes and the Constitution

A proposed ballot measure in California to apportion the state’s electoral votes by congressional district, rather than awarding all of the state’s electoral votes to the candidate who wins the statewide popular vote, has received much-deserved attention recently. Some Republicans—including many supporters of Rudolph Giuliani’s campaign—have supported the ballot initiative because they recognize its potential to confer upon the Republican nominee a windfall of roughly 20 electoral votes in an otherwise solidly Democratic state; Democrats have uniformly opposed the measure, for the same reason. The measure has also renewed debate about the fairness and wisdom of the Electoral College.

There is much to be said, as a matter of policy, about the California initiative. If it is successful, for example, it is likely to lead to similar efforts in other states, driven (as is the California effort) more by partisan aims than by concerns about representative democracy in presidential elections. But the proposal suffers from a much more serious defect: it is very likely unconstitutional.

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The ACLU’s “Declaration of First Amendment Rights and Grievances”

ACLU.jpgLast week, at a symposium held at American University, the ACLU unveiled a new report, entitled “Reclaiming Our Rights: Declaration of First Amendment Rights and Grievances.” I’m proud to be able to note that one of my First Amendment students, Wash. U. 3L Sophie Alcorn, was one of the two principal authors of the report. The report lists a series of First Amendment grievances against the current government, and argue that we need to pay particular attention to First Amendment liberties, especially those related to the processes of self-government. The specific grievances, taken from the declaration, are as follows:

To prove this, let facts be submitted to a candid world that the United States

government:

• Ignores its representative mandate by governing in the shadows.

• Maintains a surveillance society through warrantless wiretapping, opening mail, and spying.

• Secretly uses private parties to spy and seeks immunity to cover their illegalities.

• Silences dissent.

• Prevents citizens from petitioning their elected offi cials.

• Profiles individuals and denies freedom of movement based on association.

• Falsifies information to deny liberty.

• Overclassifies, reclassifi es, and impedes the lawful declassifi cation of documents.

• Prevents soldiers from communicating with their families and prosecutes their lawful speech.

• Silences whistle blowers.

• Censors the press, broadcast media, and Internet based on content.

• Prosecutes the press for revealing illegal programs.

• Obstructs oversight by elected officials.

• To preserve secrecy, places secret holds on bipartisan open government legislation.

• Funds religious programs.

• Furthers its ideological agenda by censoring the scientific community.

These are serious and wide-ranging allegations, and I have not studied all of them in detail. Moreover, the report is intended as a political advocacy document rather than a work of scholarship. But as I have argued elsewhere, I think the second and third allegations, that current law permits the government to “[m]aintain a surveillance society through warrantless wiretapping, opening mail, and spying” and “[s]ecretly use private parties to spy” are correct. Surveillance of our intellectual activities, either directly by the government or with the assistance of private sector intermediaries like ISPs and search engine companies is deeply corrosive to the intellectual liberty upon which a free and self-governing society must rest.

More generally, this is a very important document that is worth reading even if one disagrees with its allegations or conclusions. (If you do agree with the allegations, it might make for very depressing reading). In a time when the mantra of security is raised as a justification for surveillance and other inroads into intellectual and political liberties, it’s essential that we talk about what those liberties are, why they are important, and to what extent (if at all) the needs of security justify their abridgement or restriction.

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The People Out of Doors — In Trees

As reported here, for several months now activists have been protesting the planned construction of a new athletic facility at the University of California-Berkeley. Some of the protesters have been camping out in and near a grove of trees slated for destruction. The protest tactics are hardly notable, particularly at Berkeley. What is notable is the University’s latest move in this ongoing dispute. Under cover of darkness, university officials had the grove surrounded by a 10-foot-high fence. The erection of the fence was necessary, said university officials, to “protect” the protesters from angry football fans.

The Berkeley episode is one indication that campus spaces, once facilitative platforms for social movements, have become microcosms of the spaces outside their gates. Like other state actors, public college and university officials have increasingly turned to “free speech zones” and other spatial tactics to control outdoor expressive activity. In some instances, adverse publicity has caused officials to rethink these tactics, or at least re-zone campus space to allow for additional open forums. But expressive zoning, detailed permitting requirements, and other spatial controls are prevalent on many campuses today.

The argument that the fence facilitates free speech by “protecting” the speakers, advanced by the university’s vice chancellor for administration, is typical. But putting speakers inside fences is an affront to free expression. The structure itself communicates that it is the public that needs to be protected from the speakers. Unless and until the protest is held to be unlawful (an argument the university is now pressing in court), public officials have a duty to protect these protesters from any hostile audience. That means providing some form of security in the event those currently voicing hostile opinions on the Web actually show up, not diluting and demeaning the protesters’ message by caging their display.

As the Berkeley response also demonstrates, the use of spatial tactics like these can seriously backfire on administrators. The erection of the fence has apparently engendered solidarity among groups and community activists that do not typically join cause. It may not be, as one activist described it, a “Guantanamo Berkeley,” but the Berkeley fence is an oddly ironic structure in the birthplace of the Free Speech Movement.

2

Constitutional Displacement

I have posted my most recent piece, entitled “Constitutional Displacement,” on SSRN. In recent First Amendment scholarship, I have focused on the intersection of speech and place or spatiality. This project, which is more expansive, considers the many respects in which governmental control of territory affects constitutional liberties. The draft can be downloaded here, and comments are of course welcome. Here is the abstract:

This Article examines the largely overlooked intersection between territory and constitutional liberty. Territoriality — the attempt to affect, influence, or control people, phenomena, and relationships by delimiting and asserting control over a geographic area — affects constitutional liberty in profound ways. The effects have been apparent in certain infamous historical episodes, including the hyper-territoriality of racial segregation, the internment of Japanese-Americans during World War II, and isolation of the sick and mentally ill. Today, governments are resorting to territorial restrictions in an increasing number of circumstances, including the detention of enemy combatants at Guantanamo Bay, the expulsion of illegal immigrants from local communities, the banishment of convicted sex offenders from vast geographic areas, the exclusion of homeless persons from public spaces, and the proposed isolation and quarantine of victims of pandemics and bio-terrorist attacks. These measures have produced what the Article refers to as Geographies of Justice, Membership, Punishment, Purification, and Contagion. Within these geographies persons and groups are subject to constitutional displacement – the territorial restriction or denial of fundamental liberties. The displacements examined in the Article substantially restrict or deny basic liberties including access to justice, migration, movement, communal and political membership, and the ability to be present in places of one’s own choosing. The Article demonstrates that the Constitution provides remarkably little protection from certain forms of displacement. Analyzing the Constitution itself as a spatial framework, one that relies upon place, geography, and territory for various purposes, the Article shows that displacement arises from extra-territorial and intra-territorial “spatial gaps” in text and structure. The Article proposes that these spatial gaps be narrowed or closed.

0

Jurisdiction and Textualism

I just posted a draft of a paper on SSRN. It is called “Jurisidiction and Textualism,” and it is about the treatment by textualists of jurisdictional statutes, and what that treatment suggests both about textualism and about the broader debate over the relationship between Congress and the courts in crafting a jurisdictional regime. Here is the abstract:

Recent legislation has reinvigorated the scholarly debate over the proper relationship between Congress and the federal courts in matters of federal-court jurisdiction. The traditional view of jurisdiction-stripping is that Congress has virtually plenary power to determine the jurisdiction of the federal courts. Others have argued that there are substantial limits on Congress’s authority to deprive the federal courts of jurisdiction over certain matters. A similar debate has raged over the obligation of federal courts to exercise jurisdiction that Congress ostensibly has conferred. Since the debate over Congress’s role in crafting a jurisdictional regime last flared in full force, textualism has been ascendant as a methodology for interpreting statutes, and has had a profound impact on the way that judges—textualists and non-textualists alike—read statutes. The rise of textualism provides an important opportunity to update the long-standing debate over the proper roles of Congress and the courts in matters of federal-court jurisdiction.

Like the debate over congressional control of the federal jurisdictional regime, textualism is largely about the judicial role in a democracy. Textualists argue that only their methodology recognizes the properly limited judicial role, and they insist that judges must be faithful agents of the legislature, guided by the plain meaning of statutory text. To the extent that textualism has had a significant impact on judicial decision-making, particularly by the Supreme Court, we might expect to see a move towards strict interpretation of jurisdictional statutes, and a vindication, at least as a descriptive matter, for the strong congressional-control models. After all, if the textualist judge is supposed to act as a faithful agent of Congress, following the plain meaning of statutory text, then when Congress plainly withdraws jurisdiction, faithfully textualist judges can be expected to decline to exercise authority; and if Congress confers jurisdiction without qualification, then we might expect textualist judges to eschew arguments for implicit exceptions to the exercise of jurisdiction. In practice, however, textualism has been applied somewhat unevenly to jurisdictional statutes. Although the Court’s textualists have strictly read statutes that purport to divest the federal courts of jurisdiction, they have not been as consistent in applying textualism to statutes that appear, based on their plain language, to confer expansive grants of jurisdiction.

Textualism’s goal to limit the judicial role in a democratic society is advanced by strict interpretations of statutes purporting to divest the courts of jurisdiction. But when Congress appears to confer broad grants of authority—such as in the general federal-question statute—being a truly faithful agent based on statutory language will result in a more robust judicial role than some textualists might otherwise prefer. The treatment by the Court’s textualists of jurisdictional statutes suggests that the textualists’ urge to constrain judicial power has sometimes trumped the textualists’ demand that courts act as faithful agents of Congress by considering only the plain meaning of statutory language in deciphering Congress’s instructions.

This has implications both for textualism and for the larger question of the proper relationship between Congress and the courts in crafting a jurisdictional regime. It should force textualists to defend their approach more explicitly as a device for constraining judicial authority, and perhaps less as the optimal means for implementing a theory of faithful agency in statutory interpretation. And it suggests that, at least as a positive matter, the strong congressional-control models of federal jurisdiction have not yet fully prevailed, at least with respect to the question of the courts’ authority to decline to exercise jurisdiction that Congress ostensibly has granted.

You can download the paper here. I welcome any comments.

Guantanamo in Second Life

As part of our Constitution Day program, Seton Hall Law School will be participating in metaversal simulation Second Life. The program “will be webcast in a virtual Guantanamo Bay detention center on Second Life:”

The virtual detention center was developed . . . by Nonny de la Peña, producer and director of the documentary “Unconstitutional: The War on Our Civil Liberties,” and Peggy Weil, professor of interactive media at the University of Southern California. “What we hope to create is a virtual platform where people from around the world can gather together to discuss important social justice issues,” said [Seton Hall Professor Mark] Denbeaux, who also is the author of the “Guantanamo Reports,” detailing the status of detainees at the military prison camp. “As an Internet-based virtual world, Second Life will allow us to conduct a broad and diverse debate on a wide range of political, legal and international issues.”

Some say virtual worlds are the future of online commerce, and perhaps online education as well. More information on how to participate available below. . .

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4

The Contemporary Protest Movement

war_protest_102809.jpgIn a book I have tentatively entitled, The People Out of Doors: The First Amendment, The Expressive Topography, and the Preservation of Public Liberties, I examine the many limitations on contemporary political protest and other First Amendment activity in public places. One of the things I thought much about while I was writing the book was the continued relevance and salience of the traditional public protest in an era of hyper-technology. In this weekend’s New York Times Magazine, Michael Crowley touches on this theme in a piece about the methods and effectiveness of the anti-war protest movement. Crowley’s principal focus is on modern-day methods of protest and, in particular, protest organizing. As he reports, protest repertoires like conference calls, lobbying, and mass emails are replacing the public demonstrations, door-to-door canvassing, and street theatre used in earlier social and protest movements. Crowley wonders whether technological advances in communications and organization will actually create a more effective protest movement than existed, say, in the Vietnam era. He seems skeptical — and with good reason. Thus far, despite organizational improvements, fundraising successes, and regular access to legislators including House and Senate leaders, the anti-war movement has achieved little tangible progress in halting the war or bringing home the troops.

Crowley’s piece highlights two substantial errors that contemporary protest and other social movements seem vulnerable to making. The fact that, as Crowley states, “[t]he Internet, not the street, not the campus, is the fundamental component of today’s anti-war movement” portends a premature abandonment of the streets and other public places. The Internet is a necessary tool for organizing, raising money, and conveying messages. Indeed, no contemporary protest movement can succeed unless it harnesses the benefits of bandwith. The first error, however, is to assume that the Web can replace tangible places of protest, and that democracy-by-technology can replace on-the-ground grass-roots activity. The “virtual march on Washington,” staged online by one of the principal anti-war movement organizers, could not produce the solidarity or impact of a real march on the Capitol. Nor can online polls and petitions replace more embodied forms of protest and protest organizing. As I argue in the book, the people cannot effectively self-govern solely by sitting in front of computer monitors and typing on keyboards. Although they did not ultimately produce legal reform, last summer’s immigration protests showed how a tangible public presence can attract attention and at least start a national dialogue. By contrast, who watched or even noticed the “virtual marchers”? Anti-war protest organizers have not yet entirely abandoned traditional protest repertoires. But they are moving in that direction. The people must continue to assemble “out of doors,” both in the physical/tangible sense and in the sense that they occupy spaces outside mainstream political institutions.

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Law Talk: Richard Epstein and the Classical Liberal Constitution

epstein.jpgIn the latest episode of “Law Talk,” I speak with Professor Richard Epstein of the University of Chicago and Stanford’s Hoover Institute (currently visiting at NYU). Epstein, of course, is known as one of the most articulate and prolific academic defenders of libertarian or classical liberal approaches to the law. In this episode, he discusses one of his current projects, a volume to be published by Basic Books on the classical liberal history of the constitution. Enjoy!

You can subscribe to “Law Talk” using iTunes or Feedburner. You can also visit the “Law Talk” page at the iTunes store. For previous episodes of Law Talk at Co-Op click here.

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Federal Judge Strikes Down Patriot Act NSL Provision

Earlier today, a federal judge struck down a part of the Patriot Act allowing the service of National Security Letters without judicial oversight. An AP report on the decision can be found here. NSLs, as Dan has blogged about here and here, are a statutory authorization to the FBI that allow it to secretly obtain records about people from businesses and instututions with which they have a relationship. NSLs don’t require judicial oversight and some requirement of individualized suspicion or probably cause, but merely some “relevance” to an ongoing national security investigation. This relevance determination is made internally by the FBI and does not have to be put before a neutral judge or other official.

The opinion is complicated (and long at 106 pages), but I think any assertion that NSLs need to be regulated by a neutral decisionmaker is a step in the right direction. NSLs, as the district court recognizes, threaten First Amendment values. As I’ve argued in a recent article, NSLs threaten a variety of important interests, but most especially threaten the intellectual privacy of ordinary people. NSLs can be used to request a wide variety of information, including historical and transactional information relating to telephone calls and e-mails. As intellectual activity becomes increasingly mediated by the use of computers and the Internet (i.e., what you are doing right now in reading this post), the records created from such activity remain secreted by ISPs, websites like this one, and on our hard drives. The creation of these records provide a potential gold mine to government and others who are interested in learning about the ways in which we engage with and develop our thoughts and ideas. Both popular literature and legal theory have long documented the chilling effect on expression that results from the surveillance of our intellectual activities (including reading, thinking, and speaking). NSLs are one of the main tools by which government can obtain information about our intellectual activities, and thus the interposition of some meaningful legal constraint upon the power of the government to do this is essential. This is not to minimize the government interest in deterring and preventing threats to our national security, but merely to note that when the government engages in intellectual surveillance, there is an equally important interest on the other side — our freedom of thought and our ability to generate new and potentially controversial ideas.

This important case is certain to be appealed by the government, and it will be interesting to see what happens.