Category: Volume 57 No. 1

Naked Scanners, GPS Tracking, and Private Citizens: Technology’s Role in Balancing Security and Privacy

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You’ve asked me to discuss whether it is possible, after 9/11, tostrike a sensible balance between privacy and security through law andtechnology. I will argue that it is indeed possible to strike a sensiblebalance. But often, the balance depends not on judges alone, but onlegislators, regulators, technologists, and, ultimately, on an engagedcitizenry, reflecting a national consensus about what sort of privacyinvasions are reasonable and unreasonable. I will give specific examplesof areas where the balance has been struck. I will suggest that it is easierto strike that balance when responding to government invasions of privacy, than when responding to invasions of privacy by the privatesector—by companies like Google and Facebook, which today havemore power over privacy and free speech than any King, President, or Supreme Court Justice. Read More …

The Literal Third Way in Approaching “Material Support for Terrorism”: Whatever Happened to 18 U.S.C. § 2339b(C)
and the Civil Injuctive Option?

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The prosecution of persons accused of terrorist conduct has generated a fierce policy and academic debate focused predominantly on two alternatives: traditional criminal prosecution in federal (Article III) courts, or prosecution by military commission. Two other possibilities have also been discussed, but have produced fewer supporters, and even fewer details of how they would be implemented: indefinite detention based either on law of war doctrine or some new, as yet unarticulated authority, or a new system altogether operating as a “national security court.” Read More …

Searching for Effective and Constitutional Reponses to Homegrown Terrorists

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We have been discussing these issues since September 11, 2001, butwhat is new is the concern with radicalization of young people andhomegrown terrorism. We feel duty-bound to prevent attacks byhomegrown terrorists, but at the same time how do we do that in a waythat respects our Constitution? Read More …

A Case for a National Security Court

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The difference between confronting this enemy, whether it is on the battlefield or meeting it in the stealth in which al Qaeda prefers to operate, is that the enemy does not present like a true traditional military enemy. Now if you thought about that in a logical way, that is a pretty good argument for according less in the way of rights and privileges, rather than more. In presenting itself as a non-traditional enemy, al Qaeda is subverting the laws and customs of war, which are designed to protect civilians. Instead, we are confronting an enemy that acts in stealth and specifically targets civilians for mass murder. Read More …

The Real Terrorist Agenda—The Destruction of the Bill of Rights

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Between 1998 and 2007 I was privileged to be the Legal Director at the Center for Constitutional Rights (“CCR”), and it was a great honor. CCR is a small public interest law firm that grew out of the Civil Rights Movement in the South during the 1960s. Although small, it has had a profound impact on the development of constitutional and civil rights law since that time. Powell v. McCormack, United States v. Dellinger, Dombrowski v. Pfister, and United States v. United States District Court for the Eastern District of Michigan are merely a few examples of the major cases that CCR handled that had an enormous impact on the law, American society, and the political discourse of that time and this. Read More …

The Legality of the United States’ Use of Targeted Killings in the War Against Terror

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Following the attacks on 9/11, the United States has been fighting a “war on terrorism.” To most people, that war involves fighting against al Qaeda and other terrorist organizations in Afghanistan, Iraq, and Pakistan. Quietly flying under the radar, however, is the emergence of active terrorist cells in Yemen and several other Middle-Eastern countries. Those seeking to wage jihad against the Western world have begun to assemble in Yemen, a country known as a safe haven for terrorists since the end of the Afghan war against the Soviet Union in the 1980s. With two wars currently being conducted, the U.S. has made it clear that it does not intend to wage a third war in Yemen, nor would Yemen welcome such action by the U.S. Instead, the U.S. will assist the Yemeni military by training and equipping Yemeni troops. Additionally, the U.S. Joint Special Operations Command (JSOC) has been working in conjunction with the Yemeni government to eliminate high-profile terror suspects via “targeted killings.” Included in the list of “capture or kill” terror suspects are Americans whom U.S. officials claim have joined al Qaeda. Read More …