Category: Volume 57 No. 1

Secure Mobility and the Right to Movement

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Instead of discussing post 9/11 cases and practice, I am going tospeak about the emerging strategic context in which this law is beingdeveloped, and one area of law being reshaped within that newframework: the law governing the global movement of people and anindividual’s right to movement. This field of law is notablyunderdeveloped, but it has become central to civil liberties and humanrights concerns in the decade since 9/11. Only by understanding the newstrategic environment we are confronting can we see how essential it isto re-focus on this dormant area of law. Read More …

The Demise Of Privacy: Michigan Cases Post 9/11

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The immediate response of the executive branch was to vastly expand its powers, and that played out across the country in a number of ways. The ACLU worked diligently to increase transparency of government actions on such topics as rendition, military tribunals, torture, warrantless wiretapping, national security letters, political surveillance, ideological exclusion, racial profiling, terrorist watch lists, and naturalization delays. We established the John Adams Project, hiring some of the country’s best criminal defense lawyers to represent people being held at Guantanamo Bay, and we filed a number of important legal challenges in dozens of states. Read More …

Discussions from a Former Chief Legal Officer of the C.I.A.

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This is the second national security forum I’ve done here. Last year, some of us were in Toledo for a similar session, my friend Josh [Dratel] and others, and I’ve done a lot of speaking in various forums. The title of this forum was to look at various alternative forums for 9/11 prosecutions, so let me just briefly cover that. Actually this may surprise some of you or may alarm some of you and cause you to rethink your positions, but I think that, based on all the experience and observations that I have had over the years, Article III courts are, for the Agency and for the intelligence community, the optimum mode of proceeding.1 While I was there, and certainly while I was in charge of the office, we never took a position with the Justice Department, the Defense Department, and the White House about what we wanted to do with our cases involving former CIA detainees. Read More …

Ijury: The Emerging Role of Electronic Communication Devices in the Courtroom

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The courts and often many judges have made no secret of their discontent with the Internet, particularly with regard to its impact on the legal system and trials. Courts have implicitly questioned the relevance of information obtained from the Internet, and have explicitly stated that while “some look to the Internet as an innovative vehicle for communication, the Court continues to warily and wearily view it largely as one large catalyst for rumor, innuendo, and misinformation.” This view may be a result of many judges being from the “old school,” that is, that they either lack an understanding of modern technology, or the desire to deal with such technology in their courtrooms. Read More …

The Bush and Obama Administrations’ Invocation of the State Secret Privilege in National

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The launch of the Global War on Terrorism occasioned a new challenge to the Rule of Law. This challenge manifested itself in a series of legal memoranda and ensuing positions adopted by the George W. Bush administration in response to the capture and imprisonment of those suspected of carrying out the September 11, 2001 terrorist attacks. Many of the political policy formulations adopted by the Bush administration generated intensive debate over their merits, legality, and political viability. Among the most controversial policies are waterboarding and other “enhanced interrogation” techniques applied against foreign nationals detained abroad and at Guantanamo Bay; the practice of “extraordinary rendition”; the National Security Agency eavesdropping program without prior court approval; the self- proclaimed right to unilaterally launch pre-emptive war; enactment of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001; the usage of signing statements to evade congressional intent… Read More …