Eugene Volokh's Blog, page 2706

My US Commission on Civil Rights Testimony on the Impact of Eminent Domain Abuse on Minority Groups

(Ilya Somin)

On August 12, I testified at a US Commission on Civil Rights hearing on the "Civil Rights Implications of Eminent Domain Abuse." The video of the oral testimony is available here. I have now made my more detailed written testimony available online here. Here is the Introduction, which includes a summary of the rest [footnotes omitted]:

I am grateful for the opportunity to address the important issue of the impact of eminent domain on racial and ethnic minorities. I would like to thank Chairman Castro, Vice Chair Thernstrom, and the other commissioners for their interest in this vital question. As President Barack Obama aptly put it, "[o]ur Constitution places the ownership of private property at the very heart of our system of liberty." The protection of property rights was one of the main purposes for which the Constitution was originally adopted. Unfortunately, the Supreme Court has often relegated property rights to second class status, giving them far less protection than that accorded to other constitutional rights. And state and local governments have often violated those rights when it seemed politically advantageous to do so.

Americans of all racial and ethnic backgrounds have suffered from government violations of constitutional property rights. But minority groups have often been disproportionately victimized, sometimes out of racial prejudice and at other times because of their relative political weakness. Minorities are especially likely to be victimized by private to private condemnations that test the limits of the Public Use Clause of the Fifth Amendment, which requires that property can only be condemned for a "public use." These include takings allegedly justified by the need to alleviate "blight" and promote "economic development."

Part I of my testimony briefly surveys the constitutional law of eminent domain and public use. It documents the extent to which the Supreme Court has given condemning authorities a near-blank check to take property for whatever purposes they want.

Part II examines the impact of blight and economic development condemnations on minority groups. Both types of takings often victimize racial and ethnic minorities. Although such condemnations are defended on the grounds that they are needed to promote economic growth in poor communities, they often destroy far more wealth than they create. Economic development can be better promoted by other, less destructive means. African-Americans and Hispanics are targeted more often than other groups in large part because of their relative political weakness and comparatively high poverty rates. While, certainly, not all members of these groups are poor or politically weak, a disproportionately large number are.

Finally, in Part III I explain why the problem of abusive takings persists despite the wave of state reform laws adopted in response to the Supreme Court's unpopular decision upholding economic development takings in Kelo v. City of New London. Many of the new laws actually impose little or no constraint on economic development takings. Even those that do impose meaningful restrictions usually still allow private-to-private condemnations in the types of "blighted" areas where many poor minorities live. Although post–Kelo reforms are a step in the right direction, much remains to be done before the property rights of poor minorities are anywhere close to fully protected.

The Objects of the Constitution

(Prof. Nicholas Rosenkranz, guest-blogging)

On Monday, I pointed out a euphemism of constitutional discourse.  We are in the habit of saying "this statute violates the Constitution" (either "facially" or "as-applied"), when what we mean is that some government actor violated the Constitution — Congress, the President, a federal court, a state official.  The euphemism is bad, I argued, because it conceals constitutional culprits.  Simply put, if you care about the Constitution, you should care about who is violating it.

On Tuesday and Wednesday, I argued that this euphemism is bad for an even more fundamental reason.  It obscures what should be the organizing dichotomy of constitutional law.  The Court has correctly intuited that there are two basic flavors of judicial review — one somehow narrower, turning on the challenger's specific facts and implying a remedy tailored to those facts; the other broader and more general, focusing on text rather than facts, and perhaps suggesting a sweeping remedial declaration that the statute is "void."  But the Court has been distinctly vague about when each sort of challenge is appropriate and why.  It purports to "favor" the narrower type, and it purports to have set an extremely high bar for the broader type, but in some contexts (like the Commerce Clause), its presumption seems to run the other way, without any explanation.

The dichotomy that the Court has been grasping for is actually a dichotomy based on the subject of the claim, the answer to the who question.  A "facial" challenge is simply a challenge to legislative action.  An "as-applied" challenge is simply a challenge to executive action.  A "facial" challenge is broad and text-based, because it challenges the legislature's action in making a law; the challenger's particular facts cannot matter to the merits, for the simple reason that those facts arise later, after the alleged violation is complete.  An "as-applied" challenge is narrow and fact-based, because it challenges the executive's action in executing the law.  Here the inquiry is distinctly fact-intensive, because the facts of execution are the constitutional violation.

This explains why the Court has apparently ignored its general rule and favored "facial" challenges in three particular contexts: the First Amendment, the Commerce Clause, and Section Five of the Fourteenth Amendment.  The Court has never explained these exceptions to the general rule, but these three provisions have one important characteristic in common.  They are all written in the active voice, with a single explicit subject: "Congress".  Challenges under these provisions are challenges to legislative action.  Any constitutional violation will be visible on the face of the law, and the challenger's specific facts — which arise after the law was made and so after the violation was complete — cannot matter to the merits of the case.

So, to determine whether a constitutional inquiry should be fact-based (as under the Fourth Amendment) or text-based (as under the First Amendment, the Commerce Clause, or Section Five of the Fourteenth Amendment), it is essential to answer the who question and identify the subject of the claim.

Unfortunately, not all Clauses are as clear as the examples given so far.  Unlike the First Amendment, most of the Bill of Rights is written in the passive voice, inviting the question: by whom? In these cases, it is much more difficult to tell who is bound by each clause.

At first glance, it might be tempting to say that that the passive-voice clauses bind everyone on Earth.  One might be tempted to say, for example, that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated," by anyone.  But in fact, virtually everyone agrees that such provisions bind only government actors.  A parent cannot violate this provision by searching their child, no matter how unreasonable the search.  Moreover, in a case called Barron v. Baltimore, Chief Justice Marshall held that such Clauses bind only federal government actors.  (The Fourteenth Amendment, ratified after Barron, applied many of the same restrictions to state actors, as I will discuss tomorrow, but it remains true, per Barron, that the passive voice clauses themselves bind only federal government actors.)

If constitutional structure limits the passive-voice clauses to government actors, and if constitutional structure limits them further, to only federal government actors, then perhaps constitutional structure limits at least some of them further still, to specific federal government actors: Congress, or the President, or the judiciary.  In The Objects of the Constitution, I attempted to apply Chief Justice Marshall's textual and structural approach from Barron to this question, and tried to identify who, specifically, is bound by the passive-voice clauses of the Bill of Rights.

The complete analysis is too involved for a blog post.  (If you're interested, please see the article itself.)  But the basic conclusions are rather striking.  It seems that when the Constitution binds Congress, it generally does so in the active voice ("Congress shall make no law") or, in the passive voice, it speaks in unmistakably legislative terms ("no bill of attainder or ex post facto law shall be passed").

But most of the Bill of Rights does not sound like that.  Most of it is written in distinctly executive-sounding terms, like "searches and seizures" "punishments inflicted," and "property … taken."  These are not words that invoke the "making" or "passing" of "bills" or "laws" in the halls of Congress, but rather executive action out in the world.  (Other provisions of the Bill of Rights are written in judicial terms, concerning the conduct of trials; again, if you are interested in these, please see the article itself.)

Another clue is that, other than the First Amendment, most mentions of "law" in the Bill of Rights are not restricting the laws that Congress can make (as in "Congress shall make no law").  Rather, most mentions of "law" seem to be restricting what another branch may do in the absence of a law.  See, e.g., U.S. Const. amend. III ("No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law"); id. amend. V ("No person shall … be deprived of life, liberty, or property, without due process of law"); id. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law").

In short, it appears that most provisions of the Bill of Rights are not restrictions on legislative action.  In most of these provisions, Congress is not the answer to the who question.  Most of these provisions are restrictions on executive (or judicial) action.  Most are like the Fourth Amendment, not like the First Amendment. And this explains the Court's intuition that most judicial review should be fact-specific and as-applied.

It also explains the Court's intuition that the First Amendment is an exception to the rule.  The Court has always had the instinct that the First Amendment is special, that it merits special protection, that challenges can be earlier and broader, because, as the Court says, the "very existence" of offending statutes may cause "chill" and thus constitutional harm.  And so, the Court has crafted special doctrines, like overbreadth, which it purports to apply in the First Amendment context and no other.

But it has never noticed that its exceptional First Amendment doctrines map onto the First Amendment's exceptional subject.  The First Amendment, unlike most of the Bill of Rights, is a restriction on Congress.  Congress is the subject of the Amendment and the answer to the who question.  If the First Amendment has been violated, then Congress has violated it, by making a law. That is why overbreadth doctrine is limited to the First Amendment.  That is why First Amendment challenges should always be "facial".  And that is why the "very existence" of a censorship law is a constitutional harm.

"Problematic Post-9/11 Judicial Inactivism: Immunizing Executive Branch Overreaching"

(Eugene Volokh)

As I noted in an earlier post, Confronting Terror: 9/11 and the Future of American National Security is a new book of essays edited by Dean Reuter and John Yoo; the contributors include (among many others) Michael Chertoff, John Ashcroft, Laurence Silberman, Richard Epstein, Alan Dershowitz, Jonathan Turley, and Nadine Strossen.

I thought I'd give people a flavor of this book by posting two chapters, one by former Attorney General John Ashcroft and Prof. Viet Dinh, and one by Prof. Nadine Strossen (the President of the ACLU from 1991 to 2008). The Ashcroft / Dinh chapter is in the earlier post; the Strossen chapter, titled "Problematic Post-9/11 Judicial Inactivism: Immunizing Executive Branch Overreaching," is quoted below.

* * *

Introduction

Political conservatives have deployed the term "judicial activism" to stigmatize the courts' fundamental power — and responsibility — to invalidate government measures that violate the U.S. Constitution or laws. These critics contend that, by actively exercising this core power, courts unduly oversee and overturn decisions that instead lie within the discretion of elected officials. Unfortunately, there has been less vocal concern about the less obvious but greater dangers to our democracy that flow from the opposite phenomenon, which I will label "judicial inactivism" or "judicial passivism": the courts' failure even to review — and, consequently, their failure to remedy — serious constitutional and statutory violations by elected officials.

The dangers of judicial inactivism are not obvious because they are couched in rulings that do not substantively address the violations at issue, let alone expressly reject the legal challenges on the merits. Instead, the rulings invoke various justiciability doctrines that preclude the courts from resolving the claims. The result is that plaintiffs' complaints are simply dismissed, which has the same practical impact as a negative ruling on the merits: the plaintiffs receive no relief, the defendants are free to proceed with their challenged conduct, and no judicial sanction deters. The justiciability doctrines are judicially created, defined by vague criteria, and unpredictably and inconsistently applied. Critics — including Supreme Court Justices — complain that judges can too easily invoke these doctrines to reject substantively disfavored claims without having to rule on the merits.

Post-9/11, judicial passivism has blocked review of compelling claims of gross violations of fundamental human rights, including the rights to be free from torture, forced disappearance, and targeted killing. Judicial inactivism has also effectively licensed the government to engage in sweeping secret surveillance of our telephone calls and emails without any basis to believe that we are engaging in any illegal activity, let alone terrorism. The Supreme Court and lower courts have reviewed and struck down some important post-9/11 measures that unduly expanded government power and restricted individual freedom. Nonetheless, the courts have held in too many other cases that challenges are non-justiciable, thus permitting serious government abuses. The Supreme Court has compounded the problem by declining to review challenges to lower courts' nonjusticiability rulings.

Under both the Bush and Obama administrations, the government has regularly pressed several non-justiciability arguments to close the courthouse door to compelling claims. It has argued that plaintiffs lacked standing because they could not show that they personally suffered a particular type of injury — even though the plaintiffs had demonstrably suffered severe injuries, thereby warranting judicial redress. The government also has argued that plaintiffs' claims have become moot because the government had voluntarily ceased the complained-of conduct — even though the government maintained the option of resuming it. Finally, and most regularly, the government has argued that many cases cannot be litigated without an undue risk of revealing "state secrets" that will endanger national security — even when there is ample publicly available information to substantiate the claims and defenses.

Checks and Balances: Vigorous Judicial Review of Invigorated Executive Power

Throughout history, during war or other national security crises, the executive branch has consistently exceeded the outer bounds of its constitutional power in order to protect our nation's security. Presidents have asserted the power to take any steps they deem necessary, including steps that violate civil liberties. This pattern has repeated regardless of political party. After all, it was no less a liberal icon than Franklin Roosevelt who authorized the internment of 120,000 Japanese-American citizens during World War II. Likewise, both post-9/11 Presidents, despite their partisan and ideological differences, have asserted executive power to trammel individual rights in the service of national security.

Even assuming that a national crisis can justify the executive branch's most vigorous exercise of its power to protect the nation, the judicial branch would then have a countervailing duty to exercise its judicial review power with corresponding vigor, to ensure that the executive branch does not overstep its power or violate individual rights. In one of the earliest post-9/11 judicial rulings about competing claims of executive branch power and civil liberties, federal judge Gladys Kessler stressed these complementary roles of our government's executive and judicial branches:

The Court fully understands and appreciates that the first priority of the executive branch in a time of crisis is to ensure the physical security of its citizens. By the same token, the first priority of the judicial branch must be to ensure that our Government always operates within the statutory and constitutional constraints which distinguish a democracy from a dictatorship.

The Supreme Court's 1944 Korematsu decision has been resoundingly repudiated because the majority of the Justices uncritically accepted the government's unsubstantiated assertion that the internment of Japanese-American citizens was necessary to protect national security. Justice Jackson's dissent stressed that the Court's passive deference did even greater damage to liberty, equality, and justice than the unconstitutional executive action. As Justice Jackson concluded: "A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution."

Likewise, if the Court does not review a lower court decision that in turn has not reviewed constitutional overstepping by military or executive officials, such overstepping approaches constitutional doctrine. Conduct that the courts do not halt may proceed unimpeded. Moreover, some Justices and others have argued that accepted practices, even if not affirmatively upheld by the courts, could in some circumstances "be treated as a gloss on 'executive Power'" that the Constitution vests in the President. In short, the Korematsu majority's judicial passivity, in exercising an unduly deferential form of judicial review, greatly damaged constitutional principles. The even more extreme judicial passivity that this essay discusses, involving no judicial review at all, likewise greatly damages constitutional principles.

The Supreme Court's Mixed post-9/11 Record

After the 9/11 terrorist attacks, civil libertarians anxiously awaited indications of how actively or passively the Supreme Court would assert judicial review over claims of overreaching by the executive branch and violations of individual rights. Now that a decade has passed, with substantial Supreme Court action and inaction, the Court's record is mixed.

On the one hand, in almost all of the major post-9/11 cases that the Court has decided on the merits, it has consistently curbed the government's excesses, subjecting them to meaningful scrutiny and stressing not only the individual rights at stake, but also the essential role of judicial review. The Court set the tone for its robust judicial review of the executive branch in one of the first of these cases, Hamdi v. Rumsfeld, in 2004. In ringing language, Justice Sandra Day O'Connor's plurality opinion declared:

[A] state of war is not a blank check for the President when it comes to the rights of the Nation's citizens. Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.

Especially when contrasted with Korematsu, these positive actions by the Court are cause for celebration.

On the other hand, since 9/11, the Court has also provided cause for consternation through its inaction. Specifically, the Court has declined to review a dozen important cases in which lower courts had rejected challenges to post-9/11 measures that unjustifiably expand government power and violate fundamental rights. Although the Justices' decision not to review a case does not constitute a ruling on the merits, its practical impact is similar.

Of greatest concern is the Court's failure to review lower court decisions that have rejected challenges to post-9/11 abuses not on the merits, but rather on various justiciability grounds, concluding that there should be no judicial forum for such claims. When the Supreme Court lets these lower court rulings stand, it is not only declining to exercise its own judicial review power; it is also authorizing lower courts to continue to deny any judicial recourse. In short, these cases constitute major exceptions to Justice O'Connor's bracing words in Hamdi: they do give the executive branch "a blank check ... when it comes to the rights of the nation's citizens" (and non-citizens).

Of particular concern, the Court has declined to review — and has thereby effectively authorized — lower courts' failures to review compelling claims of serious abuses of fundamental rights, including torture, abduction, forced disappearance, prolonged incommunicado detention in inhumane conditions, the indefinite military detention of a lawful U.S. resident without criminal charge or trial, sweeping surveillance of the electronic communications of U.S. citizens, blanket denial of public and press access to important court proceedings, and retaliation against internal whistleblowing by an FBI employee about security breaches and espionage within the FBI's counterterrorism programs.

The Incredibly Expanding State Secrets Privilege

One variant of the non-justiciability theory that has done the greatest damage is the distorted state secrets evidentiary privilege that both post-9/11 Presidents have regularly pressed. However, as the term "privilege" signifies, state secrets do not give rise to a non-justiciability doctrine, and hence should never be invoked to dismiss a case outright. Rather, along with other evidentiary privileges such as the privilege against self-incrimination or the attorney-client privilege, the state secrets privilege is properly invoked to shield specific evidentiary items from being used in the lawsuit. Nevertheless, this privilege (rarely invoked pre-9/11) has been invoked by both the Bush and Obama administrations with increasing frequency and success as an automatic, door-closing non-justiciability doctrine. The lower-court rulings on point have been divided and inconsistent, underscoring the rampant confusion about the state secrets doctrine, which the Supreme Court should dispel.

Some courts have dismissed lawsuits that challenge serious government overreaching even before discovery takes place, based only on the government's broad, speculative assertions that the general subject matter involves state secrets. In those cases, the courts did not ask the government to identify specific documents, or even categories of documents, as to which the privilege should apply. Nor did the courts assess whether the parties could present their claims and defenses through non-privileged material, or whether special procedures — such as conducting portions of the litigation in camera or ex parte, i.e., confidential proceedings involving only the judge and the government — could be utilized to safeguard sensitive material.

The Supreme Court has directly discussed the state secrets privilege in only one case, in 1953: United States v. Reynolds. The Court held that the privilege was "not to be lightly invoked" and that its misuse could lead to "intolerable abuses." The Court also warned that "judicial control in a case cannot be abdicated to the caprice of executive officers."

The Reynolds Court considered only whether a specific document could be excluded from the litigation because the government insisted that this document would reveal state secrets. Although the Court accepted the government's argument that the document should be excluded, the Court stressed that plaintiffs should be able to establish their case through other government-provided evidence. The Court remanded the case so it could proceed based on this other evidence.

Specifically, Reynolds was a tort action brought by the widows of three civilians who had been killed in the crash of an Air Force plane. The government declined to produce the official accident report, claiming that the plane was engaged in a "confidential mission" to test "confidential equipment." Although the Supreme Court excluded the report, it concluded that plaintiffs could prove their case through the testimony of the surviving crew-members, which the government offered to provide. The Court stressed that the greater the need for any allegedly privileged material in a particular lawsuit, the more a "court should probe in satisfying itself that the occasion for invoking the privilege is appropriate." Accordingly, had the Court believed that the accident report was central to the plaintiffs' claims, it might well have required the government to produce it. Following the Supreme Court's remand, the Reynolds litigation did proceed and ultimately was resolved via a negotiated settlement. Reynolds provides no support for the government's and lower courts' recasting of the state secrets privilege into a non-justiciability, executive immunity doctrine.

The misapplication of the Reynolds evidentiary privilege has apparently resulted from confusing it with a separate, narrow non-justiciability doctrine that applies only to a particular type of lawsuit involving a particular type of secret evidence: a lawsuit to enforce a clandestine espionage agreement with the government. The Court has enforced this limited non-justiciability doctrine in only two cases: Totten v. United States in 1875 and Tenet v. Doe in 2005. In Tenet, the Court reaffirmed that the "sweeping holding in Totten," rendering the case non-justiciable and hence subject to dismissal at the outset, applies only to suits "where success depends on the existence of [the plaintiff's] secret espionage relationship with the government." The Totten non-justiciability rule flows from the law of contracts that is the legal basis for the lawsuits at issue. It reflects the contracts law premise that a secret employment contract is implicitly conditioned on an agreement to forego litigation to enforce it. This highly specific rule is wholly inapplicable to any other types of lawsuits involving any other types of state secrets.

Even though Reynolds emphasized that "judicial control ... cannot be abdicated to ... executive officers," it did evince undue judicial inactivism in one key respect. The Court passively accepted the government's assertions that the accident report contained state secrets, without independently assessing the report. Decades later, when the report was declassified, it turned out not to reveal the asserted "details of any secret project the plane was involved in," but instead what one historian decried as "a horror show of [governmental] incompetence, bungling and tragic error."

As Justice Douglas observed in the landmark Pentagon Papers case, government officials regularly engage in the "widespread practice" of invoking national security concerns to achieve the "suppression of embarrassing information." The Reynolds case illustrates the government's general tendency to exaggerate the national security benefits of secrecy, while overlooking the significant ways in which an assertion of government secrecy can actually undermine national security, as well as due process, accountability, and other essential democratic values. For example, the bipartisan commission that analyzed the intelligence failures that contributed to the 9/11 attacks criticized excessive government secrecy as one factor.

Post–Reynolds developments underscore not only that maintaining secrecy is not always beneficial to national security interests, but also that courts are fully capable of identifying and safeguarding materials whose disclosure would pose genuine national security risks. Since 1953, several important federal statutes — the Freedom of Information Act, the Foreign Intelligence Surveillance Act, and the Classified Information Procedures Act — have laid out procedures for confidential judicial evaluation of materials that the government resists disclosing on national security grounds. In enforcing these statutes, courts have permitted disclosure when appropriate and ensured secrecy when appropriate, including in high-profile terrorism prosecutions.

In four post-9/11 cases, the ACLU has asked the Supreme Court to review lower court decisions that dismissed serious civil liberties claims based on a distorted version of the state secrets privilege. The most recent such request was filed in December 2010, in Mohamed v. Jeppesen Dataplan. The Court had not yet ruled at the time this essay was completed. In the three prior cases, the Court denied review.

The Jeppesen case powerfully demonstrates the misuse of the state secrets evidentiary privilege to foreclose judicial review and immunize executive abuses. It also underscores lower court judges' confusion about this issue. A bare majority of the Ninth Circuit supported the government's generalized assertion that "the very subject matter of this case is a state secret." The dissenters correctly concluded that the privilege would warrant dismissal "if and only if specific privileged evidence is itself indispensable to establishing either the truth of the plaintiffs' allegations or a valid defense that would otherwise be available to the defendants."

The five plaintiffs in this case were forcibly kidnapped and flown to foreign sites where they were tortured and detained incommunicado in inhumane conditions. Jeppesen organized the flights at the direction of the CIA. The Ninth Circuit dissent summarized 1,800 pages of "the voluminous public record materials submitted by Plaintiffs in support of their claims."

Conclusion

The lower courts have inappropriately invoked non-justiciability doctrines to decline to review many cases challenging post-9/11 government abuses, and the Supreme Court in turn has declined to review those rulings. This double-layered judicial passivism has adversely affected not only many victims of gross human rights violations, but also our system of checks and balances. Ironically, these severe costs were stressed even by the narrow majority of the Ninth Circuit judges who misapplied the state secrets doctrine in Jeppesen:

Denial of a judicial forum based on the state secrets doctrine poses concerns at both individual and structural levels. For the individual plaintiffs ... our decision forecloses ... judicial remedies.... At a structural level, terminating the case eliminates further judicial review ... one important check on alleged abuse by government officials and ... contractors.

The Supreme Court should use the pending Jeppesen case to reinvigorate the judicial review power to curb post-9/11 abuses by reaffirming that the state secrets evidentiary privilege is not a non-justiciability doctrine. This would be an important step toward curbing undue judicial passivism.

"Liberty, Security, and the USA Patriot Act"

(Eugene Volokh)

Confronting Terror: 9/11 and the Future of American National Security, a new book of essays edited by Dean Reuter and John Yoo, looks very interesting. The contributors are a very notable group, including (among many others) Michael Chertoff, John Ashcroft, Laurence Silberman, Richard Epstein, Alan Dershowitz, Jonathan Turley, and Nadine Strossen.

I thought I'd give people a flavor of this book by posting two chapters, one by former Attorney General John Ashcroft and Prof. Viet Dinh, and one by Prof. Nadine Strossen (the President of the ACLU from 1991 to 2008). Here is the Ashcroft / Dinh chapter, called "Liberty, Security, and the USA Patriot Act"; the Strossen chapter is in the next post.

* * *

Introduction

At the time of this writing, nearly a decade has passed since the 9/11 attacks, and fortunately our terrorist enemies have not successfully engaged in any large-scale attacks on American soil since. This is a testament to the remarkable efforts of an alert citizenry and of law enforcement, intelligence, and homeland security personnel. The hard work, dedication, and increased coordination have been greatly aided by the tools, resources, and guidance provided by the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA Patriot Act).

Proposed less than a week after the terrorist attacks of 9/11 and enacted a month later, the Patriot Act is among the more important national defense legislative measures in American history. The act enables government to combat a protracted and difficult war against those who wish to rob us of our way of life — a way of life defined by freedom. At the same time, the Patriot Act constrains attempts by governmental actors to extend the government's reach inappropriately.

Securing Liberty

Since the 9/11 attacks, Americans have been told that a choice must be made between security and liberty. Frequently, it is suggested that there is a necessary balancing act between individual liberty and security, where enhancement of one is only possible at significant cost to the other. In the search for this elusive balance, commentators often cite Benjamin Franklin's dictum that those who "give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." Liberty (let alone "essential liberty") is not to be traded for safety (let alone "a little temporary safety"). At its core, Franklin's maxim is correct. Security is not an end in itself, but rather a means to the greater end of liberty.

Freedom is a value that is without parallel. Freedom never requires balancing. What it requires is enhancement. Freedom must be supported and safeguarded. Freedom must be secured. Security, then, is not a counterweight to freedom, but rather a means to ensure that freedom remains intact and contributes positively to the character of humanity. Simply put, appropriate security enables freedom, rather than competes against it. Thus, searching for a "balance" between liberty and security is counterproductive because such an approach is based on a false dichotomy. It is the function of security to safeguard liberty. Unless it does, it should not be undertaken.

The essential issue Americans face today is not a trade-off between security and liberty, but rather an inquiry into what liberty entails, and how security is best utilized to protect that liberty. Perhaps Edmund Burke said it best: "The only liberty I mean is a liberty connected with order; that not only exists along with order and virtue, but which cannot exist at all without them." In other words, true liberty is by necessity an ordered liberty. The stability and legitimacy essential for a government under law can only be obtained through the maintenance of this symbiotic relationship.

Consider liberty without order. Absent order, liberty is an unbridled license allowing men to do as they choose. Liberty without order is unstable, and arguably illegitimate. In such a world, the weak must submit to the will of the strong. One man's expression of his desires deprives another of his freedom. True, legitimate liberty is achievable only in an ordered society, in which rules and laws govern and limit the behavior of men.

Just as liberty without order is illegitimate and unstable, so too is order without liberty. A society of order without liberty is plausible only by exerting force to compel obedience, thereby creating the mirage of stability. In any ostensible order maintained by brute force, the ruler has no greater claim to the use of force than the ruled. The two are in constant conflict — one seeking to maintain the mirage of stability created by the use of force, the other striving to achieve his freedom by the use of force. Order and liberty are, therefore, not competing concepts that need to be offset to maintain some sort of democratic equilibrium. Rather, they are complementary values symbiotically contributing to the stability and legitimacy of a constitutional democracy.

The Age of Terror

On September 11, 2001, Osama bin Laden attacked those values, and thousands died tragically. al-Qaeda aimed not only at our physical structures, but at the very foundation of our ordered liberty.

On that one day, a handful of individuals, having spent only several hundred thousand dollars, inflicted greater damage on America and its citizens than most modern armies would be capable of doing by striking directly at our nation's order and freedom. On that day it became clear that warfare is no longer the exclusive domain of nation-states.

That some wish to inflict such damage on the United States and its people is neither new nor surprising. What is surprising is that they identified the means of doing so — that they were able to do that which no enemy nation had ever been able to do in the history of the United States.

There were signposts leading to the 9/11 attacks. For many years, individual terrorists and terrorist organizations sought to execute state-like force. It was not a watershed moment on 9/11 when a breach of the monopoly on force of nation-states occurred. Rather, it merely marked a shift — though in a most dramatic way. On that day, twentieth-century warfare was amplified by a modality of destruction that shocked mankind. Old-style battles, characterized by conflict among nation-states, yielded to the chaotic modernity of the twenty-first century. The 9/11 barbarism dramatically marked the beginning of an era that threatens to replace governed order with pervasive disorder.

Because terrorists owe no allegiance to any particular place or polity, and willingly sacrifice human life, including their own, in an effort to impose their rigid theocratic agenda, the threat to national and global security is posed to freedom — the freedom respecting all nation-states collectively. In this new era, the threat to security no longer emanates only from hostile nation-states, but is one rooted in ideology and independent of geography. This global terrorist movement, and its ability to inflict mass destruction, poses a pervasive and asymmetric threat to order on an international level. The threat is pervasive because the movement is a loose network united by shared objectives and ideals; it is asymmetric because the new breed of warriors exploit the vulnerabilities of open, freedom-focused liberal democracies, inflicting terror on easily accessible targets — the masses of humanity.

Modern terrorists engender fear by undermining the stability of consequence. Acting without the bonds of a geographic base or the restraint of a national polity, the enemy is faceless and, in this way, impregnable. That nation-states no longer have a monopoly on the motives and means of war, the lesson at the core of 9/11, has ominous implications for law, policy, and international relations.

Terrorism, whoever its perpetrator and whatever the goal, poses a fundamental threat to the ordered liberty that our constitutional democracy is designed to protect. The terrorist seeks not only to kill, but also to terrorize. Increasing the body count is designed to instill fear in those who survive. The terrorist is unlimited in the choice of victims and indifferent as to the traditional "combat" value of the targets. Part of an international conspiracy of evil, terrorists operate across boundaries. They capitalize on borders as barriers to enforcement and prevention. They use violence to disrupt order, kill to foment fear, and terrorize to paralyze normal human activity. By definition the methods and objectives of terror attack the foundations of ordered liberty.

In this sense, the terrorist is fundamentally different from the criminal offender normally encountered by our criminal justice system. By attacking the foundation of societal order, the terrorist seeks to demolish the structure of liberty that governs our lives. By fomenting mass terror, the terrorist seeks to incapacitate the citizenry from exercising the liberty to pursue our individual and collective ends. This is not mere criminality. It is an act of war against our polity.

In waging that war, the terrorist employs means that fundamentally differ from those used by traditional enemies encountered on battlefields governed by the established rules of war among nations. Those rules clearly distinguish uniformed combatants on the battlefield from innocent civilians who are off-target. This distinction is advantageously exploited by the terrorist. In this war, the international terrorist against whom we fight differs even from guerilla warriors of the past who mingled among civilians and on occasion targeted innocent civilians.

Countering the threat to liberty, our traditional and essential responses have been through the valiant efforts of our men and women on foreign battlefields and the constant vigilance of our men and women of law enforcement on the streets of America. Both professional soldiers and law enforcers have been aided and supported most valuably by alert citizens. However, given the unorthodox nature of the new threat, the traditional approach of the past — to allow situations to develop until the last possible moment so that traditional criminal charges could be brought — became untenable. The dire consequences of fully executed terrorist plots became too catastrophic to adopt any policy other than aggressive prevention.

After 9/11 and faced with a new kind of threat, the Department of Justice refocused its investigative and prosecutorial resources toward one overriding and overarching objective: to prevent terrorist attacks before they happen. This massive effort was undertaken to defend the foundations of our ordered liberty — to deliver freedom from fear by protecting freedom through law.

Proper adaptation to this reprioritization required that law enforcement be furnished with new tools. Before 9/11, the terrorists had a technological advantage: our own law enforcement personnel did not have the tools and technology to compete with terrorist intelligence. Immediately following the terrorist attacks, the Justice Department worked tirelessly to prepare a legislative proposal containing the tools investigators and prosecutors needed in the war against terror.

Following a month of deliberation and consideration, the USA Patriot Act passed with overwhelming bipartisan support. The House of Representatives voted 357 to 66, and the near-unanimous vote of the Senate was 98 to 1. Signed into law by former President George W. Bush on October 26, 2001, the Patriot Act contained more than one thousand anti-terrorism measures that have helped law enforcement investigate, prosecute, and most importantly, prevent acts of terror.

In the years leading up to 9/11, a system designed to separate law enforcement functions from intelligence and national security functions hampered America's law enforcement efforts. The premise that law enforcement powers should be separated from intelligence gathering formed the basis for this system. Fear that evidence gathered during intelligence operations could taint evidence gathered for the purposes of criminal prosecution led to the serious restriction of communication between law enforcement and intelligence gatherers. Constitutional safeguards for criminal prosecutions — often irrelevant to the process of gathering national security intelligence — were interpreted as a deterrent to the detection and diffusion of terrorist plots. In 1995, the Justice Department issued a memorandum titled "Instructions on Separation of Certain Foreign Counterintelligence and Criminal Investigations," which both reinforced and enhanced this practical and philosophical wall, chilling communications between prosecutors and intelligence officials. As a result, different agencies such as the CIA and the FBI could not communicate freely, and the FBI's intelligence division was prohibited from sharing certain kinds of information with its own criminal division.

Although well intentioned, the "wall" was a cause for concern, even before 9/11. The Patriot Act dramatically reduced the devastating effects of seriously curtailed communications between intelligence and law enforcement officials. The act sought to ensure that information could be shared and the dots connected. At the same time, the Patriot Act maintained the appropriate respect for constitutional requirements in criminal prosecutions.

The information sharing authorized by the Patriot Act put the good guys on an equal footing with the bad guys, who for too long had been able to evade law enforcement. While it now seems incomprehensible that we ever countenanced a communication prohibition between law enforcement and intelligence operatives — a prohibition that endangered the lives and liberties of our citizens — it existed across administrations through much of the last quarter of the twentieth century. It frustrated those to whom we entrust our safety and our freedom.

Section 218 of the Patriot Act amended the Foreign Intelligence Surveillance Act (FISA) to facilitate increased cooperation between agents gathering intelligence about foreign threats and investigators prosecuting foreign terrorists. The provision reconfigured the requirement that intelligence be the "primary purpose" of an investigation with a "significant purpose" test. Because of this change, intelligence and law enforcement authorities can now share information without fear that such coordination will jeopardize the legal validity of the investigation and attendant orders.

The Patriot Act actually created a protection that the FISA statute in its original form did not afford. Passed in 1978, section 1804(a)(7)(B) of the FISA statute required "that the purpose of the surveillance" be "to obtain foreign intelligence information." However, at some point both the Justice Department and the courts read into this provision the "primary purpose" test, despite no evidence, and indeed despite substantial legislative history to the contrary, that Congress had intended such a test. The result was to limit surveillance under the FISA to only those situations where foreign intelligence surveillance was the government's primary purpose. This "primary purpose" test became the norm in interpreting the statute, and even prevailed in FISA decisions after the passage of the Patriot Act's amendment providing for the "significant purpose" test.

In 2002, the U.S. Foreign Intelligence Surveillance Court ("FISA Court") authorized certain surveillance requested by the Justice Department but imposed severe restrictions on the surveillance, intended to comply with the previously prevailing "primary purpose" test. The restrictions included prohibiting law enforcement officials from making certain recommendations to intelligence officials or from directing or controlling the use of FISA procedures.

This perpetuation of the "wall" by the FISA Court, despite Congress's clear action less than a year before in the Patriot Act, forced the Justice Department to bring the first ever appeal of a FISA Court decision. In that appeal the FISA Court of Review reversed the lower FISA Court's orders to the extent they imposed restrictions on the conduct of the surveillance, and ordered the FISA Court to grant the applications as submitted. In so doing, the Court of Review found that the "primary purpose" test had been a "false dichotomy," never actually required by the congressional mandate in the original 1978 FISA statute. As a result, the Patriot Act's language requiring "a significant purpose" in fact established a higher standard that afforded greater protection from potential improper government utilization of FISA orders. Ironically, a complete repeal of the Patriot Act would likely result in a reduction of the safeguards against overreaching use of the FISA authority.

The Patriot Act's clarification of the FISA's capacity to thwart terrorist activity equipped prosecutors with the tools necessary to take convicted terrorists off the streets. Due to the harsher penalties for terrorism provided in the Patriot Act, terrorists can now be detained for significantly longer periods.

Terrorists require funding to complete their attacks. Title III of the Patriot Act helped stem this flow of money. Title VIII of the act improved cyberterrorism laws, and filled gaps in criminal law by creating a new crime of attacking a mass transportation system.

Terrorist activities often span several federal districts, and so too must the investigations of these activities. In these investigations the ability to act swiftly is imperative, because the opportunity to prevent an attack can be fleeting. With the mandate for prevention (rather than reliance on post-disaster prosecution), it was no longer feasible to lose time petitioning several judges in multiple districts for search warrants related to a single investigation. To address this problem, section 220 of the Patriot Act authorized out-of-district warrants in certain terrorism cases. This tool ensured the Justice Department's success in disrupting and prosecuting the Northern Virginia Jihad operation.

The Patriot Act also allowed law enforcement to conduct investigations without tipping off terrorists. Informing a terrorist of an investigation prematurely allows the terrorist the opportunity to flee, destroy evidence, intimidate or kill witnesses, cease contact with associates, or take other evasive measures. For decades, federal courts in other law enforcement settings have allowed law enforcement to delay notifying the subject of an investigation that a search has been executed. This same authority to delay notification in terrorist cases, supervised by federal judges, gives law enforcement the ability to identify the conspiring terrorists' associates, coordinate the arrest of multiple subjects without tipping them off, and diffuse threats to our communities.

Finally, the Patriot Act harmonized law with current technology. For decades, law enforcement officials had used multi-point wiretaps to track drug traffickers and mobsters. The Patriot Act allowed federal agents to use this same technology to track terrorists. Instead of requiring law enforcement officers to apply for separate warrants for every phone, fax, and communication device used by a single terrorist, warrants can now authorize the terrorist himself as the subject of the surveillance. As a result the surveillance order can apply to all communication devices he uses. This capacity makes it much harder for terrorists to evade detection by switching from device to device.

Reauthorization

During the debate over various provisions of the Patriot Act, the drafters struggled with important constitutional questions. For example, in forming the "significant purpose" test of section 218, the drafters considered whether the change comported with the Fourth Amendment's protection against unreasonable search and seizure (it does), and whether there is adequate process for criminal defendants to seek to exclude intelligence evidence from non-terrorism trials (there is). Ultimately, the drafters were confident of the answers and of the constitutionality of the resultant legislation.

Nonetheless, the safeguards of the Patriot Act are vulnerable to abuse by zealous enforcers, just as the provisions of the act can be violated by those whose aim is the destruction of American freedom. Each type of violation requires redress. It must be recognized, however, that there is a distinct difference between a violation of a law and a law that itself offends liberty. For example, an individual might offend or violate the Constitution, but that violation would not render the Constitution infirm. Consequently, the potential that a law may be violated should not render the authority expressed in the law infirm or invalid. In the course of domestic law enforcement duties, a police officer may misuse a commonly accepted power, such as his power to arrest and detain; but this does not mean that the power of a police officer to arrest and detain is either unconstitutional or unwise. It merely means that the individual police officer has abused that power and that the abuse of the power should be remedied. Similarly, if an individual improperly or illegally misuses the Patriot Act provisions, it does not follow that the provision itself is improper.

A Justice Department audit in March 2007 found that the FBI had "improperly and, in some cases, illegally used the Patriot Act to secretly obtain personal information" about United States citizens. This does not mean the Patriot Act itself is improper. This understanding is imperative to provide for a constructive discussion of the issues surrounding various provisions of the act, their ongoing necessity, and the need to monitor how the provisions are applied in specific cases.

One of the many safeguards of the Patriot Act was the inclusion of a "sunset" clause for certain provisions — meaning the provisions would expire on a date certain unless Congress acted affirmatively to reauthorize them. In 2005, Congress had the opportunity to discuss the effectiveness and appropriateness of many of the act's provisions in determining whether to reauthorize the sunsetting provisions. Congress found the tools provided by the Patriot Act to be invaluable and enacted two bills to continue their effect.

The USA Patriot and Terrorism Prevention Reauthorization Act of 2005 reauthorized all but two of the provisions of Title II that would have expired. Many provisions, including section 218, were made permanent. Although the reauthorization was largely without amendment, Congress did take the opportunity to include a small number of amendments before voting to reauthorize. Although section 215 — the National Security Letter provision, which allowed national security investigators access to business records in certain circumstances — already contained significant checks to prevent abuse, Congress added to it a judicial review process for recipients to appeal the request for information. Additionally, Congress adopted a sunset date of December 31, 2009 for three particular provisions, including the National Security Letter provision. In 2010, President Obama signed a one-year extension of these three sections. As a consequence of these sunsetting provisions, the Patriot Act has been continuously refined. Congress's reauthorization stated clearly that the purpose and implication of each provision is in furtherance of, and in keeping with, our ultimate goal of securing liberty.

Conclusion

Securing liberty is a constantly evolving battle of the utmost importance to the United States. The Patriot Act has provided essential, valuable tools that have enabled law enforcement, intelligence, and Homeland Security personnel to cooperate in the prevention of terrorist attacks since 9/11. Its transformation of the traditional agencies from segmented, independent actors into a dynamic, cohesive network has provided a means of protection against the threats of today while anticipating threats in the future. The reauthorization and support of the Patriot Act is a firm testament to the effectiveness and continued need for these tools as we continue our battle in the ongoing war on terror.

Interview with PYMNTS.com on Job Losses in the Banking Industry

(Todd Zywicki)

I did a short recorded interview with PYMNTS.com on the ripple effect of the regulatory assault on consumer banking and the impact on that sector of the economy.  I predict increased layoffs in the consumer banking sector and that the next shoe to drop will be widespread closures of bank branches and the accompanying negative effects on commercial real estate markets.

Three Quick Comments on David Ignatius' Critique of Drones in Today's Washington Post

(Kenneth Anderson)

David Ignatius has a new column in a long series of columns criticizing the use of drones.  Those concerns largely amount to the "blowback" hypothesis — that the use of drones creates such resentment and ill-will that they produce more harm than good.  He frames this in today's Washington Post as a comment on the John Brennan speech on US counterterrorism policy delivered at Harvard Law School last Friday that addressed, among other things, the question of whether there is a "legal geography of war," as I put it in a recent Hoover Institution essay.

Three comments on Ignatius's long-standing dislike of drones and targeted killing.  First, of course blowback is always a possibility; it can never be ruled out.  However, it has to be considered a follow-on strategic concern, not the primary driver of strategy.  Blowback as a possibility has to be evaluated and considered, yes, but as a general heuristic, starting from a strategic stance of "First, do no harm" and "Don't anger the locals" is to start at the wrong place, even though blowback, like other follow-on effects, has to be considered. Blowback can't be ruled out and it might always be decisive; at the same time, it is a second order concern because it is also a mostly counterfactual, "but for" analysis of strategic harms.  The United States had a general, after all, who started and ended with a blowback thesis, and his name was George McClellan.

Second, the primary theorists of blowback in the Afghanistan war are theorists of counterinsurgency, and the specific application of the blowback thesis is that even if the counterterrorism drone policy works on its own CT terms, it undermines the counterinsurgency war because it damages the ability to win over populations.  The extent to which the campaign actually has those effects can be debated.  That has to include that asking populations if they're resentful is not a purely neutral measurement of social science; it tends to signal to them that they get advantages out of being resentful.  An awful lot of blowback has to do with the expectations of the population. Telling the local population (as the US did, for example, early on in the Iraq war) that if our war has not made them happy, then it is our fault, is very much a mechanism for foolishly raising the bar of expectations.  But David Kilcullen and Andrew Exum, in their writings, for example, are talking about counterinsurgency, and counterterrorism's effects on that.  The Obama administration's whole effort, however, is to get out of counterinsurgency, and quite rightly is worried far less about blowback arising from a switch in strategy to transnational CI.

Ignatius keeps talking, in column after column, about our "addiction" to drones. Why, instead, doesn't he talk (as the Obama administration implicitly does) about our "addiction" to counterinsurgency, and see drones as the "cure" for that?  It's not as if counterinsurgency warfare in Afghanistan doesn't have plenty of downsides and its own forms of blowback and bad unanticipated consequences, as the Obama administration and, for that matter, most of the American people, see it.  Downsides starting with no end in sight and no clear avenue to a victory that allows an exit.  The Obama administration sees counterterrorism as a realistic and, to date, functioning strategy against our actual long term adversary, and an exit for our addiction to the cul-de-sac of counterinsurgency, and why isn't it right about that?

Third, and quite disturbingly, in today's column, Ignatius explicitly concedes that drones and targeted killing might indeed reduce collateral damage.  He then goes on to criticize their use, and America's deployment of them, anyway, as being "unwise."  But he conveniently runs out of column space here.  So I invite him, in his next column, to explain the wise alternative.  We should ... do what?  Use less precise weapons systems in order not to create the blowback impression that we are targeting specific individuals?  Use weapons with greater collateral damage in order to persuade us to ... what exactly?  Not attack as much, or even at all?  In order to induce us, through the threat of greater collateral damage, to stick with counterinsurgency strategies that, whatever their other virtues, do tend to produce a lot more damage from war?  Ignatius has left himself at a fork in the road: either go for military strategies that, as he himself concedes, will produce more collateral harms, or alternatively, not attack at all.

The first of those, especially for the purpose of persuading the United States not to engage in attacks, is morally pernicious, partly because it is morally wrong to use civilians as mere means of inducing us to use the "correct" level of resort to force.  This is to use civilians as implicit hostages against what Ignatius seems to think is our wrong policy.  The second is an argument at a level of policy altitude that cannot be driven by a mere technology of war; it is about the appropriateness of engaging in this counterterrorism war at all.  Stopping the argument where Ignatius stops it allows the impression that one can give up our "drone addiction" and have it both ways.  You can't.  So I would ask Ignatius to take the next step forward and tell us what the alternative is, and we can measure whether it is to take the civilians hostage to our policy of force or not to use force at all, or whether there is genuinely something else available as a third alternative.

(Implicitly, much of this goes to the simmering argument over whether drones and targeted killing, ironically by reducing civilian collateral damage and reducing risk to US forces, increase the propensity to use force in the first place to some ... "wrong" or "inefficient" level.  I think this is a bad, indeed pernicious argument; I explain why in this quite academic essay, intended for a volume on philosophical issues in just war and targeted killing.  The paper is a tough read; sorry.  On the other hand, Ignatius' last novel, Bloodmoney, is deeply informed by his blowback views — and is a terrific read, really excellent thriller novel.)

Second Circuit Divides 6–6 on Rehearing Standing Case to Challenge FISA Amendments Act

(Orin Kerr)

I blogged about the panel decision in Amnesty International v. Clapper in March, opening and closing my post with the following two paragraphs:

On Monday, the Second Circuit handed down a very important decision on standing to challenge secret surveillance programs in Amnesty International USA v. Clapper. The decision, by Judge Gerard Lynch and joined by Judges Calabresi and Sack, offers a very easy way for plaintiffs to have Article III standing to challenge surveillance statutes. The opinion strikes me as puzzling, however, and it appears to be in conflict with other Courts of Appeals cases on standing to challenge surveillance regimes. I suspect Supreme Court review is a serious possibility.

Whether you like the new decision or not, I suspect it's not the last we've heard on this issue. The opinion strikes me as in pretty direct tension with cases like ACLU v. NSA, the 6th Circuit's case rejecting standing for the NSA's warrantless surveillance program during the Bush years. Given the importance of the issue, and the tensions among the circuits, I would suspect this case may be headed upstairs.

DOJ petitioned for rehearing, and the Second Circuit denied rehearing yesterday in an evenly divided 6–6 vote. A flurry of opinions concurring and dissenting from the denial followed, which are generally pretty strongly worded. To my mind, those opinions make the Clapper case an excellent prospect for Supreme Court review.

I wonder if this really matters, though. Much of the discussion in the opinions concerns the fact that this is a facial challenge, not an as-applied challenge. But there's an underlying oddity that the opinions don't mention: Facial challenges are generally frowned upon in Fourth Amendment law, and it's not clear that the law permits one to be mounted against the FISA Amendments Act at all even if plaintiffs have Article III standing. The key case is Sibron v. New York, 392 U.S. 40 (1968), in which the parties tried to litigate a facial challenge to a stop-and-identify statute. Sibron appears to say that you can't bring an facial challenge to a statute that regulates warrantless searches and seizures: Facial challenges can only be brought against statutes governing the issuing of warrants. Here's the key passage from Sibron:

The parties on both sides of these two cases have urged that the principal issue before us is the constitutionality of 180-a "on its face." We decline, however, to be drawn into what we view as the abstract and unproductive exercise of laying the extraordinarily elastic categories of 180-a next to the categories of the Fourth Amendment in an effort to determine whether the two are in some sense compatible. The constitutional validity of a warrantless search is pre-eminently the sort of question which can only be decided in the concrete factual context of the individual case. In this respect it is quite different from the question of the adequacy of the procedural safeguards written into a statute which purports to authorize the issuance of search warrants in certain circumstances. See Berger v. New York, 388 U.S. 41 (1967). No search required to be made under a warrant is valid if the procedure for the issuance of the warrant is inadequate to ensure the sort of neutral contemplation by a magistrate of the grounds for the search and its proposed scope, which lies at the heart of the Fourth Amendment. E. g., Aguilar v. Texas, 378 U.S. 108 (1964); Giordenello v. United States, 357 U.S. 480 (1958). This Court held last Term in Berger v. New York, supra, that N. Y. Code Crim Proc. 813-a, which established a procedure for the issuance of search warrants to permit electronic eavesdropping, failed to [392 U.S. 40, 60] embody the safeguards demanded by the Fourth and Fourteenth Amendments.

Section 180-a, unlike 813-a, deals with the substantive validity of certain types of seizures and searches without warrants. It purports to authorize police officers to "stop" people, "demand" explanations of them and "search [them] for dangerous weapon[s]" in certain circumstances upon "reasonable suspicion" that they are engaged in criminal activity and that they represent a danger to the policeman. The operative categories of 180-a are not the categories of the Fourth Amendment, and they are susceptible of a wide variety of interpretations. 20 New York is, of course, free to develop its own law of search and seizure to meet the needs of local law enforcement, see Ker v. California, 374 U.S. 23, 34 (1963), and in the process it may call the standards it employs by any names it may choose. It may not, however, authorize police conduct which trenches upon Fourth Amendment rights, regardless of the labels which it attaches to such conduct. The question in this Court upon review of a state-approved search or seizure "is not whether the search [or seizure] was authorized by state law. The question is rather whether the search was reasonable under the Fourth Amendment. Just as a search authorized by state law may be an unreasonable one under that amendment, so may a search not expressly authorized by state law be justified as a constitutionally reasonable one." Cooper v. California, 386 U.S. 58, 61 (1967).

Accordingly, we make no pronouncement on the facial constitutionality of 180-a.

Sibron explains why there is relatively little law on Article III standing to bring Fourth Amendment facial challenges to statutes. Facial challenges are generally not allowed in the first place — at least unless the case challenges a regime of issuing warrants — so we haven't seen many battles over Article III standing to raise challenges that can't go forward anyway. Instead, Fourth Amendment law has focused extensively on "standing" to bring as-applied challenges, which the Supreme Court in Rakas v. Illinois tells us simply folds back on the Fourth Amendment question of whether the government conduct violated the plaintiff's own reasonable expectation of privacy.

Flurry of Drone Warfare News

(Kenneth Anderson)

There has been a flurry of news reports on drones in the last few days; let me crib from Lawfare's collection of links:  "The U.S. is building secret drone bases in Africa and the Arabian Peninsula. Read Tim Mak's report in the Politico here, the Washington Post's coverage by Craig Whitlock and Greg Miller here, and the Telegraph's Mike Pflanz' story here."  We can add the WSJ story, too, and a cool video accompanying the story (the WSJ links require subscription).

An important aspect of these developments is the invitation of the government of the Seychelles to the United States to base drones there.  The WP story emphasizes that the purpose is addressing piracy, which has slammed ocean-going traffic and especially tourism to the islands.  These drones are for surveillance and would require discussion and permission from the Seychelles government to deploy armed drones from the island base, but clearly the possibility at least for discussion of armed drones at some point in the future is on the table, according to the Post story.  The WSJ reporting by Julian Barnes (it also has a useful graphic showing the drone range from the Seychelles and the other drone bases) adds something significant, and a somewhat different emphasis — the ability to strike at Al Qaeda as well as antipiracy missions, and more directly addresses armed attacks on pirates in at least some circumstances:

The U.S. military has long operated a base in Djibouti, in the Horn of Africa, and has already used drones against militants in Somalia.  The new Seychelles base, with the Reaper deployment, will allow for more flights and improved operational security, giving the military a better chance at uncovering and destroying al Qaeda training camps in East Africa, officials said. Militants can sometimes spot and track drones that fly over land from the base at Camp Lemonier in Djibouti—something that will be more difficult at an island base.

The Seychelles' capital, Victoria, is about 920 miles east of the southern tip Somalia, and about 650 miles northeast of Madagascar. The new base will help increase surveillance of pirates operating in the waters off Somalia. A senior defense official said the U.S. hasn't yet used the Reapers deployed the Seychelles to conduct armed reconnaissance on pirate ships, but the option is open to use the drones to strike at pirates who have mounted attacks.  "If there was a piracy situation gone wrong, the Seychelles are a good place from which to put something overhead," said the senior defense official.

There are two basic ways to interpret these moves, though they are not mutually exclusive.  The first is that as Al Qaeda comes under greater pressure from drone strikes in Pakistan, as well as in Yemen, developing groups of Islamist terrorists and militants are taking up the struggle, partly as new organizations and partly as the group in Pakistan spreads out into the Horn in search of new safe havens and new converts to the cause.  In that scenario, the drone strikes have merely fragmented the group without necessarily destroying it.  Which is to say, the first interpretation argues that the US, by its drones strikes against terrorist leadership, has merely spread the infection and its new operations are trying to deal with a mistaken policy.

The second is that Al Qaeda has been greatly weakened in its leadership by the drone strikes and other special ops, such as the Bin Laden raid, and the group is in retreat; the time to strike directly at the leadership is now, because there is an opportunity to decisively dismember Al Qaeda as it has been since 9/11.  So, on this second interpretation of why bases in Africa:

If the group can be effectively destroyed as a transnational terrorist group in Pakistan;if Pakistan can be pressured to prevent it from regaining safe haven there or in Afghanistan, irrespective of what the Taliban do inside Afghanistan once the US ground forces mostly leave;if the US can attack emerging ideologically affiliated, pick-up-the-banner groups in Africa; andif the US can prevent Al Qaeda operatives and leadership from fleeing to new safe havens in Africa — then:the Obama administration has a case for being able to wind down the counterinsurgency war in Afghanistan as a consequence of victory against the terrorists — and pretty good reason to say that it has struck a decisive blow against Al Qaeda.

The two are not exclusive alternatives, but they are mostly inconsistent with each other.  The administration has been saying that the best view is the second; I agree — viz., the counterterrorism strategy has pushed Al Qaeda into strategic retreat.  Now is the time to aggressively pursue the retreating enemy, seeking new safe havens, and strike hard at them.  There is a separate element of US drone basing strategy and indeed drones that is independent of these immediate motivations — a longer run shift in US security resources toward drones that would likely be occurring anyway, as a consequence of changes in technology, but the immediate moves seem clearly driven by a sense that Al Qaeda is in retreat and now is the moment to press the advantage.

The Green Tea Party

(Jonathan H. Adler)

Terry Anderson of PERC argues that it's time for a "Green Tea Party": "a movement that brings environmental quality through economic prosperity."

The GTP's platform would be that only prosperity and incentives can drive environmental improvements. The first plank: Wealthier is healthier. From the U.S. to the former Soviet Union, data show that economic growth is necessary for environmental improvement, not its enemy. Such growth requires a strong private sector, not more federal spending and red tape. The second plank: Incentives matter. The GTP would use a carrot instead of the regulatory stick to improve environmental quality, and let energy markets and prices dictate energy sources. A replacement for fossil fuels will be found only when entrepreneurs can make a profit from cheaper, cleaner and more efficient energy.

Specific policies Anderson identifies that make economic and environmental sense a GTP could endorse include requiring federal land management agencies to turn a profit, expanded reliance on water markets, and the expansion of catch-share fisheries management.

Single-Payer, the Individual Mandate, Liberty and Accountability — a Surreply to Orin

(Jonathan H. Adler)

Would defeating the individual mandate today lead to something worse tomorrow?  I don't know.  I don't have a crystal ball, but neither does Orin.  We can't answer this question, but we can identify reasons why mandate-style approaches to health care reform can increase the threat to individual liberty and undermine democratic accountability.  My point below was not that a single-payer plan is necessarily preferable to the individual mandate on libertarian grounds, as it would depend on how such a system was designed and implemented.  But I would argue that upholding the mandate risks greater threats to liberty insofar as a) mandate-style measures help hide the real costs of health care reforms, thereby undermining democratic accountability, and b) it would set the precedent that the federal government's regulatory power could be used to mandate the purchase of a good or service from private firms.  Direct government provision or subsidization of health care services does not suffer from the first problem as the costs are readily identifiable through the budget process (which is precisely why we got the mandate in the first place).  And direct government provision or subsidization of health  care services does not suffer from the second problem as the relevant precedent has already been set.

Insofar as Orin seems to equate the financial cost of government programs with the extent to which they impair individual liberty.  The cost of a government program may be a rough proxy for the extent to which liberty is impaired, but it is just that.  Freedom is about more than the size of one's tax bill.  Zeroing out government expenditures altogether might reduce the tax burden, but insofar as some governmental functions (such as national defense, police, a judicial system, etc.) it would not maximize individual liberty.

In any event, the individual mandate and other measures constraining health care markets may not increase the tax burden, but that does not mean they are "free."  Health insurance must be paid for either way; the mandate just keeps more of it off the federal government's ledger.  Indeed, the individual mandate was expressly designed to facilitate redistributive policies that could not be adopted directly — and this is so precisely because the mandate and associated insurance reforms are less transparent than taxes and direct expenditures.  If the American people want a given degree of economic distribution, so be it, but neither liberty nor accountability are furthered by allowing such redistribution to occur off-budget through the imposition of regulatory dictates.

I will admit I am a bit perplexed by Orin's reference to school vouchers, as vouchers have far more in common with traditional government programs than does the mandate.  The "thinking behind school vouchers" is that a given good –education, health care, whatever — should be funded out of tax revenues, but that control over how the benefit is used remains with the recipient.  This sounds more like a traditional benefit program than the recent reforms.  Indeed, there are quite a few mandate opponents who support reforms that would "voucherize" existing and proposed benefit programs.  The reason entitlement programs are so hard to control is not tax withholding, but that the budgets for such programs are on auto-pilot, and not limited by appropriations, and so are more difficult to restrain than discretionary expenditures.

Insofar as Orin's concern is that opposition to the individual mandate cannot produce a relatively stable political outcome unless and until its opponents find some other way to satisfy the demand for health care "reform," I would agree with him.  However much I dislike much of the recent health care reforms, it was responding to some real (and some perceived) needs and deficiencies of the current system.  It is also true that many conservatives and libertarians (and even more Republicans) devote far more time and effort to tearing down proposed reforms than proposing positive solutions of their own.  (I've made similar complaints about the Right's approach to environmental policy for years.)  So I share the concern that defeating the mandate could be a Pyrrhic policy victory if there are not serious efforts made to improve the health care system and (in particular) expand access to care.  But I don't see why such concerns counsel against opposing the mandate, let alone why such concerns should be relevant to the constitutional debate.