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Friday, December 23, 2005

The "Special Needs" Exception: In his Slate piece from 2002, Eugene argues that checking radiation levels to avoid a nuclear attack is "just different" from using an infrared device in a routine criminal case. He writes:
  Sure, normally the Fourth Amendment applies equally to all serious crimes, and that's normally right. But finding dirty bombs must simply be different from fighting normal crime. Searches for weapons of mass destruction can't be treated like searches for marijuana-growing devices or even for murder weapons.
  The Fourth Amendment, by its terms, only bans "unreasonable searches and seizures"—and it cannot be unreasonable to examine homes with Geiger counters in order to prevent a city from being rendered uninhabitable by an enemy bombing. Protecting people's privacy is important, and so is constraining government power. But sometimes we need extraordinary government power to protect against extraordinary threat.
  I just thought I would add that there is a Fourth Amendment doctrine that recognizes Eugene's intuition: the "special needs" exception. The idea behind the "special needs" exception is that the government has lots of legitimate interests beyond collecting evidence in criminal cases. When government agents are pursuing those other interests, the warrant requirement is relaxed and the overall requirement is reasonableness. There are a bunch of Supreme Court cases on this doctrine, starting (I believe) with Camara v. Municipal Court in 1967 and receiving more formal attention in cases like O'Connor v. Ortega.

Related Posts (on one page):

  1. The "Special Needs" Exception:
  2. Radiation Surveillance:
  3. FBI Radiation Surveillance Program:
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Radiation Surveillance:

Apropos Orin's post, two thoughts:

(1) The argument that the police can't aim radiation surveillance devices at homes (and likely businesses, mosques, and the like) without a warrant is a nontrivial one: It's basically Kyllo v. United States (no aiming heat sensors at homes without a warrant) meets Mincey v. Arizona (no special Fourth Amendment exceptions for investigations of very serious crimes). I discuss this in this Slate piece from 2002.

My ultimate conclusion is that such radiation surveillance from outside the buildings should be constitutional, because what's an "unreasonable search" when looking for drugs (or even for evidence of murder) becomes reasonable when looking for radiation weapons: "[F]inding dirty bombs must simply be different from fighting normal crime. Searches for weapons of mass destruction can't be treated like searches for marijuana-growing devices or even for murder weapons." Others have argued that it might be constitutional for another reason -- searches that are likely to reveal only evidence of contraband (which, the argument would go, includes searches for radioactive materials but not for heat sources) don't invade any reasonable expectation of privacy; I'm not as wild about that theory, but I agree with its bottom line. Nonetheless, I think the Slate piece may help explain the nature of the argument that such searches are unconstitutional.

(2) Orin points out that "In numerous cases, the monitoring required investigators to go on to the property under surveillance, although no search warrants or court orders were ever obtained, according to those with knowledge of the program." I want to caution people against assuming that going onto the property under surveillance without a warrant is per se unconstitutional under existing law. There are various reasons why entering the property wouldn't itself be treated as an unconstitutional search, for instance if the parts of the property that they entered was generally open to the public, or if the property was the urban equivalent of "open fields" as opposed to the inside of someone's building (or the "curtilage" of that building).

Some of these doctrines are quite complex and unsettled, and I don't want to go into them in detail here; and I also want to stress that even if entering the property wasn't a search, doing some things on that property (perhaps including measuring radiation, or perhaps not, see item 1 above) may well be a search. But people should realize that whether "go[ing] on to the property under surveillance" is unconstitutional without a warrant is a difficult question.

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FBI Radiation Surveillance Program: The U.S. News & World Report reports another big high-tech surveillance story:
  In search of a terrorist nuclear bomb, the federal government since 9/11 has run a far-reaching, top secret program to monitor radiation levels at over a hundred Muslim sites in the Washington, D.C., area, including mosques, homes, businesses, and warehouses, plus similar sites in at least five other cities, U.S. News has learned. In numerous cases, the monitoring required investigators to go on to the property under surveillance, although no search warrants or court orders were ever obtained, according to those with knowledge of the program. Some participants were threatened with loss of their jobs when they questioned the legality of the operation, according to these accounts.
  Federal officials familiar with the program maintain that warrants are unneeded for the kind of radiation sampling the operation entails, but some legal scholars disagree. . . .
  The nuclear surveillance program began in early 2002 and has been run by the FBI and the Department of Energy's Nuclear Emergency Support Team (NEST). Two individuals, who declined to be named because the program is highly classified, spoke to U.S. News because of their concerns about the legality of the program. At its peak, they say, the effort involved three vehicles in Washington, D.C., monitoring 120 sites per day, nearly all of them Muslim targets drawn up by the FBI. For some ten months, officials conducted daily monitoring, and they have resumed daily checks during periods of high threat. The program has also operated in at least five other cities when threat levels there have risen: Chicago, Detroit, Las Vegas, New York, and Seattle.
  Among the interesting Fourth Amendment questions here is whether this monitoring is distinguishable from Kyllo v. United States. For example, is measuring ambient gamma rays different from measuring infrared radiation emanating from a specific surface? Are Geiger counters (or whatever tool they used to measure radiation) in "general public use"? And does Kyllo, which was focused on the case of a private home, also apply to mosques, businesses, and warehouses?

  I'm scheduled to go to the ABC News studio in a bit to discuss some of these issues; if it works out, a blurb or two on the legal issues might make it on to World News Tonight. (BTW, what's with all the high-tech surveillance stories breaking when I'm supposed to be grading exams? Bad timing.)

Related Posts (on one page):

  1. The "Special Needs" Exception:
  2. Radiation Surveillance:
  3. FBI Radiation Surveillance Program:
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UCLA Graduates #1 in California Bar Passage Rankings:

Paul Caron (TaxProf) reports:

July 2005 California Bar Exam Law School Results (First Time Takers) v. US News & SSRN

CA Bar Rank

School

US News Overall CA Rank

US News Peer CA Rank

SSRN CA Rank

1 (88.7%)

UCLA

3

3

2

2 (88.0%)

Stanford

1

1

1

3 (87.0%)

Boalt

2

2

4

4 (84.3%)

Hastings

6

6

9

5 (81.7%)

USC

4

4

3

6 (80.0%)

USD

8

7

5

For the rest of the table, see Paul's post. And to the quibblers who say the 88.7% is 88.0% difference isn't significant, I say: Is too! Is, is, is!

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My Favorite Newspaper Column Line:

"I didn't see reality until I read something by Eugene Volokh."

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Charles Krauthammer Quotes Orin's Constitutional Analysis

of the eavesdropping matter in today's Washington Post.

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BAPCPA Blog:

The American Bankruptcy Institute is sponsoring a BAPCPA blog to keep up with new caselaw interpreting provisions of the bankruptcy reform legislation. There are several postings already on cases interpreting the new limits on homestead exemptions, the summary procedures for lifting the automatic stay for serial filers, and the consumer credit counseling requirements. The postings so far are of quite good quality. The blog looks like essential reading for those seeking to keep up with interpretations of the new law.

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Thursday, December 22, 2005

House Approves One-Month Patriot Act Extension: Hours after the Senate approved a six-month extension of the Patriot Act, the House of Representatives showed its independence by rejecting the compromise and passing a one-month extension. Story here.
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DOJ Defends NSA Surveillance Program: DOJ's Office of Legislative Affairs has sent a letter to Capitol Hill (5-page .pdf) defending the legality of the NSA surveillance program. It's heavy on the AUMF for the statutory issue and makes a generalized "special needs" exception argument for the Fourth Amendment.
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Is it Illegal for David Letterman to Own a Gun?

Now that David Letterman is the subject of a restraining order barring him from harming a nutty lady who think he is sending her secret signals, the question arises of whether it is still lawful for Letterman to purchase or possess firearms. The relevant federal law is 18 U.S.C. § 922(d)(8). It prohibits gun possession (even holding someone else's gun momentarily) by "prohibited persons." Partly in response to the O.J. Simpson murder case (in which the victim was killed with a knife), Congress cracked down on gun possession by people subject to domestic violence TROs. Thanks to the 1994 Clinton crime bill, federal law now bans gun possession by any person who:

is subject to a court order that restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child,...
Letterman would seem to fall squarely within the prohibition. The TRO states that must not "harm" or "threaten" the plaintiff. Likewise, Letterman is ordered not to block plaintiff in public places or roads. The order against harming the plaintiff would seem to be encompassed within the statutory language about any order against "engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury."

The second question is whether Letterman is an "intimate partner" of the complainant. According to the motion for the TRO--which the judge apparently considered credible enough to merit issuance of a TRO--Letterman has asked the complainant to marry him, and communicates with her constantly. The complainant alleges a long-standing relationship, with frequent communication, and Letterman being so intimate with her as to demand that she shut off all contact with other people. Such conduct, if it really took place, could arguably make Letterman an "intimate partner" of the complainant.

The federal gun prohibition statute contains an exception:
this paragraph shall only apply to a court order that - (A) was issued after a hearing of which such person received actual notice, and at which such person had the opportunity to participate; and
The TRO does not explicitly state that it is issued ex parte, but it does contain a finding that no notice to the defendant is required. The application for the TRO contains no evidence of service. So if Letterman never was properly served with the application, he's off the hook, and can still possess a gun. If we hypothesize that Letterman had been properly served (if that Letterman fails to comply with the court order to appear at the hearing in 10 days, to determine whether to make the TRO permanent, and the court does make the order permanent), there is one other statutory requirement. The court order must be one which:

(B)(i) includes a finding that such person represents credible threat to the physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury;
The TRO contains no finding that Letterman is a threat to the complainant, so prong (i) does not apply. The TRO does, however, prohibit Letterman from harming or threatening the complainant, which would seem to fall within prong (ii), which requires that the court order explicitly prohibit physical force or the threat thereof against the intimate partner.

Accordingly, if the complainant has simply bothered to hire a New York process server to serve Letterman with a copy of the complaint, it would now be illegal for him to possess a firearm. If the court properly sents Letterman an order to appear at the hearing for making the TRO permanent, and Letterman fails to do so, and the court makes the restraining order permanent, then Letterman will be committing a federal felony if he every holds gun in his hands.

For years the feminist community has been exhorting the authorities always to "believe the victim" who complains of intimate partner abuse. Clearly their message has been heard in the First Judicial District Court of the state of New Mexico.

Related Posts (on one page):

  1. Is it Illegal for David Letterman to Own a Gun?
  2. Is This Some Solstice Fool's Joke?
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Senate Approves 6-Month Patriot Act Extension: The Senate passed a 6-month extension of the expiring provisions of the Patriot Act today, by voice vote. The White House is on board -- not enthusiastically, to put it mildly, but on board -- and the House will pick up the issue ASAP.

  It's a sensible move, I think. Congress will be having hearings on the NSA surveillance issues soon, and it makes sense to consider all of the FISA-related issues together.
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FISA Court Judges to Be Briefed on NSA Program: According to a front-page story in the Washington Post, members of the FISA court will receive a classified briefing "to address their concerns about the legality of President Bush's domestic spying program." I thought this was a particularly interesting excerpt from the story:
  The judges could, depending on their level of satisfaction with the answers [to their questions on the legality of the NSA program], demand that the Justice Department produce proof that previous wiretaps were not tainted, according to government officials knowledgeable about the FISA court. Warrants obtained through secret surveillance could be thrown into question. One judge, speaking on the condition of anonymity, also said members could suggest disbanding the court in light of the president's suggestion that he has the power to bypass the court.
  (emphasis mine)

  I'm guessing that the judge in the last sentence isn't a big fan of the Administration's Article II argument.

  UPDATE: Marty Lederman offers his thoughts on the Article II argument, including the In re Sealed Case dictum.
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Alito Polling:

This week's Gallup Poll is here: "The poll, conducted Dec. 9-11, finds that 49% of Americans say they would like to see the Senate vote in favor of Alito serving on the Supreme Court, while 29% say they would not, and 22% have no opinion." The Washington Post reports its new poll which finds that 54%-28% of the public favor confirmation at this point.

And breaking news from the Washington Times, which reports that Judge Alito was considered a bit of a nerd in law school. One of his former professors also has an amusing comparison in the story between Alito and his law school contemporary Hillary Clinton.

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Wednesday, December 21, 2005

Specter Wants Hearings on NSA Surveillance: The latest update.
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The Prisoner Returns: Speaking of spying, John Fund reports:
No TV series -- not even "Star Trek" -- has quite achieved the quirky cult status of "The Prisoner," which first ran on British and U.S. networks almost 40 years ago. It now looks as if the show, which still airs in re-runs in some 60 countries, will be making a comeback next year.

In the original 1967 version, Patrick McGoohan played Prisoner No. 6, a former secret agent who is kidnapped to a strange seaside village where everyone is known only by a number and where he is told that "by hook or by crook" the reasons for his resignation as an agent will be extracted from him. For 17 surreal episodes, the series explored profound issues of privacy, individualism and mind control. I view it as Mr. McGoohan's take on George Orwell's novel "1984," but with a sense of humor. The final episode was a kaleidoscope of bizarre images and obscure allegories that still leave Prisoner fans in heated arguments.

The British magazine Broadcast reports that the Sky One channel has commissioned eight new episodes of the series. Executive producer Damien Timmer says they will deal "with themes such as paranoia, conspiracy and identity crisis." The episodes will be partly written by Bill Gallagher, a creator of the BBC series "Conviction," an edgy police drama about vigilante behavior in society.

Sadly, the new "Prisoner" will not be set in the Welsh village of Portmeirion, a strange, planned community with eclectic Mediterranean architecture. Known simply as "The Village" in the original series, Portmeirion attracts thousands of "Prisoner" fans a year who tour the grounds with the help of a new guidebook.

The final page of the guidebook contains the trademark farewell of a show that anticipated today's rampant use of security cameras: "Be Seeing You." You can bet that the new show will attract the eyeballs of a lot of old Prisoner fans, as well as those of new generations who are curious about why the show has attained such cult status.
I remember watching The Prisoner first run with my brother. As I recall, it was a summer replacement series that had been canceled because McGoohan abandoned the project before being aired, so it was always a set number of episodes with a bizarre and, to my mind, hardly satisfying ending. I loved the series, but would now rather watch episodes of Secret Agent, the British-made series in which Patrick McGoohan established the secret agent persona of John Drake, for which he was later taken prisoner (though his character in The Prisoner was never identified as Drake). For a low-budget series shot largely in the studio, it was an intelligent spy show, something rare in the days when spy shows and films quickly became spoofs. The only spy series I preferred in those days was I Spy (and here) with Robert Culp and Bill Cosby, which I also admit to having watched in first run. Produced by Sheldon Leonard (and here) (the bartender in It's A Wonderful Life) it was shot almost entirely on location around the world in such locales as Tokyo, Hong, Kong, Rome, Acapulco, Greece and Las Vegas. Even the soundtrack by Earl Hagen was excellent.

I did get into MI-5 ("Spooks" in the UK). It was the first spy show I enjoyed since I Spy, not counting the superb 1988 mini-series Game, Set, and Match.
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More on the Authorial Morals Police:

A commenter asks, apropos the Camara controversy:

What about a law review submission by a professor who left his faithful and pregnant wife for a 23 year old former student? While most of us agree that is inappropriate behavior, I can't imagine any serious law journal even considering rejecting an article on that basis. (Maybe because it would eliminate several prominent legal academics?)

Great question; let's also assume that he didn't just leave his wife, but cheated on her, and let's assume that there are no mitigating circumstances. (I think adultery is wrong, but in some situations it may be less wrong than in others -- for instance, if the cheated-on spouse deliberately alienated the cheater through cruelty of various sorts.)

Bad behavior? You bet. Does it reveal a character defect? Sure. Could someone even spin it out as identity politics, as reflecting the professor's mistreatment of women? Definitely. (I think this is just general scumminess, not sexism in any meaningful sense, but others might disagree -- or might rightly condemn the guy just for his scumminess.) Is it at least roughly as bad as using the term "nig" in a publicly distributed outline? I think it is; though racial epithets are offensive and rude, and often affect many people rather than just one (or more likely a few, given that the professor's behavior affects both his wife and their children, current and forthcoming), the harm inflicted by adultery and abandonment of one's children is generally much more intense.

But this has zilch to do with the important question, which is: Does the law review article advance our understanding of law? They're not giving the author a decency award, they're publishing an article for the benefit of readers and of the profession. The same goes with other forms of misconduct, whether or not race is involved.

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Citation Trivia Question:

There are many federal courts for C___ (e.g., for the Central District of California), some for D___ (e.g., for the District of Wyoming), and at least one for A___ (the Armed Forces). But to my knowledge, there has been only one for B___. Which is it? The answer is below.

(Show.)

UPDATE: Tense and state corrections made, with thanks to commenter (and former summer-camp-mate of mine) Ira Matetsky and to the infallible Pius XXX.

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Luttig to DOJ -- Not So Fast on Padilla: In a fascinating turn of events, the Fourth Circuit has rejected DOJ's motion to transfer Jose Padilla and vacate its prior opinion. Judge Luttig's 12-page order is worth reading in its entirety, but here's the bottom line:
  Because we believe that the transfer of Padilla and the withdrawal of our opinion at the government’s request while the Supreme Court is reviewing this court’s decision of September 9 would compound what is, in the absence of explanation, at least an appearance that the government may be attempting to avoid consideration of our decision by the Supreme Court, and also because we believe that this case presents an issue of such especial national importance as to warrant final consideration by that court, even if only by denial of further review, we deny both the motion and suggestion. If the natural progression of this significant litigation to conclusion is to be pretermitted at this late date under these circumstances, we believe that decision should be made not by this court but, rather, by the Supreme Court of the United States.
  An excerpt from the rest:
  Because of their evident gravity, we must believe that the consequences of the actions that the government has taken in this important case over the past several weeks, not only for the public perception of the war on terror but also for the government’s credibility before the courts in litigation ancillary to that war, have been carefully considered. But at the same time that we must believe this, we cannot help but believe that those consequences have been underestimated.
  For, as the government surely must understand, although the various facts it has asserted are not necessarily inconsistent or without basis, its actions have left not only the impression that Padilla may have been held for these years, even if justifiably, by mistake –- an impression we would have thought the government could ill afford to leave extant. They have left the impression that the government may even have come to the belief that the principle in reliance upon which it has detained Padilla for this time, that the President possesses the authority to detain enemy combatants who enter into this country for the purpose of attacking America and its citizens from within, can, in the end, yield to expediency with little or no cost to its conduct of the war against terror –- an impression we would have thought the government likewise could ill afford to leave extant. And these impressions have been left, we fear, at what may ultimately prove to be substantial cost to the government’s credibility before the courts, to whom it will one day need to argue again in support of a principle of assertedly like importance and necessity to the one that it seems to abandon today. While there could be an objective that could command such a price as all of this, it is difficult to imagine what that objective would be.
  Ouch! Strong words, and from a respected Judge that the Justices know well. Thanks to Steve Vladeck for the link (who has additional thoughts, as well).

  UPDATE: I changed the second excerpt soon after posting this, as I found a better quote.
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Is This Some Solstice Fool's Joke?

The Santa Fe New Mexican reports:

Late last week, a Santa Fe District Court judge signed a temporary restraining order against talk-show host David Letterman alleging [sic] he has tormented a city resident for more than 10 years by using code words on his television program. . . .

In the application for the restraining order, which was filed Thursday, Nestler alleges that between May 1994 and now, Letterman forced her to go bankrupt and caused her “mental cruelty” and “sleep deprivation.”

Nestler . . . requested that Letterman, who tapes his show in New York, stay at least 3 yards from her and that he not “think of me, and release me from his mental harassment and hammering,” according to the application.

Nestler’s application was accompanied by a typed, six-page, double-spaced letter in which she said Letterman used code words, gestures and “eye expressions” to convey his desire to marry her and train her as his co-host. Her story also involves Regis Philbin, Kathie Lee Gifford and Kelsey Grammer, whom Nestler says either supported or attempted to thwart her “relationship” with Letterman, according to the letter.

Nestler wrote that she began sending Letterman “thoughts of love” after the Late Show With David Letterman began on CBS in 1993.

“Dave responded to my thoughts of love, and, on his show, in code words & obvious indications through jestures (sic) and eye expressions, he asked me to come east,” she wrote.

Then, three days before Thanksgiving in 1993, Letterman asked Nestler to be his wife during a televised “teaser” for his show when he said, “Marry me Oprah,” Nestler wrote in the letter.

“Oprah had become my first of many code names,” she wrote. “... (A)s time passed, the code-vocabulary increased & changed, but in the beginning things like ‘C’ on baseball caps referred to me, and specific messages through songs sung by his guests, were the beginnings of what became an elaborate means of communication between he and myself.” . . .

Judge Sanchez signed the temporary restraining order Thursday afternoon and set the case to be heard Jan. 12, according to court documents. In a phone interview Tuesday, Sanchez said he couldn’t comment on the order.

When asked if he might have made a mistake, Sanchez said no. He also said he had read Nestler’s application.

In his motion asking Sanchez to quash the order, Rogers said the District Court lacks jurisdiction over Letterman, Nestler never served Letterman with the necessary restraining-order papers, and she didn’t meet procedural requirements for issuing a temporary restraining order. . . .

I'm trying to get a copy of the TRO — if you have it and can e-mail it to me, I'd be very much obliged — but it sounds to me like either the newspaper or the judge got this badly, ridiculously wrong. (In some situations, judges rule in favor of plaintiffs with strange theories when the defendant fails to show up, and the defendant wins by default; but to my knowledge they have to exercise some supervisory power, especially when the defendant wasn't served, whether because of the plaintiff's omission or because the proceeding is supposed to be ex parte, i.e., without the defendant's participation.)

Thanks to Tom Elia (The New Editor) for the pointer.

UPDATE: Thanks to our indispensable law library, I've now gotten a copy of the crazy application and of the temporary restraining order, which I've posted on this site. The TRO is pretty boilerplate, barring Letterman from "threaten[ing], harm[ing], alarm[ing] or annoy[ing]" Nestler -- let's hope that doesn't implicitly bar him from using mysterious "code words" on his show -- ordering him to stay at least 100 yards away from Nestler, her residence, and her workplace, ordering him not to telephone her or contact her, and ordering him not to block her in public places or roads.

In practice, I doubt that it will affect Letterman much, since I doubt he had many plans to go to Santa Fe or to get in touch with this woman. But as a matter of principle, it's pretty outrageous (though I'm sure not unprecedented): Based on a patently frivolous allegation, and without any remotely conceivable justification, Letterman has his liberty restrained.

It also casts doubt either on the judge's competence or on his candor. Either the judge read this carefully and thinks the order is well-founded, in which case he isn't a very smart judge. Or he didn't read this carefully, and on reflection must realize that he's made a mistake, in which case his statement (assuming that the newspaper accurately paraphrased them) that he didn't make a mistake and that he read Nestler's application seems less than candid.

Related Posts (on one page):

  1. Is it Illegal for David Letterman to Own a Gun?
  2. Is This Some Solstice Fool's Joke?
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A Few Additional Thoughts on NSA Surveillance: The NSA surveillance story has come at an awkward time for law profs; it's hard to follow the latest in this fast-moving story when you should be working through a pile of exams. But I wanted to respond to a few issues, even if only briefly.

  1. Some have asked me why I question whether the surveillance program violated FISA, given that Bush and Gonzales aren't arguing it didn't. They make the very fair argument that if the administration isn't defending the program on that ground, the program presumably does violate FISA. This is a decent point, but I think it's sensible to be cautious here. My thinking is that there may be strategic reasons why the administration isn't making this argument. Based on my research, an explanation of why the program may not violate FISA would require them to explain the technical details of how the program works, and they presumably wouldn't want to do that in public given that the program is classified. I don't know how likely this is, but it's certainly possible when you're dealing with a secretive agency like the NSA. So in the end, my take is the same as it was before: the program probably violated FISA, but it depends on some details we don't know.

  2. Sticking with that theme, I don't think we know a lot of important facts of how the program works. Questions that I would want to know: Was this surveillance intercepting satellite communications? Assuming that telecom satellites are in geosynchronous orbit, are the satellites over the U.S.? How do they route calls in and out of the United States? (There's a fun Fourth Amendment question: Assuming no border search exception or national security exception, does an individual have a Fourth Amendment reasonable expectation of privacy against intercepting their satellite communications in space? Does it matter whether the satellite orbits the earth outside the United States?) If the interceptions were on wires, not via satellite, then where, how, and by whom were the monitoring devices installed?

  3. A bit about the Fourth Amendment abroad. Some people have been assuming that Fourth Amendment rights are completely territorial, such that those outside the United States have no such rights. The Supreme Court hasn't said a lot about this question: it has said that if you have no voluntary contacts with the U.S. you have no Fourth Amendment rights, but that's about it. Lower courts have filled in more details. According to the lower court opinions, Fourth Amendment rights track the individual's connection to the United States, even if the person is abroad. For example, U.S. citizens retain Fourth Amendment rights abroad; if you're a U.S. citizen and you visit country X, the U.S. government generally can't search your home in country X without legal authorization.

  The exact contours of Fourth Amendment rights abroad are pretty tricky, as it's not like the U.S. government can go to the District Court of Argentina to get a warrant. (In a few circuit cases involving joint U.S.-foreign investigations, for example, courts have said that the Fourth Amendment's reasonableness standard is satisfied if the search complies with the laws of the country where the search occurs. There are no cases on Fourth Amendment rights for searches in orbit, though.) But the key idea is that the Fourth Amendment issues are much less sensitive to the territorial question of where the search is occurring — with the notable exception of the border — than some people seem to be thinking. It's a different case on the statutory front, as the statutes have much clearer territorial bounds.

  Anyway, there's lots more ground to cover, but let me stick with that for now.
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A Bit More on Scholarly Journals and Authors' Past Offensive Speech:

By coincidence, the days in which the Yale Law Journal / Kiwi Camara controversy unfolded also brought us this story (thanks to How Appealing for the pointer):

Four white men fired by the Philadelphia School District have won a racial-discrimination lawsuit, and a federal jury awarded them nearly $3 million in damages.

After Friday's verdict, Carl E. Singley, a prominent African American lawyer who represented the school district, exchanged words with some members of the all-white jury as they rode a courthouse elevator. He called them "crackers," four jurors said in interviews.

Within 30 minutes, U.S. District Judge Harvey Bartle 3d brought Singley and five of the seven jurors in the case back into his courtroom. Singley, a former Temple Law School dean, promptly apologized.

"What I did and said was inappropriate," Singley said, according to a transcript. "I should not have disrespected you, and I do apologize." . . .

So here's the question: Imagine that a month from now, the Yale Law Journal receives an article submitted by Carl Singley. How would you like the editors to react? Which reaction do you think fosters the best attitude on the editors' part, the attitude that's most likely to help advance legal scholarship?

  1. "Throw it out. We don't publish articles by people who have ever said anything racist."
  2. "Hard call. On the one hand, most whites are probably not as insulted by 'cracker' as they are by 'nig.' On the other hand, this was said to the targets' faces, which probably makes it more insulting; Camara's words weren't. Back to the first hand, it sounds like the author was upset and spoke in a moment of anger, while Camara had more time for deliberation, and in fact knew that his words would offend people. But back to the second hand, Singley is an experienced lawyer, teacher, and administrator, not a 17-year-old, who can be expected to do immature things. Back to the first hand, . . . ."
  3. "Does anyone else know? Are they going to cause a fuss? People who get offended by 'cracker' are probably less likely to start protests, e-mail campaigns, and the like than people who get offended by 'nig'; but will they still cause enough to put us in an awkward position?"
  4. "Better set up an ad hoc committee, arrange a town hall meeting, speak to the representatives of all affected groups, and issue a carefully crafted report."
  5. "Hey, is his article any good?"

I vote for (e).

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Teen Confesses to Crime on His Blog, Pleads Guilty: An interesting and sad story. Thanks to Michael Cernovich for the link.
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Intellectual Diversity in the Academy Revisited:

Herbert London has a column in today's Washington Times, "The Intellectual Diversity Hoax" that discusses this new report by the American Council of Trustees and Alumni (ACTA). The press release and summary of recommendations is available here. As opposed to external efforts such as David Horowitz's Academic Bill of Rights, the purpose of this report is to offer constructive suggestions to colleges and universities within the context of academic self-governance to study the impact of intellectual orthodoxy on the student learning experience and to respond where appropriate. I don't endorse everything in the report, but there are certainly some very good ideas here and the recommendations merit sober evaluation and consideration.

In my opinion, efforts to encourage the academy to take its self-governance responsibilities are quite preferable to external regulations such as the Academic Bill of Rights. At the same time, I recognize that efforts such as Horowitz's are born of the frustration of the academy's failure to live upt to its self-governance responsibilities seriously. I think the ACTA report is useful in that it goes beyond merely kvetching or calling for external command-and-control regulation, and instead offers proactive self-governance steps that colleges and universities can take to evaluate and act on these concerns.

Meanwhile Dan Klein and Charlotta Stern have posted a new paper, Narrow-Tent Democrats and Fringe Others: The Policy Views of Social Science Professors (forthcoming in Critical Review) measuring the degree of ideological homogeneity in the academy. Here's the Abstract:

Abstract

This paper provides copious results from a 2003 survey of academics. We analyze the responses of 1208 academics from six scholarly associations (in anthropology, economics, history, legal and political philosophy, political science, and sociology) with regard to their views on 18 policy issues. The issues include economic regulations, personal-choice restrictions, and military action abroad. We find that the academics overwhelmingly vote Democratic and that the Democratic dominance has increased significantly since 1970. A multivariate analysis shows strongly that Republican scholars are more likely to land outside of academia. On the 18 policy questions, the Democratic-voter responses have much less variation than do the Republicans. The left has a narrow tent. The Democratic and Republican policy views of academics are somewhat in line with the ideal types, except that across the board both groups are simply more statist than the ideal types might suggest. Regarding disciplinary consensus, we find that the discipline with least consensus is economics. We do a cluster analysis, and the mathematical technique sorts the respondents into groups that nicely correspond to familiar ideological categories: establishment left, progressive, conservative, and libertarian. The conservative group and the libertarian group are equal in size (35 individuals, each), suggesting that academics who depart from the leftist ranks are as likely to be libertarian as conservative. We also find that conservatives are closer to the establishment left than they are to the libertarians.

Klein & Stern find that 79% of those surveyed self-report as Democratic and 9% self-report as Republican. Moreover, Klein & Stern find that party self-identification turns out to be correlated with views on a range of political issues, such as attitudes toward gun control, free trade, government production of primary schooling, and redistribution policies. Moreover, as the abstract notes (and the study finds) self-reported Democrats show a much less variation in response on these ideological issues than do Republicans (in the authors' words, the Democratic tent is "more narrow" than the Republican). Klein & Stern also explore more general "worldview" and ideological views, such as general attitudes toward the government's proper role in regulation of personal choice and economic regulation. Overall, they find a very high degree of ideological homogeneity in the composition of the modern academy.

Another interesting point is that Klein and Stern find that Republican scholars are more likely to be employed outside academia relative to Democratic scholars. The effect tends be most pronounced with respect to those in History and Anthropology-Sociology. One possible implication of this finding is that it may shed some light on the question of bias versus self-selection in the academy, and in particular, the question of whether non-left individuals are "greedier" by nature and as a result differentially self-select for less-lucrative non-academic positions. Klein and Stern's research casts some doubt about this particular self-selection hypothesis. First, the respondents to the survey are those who have already attended graduate school, thus the initial self-selection bias is absent because these individuals have already demonstrated a self-identified preference for an academic career path. Nonetheless, the differences remain. Second, Klein and Stern find the greatest difference to be in History and Anthropology-Sociology, two of the disciplines studied that probably have the lowest opportunity cost to being in academia versus outside. By contrast, Democratic and Republican Economists and Political Scientists are just as likely to be found inside and outside the academy. Leaving aside Political Science for the moment, economists seem to have the highest opportunity cost of being in the academy, suggesting that they would be most likely to self-select out of the academy into consulting and other private sector jobs. And indeed, they find that economists have the highest propensity to land in nonacademic positions.

What does this all mean, then? Well first, if the propensity of economists to be found in nonacademic positions is the result of self-selection (higher opportunity cost), this suggests that Democratic and Republican economists are approximately as likely to self-select out of the academy. This piece of evidence is inconsistent with the proffered self-selection hypothesis that conservatives are more "greedy" and hence more likely to self-select for a nonacademic career. In fact, liberal and conservative economists seem to choose income over the academy at roughly the same rate. Second, the differences in academic placements appears to be greatest in those fields that appear to have the sparsest nonacademic alternatives, History and Anthropology-Sociology (and to a lesser extent in the study, Philosophy). This suggests that the differential placement in the academy for these fields is not the result of self-selection, but rather some involuntary obstacle (such as, but not necessarily, ideological bias). Combined, the various observations offer little support for the hypothesis that the differential location of conservatives and libertarians inside versus outside the academy results from differential propensities to self-select for higher-paying nonacademic positions.

All of these contributions leave open plenty of room for additional debate and evaluation. I think that both the ACTA report and the Klein-Stern study merit serious analysis and that further research in these directions would be very helpful in understanding this complex issue.

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Institute of Medicine on Advertising and Children's Obesity:

A few weeks ago, the Institute of Medicine released a new report which has been reported to conclude that the rise in children's obesity in the United States can be attributed at least in part to advertising of junk food and fast food. According to the Washington Post:

Food and beverage companies are using television ads to entice children into eating massive amounts of unhealthful food, leading to a sharp increase in childhood obesity and diabetes, a national science advisory panel said yesterday.

The Institute of Medicine, part of the National Academies, called on food and beverage manufacturers and restaurants to make more healthful products and shift their advertising emphasis to promote them. If the companies do not do so within two years, Congress should mandate changes, especially for broadcast and cable television ads, the institute said.

"There is strong evidence that exposure to television advertising is associated with" obesity, the government-chartered institute said in a congressionally requested report to determine the effects of food advertising on children's health. The report said most of the food and beverage products promoted to children are high in calories, sugar, salt and fat and low in nutrients.

I haven't read the full report yet, so I won't comment on it extensively here. Richard Posner and Gary Becker have an exchange on their blog, which is reproduced here. I assume that they are commenting on the general issue, not the voluminous IOM Report, which they do not seem to address directly.

As readers will be aware, I published a co-authored article on the topic last year that concluded that based on the data available at that time, the evidence fails to support the conclusion that advertising is contributing to the rise in children's obesity. The article is available here. The article also contains an exhaustive summary of the literature available on the possible causes of rising rates of childhood obesity.

Updated research from the FTC that reinforces the conclusions of our initial study was presented this summer by Pauline Ippolito fo the FTC and is available here.

Becker refers to a PhD dissertation by a newly-minted Chicago grad, which is available here. He concludes that the evidence fails to support the conclusion that the increase in children's obesity can be blamed on changes in diet (i.e., greater consumption of junk food or fast food), but rather a decrease in physical activity resulting from increased computer and video game use.

I hope to have time to read the IOM study over my break, but if not, I thought it would be useful for those following the issue to be aware of the developments related to the IOM report.

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Scholarly Journals and Authors' Past Offensive Speech (1):

1. The Yale Law Journal is embroiled in a controversy. The Journal accepted a paper for a symposium; but now it turns out that four years ago, a coauthor of the paper made what certainly seems like a racist statement. (For whatever it’s worth, the paper has nothing to do with race.)

Should the Journal withdraw the offer? Some argue yes; the Journal has said no. It seems to me the Journal is absolutely right. The same should apply when journals consider papers written by people who have expressed Communist sympathies, or who praise terrorists, or who oppose or defend homosexuality, or who offend our sensibilities in countless other ways.

Academic journals are special institutions, with a special mission: the publication of ideas that advance knowledge in their field. To operate best, it seems to me, they should be committed single-mindedly to that goal. They may consider the quality of the paper (and quality in a broad sense, including soundness, novelty, relevance to hot current debates, relevance to timeless issues, accessibility, and the like). They may even consider the author’s credentials, when they think these credentials are a proxy for the paper’s likely merit, and when a proxy is needed. They may also consider the author’s past misconduct when it may influence the quality of a paper; for instance, they may decline to spend time double-checking a paper written by someone who has a reputation for scholarly fraud.

But they shouldn’t consider the author’s past offensiveness, or the reprehensibleness of the ideas he expresses outside the paper. It’s about getting ideas out to the readers, not about the moral character of the writer (or at least it should be about it). If a new discovery by transistor discoverer William Shockley (who was a racist) adds to our store of knowledge about electronics, or Noam Chomsky’s new linguistics work adds to our store of knowledge about linguistics, it shouldn’t matter what you think of the authors’ ideas outside those papers.

This needn’t be the norm for all fields of human endeavor. When we choose dinner guests, we can quite rightly consider their characters, including their viewpoints; likewise when we choose coauthors. Businesses who are hiring people (e.g., pitchmen or entertainers) whose effectiveness rests partly on public goodwill may consider whether an applicant has done things that have cost him such goodwill. Even academic institutions may — and sometimes should — consider the character of those whom they choose to honor through special honors and awards. And there are even plausible arguments for considering the character of professors, who after all need to judge students fairly, serve as role models for them, and compose fair-minded and accurate lectures with minimal administrative supervision (though I think that on balance universities ought to avoid considering professor’s ideologies, despite these concerns).

But the learned journal is a different institution. Its purpose isn’t conviviality, collegiality, moneymaking, role modeling, or honoring the honorable. It’s an honor to publish in the Yale Law Journal, but the Journal doesn’t publish articles in order to honor people; publication of article doesn’t mean approbation of the author. Its editors should stick to evaluating ideas in an attempt to advance knowledge, and leave evaluating authors’ characters to others.

The Journal’s Editor-in-Chief also pointed out some important practical reasons justifying his decision not to retract the offer: (1) Evaluating authors’ characters requires journals to get into the business of investigating charges and responses. (“In this case, the central facts of the incident involving Camara are uncontested, but they might not be in other circumstances.”) (2) The exception would be hard to limit just to racist epithets, but is likely to grow to include other material that many find offensive. (3) If the Journal excludes some authors for their bad outside-the-article ideas, this would suggest that it’s endorsing the outside ideology of those authors whom it does publish. Yet the main point, it seems to me, is maintaining a clear focus on one main goal — the publication of ideas that advance the progress of knowledge.

UPDATE: Links fixed; sorry they were broken.

UPDATE: See also this post by Dan Markel on Prawfsblawg, which I largely agree with (though I'd go further than he would, and say that, yes, "the YLJ (or some comparable journal in philosophy and social thought) should publish Heidegger simply because of the work's contributions," even though Heidegger was a Nazi. (I also agree that if there were a narrow exception for Nazis, Stalinists, and the like, this author -- even if he were sincere and unrepentant, which seems unlikely here -- is very far from that exception; but of course the difficulty with narrow exceptions for Nazis and Stalinists is that they rarely stay narrow.)

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Scholarly Journals and Authors' Past Offensive Speech (2):

OK, now here's the other (equally accurate) version of the story.

2. The Yale Law Journal is embroiled in a controversy. The Journal accepted a paper for a symposium that was cowritten by Kiwi Camara. It turns out that four years, when Camara was a 17-year-old first-year Harvard Law School student, he posted something really offensive on a law school outline-exchange Web page: A couple of his outlines for classes (such as for property law, where one of the cases dealt with a restrictive covenant aimed at excluding blacks) referred to blacks as “nigs.” This caused a furor, especially in combination with two other Harvard Law School incidents that year, which involved professors rather than students (and which Camara wasn’t responsible for). Camara apologized, and said he didn’t endorse racist ideas, but his apology was quite puzzling. (This Harvard Law Record story contains the fullest account of the incident that I’ve found.)

Camara then graduated (at age 19, apparently the youngest Harvard Law School graduate in the school’s history), clerked for a federal court of appeals judge, and is now a research fellow at Stanford. After the Yale Law Journal controversy flared up, he wrote a further apology that seems quite straightforward and unambiguous. (I should note that the statement was circulated at Yale only on Monday, and many of those who have been calling for the offer of publication to be revoked hadn’t seen this.)

Forget then about all the issues I discussed in part 1. Camara is obviously very smart, but even very book-smart 17-year-olds sometimes say really dumb things. It’s hard for me to figure out exactly why he said what he said, but the charitable — and, I think, plausible — explanation is that he was engaging in the common 17-year-old pastime of trying to be edgy and shocking. Some kids do this by swearing, though this has lost its edge these days; Camara may have been trying to do it by casual use of epithets.

And charity, it seems to me, is appropriate here. Whatever Camara’s reasons for what he did then, he was 17. How many of us didn’t say anything at age 17 that we now realize was stupid, offensive, and quite possibly not even sincere? Yes, I realize that some things that kids do at 17 end up sticking with them; if you rape or rob someone, the rest of us need to protect ourselves against you (and the victim deserves some justice for this serious crime). Yet that’s an occasion for regret, and something we should avoid if we can. And when it comes to simply offensive statements, it seems to me that the loud condemnation from classmates, professors, and administrators that Camara endured after the original incident was likely a pretty good way to teach him the requisite lesson. It’s a fair bet that the lesson has been learned.

Camara has apologized. Four years have passed. He’s on the threshold of what could be a promising academic career. Set aside the academic institutional questions I discussed above. Isn’t it kind of cruel to try to sink him (and in the process, hurt his coauthor) because of something he said when he was 17, stupid, rude, and nasty as it may have been? Isn’t it kind of petty?

UPDATE: Links fixed; sorry they were broken.

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Tuesday, December 20, 2005

Link to Radio Show on NSA Surveillance: The audio of my discussion earlier today with Erwin Chemerinsky on the legality of the NSA domestic surveillance program is available here. The show runs 30 minutes; RealPlayer is required. I say "um" way too many times, but then I always do that.
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Harvard Law Review Forum: In my haste to blog a link to my new piece, I overlooked a significant event in the law review world: the debut of the Harvard Law Review Forum. Here's the official blurb from the Harvard Law Review's website:
  It has been our experience that short Replies to our Articles often add a great deal of value to the Review, and to the Articles themselves. However, the constraints of the publication process make it impossible for us to publish as many Replies, in as timely a manner, as we would like. The Forum is an online extension of our printed pages that is intended to allow for a more robust scholarly discussion of our Articles.
  In addition to allowing us to publish more timely Replies, the Forum also allows scholars to contribute ideas that may not lend themselves to the traditional law review format. To that end, Forum Replies are approximately 3000 words long, and should be lightly footnoted and sourced in comparison to traditional Articles. However, they are subject to the same editorial standards as the material that appears in our printed volume.
  Replies appearing in the Forum are permanently published on our website as Adobe PDF files. (We are also working with Lexis and Westlaw to incorporate the Forum into their databases.) The Forum is formatted and paginated like our printed volume, and should be cited as follows: Jane Smith, Reply Title, 119 HARV. L. REV. F. 1 (2005), www.harvardlawreview.org/forum/issues/119/dec05/author.pdf.
  The Forum will feature multiple Replies to each Article in the Review. Replies are published on a rolling basis; we invite you to follow the conversations as they unfold.
  You can view the initial set of Harvard Law Review Forum replies here. I was particularly interested in the response to my own article by my friend and brand-spanking new law prof Paul Ohm, The Fourth Amendment Right to Delete.

  I suppose it's natural to compare the HLR Forum to the Yale Law Journal's new site, The Pocket Part. The Yale site is more blog-like; responses are in html, with hyperlinks, and comments are enabled. In contrast, the Harvard site has no comments or hyperlinks, but posts the articles as .pdf documents in that cool HLR font. Plus, the Harvard responses will be available on Westlaw and Lexis. [UPDATE: C.J. Mahoney writes in to add that "The Yale Law Journal is likewise working with Lexis and Westlaw to include Pocket Part content on their databases."]

  Does anyone know if other journals are planning something similar?
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Searches and Seizures in a Digital World: I am pleased to say that my latest article, Searches and Seizures in a Digital World, 119 Harv. L. Rev. 531 (2005), has been published and was just posted on line. You can access a .pdf of the final version of the article here.
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Political Polarization v. Median Voter:

Political Scientists traditionally have thought that highly-contested elections tend to moderate politics by inducing politicians, the so-called "median voter theorem." Steven Teles describes some research that suggests that today, by contrast, high competition might instead become turnout battles, suggesting greater, rather than lesser polarization. Among other implications, if the analysis is correct, it suggests that nonpartisan redistricting might do little to solve the problem of political polarization in Congress.

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Sudanese Genocide Gets Worse:

Professor Eric Reeves of Smith College is indefatigable in his determination to try to stop the genocide in Sudan. The SudanReeves website is an outstanding source of information. His latest posts detail how the situation in Darfur has gotten even worse in recent months, and how the African Union "peacekeeping" force (which is only supposed to protect foreigners, not Darfuris) is an abysmal failure even in its limited mission. The Khartoum dictatorship has been perpetrating genocide since 1992--first in the Nuba Mountains, then in south Sudan, and now in Darfur. Reeves predicts that the next target will the oil-rich eastern Sudan.

In the book "Darfur: Genocide Before Our Eyes" (published by the Institute for the Study of Genocide), Reeves makes the case for military intervention by NATO to stop the genocide. Military intervention would be a wonderful idea, and, indeed, there is a good international law argument that every NATO country is legally bound to intervene, since every NATO country is a signatory to the Genocide Convention, which imposes an affirmitive duty to "prevent" genocide.

But the prospects of NATO intervention are, unfortunately, nil. Among NATO governments, only the United States has even used the word "genocide" about the genocide in Darfur. At StrategyPage noted long ago, even a NATO-imposed "No-Fly Zone" in Darfur would do tremendous good, since it would prevent the Sudanese Air Force from supporting the ground attacks of the Arab janjaweed. But there is no indication that NATO will do anything more than continue to provide airlifts to the incompetent African Union forces.

In a forthcoming article in the Notre Dame Law Review, Paul Gallant, Joanne Eisen and I examine the Darfur genocide, and other genocides, and conclude that under existing international law, the victims of an on-going genocide have an over-riding right to acquire and possess defensive arms, notwithstanding any contrary national or international laws on the subject.

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Radio Show on NSA Surveillance: I plan to blog more later today about the legal questions surrounding the NSA's surveillance program, but in the meantime I'm going to be on Air Talk with Larry Mantle in about 15 minutes discussing the issues with Duke law school's Erwin Chemerinsky. You can listen live from a link at the show's site, and listen later on to the archives, as well. (The show will run from 1:30 to 2pm East Coast time.)
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Monday, December 19, 2005

Great Post, and Very Good Comments:

I was extremely impressed by Orin's post on the domestic surveillance issue -- and also by the general quality of the comments, which are mostly very substantive, thoughtful, and well-informed. Don't be distracted by the first comment, which is from a commenter whose comments often tend toward sarcasm and political point-scoring. Read past it and past the thank-you notes to Orin (which are much appreciated but which I can't claim are deeply substantive), and you'll see a generally excellent discussion.

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Legal Analysis of the NSA Domestic Surveillance Program: Was the secret NSA surveillance program legal? Was it constitutional? Did it violate federal statutory law? It turns out these are hard questions, but I wanted to try my best to answer them. My answer is pretty tentative, but here it goes: Although it hinges somewhat on technical details we don't know, it seems that the program was probably constitutional but probably violated the federal law known as the Foreign Intelligence Surveillance Act. My answer is extra-cautious for two reasons. First, there is some wiggle room in FISA, depending on technical details we don't know of how the surveillance was done. Second, there is at least a colorable argument — if, I think in the end, an unpersuasive one — that the surveillance was authorized by the Authorization to Use Miltary Force as construed in the Hamdi opinion.

  This is a really long post, so let me tell you where I'm going. I'm going to start with the Fourth Amendment; then turn to FISA; next look to the Authorization to Use Military Force; and conclude by looking at claim that the surveillance was justified by the inherent authority of Article II. And before I start, let me be clear that nothing in this post is intended to express or reflect a normative take of whether the surveillance program is a good idea or a bad idea. In other words, I'm just trying to answer what the law is, not say what the law should be. If you think my analysis is wrong, please let me know in the comment section; I'd be delighted to post a correction.

  The Fourth Amendment. On the whole, I think there are some pretty decent arguments that this program did not violate the Fourth Amendment under existing precedent. There are a bunch of different arguments here, but let me focus on two: the border search exception and a national security exception. Neither is a slam dunk, by any means, but each are plausible arguments left open by the cases.

  The border search exception permits searches at the border of the United States "or its functional equivalent." United States v. Montoya De Hernandez, 473 U.S. 531, 538 (1985). The idea here is that the United States as a sovereign has a right to inspect stuff entering or exiting the country as a way of protecting its sovereign interests, and that the Fourth Amendment permits such searches. Courts have applied the border search exception in cases of PCs and computer hard drives; if you bring a computer into or out of the United States, the government can search your computer for contraband or other prohibited items at the airport or wherever you are entering or leaving the country. See, e.g., United States v. Ickes, 393 F.3d 501 (4th Cir. 2005) (Wilkinson, J.).

  As I understand it, all of the monitoring involved in the NSA program involved international calls (and international e-mails). That is, the NSA was intercepting communications in the U.S., but only communications going outside the U.S. or coming from abroad. I'm not aware of any cases applying the border search exception to raw data, as compared to the search of a physical device that stores data, so this is untested ground. At the same time, I don't know of a rationale in the caselaw for treating data differently than physical storage devices. The case law on the border search exception is phrased in pretty broad language, so it seems at least plausible that a border search exception could apply to monitoring at an ISP or telephone provider as the "functional equivalent of the border," much like airports are the functional equivalent of the border in the case of international airline travel. [UPDATE: A number of people have contacted me or left comments expressing skepticism about this argument. In response, let me point out the most persuasive case on point: United States v. Ramsey, holding that the border search exception applies to all international postal mail, permitting all international postal mail to be searched. Again, this isn't a slam dunk, but I think a plausible argument -- and with dicta that seems to say that mode of transportation is not relevant.]

  The government would have a second argument in case a court doesn't accept the border search exception: the open question of whether there is a national security exception to the Fourth Amendment that permits the government to conduct searches and surveillance for foreign intelligence surveillance. Footnote 23 of Katz v. United States left this open, and Justice White's conccurrence in Katz expanded on this point:
Wiretapping to protect the security of the Nation has been authorized by successive Presidents. The present Administration would apparently save national security cases from restrictions against wiretapping. We should not require the warrant procedure and the magistrate's judgment if the President of the United States or his chief legal officer, the Attorney General, has considered the requirements of national security and authorized electronic surveillance as reasonable.
  The Supreme Court also left this question open in the so-called "Keith" case, United States v. United States District Court, in 1972. Justice Powell's opinion in the Keith case concluded that there was no national security exception to the Fourth Amendment for evidence collection involving domestic organizations, but expressly held open the possibility that such an exception existed for foreign intelligence collection:
Further, the instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country. The Attorney General's affidavit in this case states that the surveillances were "deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of Government." There is no evidence of any involvement, directly or indirectly, of a foreign power.
  The administration presumably takes the position that the President does have such power in cases involving foreign evidence collection, and that the NSA surveillance is such a case. The Supreme Court has never resolved the question, so it's an open constitutional issue. Nonetheless, between the border search exception and the open possibility of a national security exception, there are pretty decent arguments that the monitoring did not violate the Fourth Amendment. Maybe persuasive, maybe not, but certainly open and fair arguments under the case law.

  Foreign Intelligence Surveillance Act. Now let's turn to FISA, a 1978 law that Congress enacted in response to the Keith case. FISA goes beyond the Keith case, including foreign intelligence surveillance in its scope even though it was left open as a constututional question.

  Specifically, 50 U.S.C. 1809 prohibits "electronic surveillance" except as authorized by statutory law: "A person is guilty of an offense if he intentionally . . . engages in electronic surveillance under color of law except as authorized by statute." "Electronic surveillance" is defined in 50 U.S.C. 1801(f) to mean, in relevant part:
(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;
(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States. . . .
  A "United States person" is defined in 50 U.S.C. 1801(i) as "a citizen of the United States [or] an alien lawfully admitted for permanent residence." A "wire communication" is defined as a communication that is traveling by a wire; I don't know if "radio communication" is a defined term, but I assume it refers primary to satellite communications.

  Putting aside the AUMF and statutory exceptions for now, let's consider whether the NSA surveillance program violates the basic prohibition of 50 U.S.C. 1809 — intentionally conducting electronic surveillance. I think the answer is probably yes. If the surveillance tapped wire communications under 1801(f)(2), the case is pretty clear: the surveillance involved people in the U.S. and survillance in the U.S., and that's all that is required. If the surveillance involved radio communications (satellite communications, I'm guessing), that's a bit trickier. There is at least a little wiggle room in Section 1801(f)(1). For example, you could say that the border search exception eliminates Fourth Amendment protection, such that there was no reasonable expectation of privacy and therefore there would be no warrant required in an analogous criminal case. In that case, the tapping of the radio communication wouldn't count as "electronic surveillance." I don't think we know the details of how the communucations were obtained, so I think it's fair to say that the surveillance probably violated the basic proibition but it at least arguably depends on some of the technical details we don't know.

  Now, on to the exceptions. 50 U.S.C. 1802(a)(1) provides in relevant part:
Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that--

(A) the electronic surveillance is solely directed at--
(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801(a)(1), (2), or (3) of this title; or
(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801(a)(1), (2), or (3) of this title; [and]

(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party.
  Does this exception permit the monitoring? Note that (i) and (ii) are both dealing with "foreign power, as defined in (a)(1), (2), or (3) of this title." FISA's definition of "foreign power" appears in 50 U.S.C. 1801:
(1) a foreign government or any component thereof, whether or not recognized by the United States;
(2) a faction of a foreign nation or nations, not substantially composed of United States persons;
(3) an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments;
(4) a group engaged in international terrorism or activities in preparation therefor;
(5) a foreign-based political organization, not substantially composed of United States persons; or
(6) an entity that is directed and controlled by a foreign government or governments.
  So as I read the statutes, Congress was trying to give an exception for monitoring foreign governments (a1, a2, a3) but not terrorist groups (a4, a5, a6), so long as no citizens or lawful permanent resident aliens were being monitored. There are interesting questions of how that might have applied to Al Qaeda in Afghanistan, but I don't think we need to reach them. It's my understanding that the program monitored both citizens and non-citizens, so I don't see how the exception is applicable.

  (Aside: Remember back in 2003 when a copy of the Administration's "Domestic Security Enhancement Act" — sometimes dubbed "Patriot II" — was leaked to the press? Section 501 of that Act would have made "providing material support" to a terrorist group an automatic ground for terminating citizenship. This is just a guess, but I wonder if the thinking was that this would make the NSA warrantless monitoring program legal under FISA. An individual who made regular contact with Al Qaeda could be giving them material support, and the individual would then no longer be a United States person and could then be legally subject to monitoring. Just speculation, but it might explain the thinking behind the legislative proposal. Anyway, back to our regularly scheduled programming.)

  Authorization to Use Military Force. The next question is whether the Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224, justified the monitoring. The authorizaton states in relevant part:
AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.
(a) IN GENERAL.--That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
  I assume that the Administration's claim is that the AUMF counts as a "statute" that authorizes the surveillance: 50 U.S.C. 1809 states that "A person is guilty of an offense if he intentionally . . . engages in electronic surveillance under color of law except as authorized by statute," so if the AUMF authorized the electronic surveillance, then the NSA program didn't violate FISA.

  The Supreme Court considered the legal effect of the AUMF in Hamdi v. Rumsfeld. Yaser Hamdi was being held as an enemy combatant, and claimed that his detention violated 18 U.S.C. 4001. Section 4001(a) states that "[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." Given Justice Thomas's very broad reading of the AUMF in his dissent, I think the key interpretation is that of Justice O'Connor's plurality opinion, joined by Chief Justice Rehnquist, Justice Kennedy, and Justice Breyer. Justice O'Connor concluded that the the AUMF was "an act of Congress" that authorized Hamdi's detention, such that the detention did not violate 4001(a):
  The AUMF authorizes the President to use "all necessary and appropriate force" against "nations, organizations, or persons" associated with the September 11, 2001, terrorist attacks. 115 Stat. 224. There can be no doubt that individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network responsible for those attacks, are individuals Congress sought to target in passing the AUMF. We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the "necessary and appropriate force" Congress has authorized the President to use.
  The capture and detention of lawful combatants and the capture, detention, and trial of unlawful combatants, by "universal agreement and practice," are "important incident[s] of war." Ex parte Quirin, 317 U. S., at 28. The purpose of detention is to prevent captured individuals from returning to the field of battle and taking up arms once again. . . .
   . . .
  In light of these principles, it is of no moment that the AUMF does not use specific language of detention. Because detention to prevent a combatant's return to the battlefield is a fundamental incident of waging war, in permitting the use of "necessary and appropriate force," Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here.
   . . .
  Hamdi contends that the AUMF does not authorize indefinite or perpetual detention. Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized. Further, we understand Congress' grant of authority for the use of "necessary and appropriate force" to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles.
  . . .
  The United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who "engaged in an armed conflict against the United States." If the record establishes that United States troops are still involved in active combat in Afghanistan, those detentions are part of the exercise of "necessary and appropriate force," and therefore are authorized by the AUMF.
  So does the AUMF authorize the surveillance? As often happens when you're trying to draw guidance from an O'Connor opinion, it's not entirely clear. Under her opinion, the key question is whether the act is "so fundamental and accepted an incident to war" that it falls within the authorization. But that depends on the level of generality you chose to use to define "the act." Is "the act" spying on the enemy? In that case, perhaps it is a fundamental incident to war. Or is "the act" conducting U.S. domestic surveillance of U.S. citizens? In that case, the answer is no, it's not a fundamental incident to war.

  In the end, my best sense is that the AUMF doesn't extend to this. I have three reasons. First, O'Connor's opinion says the following about detention for interrogation: "Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized." It seems to me that surveillance and wiretapping is pretty similar to interrogation: the point of both is getting information about your enemy. Second, it doesn't seem like wiretapping counts as a "use of force." If you read the text of the AUMF, it doesn't seem to me that it authorizes wiretapping. Finally, note that Congress passed the Patriot Act about a month after passing the AUMF; if Congress had intended the AUMF to give the president wide authority to conduct domestic surveillance against Al Qaeda, I don't think they would have spent so much time amending FISA for terrorism investigations. So at bottom, I think the AUMF probably didn't authorize this, although the Hamdi case gives some colorable (if ultimately unpersuasive) arguments that it might.

  Article II. The final argument is that Article II of the Constitution gives the President inherent authority to conduct such monitoring. The Administration introduced this theory in a supplemental brief filed in the FISA Court of Review:
  The President Has Inherent Authoritv to Conduct Warrantless Electronic Surveillance to Protect National Security from Foreign Threats.

  In considering the constitutionality of the amended FISA, it is important to understand that FISA is not required by the Constitution. Rather, the Constitution vests in the President inherent authority to conduct warrantless intelligence surveillance (electronic or otherwise) of foreign powers or their agents, and Congress cannot by statute extinguish that constitutional authority. Both before and after the enactment of FISA, courts have recognized the President's inherent authority to conduct foreign intelligence surveillance. See, e.g., Butenko, 494 F.2d at 608 (grounding exception to warrant requirement in the President's Commander-in-chief and foreign-affairs powers; noting that the country's self-defense needs weigh on the side of reasonableness); Truong, 629 F.2d at 914 (citing the President's foreign affairs power as justifying an exception to the warrant requirement); cf. United States v. United States District Court (Keith), 407 U.S. 297, 308 (1972)(reserving the question whether the President's foreign-affairs powers justify exception from warrant requirement).
  So the argument, as I understand it, is that Congress has no power to legislate in a way that inteferes with the President's Commander-in-Chief power, a judgment made, I suppose, by the President himself.

  I have been unable to find any caselaw in support of this argument. Further, the argument has no support from the cases cited in the government's brief. In all three of those cases — Butenko, Truong, and Keith - the Courts were talking about whether the President's interest in conducting foreign intelligence monitoring creates an exception to the Warrant Requirement of the Fourth Amendment. In other words, the issue in those case was whether the Constitution bars warrantless surveillance absent Congressional action, not whether Congressional prohibitons in this area cannot bind the Executive branch.

  Consider the citation to the Butenko case. Here is the relevant section, from 494 F.2d at 608:
  Both executive authority in the foreign affairs area and society's interest in privacy are of significance, and are equally worthy of judicial concern.
  . . .
  The importance of the President's responsibilities in the foreign affairs field requires the judicial branch to act with the utmost care when asked to place limitations on the President's powers in that area. As Commander-in-Chief, the President must guard the country from foreign aggression, sabotage, and espionage. Obligated to conduct this nation's foreign affairs, he must be aware of the posture of foreign nations toward the United States, the intelligence activities of foreign countries aimed at uncovering American secrets, and the policy positions of foreign states on a broad range of international issues.
  To be sure, in the course of such wiretapping conversations of alien officials and agents, and perhaps of American citizens, will be overheard and to that extent, their privacy infringed. But the Fourth Amendment proscribes only 'unreasonable' searches and seizures. And balanced against this country's self-defense needs, we cannot say that the district court erred in concluding that the electronic surveillance here did not trench upon Ivanov's Fourth Amendment rights.
  As I read this analysis, it is entirely focused on the Fourth Amendment, and specifically whether the President's Commander in Chief power should trigger a relaxed Fourth Amendment standard. That seems quite different from a claim that Article II makes Congressional regulation inoperative. The same goes for the citation to Truong, 629 F.2d at 914. In the course of discussing whether the Courts should require a warant for foreig intelligence surveillance, the court tried to balance the ability of courts to regulate intelligence surveillance with the strong governmentg interest:
  Perhaps most crucially, the executive branch not only has superior expertise in the area of foreign intelligence, it is also constitutionally designated as the pre-eminent authority in foreign affairs. The President and his deputies are charged by the constitution with the conduct of the foreign policy of the United States in times of war and peace. Just as the separation of powers in Keith forced the executive to recognize a judicial role when the President conducts domestic security surveillance, so the separation of powers requires us to acknowledge the principal responsibility of the President for foreign affairs and concomitantly for foreign intelligence surveillance.
In sum, because of the need of the executive branch for flexibility, its practical experience, and its constitutional competence, the courts should not require the executive to secure a warrant each time it conducts foreign intelligence surveillance.
  While the Court was recognizing the President's constitutional role, it was in a very specific context: balancing reasonableness in the context of Fourth Amendment law to determine whether the surveillance required a warrant. Again, this doesn't seem to go to whether Congress can impose binding statutory prohibitions beyond the Fourth Amendment.

  Conclusion. Anyway, that's my tentative take; I hope it's helpful. It's entirely possible that I goofed the analysis somewhere along the way; FISA, the AUMF, and Article II aren't my area of expertise, so we should consider this post a work in progress. I look forward to comments — civil and respectful, please.

  UPDATE: A lawyer I know who works in this area e-mails in additional thoughts:
  Of course you’re right that Keith and Katz reserved the question whether the President may engage in warrantless surveillance of foreign-based threats to the national security. While the Supreme Court has never addressed the issue, a number of federal appellate courts, some of which you cite at the end of your post, answered that question in the affirmative in the years immediately after Keith. See, e.g., United States v. Brown, 484 F.2d 418 (5th Cir. 1973); United States v. Butenko, 494 F.2d 593 (3d Cir. 1974) (en banc); United States v. Buck, 548 F.2d 871 (9th Cir. 1977); United States v. Truong, 629 F.2d 908 (4th Cir. 1980). But see Zweibon v. Mitchell, 516 F.2d 594 (D.C. Cir. 1975).
  The interesting question is whether FISA somehow extinguishes this inherent Presidential power to conduct foreign-intelligence surveillance. There’s a respectable argument that it does. FISA repealed Title III’s reservation clause (18 USC 2511(3)), in which Congress expressly had forsworn any intent to regulate the collection of foreign intelligence. Given that repeal, we might be in Category Three from Justice Jackson’s Steel Seizure concurrence — "When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive Presidential control in such a case only by disabling the Congress from acting upon the subject."
  If you're in the mood for more, check out posts on this from Marty Lederman and Daniel Solove.
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Academic Legal Writing:

With Christmas and New Year's approaching, I thought I'd mention, one last time this year, that I still have copies of Academic Legal Writing that I'll be glad to sign and send to your law student family members / friends / distant acquaintances / objects of lust (I'm told members of the opposite sex find it irresistible).

For some nice reviews that I've recently gotten, both from academics and from readers, see this post. For more on how order, see this one. I know it's getting close to Christmas, but if you order today, I'll send the book out tomorrow (plus in any event grownups don't get too upset if the gift isn't quite in time to place under the Christmas tree).

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Coming Soon to a VC Near You: A bunch of people have asked me for a post on whether the NSA warrantless surveillance program was legal. I'm working on a post now, and should have something up this afternoon. In the meantime, check out the latest on the story here and here.

  UPDATE: From the transcript of the President's press conference this morning:
QUESTION: . . . Why did you skip the basic safeguards of asking courts for permission for the intercepts?

BUSH: First of all, right after September the 11th, I knew we were fighting a different kind of war. And so I asked people in my administration to analyze how best for me and our government to do the job people expect us to do, which is to detect and prevent a possible attack. That's what the American people want.
  We looked at the possible scenarios. And the people responsible for helping us protect and defend came forth with the current program, because it enables us to move faster and quicker, and that's important. We've got to be fast on our feet, quick to detect and prevent.
  We use FISA still. You're referring to the FISA accord in your question. Of course we use FISAs.
  But FISAs is for long-term monitoring. What is needed in order to protect the American people is the ability to move quickly to detect.
  And having suggested this idea, I then, obviously, went to the question, is it legal to do so? I swore to uphold the laws. Do I have the legal authority to do this? And the answer is, absolutely.
  As I mentioned in my remarks, the legal authority is derived from the Constitution, as well as the authorization of force by the United States Congress.

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