The Volokh Conspiracy

Just in time for President Obama’s big speech Thursday at the National Defense University on counterterrorism policy and strategy, Commentary Magazine has made available early my June cover article, “The Case for Drones.”  (Available free and not behind the subscriber wall.)  It’s a long essay arguing that drones are both effective and ethical, and addressing a number of the objections to each of those propositions.

The article has a particular audience in mind. It is aimed at conservatives and Republican members of Congress especially, to remind them that their sometimes knee-jerk attacks on the “imperial” Obama presidency risks one major piece of national security that the Obama administration has got well and truly right.  There’s no lack of imperial presidency, abuse of power material for conservatives to work with- pick your issue this week – but this particular issue is one where, if conservatives look down the road, they ought to see that any president, Republican or Democrat, will need to have available the national security tools of drone warfare and national security.  It would be a remarkably foolish thing if, by inattention or inappropriate and merely reflexive attacks on the Obama administration’s drone policy, Republicans in Congress wound up permitting drone warfare to be made politically, morally, or legally illegitimate – just as a future Republican president enters office and discovers that, yes, there are terrorist threats best addressed by drones.  Congressional Republicans, in the midst of the many abuse of power hearings, ought nonetheless to be scheduling hearings to invite current and former administration officials to reiterate their legal views on drone warfare, with the express purpose of standing with the President on this tool of national security and its permanent, legal, and legitimate place.

Commentary is a conservative magazine, obviously, and I’m writing there as a conservative for a conservative audience.  The framing above is political.  But there’s a much more neutral, less political way of framing the issue that ought equally to appeal to the broad national security center across both parties: the core elements of US counterterrorism policy, including detention policy and the whole range of what I’ve sometimes called “counterterrorism-on-offense” (including drones), needs to be put on a much firmer and more permanent basis.

Call this “institutional settlement” in counterterrorism strategy.  We need an institutional settlement around counterterrorism – we have a lot of policies that work pretty well, but they rely largely on executive branch discretion.  There are substantive reforms that need to be made in order to institutionalize counterterrorism policies, and they depend upon the two political branches coming together to give them legitimacy.  In my view there is broad agreement in the center as to these policies in substance; what they lack is a political foundation in actual legislation.  (But giving important credit, let’s note that Rep. Mac Thornberry (R-TX) has just offered legislation that would begin to address legislatively the accountability and oversight issues created by the growth of military special operations; on my first read, it looks like a very good start.)

The fault lies both with the administration and with Congress, but one way or another we today owe it to whoever is responsible for national security tomorrow to make sure that there is a stable, functional, institutionally legitimate framework going forward.  It won’t ever satisfy certain constituencies ever – a big chunk of the international community, Obama’s leftwing, or the Pauline wing of the Republican Party, which are simply at odds with the substance – but it is the pretty clear view of the broad center of both voters and this country’s leadership.  That said, precisely the fact that in the political center most everybody’s on board with the substance means that it’s hard to generate energy to give it the process, oversight, and accountability legs it needs to make its legitimacy permanent.  But institutional settlement, stability of the framework over time and administrations of different parties, matters hugely.

Certainly I hope the President’s speech tomorrow reaches out to address the needs of institutional settlement.  And I very much hope that Congress, and Congressional Republicans especially, take up the opportunity to find ways to engage legislatively – legislating as if there might be both Republicans and Democrats in the presidency.

(And thanks to John Podhoretz, editor of Commentary, for getting this June article up early in advance of the President’s speech, and for making it available free to non-subscribers.  Plus, for anyone interested, at this moment it looks as though I’ll be part of a roundtable commenting on the speech on To the Point on NPR tomorrow afternoon.)

For those who may be interested, on Tuesday at 4 PM, I will be testifying at a hearing on “Drone Wars: The Constitutional and Counterterrorism Implications of Targeted Killing,” held by the Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights. My testimony will focus primarily on the issues addressed in this post. You should be able to watch the hearing on C-SPAN and possibly at the Subcommittee’s website linked above.

I was only very recently invited to participate in this hearing, and I am not sure who all the other witnesses will be. But I do know that Prof. Rosa Brooks of Georgetown will be one of them, and that Senator Rand Paul is going to make a statement before the Subcommittee at the start of the hearing.

UPDATE: The complete witness list is now available here. It is as follows:

General James Cartwright
United States Marine Corp (Ret.)
Washington, DC

Farea Al-Muslimi
Sana’a, Yemen

Peter Bergen
Director
National Security Studies Program
New America Foundation
Washington, DC

Rosa Brooks
Professor of Law
Georgetown University Law Center
Washington, DC

Colonel Martha McSally
United States Air Force (Ret.)
Tucson, AZ

Ilya Somin
Professor of Law
George Mason University School of Law
Arlington, VA

This Wednesday, April 10, at 12 PM, I will be taking part in an event on the legal and policy issues surrounding the use of drones in the War on Terror, at George Mason University School of Law. I will be on a panel with my GMU colleagues Jeremy Rabkin and Nathan Sales. The event is sponsored by the GMU Muslim Students Association and by Students for Liberty. It will be held in Room 120.

Judge Kozinski has gotten considerable criticism from liberals for ruling that Sea Shepherd is involved in piracy under international law. A subsequent post will provide additional support for the decision on the merits. Here, I’d like to look at the big picture and suggest that liberals should be thanking Kozinski: a contrary ruling would have torpedoed two liberal causes – the U.S. ratification of the Law of the Sea treaty, and a broad construction of the Alien Tort Statute.

A ruling that politically motivated attacks are exempt from piracy would certainly add weight to conservative skepticism of the Law of the Sea Treaty. The root of this skepticism is a concern that the meaning of international legal instruments is actually quite uncertain, and unforeseen vagaries will later be used against the U.S., which will have no monopoly on interpreting the law that applies to it. The retort is that such fears are paranoid; the treaty is clear, by now well-worn, and pretty harmless.

Well if the piracy provisions – which have not been the ones causing conservative anxiety – are actually highly disputed in their meaning on basic definitional points, there may be more to worry about than previously thought. Lets say the meaning of “private ends” is in fact undefined, with both interpretations open. The U.S.’s ability to treat maritime terrorists as international pirates will thus probably depend on what a bunch of professors and European foreign ministry lawyers say “private ends” means.

Again, if this is true of piracy – which has been in the Treaty for sixty years, and in international law for hundreds, imagine what other unplumbed surprises lay in the UNCLOS’s depths. Why by a pig in a poke? One cam imagine the fun at Senate hearings on UNCLOS after terrorists are ruled immune from piracy, or after the meaning of piracy is ruled to be indeterminate.

Second, piracy is the poster-crime for well-defined, universally agreed on crimes. U.S. v. Smith treated it as the paradigmatic crime that international law defines well enough to allow for domestic punishment, and Sosa similarly treated it as a clear, universally agreed on crime of the kind that makes ATS liability unproblematic. But if the one of the central elements of the crime is essentially undefined, that blows the central assumption of Smith and Sosa out of the water. Indeed, it gives credence to the district court in U.S. v. Hasan, a prosecution of Somali pirates where the District Court in 2010 concluded that piracy is no longer well-defined enough to be punishable without a legislative definition. I criticized that decision extensively (and the Fourth Circuit reversed), assuring the world that piracy is indeed well-settled. Maybe I was wrong!

Finally, just to show I have no whale in this fight, let me suggest a way for Sea Shepherd to wriggle off the hook on remand. If I were them, I would say that while piracy is the paradigmatic ATS crime, “political” piracy is not universally accepted enough to be a basis of ATS liability. This is different from arguing that it is not covered by LOST Art. 101; rather, it argues that the ATS imposes a higher standard than just violating international law. It requires actual judicial precedents demonstrating the universal accord about the crime.

Despite the recent United Nations Human Rights Council’s report, France and many other European countries are against attempts to revive the peace process, end the occupation and remove settlements. They prefer a “long-term stalemate” (which sounds like Boogie Yaalon’s “long term conflict management plan“). Outside pressure to push peace could backfire and benefit hardliners on both sides, according to European journalists interviewed recently by Reuters.

Of course, I am not talking about Israel’s occupation of parts of the League of Nations Mandate for Palestine previously occupied by Jordan, but rather about Turkey’s occupation of a full-fledged EU member state.

In other European contortions, while France bombs terrorists “on the footsteps of Europe” in Mali, thousands of Hezbollah members operate openly in Europe. Their activities are now known to include bus bombing. France and other European powers have long been reluctant to declare Hezbollah a terrorist organization – apparently because they only kill Jews, and most elsewhere, according to an astounding analysis in the New York Times:

There’s the overall fear if we’re too noisy about this, Hezbollah might strike again, and it might not be Israeli tourists this time,” said Sylke Tempel, editor in chief of the German foreign affairs magazine Internationale Politik.

Europe has recently been indicating that it will be pressuring Israel to take so-called risks for peace. But Europe is not unbiased, nor is its attitude towards Israel driven principally by Israel’s actions. European actors are driven by political agendas, fear, and a variety of factors. And given their fear of taking on Turkey, or even Hezbollah, they are ill placed to talk about risks for peace.

Somali pirates, and the broader contexts of state failure and the maritime economy, are the subject of the new documentary film “Stolen Seas.” It has just had its first U.S. release at Cinema Village in New York. The filmmaker quite adventurously spent significant time with Somali pirates on land and at sea, to good effect. He also less adventurously interviewed me. Hopefully it will get wider release and I’ll be able to see it for myself.

The government is prosecuting three foreigners for the participating in “combat operations” in a foreign civil war.

The indictment apparently alleges no connection to America, or even foreign commerce (unlike a similar 2011 case that lacked an apparent connection to the U.S.) The defendants are Somalis who fought in Somalia. In a previous post, I discussed why the prosecution exceeds’s Congress’s Define & Punish powers; here we’ll consider other possible Art. I grounds. Today – the Foreign Commerce Clause; later today, War and Treaties. Tomorrow: additional thoughts about American exceptionalism in universal jurisdiction.

Foreign Commerce Clause
My previous post focussed on the Define & Punish Clause as the basis for the MST law; today, we will examine some other suggestions. I addressed the Define & Punish clause first because it is the first Art. I power Congress cited in its “findings” in support of the section. (sec. 301(a)(2) of the public law). Later, the findings do suggest the Commerce powers as a tertiary rationale: terrorism discourages travel from the U.S. to affected country, and vice versa. It also mentions general harm to “market stability.” This sounds a lot like the arguments rejected by the Supreme Court in U.S. v Morrison . Surely Congress’s can’t regulate any crime anywhere in the world just because it upsets things. The commerce argument is even weaker here: if someone moves out of their state because of violence against women, they presumably move to another U.S. state. But if they move from Somalia, they do not presumably move to the U.S.

The connection to U.S. commerce would have to be shown. In the one prior universal jurisdiction “material support” case, Ahmed , the government claimed in the indictment, without providing specifics, that it could show real links to commerce. The district judge accepted that as sufficient for starters [in an unpublished opinion, 2011 WL 5041456]. The present indictment says nothing about foreign commerce.

The Supreme Court has said little about the scope of the power. As a textual matter, the foreign commerce power does not allow Congress to simply regulate “foreign commerce,” but rather that part of it which is “with” the United States. It is not clear that the same kind of “foot-bone-is-connected to the ankle bone” games can be played with the Foreign Commerce clause as with the domestic on. Andrew Colangelo, in the leading article on the subject, argues that it requires a substantial U.S. nexus. Indeed, without that, the Constitution would have incorporated broad universal jurisdiction, without anyone knowing about it until now!

If the Foreign Commerce clause is enough here, it would mean several recent federal cases finding no universal jurisdiction over drug trafficking and piracy conspiracy case were wrongly decided: surely those things are linked to foreign commerce in the most general sense.

One can imagine a broader argument that the terrorist group designation is a regulation of foreign commerce, and the material support statute “necessary and proper” to that. And that would turn on the particular group and executive finding...

Some have suggested that the Foreign Commerce Clause should, on the contrary, be broader than the Interstate clause, because there is no background principle of federalism to protect. I see the point, but am hesitant for two reasons.

First, Congress is a government of limited and delegated powers. It can only have powers to regulate conduct anywhere in the world with no demostrable nexus if these were either preexisting powers of states, or somehow a natural emergent power of national sovereignty. I think neither is the case. The latter point can be seen from the fact that no other country exercises universal jurisdiction over this kind of thing...

Second, while Foreign Commerce authority is not concurrent with states, it is shared with other countries, whose existence and sovereign competency the Framers were aware of. Consider Hamilton’s discussion of the Foreign Commerce power (Camillus XXXVI):

Congress (to pursue still the case of regulating trade) may regulate, by law, our own trade and that which foreigners come to carry on with us; but they cannot regulate the trade which we may go to carry on in foreign countries; they can give to us no rights, no privileges, there. This must depend on the will and regulations of those countries; and, consequently, it is the province of the power of treaty to establish the rules of commercial intercourse between foreign nations and the United States. The
legislative may regulate our own trade, but treaty only can regulate the national trade between our own and another country

A few days before Christmas, the U.S. indicted three men at the Federal District courthouse in Brooklyn for plotting suicide bomb attacks. This is an extraordinary, almost unique case: none of the people or conduct has any connection to the U.S. The defendants are foreign nationals, captured by some African government ont their way to join up with al-Shabab, the Somali Islamist group. To be clear, there is no suggestion that they planned to target American nationals or facilities, or had even ever been to this country before.

This is an aggressive – and unconstitutional – assertion of universal jurisdiction. The U.S. is prosecuting foreign nationals for their participation in a foreign civil war. Congress, as the Supreme Court recently reminded us in the Health Care decision, is truly one of limited regulatory powers, and thus the first question about such a case is what Art. I power gives Congress the power to punish entirely foreign conduct with no U.S. nexus.

The men have been charged under the “material support for terrorism” statute, 18 USC 2339B . Apart from the many controversies about the substantive sweep of the law, it casts a very broad jurisdictional net. By its terms, it applies to foreigners who support designated foreign terror groups with no connection to the U.S. In other words, it makes terrorism anywhere a federal offense.

While the statute has previously been used to prosecute extraterritorial conduct by foreigners that conducted significant dealings in the U.S., this is only the second apparently “universal” prosecution.

The Art I. authority for prosecuting conduct under universal jurisdiction is the “Define and Punish” clause. Yet the clause limits universal jurisdiction to crimes, like piracy, that are i) “offenses against the law of nations,” and ii) treated as universally cognizable by the law of nations. Congress cannot “define” something as a universal offense when the law of nations has not done so – not because of any superiority or comity of international law, but because that is the limit place by the Define and Punish Clause.

I have elaborated this theory of the Define and Punish Clause and its implications in a series of recent papers.

More importantly, recently several federal courts have adopted this position.
Thus in U.S. v. Bellaizac-Hurtado, 700 F.3d 1245 (2012), the 11th Circuit held unconstitutional a universal jurisdiction prosecution of drug trafficking in a foreign country. It held that drug trafficking had not been recognized as a “offense against the law of nations,” and thus cannot be reached by Congress under the Offenses Clause. One of the judges added in concurrence that because drug trafficking is not universally cognizable in international law, it cannot be punished universally through the Offenses power.

Similarly, in U.S. v. Ali, the a D.C. federal district court threw out charges of piracy and conspiracy to commit piracy because universal jurisdiction for such acts only ran on the high seas. And the Fourth Circuit in U.S. v. Dire
680 F.3d 446 (2012) agreed in dicta. (And of course, in Kiobel the Supreme Court is reconsidering whether universal jurisdiction exists under the Alien Tort Act.)

Material support for terrorism is a particularly weak case for the Offenses Clause, as the D.C. Circuit had ruled in Hamdan that it was not a war crime (though this does not rule out its being another type of international offense), and terrorism itself does not violate international law, as the Second Circuit has held in Yousef.

Indeed, I know of know other case in the world of material support for terrorism being prosecuted through universal jurisdiction. In prosecutions under the Define and Punish Clause, courts have increasingly (and properly) required actual evidence of past state practice to establish an international norm, as I’ve discussed here before.

The policy behind the material support statute, when applied without a U.S. nexus, is to punish actors whose political actors whose goals and methods the U.S. disapproves of. Al Shabab is a pernicious and destabilizing force, but that does not give the U.S. Congress Art. I power to criminally punish entirely foreign conduct simply because it runs counter to U.S. foreign policy.

There are other ways the U.S. can, consistent with the Constitution, engage and repress Al Shabab and other purely foreign terror groups. It can help local governments that are fighting them. It can even use military force itself. It the beef with Al Shabab is that it is an ally of other forces actively hostile to the U.S., it members (but perhaps not supporters) could perhaps even be detained militarily as co-belligerents.

(Thanks to Jon Bellish for the pointer.)

UPDATE: The defendants seem to be among the folks discussed in today’s Washington Post renditions story:

The three European men with Somali roots were arrested on a murky pretext in August as they passed through the small African country of Djibouti. . . . U.S. agents accused the men — two of them Swedes, the other a longtime resident of Britain — of supporting al-Shabab, an Islamist militia in Somalia that Washington considers a terrorist group. Two months after their arrest, the prisoners were secretly indicted by a federal grand jury in New York, then clandestinely taken into custody by the FBI and flown to the United States to face trial.

“Syria is Iran’s only ally in the Arab world. It’s their route to the sea.” So said Mitt Romney at the Monday debate. The Associated Press, The Guardian, The Telegraph, New York, U.S. News,  Brad DeLong, Rachel Maddow’s Maddowblog,  Comedy Central, and The Daily Kos promptly seized the opportunity to show off their superior geographical knowledge, pointing out that Iran has a coastline. The explicit or implicit explanation was that Romney does not even know basic geography. “Romney Flubs Geography” announced the A.P. headline on the Washington Post website. Readers in search of more sophisticated coverage  might have turned to Yahoo! Answers:

Q. Why did Romney say that Syria is Iran’s “route to the sea”? ...when 1) Iraq stands between Syria and Iran, and 2) Iran already has the Persian Gulf, not to mention the Indian Sea?

A. Romney was speaking in the context of the debate topic on foreign policy and the sanctions restricting the finances and trade of Iran. Although Iran is indeed located on the seacoast of the Indian Ocean and the Persian Gulf, the international trade sanctions have restricted and impeded its ability to transport armaments and other goods through its own seaports. To defeat these trade sanctions, Iran has resorted to using its air transportation to transport goods through an air corridor in Iraqi airspace into Syria and its seaports, such as Latakia.

Fact-checkers who actually investigate the facts might have started with expert websites such as StrategyPage. A 2006 article titled Syrian Delivery System for Iranian Nukes details the extensive seaborne smuggling operations carried out by Syrian companies operating out of Syrian ports. The article concludes:

Iran was generous with its “foreign aid” because Syria provided support for terrorists Iran backed. Now Iran is keen on getting nuclear weapons. The first ones Iran will get will be large and delicate. The only feasible intercontinental delivery system will be a ship. A ship that is accustomed to moving illicit goods.

Stratfor, which is an outstanding site for the collection and analysis open source intelligence, has the following reports involving Syria/Iran sea-related collaboration: An Iranian ship at the Syrian port of Tartus (also spelled “Tartous”) picked up Syrian oil for delivery to China, to evade the economic sanctions on Syria (Mar. 30, 2012). Iran warships docked at the port of Latakia in early 2012 (Feb. 18, 2012), and in early 2011 (Feb. 22, 2011; Feb. 24, 2011). During the 2011 visit, the Iranian navy’s commander, Admiral Habibollah Sayyari, announced that Iran was ready to help Syria improve its port facilities, and to collaborate on technical projects with Syria. (Feb. 26, 2011). (All the Stratfor articles are behind a paywall.)

So in short, Syria is Iran’s route for the projection into the Mediterranean Sea (and from there, the Atlantic Ocean) of conventional naval power, and, perhaps soon, of nuclear weaponry.

Post-debate, the Washington Post‘s Glenn Kessler at least made a start towards a serious factcheck of the Romney quote. He published an updated and condensed version of a longer piece he had written last April about Romney’s repeated use of the phrase.

In the April piece, Kessler wondered what difference Syria made, since Iranian ships can enter the Mediterranean via the Suez Canal. True, but anyone with even a mild knowledge of naval affairs could explain the utility of a Mediterranean port, as a opposed to a Persian Gulf port, for ships operating in the Mediterranean. In April and in October, Kessler wrote:

We also checked with other experts, many of whom confessed to being puzzled by Romney’s comments.  [DK: Kessler should have named all the "other" experts, and should also have included the explanation of at least one of the experts who was not among the "many" were were confused.] Tehran certainly uses Syria to supply the militant groups Hezbollah and Hamas, but that has little to do with the water. The relationship with Syria could also effectively allow Iran to project its power to the Mediterranean and the border with Israel. But does that really mean, “a route to the sea”?

The last two sentences are really the buried lede of the story: Romney is raising a very important issue (Syria as the base for the projection of Iranian naval power), but Romney is not explaining himself in a manner which the less well-informed members of the public (e.g., the sources linked in the 1st paragraph of this post) can understand. If Romney were a better communicator, he would have laid out the facts in greater detail, as Ronald Reagan and Winston Churchill did in their own time, when warning their countrymen about the military dangers of aggressive totalitarian regimes. As Kessler wrote in April, “If Romney is elected president, he will quickly learn that words have consequences. Precision in language is especially important in diplomacy, and here Romney used a phrase that left people befuddled as to his intent and meaning, especially since he did not even make a distinction between the Mediterranean and Arabian seas.”

If you’re a journalist or a commentator, there’s no reason be ashamed just because a Washington Post writer reported a story much better than you did. But when you find yourself being outclassed by Yahoo! Answers, perhaps it’s time to rethink your assumptions that you’re much smarter and better informed than Mitt Romney.

H.R. 1540, the National Defense Authorization Act for Fiscal Year 2012, has already passed the House, and is currently before the Senate. One section of the bill gives the President the authority to detain indefinitely American citizens, picked up on American soil, because they are allegedly supporting the enemy:

SEC. 1034. AFFIRMATION OF ARMED CONFLICT WITH AL QAEDA, THE TALIBAN, AND ASSOCIATED FORCES.
Congress affirms that—
(1) the United States is engaged in an armed conflict with al-Qaeda, the Taliban, and associated forces and that those entities continue to pose a threat to the United States and its citizens, both domestically and abroad;
(2) the President has the authority to use all necessary and appropriate force during the current armed conflict with al-Qaeda, the Taliban, and associated forces pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 23 1541 note);
(3) the current armed conflict includes nations, organization, and persons who—
(A) are part of, or are substantially supporting, al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners; or
(B) have engaged in hostilities or have directly supported hostilities in aid of a nation, organization, or person described in subparagraph (A); and
(4) the President’s authority pursuant to the Authorization for Use of Military Force (Public Law 11 107–40; 50 U.S.C. 1541 note) includes the authority to detain belligerents, including persons described in paragraph (3), until the termination of hostilities.

Yesterday the Senate rejected an amendment by Senator Mark Udall (D-Colo.) that would have stricken the detention provisions, and required the Executive branch to submit a report (within 90 days) on the the legal and practical issues involving detention, and required Congress to hold hearings on the detention within the next 45 days after receipt of the report.

The bill also includes provisions to prevent civilian trials of prisoners currently held at Guantanamo. The Obama administration is threatening to veto the bill, although the objections appear to involve Guantanamo-type issues, and not the expansion of the executive’s detention powers. [Note: The bill version quoted above is the version as passed by the House and sent to the Senate. It is the latest version available on Thomas. The numbering for some sections may be different in earlier versions of the bill.] Kudos to Senator Udall, one of the few genuine civil libertarians in Congress, for taking the lead on this issue.

UPDATE: A commenter points out that, according to Senator Carl Levin, it was the Obama administration which told Congress to remove the language in the original bill which exempted American citizens and lawful residents from the detention power. See the C-Span video of the debate on the floor of the Senate, at 4:43:29. This is not the Obama I caucused for in Feb. 2008.

Today at 12:15 at the University of Utah College of Law I will be debating my colleague Amos Guiora about whether Miranda rights should be extended to terrorists.  I have previously blogged here and here about my view that Miranda’s “public safety” exception means that law enforcement officers investigating terrorist incidents need not give Miranda warnings.  I thought I’d briely lay out my argument a bit more fully now in anticipation of the debate.

The case of Umar Farouk Abdulmautallab (the so-called “Christmas Day Bomber”) usefully frames the issue.  According to public reports, Abdulmutallab spoke openly to FBI agents in his initial 50-minute interrogation — questioning that took place before he was Mirandized.  He then received treatment for his burns. And five hours after his initial interrogation a second team of interrogators was brought in to question him. These interrogators were part of a “clean team,” brought in to interrogate him after he was read his Miranda rights. The “clean team” began by reading Abdulmutallab his rights. And Abdulmutallab, advised of his right to remain silent, chose to exercise it.

The policy question here is why would anyone want to give Abdulmautallab Miranda warnings?  As Stewart Taylor forcefully wrote here:  

But no reasonable person could doubt that starting out with “you have the right to remain silent” is not the way to save lives.  Yet this is essentially the policy into which the Obama administration has locked itself by insisting that it did the right thing when it read Umar Farouk Abdulmutallab, the would-be Christmas Day bomber, his Miranda rights after only 50 minutes of questioning and a hospital visit.

The only reason that I can see for giving Miranda warning in such a situation is that the is a constitutional requirement to do so.  But Miranda has been interpreted (in New York v. Quarles) as containing a “public safety” exception, allowing police officers to jettison the Miranda procedures in situations where the question is motivated by preventing further danger to the public.  In that case, for example, police officers were allowed to question suspect Quarles aboutt the location of gun he had apparently discarded in a supermarket. 

The exact parameters of the public safety exception are unclear.  But if any circumstance would appear to involve overriding public safety concerns, it would be a circumstance involving a terrorist investigation.  Indeed, the Second Circuit has allowed un-Mirandized question of terrorist suspects about how bombers were made and how to disarm bombs that were uncovered.  U.S. v. Khalil, 214 F.3d 111 (2d Cir. 2000).  Questioning of suspects like Abdulmutallab would seem to comfortably fit within the exception.

Because there appears to be some legal uncertainty about whether the public safety exception covers terrorist investigations, it would be useful for Congress to weigh in on the subject and clearly express its view.  Here’s one way a statute covering terrorist investigations could be drafted:

¨“When a law enforcement officer questions any suspect arrested for terrorist offenses found in chapter 113B of Title 18, or comparable offenses under state law, a situation involving the public safety shall automatically be deemed to exist and the officer need not provide any advice of rights to the suspect.  Any voluntary statements made by the suspect shall be admissible in any prosecution thereafter brought by the United States or by the District of Columbia.”

I will be interested to see what Professor Guiora and others think of my proposed statute.

Update:  Rick Pildes from NYU has alerted me to his excellent post, found here on Balkinization, also arguing for a codification of the Miranda public safety exception in terrorist situations.  Here an excerpt from his argument:

Congress [should] . . .  enact legislation to define the contours and boundaries of the public-safety exception to Miranda in terrorism cases. The public-safety exception already exists: the question is how it ought to apply in contexts, such as terrorism investigations, in which there is uncertainty because the courts have not yet had to define the scope of the exception. Congress could define the circumstances in which law enforcement can engage in non-coercive questioning of terrorist suspects, without Miranda warnings, for purposes of gathering general intelligence information, purpose (2) above, while still being able to use any statements against that suspect at trial. Informed by counterterrorism experts, Congress could specify the time period in which such questioning is necessary and permissible (hours? a day? several days?). Congress could consider authorizing a brief period of initial, non-Miranda interrogation, but then require law enforcement to get judicial authorization for any further period of such questioning. In other ways, Congress and the President could codify what these two institutions jointly believe is the appropriate and necessary contours of an intelligence focused, non-Miranda period of questioning.

Further update:  I’m embarrassed that I didn’t cite co-blogger Orin Kerr’s analysis of this same issue, which can be found here.

According to Bob Woodward’s new book, Obama’s Wars, President Obama seemed to suggest that a terrorist attack on the United States might not be a big deal.  According to the Washington Post, the President remarked that “we can absorb a terrorist attack.”  In an instant, a campaign-season talking point was born: The President does not worry about our nation’s security and is complacent about the terrorist threat.  Yet as Benjamin Wittes reports on Lawfare, the quote is accurate, but woefully incomplete.  The relevant portion of Woodward’s book (reproduced on The Plum Line) reads as follows:

During my Oval Office inteview with the President, Obama volunteers some extended thoughts about terrorism.

“I said very early on, as a Senator and continue to believe, as a presidential candidate and now as president, that we can absorb a terrorist attack. We will do everything we can to prevent it. But even a 9/11, even the biggest attack ever, that ever took place on our soil, we absorbed it, and we are stronger. This is a strong, powerful country that we live in, and our people are incredibly resilient.”

Then he addressed his big concern. “A potential game changer would be a nuclear weapon in the hands of terrorists, blowing up a major American city. Or a weapon of mass destruction in a major American city. And so when I go down on the list of things I have to worry about all the time, that is at the top, because that’s one area where you can’t afford any mistakes. And so right away, coming in, we said, how are we going to start ramping up and putting that at the center of a lot of our national security discussion? Making sure that that occurence, even if remote, never happens.”

Read in context, Wittes notes, the President’s comment “does not reflect complacency, but a hard-headed realism about certain facts.”  There are reasonable bases upon which to criticize the Administration’s approach to national security, but claiming this quote shows complacency about the terrorist threat is not one of them.

UPDATE: More from Wittes: Bush officials voiced similar sentiments.

I am not an expert on the law of citizenship in the United States, but my Opinio Juris co-blogger Peter Spiro is.  Over at OJ he has a short doctrinal analysis of the case law that would likely be relevant to Joe Lieberman’s citizenship-stripping proposal.  It seems to me analytically sound, although I do not hold myself out as an expert in this:

Joe Lieberman has just rolled out a bill (text here) which would strip individuals associated with foreign terrorist groups of their US citizenship.

He’s been playing this as if it were a minor statutory fix.  It’s true, as he’s been stressing, that current law terminates citizenship for “entering, or serving in, the armed forces of a foreign state if (a) such armed forces are engaged in hostilities against the United States, or (b) such persons serves as a commissioned or non-commissioned officer.”  8 U.S.C. 1481.  But that applies only where such service is undertaken “with the intention of relinquishing United States nationality.”

That’s not just some statutory nicety.  The Supreme Court has found it a constitutional necessity. Afroyim v. Rusk (1967) is the lead case, in which the Court found unconstitutional expatriation for the act of voting in a foreign political election.  In Vance v. Terrazas (1968), the Court found that

“we are confident that it would be inconsistent with Afroyim to treat the expatriating acts specified in § 1481(a) as the equivalent of or as conclusive evidence of the indispensable voluntary assent of the citizen. “Of course,” any of the specified acts “may be highly persuasive evidence in the particular case of a purpose to abandon citizenship.”  But the trier of fact must in the end conclude that the citizen not only voluntarily committed the expatriating act prescribed in the statute, but also intended to relinquish his citizenship.”

Now, these rulings do allow the government to terminate citizenship on the basis of conduct alone, without a formal renunciation before a consular officer, so long as that conduct reflects a specific intent to relinquish citizenship.  It was (consistent with Terrazas) long presumed that naturalization in another state reflected a desire on the part of individual to shed his US citizenship.  That’s no longer the case.  As a matter of administrative practice, the State Department since the 1990 has presumed individuals intend to retain their citizenship except where they expressly renounce before a US consular official.  This is true even if the oath of naturalization in another country includes an express renunciation of US citizenship.  Service in a foreign military?  Not a problem, Lieberman’s implication to the contrary.

So Lieberman’s proposal could reverse that practice, and the State Department would once again have to contend with with Terrazas.  Intent to relinquish would be pretty hard to establish, Shahzad’s case included.

I agree, by the way, with Glenn Reynolds’ brief comment:

I think this is a terrible idea. As I’ve said before, we need a bright-line distinction between citizens and noncitizens to reduce the temptation of political abuse. This blurs that distinction, which is a bad thing.

Former President Bill Clinton is back to practicing one of his core competencies: exploiting the 1995 mass murders in Oklahoma City for political advantage in order to suppress criticism of himself and his political allies. Accordingly, some persons might be interested in reviewing the multiple severe injuries that President Clinton inflicted on the Constitution in his “anti-terrorism” bill and his public relations campaign for the bill, a topic which I explored in a 101 page article in a 1996 special memorial issue of the Oklahoma City Law Review.

It’s almost like Christmas. 

I just got the cover design for Skating on Stilts, my policy memoir about DHS, terrorism, and technology.  I found the artist, Mart Klein, on line and explained the basic picture I had in mind.  Much credit to Hoover Press, though, for the font and cover design.

Book covers, like everything else in publishing, have been deeply affected by Amazon.  You have to pick a design that is recognizable in a tiny thumbnail sketch as well as on the shelves at bookstores.  This works for that purpose.  Plus, I just really like comics-style illustration, and there’s a hint of Jim Steranko in this cover.

Publication is set for June of this year.