National Security
Forum
Security-Clearance Decisions and Constitutional Rights
In several recent cases involving claims that security-clearance decisions violated plaintiffs’ constitutional rights, courts have seemed more willing to scrutinize these decisions, which are usually seen as unreviewable. This Essay analyzes these cases and argues that federal courts are competent t…
Note
Introducing Independence to the Foreign Intelligence Surveillance Court
The Foreign Intelligence Surveillance Court’s ex parte, in camera proceedings are in tension with the Article III values of transparency and adversarialism. This Note assesses the limited participation of outside amici curiae at the court and proposes a special advocate to serve as a permanent, inde…
Forum
Torture and Institutional Design
This Essay discusses the creation, rise, and decline of the High-Value Detainee Interrogation Group (HIG) as a case study for how institutional design affects the implementation of international commitments. The HIG’s placement within the FBI rendered it unable to effectively promote policy change w…
Forum
State of the Art: How Cultural Property Became a National-Security Priority
Until recently, the United States did little to help repatriate looted antiquities, thanks to a powerful coalition of art collectors, museums, and numismatists who preferred an unregulated art market. This Essay explores how the United States came to treat the protection of cultural property as an i…
Article
The New National Security Challenge to the Economic Order
Changes in national security policy pose a fundamental challenge to international economic law. Security policies worldwide encompass many emerging threats, from cyber vulnerabilities to climate change. This expansion potentially undermines the ability of investment and trade treaties to discipline …
Forum
Manufactured Emergencies
As America goes through a democratic decline, a new problem rears its head: the manufactured crisis. To stem further degradation of democratic norms, this Essay calls for judges to reject unjustified assertions of unilateral power by carefully reviewing facts and refusing to tolerate lies.
Forum
The Separation of National Security Powers: Lessons from the Second Congress
Can Congress reclaim a meaningful institutional role in supervising some of the broad national security powers it has delegated to the executive branch? This Essay argues that Congress can do so and explains how an obscure statute—the Calling Forth Act of 1792—provides a roadmap for how it should.
Forum
Ending Bogus Immigration Emergencies
Justice Jackson warned in Korematsu that the decision was “a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.” Seventy-five years later, President Trump has picked up that doctrinal weapon. This Essay identifies three reforms that would un…
Article
Secret Reason-Giving
The government often gives reasons in secret. Although secret reason-giving targets different audiences than public reason-giving, it confers some of the same benefits, including improved decisional quality and accountability. It also imposes important constraints on executive-branch legal and polic…
Forum
Prove It! Judging the Hostile-or-Warlike-Action Exclusion in Cyber-Insurance Policies
Cyber-insurance policies often include a hostile-or-warlike action exclusion. The legal system is ill-equipped to handle the litigation that arises from coverage denials under this exclusion. This Essay explores the difficulties of accurately attributing attacks and adjudicating these insurance-cove…
Forum
Is Korematsu Good Law?
This Essay argues that the Supreme Court’s claim to overrule Korematsu in Hawaii is both empty and grotesque. It argues that a decision to overrule a prior case is not meaningful unless it specifies which propositions it is disavowing, and Hawaii’s emptiness means to conceal its disturbing affinity …
Forum
Trump v. Hawaii: How the Supreme Court Simultaneously Overturned and Revived Korematsu
This Essay compares the Supreme Court’s decision to uphold President Trump’s travel ban to the Court’s decision nearly seventy-five years ago to affirm the internment of Japanese Americans in Korematsu. It argues that while Hawaii v. Trump formally overturned Korematsu, it essentially recreated the …
Forum
Masquerading Behind a Facade of National Security
What will happen when those discriminated against in the name of national security turn to the courts for legal protection? This Essay refracts this question through the lens of Korematsu, examining how courts will—and should—respond to the dual needs to promote national security and protect fundame…
Note
Reviving the Power of the Purse: Appropriations Clause Litigation and National Security Law
The President is increasingly the epicenter of national security decision making, a development in tension with the shared war-making power in the Constitution. This Note explores how Congress could use an Appropriations Clause lawsuit to reassert its constitutional prerogative against the President’…
Comment
When Stopping the Smuggler Means Repelling the Refugee: International Human Rights Law and the European Union's Operation To Combat Smuggling in Libya’s Territorial Sea
Over the past three years, the number of human tragedies on the Mediterranean Sea has reached an unprecedented level.1 The now-iconic image of a German rescue worker cradling a drowned migrant baby in his arms in the sea between Libya and Italy remains a disturbing reminder of the…
Note
Prosecuting Gender-Based Persecution: The Islamic State at the ICC
Reports suggest that Islamic State, the terrorist “caliphate,” has enslaved and brutalized thousands of women from the Yazidi ethnic minority of Syria and Northern Iraq. International criminal law has a name for what Islamic State has done to these women: gender-based persecu…
Forum
Triptych’s End: A Better Framework To Evaluate 21st Century International Lawmaking
How does the United States enter and exit its international obligations? By the last days of the Obama Administration, it had become painfully clear that the always imaginary “triptych” of Article II treaties, congressional-executive agreements, and sole executive agreements, which has guided foreig…
Forum
Protecting the Fourth Amendment in the Information Age: A Response to Robert Litt
Robert Litt, General Counsel of the Office of the Director of National Intelligence, has offered a new analysis for the Fourth Amendment in the Information Age, grounded in two cases arising from the NSA’s domestic surveillance programs.1 As opposing counsel or amicus in the cases he cites in his ar…
Note
Founding-Era Jus Ad Bellum and the Domestic Law of Treaty Withdrawal
The Constitution provides no textual guidance for how, as a matter of domestic law, the United States can withdraw from an Article II treaty. The Supreme Court has not clarified matters. In the face of this uncertainty, government officials and scholars alike have long debated …
Forum
Online Service Providers and Surveillance Law Transparency
On June 5, 2013, the first revelation hit the front pages: documents provided by Edward Snowden showed that the National Security Agency (NSA) had for years ordered telephone companies to turn over our domestic telephone calling records en masse.1 The government had created a database of …
Comment
Law Enforcement and Data Privacy: A Forward-Looking Approach
The Edward Snowden revelations illustrated the ramifications of a domestic and international legal infrastructure that failed to keep up with technological advancements. The USA PATRIOT Act and other national security laws were ill-equipped to handle developments in bulk data collection. T…
Article
The President and Immigration Law Redux
In November 2014, President Obama announced his intention to dramatically reshape immigration law through administrative channels. Together with relief policies announced in 2012, his initiatives would shield nearly half the population of unauthorized immigrants from removal and en…
Forum
Warrant Canaries and Disclosure by Design: The Real Threat to National Security Letter Gag Orders
Introduction Since the 1980s, the FBI has issued documents referred to as National Security Letters (NSLs), which demand data from companies—including financial institution records and the customer records of telephone companies and communications service providers—for foreign intellig…
Forum
Citizenship, Passports, and the Legal Identity of Americans: Edward Snowden and Others Have a Case in the Courts
In this Essay, Professor Patrick Weil reexamines the constitutional function of the passport in relation to American citizenship. The State Department recently developed apolicy of passport revocation whereby some Americans are transformed into de facto stateless persons, like Edward Snowden, or are…
Forum
Syria, Threats of Force, and Constitutional War Powers
In this Essay, Professor Matthew Waxman argues that debates about constitutional war powers neglect the critical role of threats of war or force in American foreign policy. The recent Syria case highlights the President’s vast legal power to threaten military force as well as the political constrain…
Essay
Gideon at Guantánamo
122 Yale L.J. 2416 (2013).
The right to counsel maintains an uneasy relationship with the demands of trials for war crimes. Drawing on the author’s personal experiences from defending a Guantánamo detainee, the Author explains how Gideon set a baseline for the right to counsel at Guantánamo. Whether …
Essay
Gideon at Guantánamo: Democratic and Despotic Detention
122 Yale L.J. 2504 (2013).
One measure of Gideon v. Wainwright is that it made the U.S. government’s efforts to isolate 9/11 detainees from all outsiders at Guantánamo Bay conceptually and legally unsustainable. Gideon, along with Miranda v. Arizona, is part of a democratic narrative shaped over dec…
Feature
WikiLeaks and the Institutional Framework for National Security Disclosures
121 Yale L.J. 1448.
WikiLeaks’ successive disclosures of classified U.S. documents throughout 2010 and 2011 invite comparison to publishers’ decisions forty years ago to release portions of the Pentagon Papers, the classified analytic history of U.S. policy in Vietnam. The analogy is a powerful wea…
Forum
When Machines Are Watching: How Warrantless Use of GPS Surveillance Technology Violates the Fourth Amendment Right Against Unreasonable Searches
Introduction
Federal and state law enforcement officials throughout the nation are currently using Global Positioning System (GPS) technology for automated, prolonged surveillance without obtaining warrants. As a result, cases are proliferating in which criminal defendants are challenging law enfor…
Forum
The National Security Constitution and the Bush Administration
There is a widespread intuition that the Constitution provides much less than a full blueprint of the structure and powers of the contemporary federal government. Even if we regard judicial doctrine as part of the “Large ‘C’” Constitution, the intuition still seems valid. In particular, it i…
Note
Disastrously Misunderstood: Judicial Deference in the Japanese-American Cases
119 Yale L.J. 270 (2009).
This Note offers a new framework to evaluate judicial deference in cases reviewing government actions during national emergencies. Rejecting the conventional approach assessing deference as a matter of degree or as a condition present or not present, this Note offers a nu…
Forum
Wishing International Law Away
But for its contemporary particularities, Michael Stokes Paulsen’s essay The Constitutional Power To Interpret International Law would work comfortably as an excellent example of late-nineteenth-century legal scholarship, with all of its best and worst qualities. The piece makes for good reading; …
Note
Interrogation's Law
118 Yale L.J. 1434 (2009).
Conventional wisdom states that recent U.S. authorization of coercive interrogation techniques, and the legal decisions that sanctioned them, constitute a dramatic break with the past. This is false. U.S. interrogation policy well prior to 9/11 has allowed a great deal…
Feature
Our Imperial Criminal Procedure: Problems in the Extraterritorial Application of U.S. Constitutional Law
118 Yale L.J. 1660 (2009).
From the early days of the Republic, courts have encountered the question of whether and to what extent provisions of the Constitution establishing individual rights have force beyond the borders of the United States—that is, whether the Constitution has “extraterritor…
Feature
The Constitutional Power To Interpret International Law
118 Yale L.J. 1762 (2009).
What is the force of international law as a matter of U.S. law? Who determines that force? This Essay maintains that, for the United States, the U.S. Constitution is always supreme over international law. To the extent that the regime of international law yields determin…
Forum
The Example of America
Owen M. Fiss, Sterling Professor of Law at Yale Law School, tackled legal issues involved in the war on terror on March 5, 2009 at the 13th Annual John W. Hager Distinguished Lecture at The University of Tulsa College of Law.
The Pocket Part is pleased to present an adapted version of Professor Fis…
Article
Suspension as an Emergency Power
118 Yale L.J. 600 (2009).
As the war on terrorism continues, and along with it a heated debate over the scope of executive authority in times of national emergency, one important question deserves careful attention: how much power may Congress vest in the executive to address the crisis at hand …
Note
Gangs in the Military
118 Yale L.J. 696 (2009).
Gang activity in the U.S. military is increasing. Gang members undermine good order and discipline in the armed services and pose a serious threat to military and civilian communities. Congress recently responded to this threat by directing the Secretary of Defense to p…
Forum
We Don’t Want To Conquer You; We Have Enough To Worry About: The Russian Sovereign Wealth Fund
Recently, few economic topics have received more political attention than the potential impact of Sovereign Wealth Funds (SWFs). Until recently, scholarly and political attention to SWFs was almost exclusively focused on the impact these funds may have on Western countries. The little attention paid…
Forum
Foreign Direct Investment by Sovereign Wealth Funds
Sovereign Wealth Funds (SWFs) recently have captured America’s attention. Much of that attention has been critical, with a particular focus on whether the U.S. economy is becoming vulnerable to the policy whims of foreign states. Yet SWFs face significant domestic commercial and political pressure…
Note
Defending the Faithful: Speaking the Language of Group Harm in Free Exercise Challenges to Counterterrorism Profiling
117 Yale L.J. 920 (2008).
Counterterrorism officials increasingly seek to scrutinize conduct and behavior that they believe, however uncertainly, to be probative of terrorist activity. When such conduct- based profiling specifically targets activity that is also expressive of Muslim identity, it ma…
Note
The Canons of War
117 Yale L.J. 280 (2007).
War powers hang in a delicate balance, with conflicting statutes overlying contrasting constitutional prerogatives. Because Congress has filled nearly every shadowy corner of Justice Jackson’s “zone of twilight” with its own imprimatur, war powers debates now hinge on trad…
Note
"I Did Not Come Here To Defend Myself": Responding to War on Terror Detainees' Attempts To Dismiss Counsel and Boycott the Trial
117 Yale L.J. 70 (2007).
A significant portion of the war on terror detainees who have been charged at Guantanamo have announced their intentions to dismiss their attorneys, to waive their right to be present at their trials, or to take both actions simultaneously so that their interests will not b…
Comment
On Target? The Israeli Supreme Court and the Expansion of Targeted Killings
116 Yale L.J. 1873 (2007).
Debate
Chevronizing Foreign Relations Law
116 Yale L.J. 1170 (2007)
A number of judge-made doctrines attempt to promote international comity by reducing possible tensions between the United States and foreign sovereigns. For example, courts usually interpret ambiguous statutes to conform to international law and understand them not to appl…
Debate
Disregarding Foreign Relations Law
116 Yale L.J. 1230 (2007)
What deference is due the executive in foreign relations? Given the considerable constitutional authority and institutional virtues of the executive in this realm, some judicial deference is almost certainly appropriate. Indeed, courts currently defer to the executive in a…
Forum
Understanding the Distinct Function of the Combatant Status Review Tribunals: A Response to Blocher
Comment
Combatant Status Review Tribunals: Flawed Answers to the Wrong Question
116 Yale L.J. 667 (2006)
Forum
To Young People, Don't Ask, Don't Tell Means Don't Enlist
In the next few months, the First Circuit will consider Cook v. Rumsfeld, the first post-Lawrence v. Texas legal challenge to the constitutionality of the military’s “Don’t Ask, Don’t Tell” policy. Given the deference that federal courts afford to congressional judgments about military pol…
Essay
Rational War and Constitutional Design
115 Yale L.J. 2512 (2006)
Contemporary accounts of the allocation of war powers authority often focus on textual or historical debates as to whether the President or Congress holds the power to initiate military hostilities. In this Essay, we move beyond such debates and instead pursue a comparative …
Essay
Setting the World Right
115 Yale L.J. 2350 (2006)
Five years after September 11, 2001, America's response to that traumatic day has effectively turned the world of American public law upside down. Claiming that a global war on terror calls for an entirely new legal paradigm, the Bush Administration and its supporters have p…
Essay
Inherent Executive Power: A Comparative Perspective
115 Yale L.J. 2480 (2006)
In light of recent debates regarding the scope and basis of inherent executive power, particularly with regard to foreign affairs and national security, this Essay examines different conceptions of executive power in five modern democracies. The Essay's study of British and …
Essay
Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within
115 Yale L.J. 2314 (2006)
The standard conception of separation of powers presumes three branches with equivalent ambitions of maximizing their powers. Today, however, legislative abdication is the reigning modus operandi. Instead of bemoaning this state of affairs, this Essay asks how separation of …
Forum
A Law Unto Itself?
In an uncertain world, crisis demands executive action. And so 2005, a year of crisis, became a year of executive muscle-flexing, in response to crises ranging from Hurricane Katrina to avian flu to the Global War on Terror. In many ways, the legal debates generated were déjà vu all over again. Ex…
Comment
The Responsibility To Protect: The U.N. World Summit and the Question of Unilateralism
115 Yale L.J. 1157 (2006)
More than a decade after the world did nothing to halt genocide in Rwanda, and in the shadow of ongoing atrocities in Darfur, Sudan, the international community recently made a new commitment to protect populations from genocide, war crimes, ethnic cleansing, and crimes agai…
Comment
Kilburn v. Libya: Cause for Alarm?
115 Yale L.J. 1177 (2006)
In Kilburn v. Libya, the D.C. Circuit held that a plaintiff may turn to United States courts to seek recovery from a foreign nation for injuries suffered at the hands of a terrorist organization with which the foreign nation was affiliated--if actions taken by that foreign n…
Note
The Court of Vice Admiralty at Sierra Leone and the Abolition of the West African Slave Trade
115 Yale L.J. 1122 (2006)
Drawing on archival sources, this Note explores an early experiment in humanitarian intervention undertaken by the Court of Vice Admiralty at Sierra Leone through the suppression of the West African slave trade during the early decades of the nineteenth century. Part I discu…
Note
The Mosaic Theory, National Security, and the Freedom of Information Act
115 Yale L.J. 628 (2005)
This Note documents the evolution of the "mosaic theory" in Freedom of Information Act (FOIA) national security law and highlights its centrality in the post-9/11 landscape of information control. After years of doctrinal stasis and practical anonymity, federal agencies began…
Feature
Comment: War and Uncertainty
114 Yale L.J. 1405 (2005)
This comment builds on John Hart Ely's concern in War and Responsibility with Congress's duty to investigate the factual predicate for going to war in circumstances of uncertainty. Professor Damrosch argues that Congress should exercise its constitutional power to decide to …
Feature
Parrhesiastic Accountability: Investigatory Commissions and Executive Power in an Age of Terror
114 Yale L.J. 1419 (2005)
In War and Responsibility, John Hart Ely sought to answer a question that has bedeviled constitutional scholars since the beginning of the Republic: What meaningful checks should be placed on the power of the Executive in wartime? For Ely, the answer was a new and improved v…
Comment
Solving the Due Process Problem with Military Commissions
114 Yale L.J. 921 (2005)
The terrorist attacks of September 11, 2001 prompted the creation of two new adjudicatory bodies within the Department of Defense. First, military commissions were established by presidential order just two months after the attacks in order to prosecute members of al Qaeda fo…
Note
Rethinking Early Judicial Involvement in Foreign Affairs: An Empirical Study of the Supreme Court's Docket
114 Yale L.J. 855 (2005)
Mainstream and revisionist scholars advance radically different histories of early judicial involvement in foreign affairs. By reconstructing the foreign affairs docket of the Jay and Marshall Courts, this Note presents empirical evidence with which these claims can be evalua…
Note
Emergency Power and the Militia Acts
114 Yale L.J. 149 (2004)
An important chapter is missing from contemporary debates over the constitutional source of the federal government's emergency power. In focusing on five statutes passed by early Congresses to provide for the calling forth of the militia and the federal armed forces to respon…
Essay
The Priority of Morality: The Emergency Constitution's Blind Spot
113 Yale L.J. 1753 (2004)
INTRODUCTION
In the wake of the terrorist attacks of September 11, Attorney General John Ashcroft announced a campaign of aggressive preventive detention. Invoking Robert Kennedy, the Attorney General announced that just as Kennedy would arrest a mobster for "spitting on the…
Essay
Editor's Note: The Constitution in Times of Emergency
113 Yale L.J. 1751 (2004)
Earlier in this Volume of The Yale Law Journal, Professor Bruce Ackerman published his essay The Emergency Constitution, in which he advocated a new constitutional regime to confront the potential for recurring terrorist attacks among modern nations--and the United States in…
Essay
The Anti-Emergency Constitution
113 Yale L.J. 1801 (2004)
INTRODUCTION
The season for talk of leaving the Constitution behind, while we grit our teeth and do what must be done in times of grave peril--the season for talk of saving the Constitution from the distortions wrought by sheer necessity, while we save ourselves from the d…
Comment
Non-Self-Executing Treaties and the Suspension Clause After St. Cyr
113 Yale L.J. 2007 (2004)
Ogbudimkpa v. Ashcroft, 342 F.3d 207 (3d Cir. 2003).
In INS v. St. Cyr, the Supreme Court rejected Congress's attempt to foreclose judicial review in various provisions of the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996 and the Illegal Immigration Reform …
Response
This Is Not a War
113 Yale L.J. 1871 (2004)
I know that some people question if America is really in a war at all. They view terrorism more as a crime, a problem to be solved mainly with law enforcement and indictments. After the World Trade Center was first attacked in 1993, some of the guilty were indicted and tri…
Essay
The Emergency Constitution
113 Yale L.J. 1029 (2004)
Terrorist attacks will be a recurring part of our future. The balance of technology has shifted, making it possible for a small band of zealots to wreak devastation where we least expect it--not on a plane next time, but with poison gas in the subway or a biotoxin in the wat…
Note
Leaving FISA Behind: The Need To Return to Warrantless Foreign Intelligence Surveillance
113 Yale L.J. 179 (2003)
In a locked, windowless room with walls of corrugated steel, in a restricted area of a Justice Department building in Washington, sits the Foreign Intelligence Surveillance Court (FISC). Conducting proceedings completely hidden from the public, as mandated by Foreign Intellig…
Note
Insuring Against Terror?
112 Yale L.J. 2509 (2003)
The current Act reflects the political reality of concentrated interests of insurers and businesses. This group had the influence and the platform to push for the government's assumption of much of their terrorist risk exposure. The Act disproportionately assists the insurer…
Comment
Korematsu Continued . . .
112 Yale L.J. 1911 (2003)
How far have America and her courts come since World War II? Even in the wake of September 11th, it seemed they would not again endorse racial intolerance on the level of wholesale internments. This Comment argues, however, that Dasrath v. Continental Airlines, Inc. indicat…
Comment
Romanticizing Guilt
112 Yale L.J. 1625 (2003)
George P. Fletcher's Romantics at War begins by describing an ironic blindness. The threat of terrorism has forced Americans to consider questions of war and guilt with a new sense of immediacy and relevance, to disorienting effect. We remain unable to reconcile our instinct…
Article
Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?
112 Yale L.J. 1011 (2003)
This Article suggests that legal models that have been traditionally invoked in the context of fashioning responses to emergencies may not always be adequate. Rather, there may be circumstances when the appropriate method of tackling grave threats entails going outside the l…
Comment
A Small Problem of Precedent: 18 U.S.C. 4001(a) and the Detention of U.S. Citizen "Enemy Combatants"
112 Yale L.J. 961 (2003)
In 1971, Congress repealed the Emergency Detention Act, part of the Internal Security Act of 1950, by writing into 18 U.S.C. § 4001(a) the provision that "[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." Ena…
Comment
Reorganization as a Substitute for Reform: The Abolition of the INS
112 Yale L.J. 145 (2002)
September 11th and the events that followed highlighted the shortcomings of our nation's immigration policies and their enforcement. Gaffes, such as the issuance of student visas to two of the hijackers on the six-month anniversary of 9/11, reinforced public perceptions that …
Essay
Local Policing After the Terror
111 Yale L.J. 2137 (2002)
Crime waves always carry with them calls for more law enforcement authority. What happened on September 11, 2001 was, among other things, a crime wave--because of that one day, the number of homicides in America in 2001 will be twenty percent higher than the year before. It…
Article
The Storrs Lectures: Liberals and Romantics at War: The Problem of Collective Guilt
111 Yale L.J. 1499 (2002)
Somehow we in the West thought the age of war was behind us. After nuking Hiroshima, after napalming Vietnam, we had only distaste for the idea and the practice of war. The thought of dying for a noble cause, the pursuit of honor in the name of patria, brotherhood in arms--n…
Article
Waging War, Deciding Guilt: Trying the Military Tribunals
111 Yale L.J. 1259 (2002)
In this Essay, we argue that President Bush's recent Military Order, which directs his Defense Department to detain any members of an ill-defined class of individuals, potentially indefinitely, and to try them in military tribunals, jeopardizes the separation of powers today…