Terrorizing Immigrants in the Name of Fighting Terrorism

It is often said that civil liberties are the first casualties of war. It may be more accurate to say that immigrants\u27 civil liberties are the first to go. In the wake of the devastating terrorist attacks of September 11, we all feel vulnerable in ways that we have never felt before, and many have argued that we may need to sacrifice our liberty in order to purchase security. In fact, however, what we have done is to sacrifice the liberties of some-immigrants, and especially Arab and Muslim immigrants-for the purported security of the rest of us. This double standard is an all too tempting way to strike the balance-it allows citizens to enjoy a sense of security without sacrificing their own liberty, but it is an illegitimate trade-off. In the end, moreover, it is likely to be counterproductive, as it will alienate the very communities that we most need to work with as we fight the war on terrorism

Turning the Corner on Mass Incarceration?

For the first time in forty years, the national incarceration rate is flattening out, even falling in state prisons. For the first time in three decades, the number of adults under any kind of correctional supervision—in prison or jail or on probation or parole—fell in 2009. At the same time, legal reforms that might have seemed impossible in prior years have increasingly been adopted, reducing penalties for certain crimes, eliminating mandatory sentencing for others, and increasing expenditures for reintegration of prisoners into society. And racial disparities, a persistent and deep-rooted problem in the American criminal justice system, after rising for decades, have begun to drop from their highest levels. This essay examines these trends and asks what might be done to accelerate them. I survey the reforms that states and Congress have adopted and look at the interplay of such reforms with the historic racial disparities that have characterized the criminal justice system. I then speculate about the forces that have contributed to these developments, including drops in crime rates, budget pressures, and, paradoxically, the war on terror. We still have a long way to go. If we are to reduce incarceration in any significant measure, it is essential that legislatures (1) authorize more non-incarceration responses to low-level crimes, especially drug offenses; (2) shorten sentences substantially for crimes generally, to bring them more in line with those of other industrialized nations; and (3) invest in inner-city communities where children face the biggest barriers to achieving law-abiding, productive careers. In the essay’s final section, I discuss strategies that might encourage such developments

Security and Freedom: Are the Governments\u27 Efforts to Deal With Terrorism Violative of Our Freedoms?

One of the most common things that is said about September 11th is that it changed everything. In some respects, that is true. In the most important respects it would be more accurate to say it has changed everything for some, far more than it has for others. One instance of that can be seen in a pole that National Public Radio did one year after September 11th. They asked people to what extent their life had changed. They asked them whether they had to give up any important rights or freedoms in the war on terrorism. Only seven percent said yes. I think that is a telling statistic. I think the reason for that is we have not, in the wake of September 11th, been forced to ask which of our rights we as American citizens are willing to give up in order to gain more security. The attacks of September 11th have left all of us feeling vulnerable in ways that we were privileged not to have felt before September 11th. There may well be a need to recalibrate the balance of liberty and security. That is not the question our government has asked us. Rather, the question it has asked us is, are you willing to give up their rights and their liberty for your security? The they being the foreign nationals; more specifically Arab and Muslim nationals. That is an easy way to strike the balance between liberty and security for a politician, because foreign nationals have no voice in the political process. Citizens do. So, you put citizen security interests on one side and the liberty interests of a group who has no voice on the other side. You can see where the balance is struck

Hanging With the Wrong Crowd: Of Gangs, Terrorists, and the Right of Association

Part I will sketch the current contours of the right of association, a right limited to expressive and intimate association, and will describe the government\u27s attempts to extend this categorical approach by limiting associational protection still further to membership per se. Part II will argue that the Court\u27s limitation of associational rights to expressive and intimate associations and the government\u27s attempt to distinguish association from conduct are unworkable, inconsistent with the Court\u27s own precedents, and fail to reflect the normative reasons for protecting the right of association. Part III will offer an alternative framework for addressing the right of association, borrowing from the Court\u27s jurisprudence with respect to another potentially limitless but critical constitutional right, the right of symbolic speech. I will argue that the focus of a jurisprudence of association ought to be on association, not expression or intimacy, and that it should protect association in its physical manifestations as well as its abstract essence. The critical inquiry should not be whether an association is expressive or intimate, nor whether the individual affected is engaged in conduct or pure association, but rather whether the government\u27s regulation arises from or is targeted at the associational character of the conduct. Where government seeks to regulate conduct without regard to its associational character, its actions should be subject to relaxed review, but where government seeks to regulate conduct because of its associational character, its actions must satisfy heightened scrutiny. Only that approach, which mirrors the Court\u27s jurisprudence of symbolic expression, does justice to the freedom of association

Are Foreign Nationals Entitled to the Same Constitutional Rights As Citizens?

Are foreign nationals entitled only to reduced rights and freedoms? The difficulty of the question is reflected in the deeply ambivalent approach of the Supreme Court, an ambivalence matched only by the alternately xenophobic and xenophilic attitude of the American public toward immigrants. On the one hand, the Court has insisted for more than a century that foreign nationals living among us are persons within the meaning of the Constitution, and are protected by those rights that the Constitution does not expressly reserve to citizens. Because the Constitution expressly limits to citizens only the rights to vote and to run for federal elective office, equality between non-nationals and citizens would appear to be the constitutional rule

Where Liberty Lies: Civil Society and Individual Rights After 9/11

Had someone told you, on September 11, 2001, that the United States would not be able to do whatever it wanted in response to the terrorist attacks of that day, you might well have questioned their sanity. The United States was the most powerful country in the world, and had the world’s sympathy in the immediate aftermath of the attacks. Who would stop it? Al Qaeda had few friends beyond the Taliban. As a historical matter, Congress and the courts had virtually always deferred to the executive in such times of crisis. And the American polity was unlikely to object to measures that sacrificed the rights of others—Arabs and Muslims, and especially Arab and Muslim foreigners—for Americans’ security. Yet perhaps the most important and surprising lesson of the past decade is that constitutional and human rights, which seemed so vulnerable in the attacks’ aftermath, proved far more resilient than many would have predicted. President George W. Bush’s administration initially chafed at the constraints of constitutional, statutory, and international law, which it treated as inconvenient obstacles on the path to security. The administration acted as if no one would dare to—or could effectively—check it. But in time, the executive branch of the most powerful nation in the world was compelled to adapt its response to legal demands. Equally surprising is that these restraints for the most part were imposed not by the formal mechanisms of checks and balances, but by more informal influences, often sparked by efforts of civil society organizations that advocated, educated, organized, demonstrated, and litigated for constitutional and human rights. The American constitutional system is traditionally understood to rely on the separation of powers and judicial review to protect liberty and impose legal restrictions on government officials. After September 11, however, as in other periods of crisis in American history, all three branches were often compromised in their commitments to liberty, equality, dignity, fair process, and the “rule of law.” By contrast, civil society groups dedicated to constitutional and rule-of-law values, such as the American Civil Liberties Union, the Center for Constitutional Rights, the American Bar Association, Human Rights Watch, Human Rights First, the Bill of Rights Defense Committee, the Constitution Project, the Muslim Public Affairs Council, and the Council on American Islamic Relations, consistently defended constitutional and human rights—and in so doing reinforced the checking function of constitutional and international law. They issued reports identifying and condemning lawless ventures; provided material and sources to the media to help spread the word; filed lawsuits in domestic and international fora challenging allegedly illegal initiatives; organized and educated the public about the importance of adhering to constitutional and human rights commitments; testified in Congressional hearings on torture, illegal surveillance, and Guantánamo; and coordinated with foreign governments and international nongovernmental organizations to bring diplomatic pressure to bear on the United States to conform its actions to constitutional and international law. Scholars have long focused on the role constitutions and the formal structures of government that they create play in reinforcing commitments to long-term principles when ordinary political forces are inclined to seek shortcuts. The United States’ experience during the decade following September 11 suggests that this focus is incomplete; we should pay at least as much attention to the work civil society groups do to “enforce” constitutional rights. Much like a constitution itself, such groups stand for, and can shore up, commitments to principle when those commitments are most tested. And while we often speak metaphorically about a “living Constitution,” civil society groups are actually living embodiments of these commitments, comprised of human beings who have joined together out of a shared, lived dedication to constitutional and human rights principles. As such, they are well positioned to influence the polity’s and the government’s reactions in real time, and in crisis periods may be the only institutional counterforce to the impulse to sacrifice rights for security. In this article, I argue that a more robust understanding of how constitutions work must take into account what I call “civil society constitutionalism,” in which nongovernmental organizations advocate in multiple ways for adherence to the rule of law, in court and out, and in so doing, do much of the “work” of constitutionalism. That role is particularly important in periods of crisis, when neither the formal separation of powers nor the public at large are likely to perform much of a checking function. I argue that the Bush administration was compelled to curtail nearly all of its most aggressive initiatives, and not because a court ordered him to do so, Congress required him to do so, or the American public demanded such change. In the final section, I suggest that the role that civil society organizations committed to constitutional and human rights played in this period has lessons for constitutional theory, constitutional doctrine, and constitutional practice

The Liberal Legacy of Bush v. Gore

This article examines the last ten years of the Rehnquist Court, which was divided evenly by the Court\u27s highly controversial intervention in the 2000 presidential election, Bush v. Gore. I compare the Court\u27s record before and after that decision both qualitatively and quantitatively, and argue that the Court shifted noticeably to the left, particularly in high-profile cases, after Bush v. Gore, as conservative Justices showed a greater willingness to side with their liberal colleagues to reach liberal results. I hypothesize that this may have reflected an effort, conscious or subconscious, to restore the Court\u27s legitimacy by counteracting images of a partisan body divided along political lines. I also suggest that the same interest in restoring the legitimacy of the Court may have contributed to the Court\u27s substantive emphasis on the values of the rule of law, which was particularly evident in the Court\u27s enemy combatant decisions of 2004 (and for that matter, more recently, in the Court\u27s decision on military tribunals in Hamdan v. Rumsfeld). This liberal legacy of Bush v. Gore illustrates one of the checking functions on judicial supremacy - namely the need to maintain the appearance (and reality) that law is distinct from politics. Whether the Bush v. Gore effect will continue with the Roberts Court remains to be seen

Formalism, Realism, and the War on Drugs

One of the ways our legal system has avoided confronting this ugly reality is through a commitment to legal formalism. Legal formalism allows us to ignore the social determinants that my AUSA friend saw every day as he prosecuted federal drug cases. As my colleague Professor Michael Seidman has suggested, legal formalism, which has been effectively critiqued and displaced by legal realism in many other areas of law, continues to exercise considerable influence over the way we think about criminal law. This formalist approach, in my view, has strongly affected the way we approach the drug problem. One consequence is that we continue to pursue an increasingly futile war on drugs and refuse to see the issue in its broader, realist dimension. A little realism on the subject of drugs, I suggest, would go a long way. There is much to be said for formalism in the criminal law. Formalism, with its commitment to fair procedures, clear rules, and restricted discretion, is a necessary part of any fair system of criminal law. The sanctions involved in the criminal system are too severe to permit them to be allocated in an open ended discretionary or regulatory manner. The criminal law\u27s commitment to formalism is thus not a fault, but a strength. Discretionary regulatory schemes too often invite subjective judgments susceptible to abuse, prejudice, and favoritism. Formalist rules, by contrast, are built on the promise of treating likes alike. Precisely for this reason, however, we ought to reconsider whether the criminal approach makes sense when there is substantial evidence that the commitment to equality has been seriously compromised. Our dual commitments to equality and to the reduction of the human damage that drug abuse inflicts suggest that we should reduce our reliance on the criminal justice system. Alternative approaches, such as treatment and rehabilitation, promise to be both more effective and more fair