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

The First Amendment’s Borders: The Place of \u3ci\u3eHolder v. Humanitarian Law Project\u3c/i\u3e in First Amendment Doctrine

In Holder v. Humanitarian Law Project, the Supreme Court’s first decision pitting First Amendment rights against national security interests since the terrorist attacks of September 11, 2001, the Court appears to have radically departed from some of the First Amendment’s most basic principles, including the maxims that speech may not be penalized because of its viewpoint, that even speech advocating crime deserves protection until it constitutes incitement, and that political association is constitutionally protected absent specific intent to further a group’s illegal ends. These principles lie at the core of our political and democratic freedoms, yet Humanitarian Law Project seems to contravene all three. This article assesses the place of Humanitarian Law Project in First Amendment jurisprudence. It argues that the decision departs so dramatically from precedent that it was wrongly decided. But it also maintains that if the decision is to do least damage to First Amendment freedoms going forward, and if it is to be construed as far as possible in harmony with its precedents, three limiting features of the decision are essential to understanding its rationale. At issue in Humanitarian Law Project was whether the government could make it a crime to engage in speech advocating only lawful, peaceful activity, when done in coordination with or for a foreign organization labeled “terrorist.” In Humanitarian Law Project, the Court properly ruled that the government may prohibit speech advocating lawful, peaceful activity based on its content only where it can satisfy the demanding standard that governs when laws prohibit speech on the basis of its content. But the Court’s application of that scrutiny bore no resemblance to any other speech case in the modern era and employed reasoning and reached results that are sharply inconsistent with substantial precedent. Where it had previously protected even direct advocacy of crime, it now denied protection to advocacy of peace and human rights. Where it had previously held that strict scrutiny placed a heavy burden on the government to demonstrate with concrete evidence that its specific speech prohibitions were necessary to further a compelling end, here it sua sponte advanced arguments that the government never made; said no evidence was necessary to support its speculations; and deferred to a legislative finding and an executive affidavit that did not even address the necessity of prohibiting speech, and were not based on any actual evidence. Where it had previously ruled that a desire to suppress particular viewpoints was enough to render a law presumptively invalid, here it took the government’s viewpoint-based motive in suppressing messages of legitimacy as a reason to uphold, not to strike down, the law. And where it had previously protected the right to associate with groups having both lawful and unlawful ends, and recognized that the right included the freedom to act in concert with one’s associates, in Humanitarian Law Project it reduced the right to an empty formalism. Such dramatic departures from precedent suggest that the decision was wrongly decided. But until it is overturned, we must live with it. And that puts a premium on considering whether its rationale can be limited. The Court itself offered three possible avenues of limitation, but offered no explanation for why those avenues were doctrinally significant. None of the three distinguishing features the Court identified is sufficient to reconcile the result with First Amendment precedent. But if the case is to be harmonized as much as possible with precedent, its application should be limited to situations in which all three of the factors identified by the Court are present—namely, when the government is prohibiting only speech coordinated with or directed to foreign organizations that have been subjected to diplomatic sanctions for compelling national security reasons. Short of outright reversal, such a reading provides the most persuasive ground for restricting the damage Humanitarian Law Project does to First Amendment doctrine

Neo-Democracy, National Security, and Liberty

In his new book, Liberty and Security, Conor Gearty, professor of law at the London School of Economics and one of the United Kingdom’s leading authorities on civil liberties and national security, argues that many Western nations are in effect “neo-democracies” that fail systematically to live up to the fundamental egalitarian premises of true democracy, and that this development is seen in particular in the context of counter-terrorism policy. This review assesses that claim, and maintains that while Gearty is correct that many counter-terrorism measures are predicated on double standards, that critique is insufficient to answer the many difficult questions that national security efforts raise, even in the absence of discrimination. Thus, while a universalist critique is an important element in assessing the status of human rights in the context of national security measures, the demand for universal protection of human rights does not answer when a targeted killing might be lawful, or how best to preserve privacy in the digital age from mass surveillance of the sort Edward Snowden has revealed. Gearty’s book perspicaciously identifies a transnational phenomenon and a critical problem in many counter-terrorism policies and practices, but the universalist critique still leaves many questions unresolved

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