National security and civil liberties

  • July 19, 2017
    Guest Post

     

    by Raha Wala,  Director of National Security Advocacy, Human Rights First

    President Trump during the campaign said he wanted to bring back waterboarding and "much worse.” He went so far as to say that even if torture doesn’t work, we should still use it on suspected terrorists, because “they deserve it anyway.”  Still, he has so far deferred to Secretary Mattis and his other top national security advisors, who have advised that waterboarding and other torture tactics are unlawful and inappropriate.  Just last week, Christopher Wray, president Trump’s nominee for FBI Director said: “torture is wrong, it is unacceptable, it is illegal and I think it is ineffective.”

    Unfortunately, that important statement of principle will be undermined if the Senate confirms Trump’s nominee for a key legal post in his administration. Steven Bradbury is most prominently known as one of the infamous “torture memo” authors for his role in providing legal justification for the CIA’s so-called “enhanced interrogation” program in the George W. Bush administration.  As head of the Office of Legal Counsel (OLC) at the Department of Justice from 2005-2009, Mr. Bradbury wrote legal memoranda justifying waterboarding; sleep deprivation for up to 180 hours; holding detainees in painful, prolonged stress positions; forced nudity; locking detainees in cramped boxes the size of dog crates; physically assaulting detainees by slapping them or slamming them into walls; and other forms of torture and abuse. He should not now be rewarded with confirmation to a general counsel post.

  • June 14, 2017
    Guest Post

    *This piece originally appeared on Zuckerman Law’s Whistleblower Protection Law Blog.

    by Jason Zuckerman, Whistleblower Advocate, Zuckerman Law

    For me, the most telling moment of former FBI Director Jim Comey’s June 8 testimony occurred early in the hearing, when Mr. Comey choked up as he recalled the White House’s publicly stating that the president had fired him because the “FBI was in disarray.”

    This emotional display seemed out of character for Mr. Comey. While U.S. Attorney for the Southern District of New York, he successfully prosecuted organized crime. As Deputy Attorney General during the George W. Bush Administration, Mr. Comey refused to sign an extension of the warrantless domestic spying program and defied the White House Counsel and Chief of Staff. Mr. Comey can fairly be described as a “tough guy.” So how did he go from leading the most powerful law-enforcement agency worldwide to being labeled a “leaking liar”?

    To an experienced whistleblower advocate, Mr. Comey’s predicament is not surprising. Mr. Comey’s experience, unfortunately, is like those of many whistleblowers I have represented over more than a decade. President Trump promised to bring a business approach to government—and his retaliation against Mr. Comey is straight out of the corporate defense playbook. Corporations typically take the following steps of escalating retaliation to silence whistleblowers:

  • April 12, 2017
    Guest Post

    *This piece is part of the ACSblog symposium: "The Future of the U.S. Constitution

    by Shirin Sinnar, Associate Professor of Law, Stanford Law School

    The Trump presidency has put into sharp relief fundamental constitutional questions about national security and the role of courts. In the travel ban cases, for instance, courts question the degree of deference they owe the executive’s national security assertions where there is unprecedented evidence of discriminatory animus. Significant as such questions are, the current political moment also invites us to reflect on a deeper question: how we conceptualize the very notion of “national security” in the face of official policies and rhetoric that subject certain communities within the nation to radical insecurity. 

    In and out of court, “national security” is invoked prolifically with the assumption that its scope is self-evident and its importance unparalleled. “It is ‘obvious and unarguable’ that no governmental interest is more compelling than the security of the nation,” the Supreme Court proclaimed in Haig v. Agee in 1981. In the last Supreme Court argument of the Obama presidency, the Justice Department asked the Court to preclude a damages remedy for constitutional violations by federal officials arising at the intersection of immigration and national security policy. In so doing, administration officials again postulated the coherence of the “national security” category and the appropriateness of insulating certain constitutional violations within it from judicial review.

    The term “national security” seems to invoke some set of implicit associations: perhaps the idea that state sovereignty or the preservation of governmental institutions is threatened; perhaps the notion that a threat implicates foreign relations; perhaps the idea that an issue involves especially high stakes, even of an existential nature. In political and legal speech, the connection between any particular issue and these ideas is often implied but rarely defended.

  • March 15, 2017
    Guest Post

    *This piece is part of the ACSblog Symposium: 2017 ACS National Convention. The symposium will consider topics featured at the three day convention, scheduled for June 8-10, 2017. Also, this piece was written in response to the March 9 ACS National Symposium on Policing in a New Political Era. The full video of this event can be found here.

    by Thomas Nolan, Associate Professor of Criminology, Merrimack College; 27-year veteran of the Boston Police Department

    One of the attendees at last week’s symposium on “Policing in a New Political Era,” co-sponsored by the American Constitution Society and New America, asked whether we should consider the abolition of policing in America. My fellow panelist, Cardozo School of Law Professor Ekow Yankah, deftly responded that it may indeed be time to “reimagine” policing in America. And so it is.

    An insightful March 12 Washington Post article by Katie Zezima observed “police officers [are] acting as drug counselors and medical workers and shifting from law-and-order tactics to approaches more akin to social work” and that the police now envision their roles as mental-health workers and doctors. In fairness to the police, these are roles into which they have been, unwittingly and perhaps unwillingly, thrust in a societal expectation that the police are the default “responders” with responsibilities for dealing with the social marginalia that they are neither properly trained or qualified to undertake.

    The police are deserving of praise for adopting strategies in dealing with the opioid crisis that no longer see enforcement strategies as the only tactics in dealing with drugs and drug abusers, but it is fair to question whether or not policing in this nascent political era should include having police “generalists” providing medical, mental health and social work services to vulnerable populations of people, throwaways whom those charting course in this political era would just as soon see disappear. The police are filling voids here in professional disciplines and in providing medical and mental health services that will almost invariably be inadequate to the task. Reimagining the role of the police recognizes that these vital services need to be provided to those who need them the most by professionals trained to treat the sick, the broken and the mentally ill.   

  • March 13, 2017
    Guest Post

    by Shoba Sivaprasad Wadhia, Samuel Weiss Faculty Scholar & Clinical Professor of Law; Director, Center for Immigrants’ Rights Clinic, Penn State Law

    On March 6, 2017, President Donald Trump issued a “revised” Executive Order titled “Protecting the Nation from Foreign Terrorist Entry in the United States” in an attempt to avoid the catalogue of lawsuits brought against the first. However, the revised EO suffers from the same legal and policy flaws as the first by shutting the door on Muslims and refugees. Every country targeted by the revised EO is comprised of Muslim majority populations: Iran, Libya, Somalia, Sudan, Syria and Yemen. While the revised EO no longer lists “Iraq,” nationals from the country are singled out for special review in another section of the EO. Whether the list of countries is six or seven, Muslims remain the target.

    The revised EO applies specifically to those outside the United States without a valid visa at 5:00 p.m. on Jan. 27, 2017 and on the effective date, which begins one minute after midnight on March 16, 2017. The revised EO makes a few adjustments to the first by carving out exceptions for select people like green card holders, dual nationals and those already granted refugee-related protection. It also creates a waiver process for nationals of the six countries who seek entry during the 90-day ban. Waivers may be issued on a case-by-case basis for those who at a minimum prove that denial of entry would cause “undue hardship,” entry would not pose a threat to national security and entry would be in the “national interest.” How these waivers will be implemented is unknown but the revised EO lists nine scenarios where a waiver may be appropriate like those with previous “significant” contacts,” business, or professional obligations in the United States and those coming to visit a close family member. Despite the long list of examples contained in the EO there is no assurance that people will actually receive waivers or that agencies will be equipped to adjudicate them. The revised EO maintains the 120-day suspension to the refugee program and slash in the total number of refugees by over one-half from 110,000 to 50,000. Exceptions are available on a case-by-case basis for qualifying refugees through a “national interest” formula. Unlike the first EO, the revised version no longer contains an exemption for religious minorities or an indefinite ban on Syrian refugee admissions. Notably, all refugees, including those from Iraq and Syria are affected by the revised EO.