Renewed Vigilance

The Office of Homeland Security was hoping the title of this post would refer to the new level of surveillance they would be making available to state and local law enforcement agencies. Intelligence satellites, which had previously been available domestically only for meteorological purposes, were slated to become accessible through a new program to be launched October 1. Though Congress has already approved funding for this program, which would create a National Applications Office to review requests for the information, it’s currently on hold thanks to concerns from Congress about privacy infringement.

For some in Congress, this brought to mind the domestic wiretapping scandal that arose shortly after September 11. On that topic, Representative Jane Harman (D-CA) said, “Since we’ve been rolled, I intend not to get rolled again.” A comment that amusingly brings to mind a rationale used by President Bush about being fooled once.

It is noteworthy that this is merely a delay and not a cancellation of the program. The Office of Homeland Security spokesman Russ Knocke remains confident that it will ultimately go through once Congress has been satisfied there are sufficient safeguards. (more…)

Published in: on October 3, 2007 at 7:45 pm Comments Off on Renewed Vigilance
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Habeas Corpus Straight Peaced Out

Earlier this week, an important vote took place in the Senate regarding the restoration of the “Great Writ” of habeas corpus. Though the vote seems to have flown under the radar somewhat, the implications of Wednesday’s defeat venture far beyond the boundaries of the legal community. As noted in The New York Times, Senator Patrick Leahy (D-VT) describes the breadth of impact of repealing habeas corpus: “The truth is, casting aside the time-honored protection of habeas corpus makes us more vulnerable as a nation because it leads us away from our core American values and calls into question our historic role as a defender of human rights around the world.”

Habeas corpus allows an individual to petition the federal courts for relief on the grounds that he or she is being imprisoned in violation of the U.S. Constitution. Essentially, the principle underlying habeas is that the government cannot hold you illegally or indefinitely without recourse. Dating back to the Magna Carta, and enshrined in Article 1, Section 9 of the Constitution, the Great Writ was effectively eliminated last year for those deemed “enemy combatants,” such that detainees, including those imprisoned in Guantanamo Bay and others suspected of terrorism, are not allowed to appeal their detention to federal courts – at all. In other words, those who are wrongfully suspected of terrorism and detained indefinitely simply have no recourse.

The vote on Wednesday concerned an amendment seeking to restore the right of detainees to challenge the legality of their detention. Sponsored by Senator Leahy and Senator Arlen Specter (R-PA), the amendment fell 4 votes short of the 60 votes it needed to overcome a filibuster.


Published in: on September 23, 2007 at 11:35 pm Comments (2)

A Constitution for the Oceans?

When recently perusing the website of the Hamilton Project (an excellent consortium of progressive-leaning policy papers), I came across something that I never knew existed. To my surprise a comprehensive framework, established under the imprimateur of the United Nations, exists that seeks to set forth rules governing the uses of the non-territorial oceans (i.e., the open seas) and their resources, including the airspace above and the seabed and minerals below.

OceanThis international treaty of sorts–called the United Nations Convention on the Law of the Sea (UNCLOS)–was first adopted in Montego Bay in 1982, and has since been modified an adopted by 155 nations (yes, in case you are wondering, even Lesotho has signed on). The text of the Convention may be read here.

Some of the major features of this Convention include:

  • Coastal States have sovereign rights in a 200-nautical mile exclusive economic zone (EEZ) with respect to natural resources and certain economic activities, and exercise jurisdiction over marine science research and environmental protection;
  • All States enjoy the traditional freedoms of navigation, overflight, scientific research and fishing on the high seas; they are obliged to adopt, or cooperate with other States in adopting, measures to manage and conserve living resources;
  • States are bound to prevent and control marine pollution and are liable for damage caused by violation of their international obligations to combat such pollution;
  • Disputes can be submitted to the International Tribunal for the Law of the Sea established under the Convention, to the International Court of Justice, or to arbitration. Conciliation is also available and, in certain circumstances, submission to it would be compulsory. The Tribunal has exclusive jurisdiction over deep seabed mining disputes.

Conspicuosly absent from the list of ratifiers? You guessed it: the United States. Refreshingly, however, this is not due to any intransigence on the part of the Bush Administration. In fact, President Bush listed UNCLOS as one of his “top 5” treaty priorities in 2004. Lip service is one thing, and action is another, but all things considered it is a step in the right direction that a proposal wasn’t rejected outright under the auspices that the United States would somehow cede its sovereignty to every other nation in the world. The White House should be commended for its leadership.

No, despite the support of the Bush Administration (to wit, as recently as May 2007), the former Chairman of the Joint Chiefs of Staff Richard Myers, and the U.S. Chief of Naval Operations Admiral Vern Clark, a small group of conservative U.S. senators have opposed the treaty and precluded its progression for ratification in the Senate on grounds that it would impair America’s sovereignty. This, despite the fact that it was approved 19-0 by the Senate Foreign Relations Committee in February 2004.

This argument is stale and rejected by many who apply the same argument in different contexts, with respect to international organizations and treaties. In fact, ratifying UNCLOS would benefit the United States in a variety of ways…


Published in: on August 31, 2007 at 1:04 am Comments (1)

Biometric Data in Iraq

This week at my summer clerkship, I helped research and draft a letter (pdf) about the collection of biometric data from Iraqi citizens. The U.S. military is using mobile scanners to compile a database of information about hundreds of thousands of Iraqis. According to General Patreus, the purpose of collecting the data is to help identify insurgents.

However, this information could potentially be misused, and the consequences would be devastating. In a region where there is already deep religious and ethnic conflict, privacy concerns should be amplified. These are the lessons of Rwanda, South Africa, and Germany. If this data gets in the wrong hands, genocidal violence could follow.

Included in the letter, the following questions were sent to Secretary of Defense Robert M. Gates (W&M alum):

We are writing to seek clarification about the U.S. military’s current data collection practices in Iraq. Specifically, what safeguards has the military set in place to prevent misuse of the information? Also, what is the plan for future use of the system? And, if the system is to be turned over to the Iraqi government at some future point, what safeguards will be put in place? Will the United States be responsible for any consequence that might flow from the misuse of this system? We believe these questions are urgent, and the lack of an adequate framework to protect this data could result in genocidal violence.


Published in: on July 27, 2007 at 8:48 pm Comments Off on Biometric Data in Iraq

Eavesdrop It Like It’s Hot

I wrote a piece for Campus Progress about why not having an iPhone might be a blessing in disguise. This way, the NSA won’t be wiretapping your phone! Check it out, and feel free to leave comments over there.

Published in: on July 17, 2007 at 9:27 am Comments Off on Eavesdrop It Like It’s Hot

Sec. of Defense Robert Gates’ U.S. Naval Academy Address

Secretary of Defense Robert Gates (W&M ’65) delivered the commencement address at the U.S. Naval Academy in Annapolis today. The video of his remarks can be found here; the text here.

I believe that Gates’s speech was not only inspiring for the graduates; it also showed his own personal courage.

Courtesy of TheEagle.comIn a time marked by political leaders who distrust and malign the media–particularly in our current conservative White House–Gates told the 27,000 in attendance at Annapolis to “remember the importance of two pillars of our freedom under the Constitution: the Congress and the press.”

He stressed to the graduates that members of the military “must be nonpolitical,” and that it is important to have openness and truthfulness when reporting to the Congress. He cited the essential nature of the press as a guarantor of information to ‘the people’ (you and me) by pointing to the influential reporting about poor conditions at Walter Reed Army Medical Center, a scandal exposed by the Washington Post.


Published in: on May 25, 2007 at 4:56 pm Comments Off on Sec. of Defense Robert Gates’ U.S. Naval Academy Address

Re-Cap: A Pretentious President or a Cavalier Congress?

On Wednesday April 4th in room 119 students gathered for the annual American Constitution Society/Federalist Society debate. The topic for this year was, “A Pretentious President or a Cavalier Congress?: The Separation of Powers During Wartime.” Representing the American Constitution Society was Neil Kinkopf, an associate professor of law at Georgia State University, and representing the Federalist Society was Michael Lewis, an assistant professor of law at Ohio Northern University.

Prof. Kinkopf opened the debate by discussing the two competing frameworks for understanding separation of powers conflicts. The first model was a model articulated by Justice Jackson in his concurrence in Youngstown Sheet & Tube Company v. Sawyer, also known as the steel seizure case, where President Truman issued an order to seize all American steel mills in order to prevent a strike. Jackson, in his concurrence, described three situations of presidential power and activity. The first was when the president acts with congressional authority. Here, the president’s power is the highest. Next, was when the president acts without congressional authority, contrary to the will of Congress. Here, the president’s power is lowest. The third is when the president acts and Congress has been silent. Here, the president claims an inherent power to act, and an analysis of that power is necessary. This is the framework used in cases like Hamdi and Hamdan.

The second model, according to Kinkopf, is that articulated by the Bush administration. In this model, categories two and three merge. The underlying theory is that all inherent power is preclusive power, and if the president has power, Congress can’t interfere. This is the approach used to justify the NSA wiretappings, and other similar actions.

Professor Lewis opened by going into detail regarding the Geneva Convention, as applied in the Hamdan case, as an example of how the Convention has been made excessively broad by the Supreme Court, far beyond the means it was originally intended. First, according to Lewis, we must determine what type of war we are engaged in under the Convention. In Hamdan, Justice Stevens recognizes that the conflict with Al Qaeda does not fall under the category of an Article II war, a typical war between two countries. As this isn’t an Article II war, the protections given to defendants are not Article II protections found under Protocol I, but rather, the protections are Article III protections given under Protocol II. To Lewis, this is important, because Article III protections are much fewer than Article II protections. However, the court in Hamdan ignored this distinction, claiming Hamdan wasn’t provided with adequate rights, rights he would only have been afforded under Article II and Protocol I. This then is just one example of how the laws are being stretched and warped to govern more than they were ever intended. (more…)

Published in: on April 7, 2007 at 1:18 pm Comments Off on Re-Cap: A Pretentious President or a Cavalier Congress?

TSA Prepares to Scan Your Package

The Transportation Security Administration (TSA) may probe more than your suitcase in the future if the government decides to install Backscatter X-ray technology throughout the nation’s airports.

According to USA TODAY, the TSA says airport screeners will delete passenger images but the process is not automatic. Backscatter X–ray screens, which reveal body parts unobscured by clothing, are capable of storing images to a hard drive similar to the way a personal computer stores photographs.

Backscatter X-ray technology is cause for worry to civil liberty advocates because it infringes on fundamental privacy rights. Giving passengers a choice between an invasive pat-down and an intrusive backscatter X-ray scan is no real choice at all. X-rays of this nature are capable of seeing genitals, breasts, and other private areas but have no privacy mechanism to prevent unauthorized image viewing and archiving.

If the TSA implements backscatter technology Americans will have to choose between the most intimate invasion of personal liberty and lobbying congress to ban this type of probing technology. (more…)

Published in: on February 27, 2007 at 11:08 am Comments Off on TSA Prepares to Scan Your Package

What’s the Frequency?

Virginians living near Quantico are having their buttons pushed by their military neighbors— their garage door buttons.

The frequency used by many civilian remote controlled devices, including garage doors, is in the range of about 138 to 450 megahertz. In fact, the majority of garage doors operate right around 387 MHz. The government has reserved these frequencies since the 1930’s specifically for emergencies that require military communications and now they’re taking them back without warning.

After September 11, 2001, emergency personnel decided to improve communication infrastructure amongst military and local officials. They have reclaimed many of the higher-end frequencies in that spectrum that consumers had been using. When you purchase most remote-control devices that use this signal, there is typically a disclaimer somewhere that indicates that it could be inoperable if the military exercises that right. This came as a big surprise to many consumers who don’t read the small print. It’s small print for a reason, right?

Some neighbors of Quantico Marine base are asking for compensation from their military neighbors for rendering their wireless entries useless. Fat chance says Lt. Brian P. Donnelly; (more…)

Published in: on February 26, 2007 at 6:45 pm Comments (4)

Mark Tushnet: “The Political Constitution of Emergency Powers”

Last Friday the WM ACS, in conjunction with the Institute for Bill of Rights Law (Student Division), hosted Prof. Mark Tushnet of Harvard Law School.  The lecture, which was titled, “The Political Constitution of Emergency Powers,” centered upon structural divisions of constitutional power in an emergency situation.  I was very pleased to see the turnout, given that it was a Friday afternoon and about 25 degrees in Williamsburg.  Fortunately, Prof. Tushnet did not disappoint.  Here’s a recap:

To begin, Prof. Tushnet defined his terms.  He indicated that the hypothetical “emergency situation,” for purposes of his talk, was a terrorist attack-type occurence.  In such an emergency, a tension would inevitably develop between the interests of national security and those with respect to civil liberties (see the last six years).  Of course, finding the correct balance is the $100 million question.  So why not let the courts figure out what this proper balance should be?  Well, Prof. Tushnet stated that the “legal constitution of emergency powers” doesn’t work very well, thus making political solutions more desirable.  Namely, judges either act like “weak reeds,” rolling over in the face of executive assertions of power (think Korematsu), or make decisions without adequate access to information (think NSA wiretapping).

So what did the Framers envision would function as a political solution to the emergency Framerspowers situation?  Tushnet pointed to the Madisonian vision, expressed in Federalist No. 51, which explains that “[a]mbition must be made to check ambition” in times of emergency.  Essentially, Madison knew that in times of crisis, the Executive would move to maximize power.  Similarly, the Congress would also attempt to maximize its power.  In the Madisonian vision, then, these simultaneous efforts to enlarge power would counteract.  In order to accomplish any legislation, Congress and the Executive would be forced to compromise and strike an appropriate balance.


Published in: on February 20, 2007 at 11:35 pm Comments (3)