Recent Supreme Court Term: Zivotofsky v. Kerry

In a recent blog my colleague Lawrence Friedman noted, “many cases implicating the Constitution do not turn on the document’s text.” He was writing in the context of Fourth Amendment jurisprudence, but his observation is equally if not even more true in the context of foreign affairs and separation of powers. This is an area where the Court does not frequently tread for many reasons, not the least of which is that the Court is not keen to involve itself in what is usually seen as a turf battle between the two political branches.

Nonetheless, this past term the Court did take up a seemingly mundane case that has potentially significant consequences in the foreign affairs and national security arenas, areas where the Framers purposely created vague lines of authority between the President and Congress. Zivotofsky v. Kerry involved the petition of the Zivotofskys to have the birth of their child listed on his U.S. passport and consular report as “Jerusalem, Israel.” However, since 1948, when President Truman recognized Israel, he and every subsequent U.S. president have never acknowledged any country’s sovereignty over Jerusalem. Further, the Secretary of State has instructed State Department employees to record the place of birth for U.S. citizens born in Jerusalem as “Jerusalem,” with no further state affiliation.

Enter Congress, which in 2002 passed Section 214 of the Foreign Relations Authorization Act titled “United States Policy with Respect to Jerusalem as the Capital of Israel.” As this title suggests, Section 214 directed the Secretary of State to register the place of birth as Israel on registration of birth documents, certification of nationality, and passports for any U.S. citizen born in Jerusalem upon the request of the citizen or the citizen’s legal guardian. Section 214 was clearly intended to countermand the directives of the executive with respect to citizens born in Jerusalem.

The Court framed the clear conflict between the President and Congress in broad terms: 1. Whether the President has the exclusive power to grant formal recognition to a foreign sovereign? 2. If he has that power, can Congress command the President and his Secretary of State to issue a formal statement that contradicts the earlier recognition? In an opinion by Justice Kennedy the Court answered yes to the first question and no to the second.

The Court began its analysis by referring to Justice Jackson’s taxonomy in Youngstown Sheet and Tube Co. v. Sawyer, noting that this is a case where the President’s power is at its “lowest ebb” because he is acting in direct contravention of Congress, and thus he can rely solely on the powers the Constitution grants to him alone. However, the Constitution is silent as to whether or which branch has exclusive authority to recognize another sovereign. In fact, the Constitution does not mention the term “recognition” at all.

Unable to rely on the text, Justice Kennedy opts for a structural and, ultimately, a pragmatic approach to answer these questions. He notes that the Reception Clause in Article II directs the President to receive ambassadors and other public ministers. According to Justice Kennedy, that sounds a lot like recognition authority. Justice Kennedy goes on to list a number of other foreign affairs powers the Constitution vests in the President, such as making treaties and appointing ambassadors and other public ministers. Even though these treaty-making and appointments powers require senatorial consent, it is enough for Justice Kennedy that each is dependent on Presidential power. It is the President who must initiate the process. From this arguably thin reed, Justice Kennedy concludes that the President has the power to grant formal recognition to a foreign sovereign.

Justice Kennedy’s pragmatism is in full view as he goes on to address the second question, whether Congress can command the President and his Secretary of State to contradict his earlier recognition. Here the Court answers no; the President’s power is exclusive. This, according to the Court, is for the simple and obvious reason that the Nation must speak with one voice on the matter of recognizing a foreign sovereign. If the President is to be effective in negotiations over a formal recognition determination, it must be evident that he speaks for the Nation.

The conservative wing of the Court dissented in Zivotofsky. In the most scathing criticism, Justice Scalia questions whether the President’s recognition power is exclusive, but more to the point, he contends Section 214 has nothing to do with recognition of foreign sovereigns. Section 214, Justice Scalia argues, performs the much more prosaic function of allowing citizens some say in what their Government says about another country’s boarders in citizenship documents. Because citizenship documents are matters within Congress’s control, Congress has the authority to direct what those documents say.

It remains to be seen if this case will have longer-term impacts beyond its rather narrow facts. However, because the Court does not wade into this area very often, it is likely that courts, advocates, and commentators will turn to this case in support of various arguments over presidential and congressional authority. Some particular points of note are that that in this case the President argued for a much broader grant of authority. Citing to the 1936 case United States v. Curtiss-Wright, the Secretary of State contended that the President has exclusive authority to conduct diplomatic relations along with the “bulk of foreign-affairs powers.” The Court declined to read Curtiss-Wright so broadly, suggesting that too oft-cited language from that case that the President is the “sole organ of the federal government in the field of international affairs” is dicta.

Also interesting is that a majority of the Court did find express and exclusive executive power absent any clear language in the Constitution. The means by which the Court found this power in the constitutional structure and the Court’s pragmatic view of how a government must function is likely to provide a road-map for future foreign affairs and national security cases where the demarcation between the President’s and Congress’s power is vague.

Finally, in reaching its decision the Court noted that the President needs exclusive recognition power in order to be effective. If the Court believes that effectiveness is the touchstone of exclusive executive authority granted by the Constitution, than Zivotofsky is truly a blockbuster case and one that the executive will cite for generations to come in order to maximize its authority. I suspect that the Court will be forced to clarify and perhaps narrow this rationale in some future case, but time will tell.

Victor M. Hansen

Charles Taylor Convicted of War Crimes and Crimes Against Humanity

The Special Court for Sierra Leone announced earlier today that Charles Taylor, the former President of Liberia, was convicted on all counts of an 11-count indictment, which alleged that he was responsible for crimes committed by rebel forces during Sierra Leone’s decade-long civil war. The Special Court’s Trial Chamber found unanimously that Mr. Taylor aided and abetted RUF and AFRC rebels in the commission of war crimes and crimes against humanity in Sierra Leone.  This conviction is significant and historic for many reasons, not the least of which is that Charles Taylor is the first head of state to be indicted, tried, and convicted by an international tribunal.

The Trial Chamber also released a judgment summary and stated that the full judgment will be released at a later date.  An item of particular interest in the judgment summary is how the trial chamber dealt with Taylor’s liability even though the evidence did not show that he personally committed the crimes charged in the indictment.  The trial chamber first considered Taylor’s liability under the well recognized doctrine of command responsibility.  Under Article 6(3) of the applicable statute a superior is criminally responsible if the superior knew or had reason to know that his or her subordinate was about to commit crimes prohibited by the Statute or had done so, and the superior failed to take the necessary and reasonable measures to prevent or punish the perpetrators.

The Trial Chamber found that Taylor knew or had reason to know that the forces operating in Sierra Leone were committing the crimes charged in the indictment.  However, the Trial Chamber noted that the prosecution must also demonstrate that the superior had effective “command and control” over his subordinates – i.e. the material ability to prevent or punish the commission of the offense.  Here the trial chamber found that the prosecution failed to prove Taylor’s command and control over these forces.  At most, the prosecution could only prove that Taylor had substantial influence over the leadership of the RUF and AFRC forces and that Taylor provided guidance, support, and advice to the RUF and AFRC leadership, but that did not rise to the level of command and control.  Accordingly, the Trial Chamber rejected Taylor’s liability under the doctrine of command responsibility.

Instead the Trial Chamber assessed Taylor’s liability as an aider and abettor.  The prosecution’s theory was that Taylor provided practical assistance, encouragement, or moral support, and these acts had a substantial effect on the perpetration of the crimes charged in the Indictment, and that Taylor had a clear intent to act in support of those crimes.  What is most interesting about this alternative theory is that, while the prosecution did not have to prove that Taylor had command and control over the forces, they had to prove that Taylor knew that his acts would assist the commission of the crime by the perpetrator, or that he was aware of the substantial likelihood that his acts would assist the commission of a crime by the perpetrator. In cases of specific intent crimes, such as acts of terrorism, Taylor must also be aware of the specific intent of the perpetrator.  This is a higher mens rea standard than the prosecution would have to prove under the command responsibility theory, under which the prosecution is only required to show that Taylor knew or had reason to know about the crimes being committed by the RUF and AFRC.

Interestingly, the Trial Chamber found that the prosecution established Taylor’s criminal liability under this aider and abettor theory.  The judgment summary does not provide specific facts that the Trial Chamber relied on to determine that the prosecution satisfied this heightened mens rea requirement. This will be something to pay attention to when the full judgment is released.

The Slippery Slope is Here!

One of the primary criticisms of trying terrorists by military commission is the slippery slope which exists in a system not founded on sound legal principles. Proponents of military commissions have argued we needed this separate system to address unique issues involved with trying suspected enemy terrorists, and by creating a separate system we prevent the individual rights protections that apply in Article III prosecutions from being diluted. This is because military commissions are limited to trying non-U.S. citizen “unprivileged belligerents.”

One of the key flaws of this argument is that the Military Commission Act’s limitation on trying only non-U.S. citizens by military commission was not based on any clear legal principle, and nothing would prevent the jurisdiction of these commissions from expanding in the future. Over the past several weeks, the Senate Armed Services Committee has been toying with an amendment to the National Defense Authorization Act (NDAA) which will push us down this slope.

Among other things, the proposed amendments create a presumption of military detention in certain cases, even when the detainee is a U.S. citizen. And, of course, because the military is not in the business of operating prisons throughout the country, the most likely place for that detention would be Guantanamo. These proposed amendments, coupled with already existing legislation, could result in a suspect—even a U.S. citizen—being detained by the military, sent to Guantanamo and then never able to be tried in an Article III court in the United States.

Welcome the slippery slope.

Interestingly the amendment has enjoyed bi-partisan support in the in the Senate Armed Services Committee. In an op-ed in the Washington Post Senator Levin and Senator McCain recently argued that the proposed amendments are not likely to have much if any impact on current procedures and the legislation gives the President the authority to opt out of the military detention option in a particular case if certain criteria are met. That argument, even if true, does not address the underlying issue: why should military detention be the default option in these cases to begin with?

Is it because the military has proven to be more capable in effectively detaining terrorists or others in the past? The sad history of abuses that occurred at Abu Ghraib and Guantanamo clearly show the fallacy of that proposition. Is it because the military has proven to be more efficient and effective at trying terrorist suspects? Here again, the long and sad history of the military commissions process and the utter inability of the commissions to effectively, fairly and efficiently try suspected terrorists belies any claim that this is a better format for these trials.

The fact is that the military’s job is to fight and win wars—not to act as the primary governmental institution authorized to detain and try terrorist suspects.

It seems likely that efforts by the Senate Armed Services Committee to add these detainee amendments to the NDAA have much more to do with politics and demagoguery than with legitimate national security concerns. And because these proposed amendments put us clearly on the slippery slope, we are all the worse for it.

America Needs Harry Truman

In a new book, Top Secret America, Washington Post reporters Dana Priest and William Arkin tell the story of the rise of the American security state following the terrorist attacks on 9/11. The authors detail the vast security apparatus developed by an alphabet soup of federal agencies. The thesis of the book is twofold. First, the authors explain, with numerous examples, how this security apparatus developed with little if any oversight, coordination or attempt to assess whether the new security state would better protect us from terrorist attacks. A second theme is that much of this security apparatus is being used not to fight terrorism, but to combat ordinary crime. The extremely sophisticated technologies that state and local law enforcement agencies now routinely use, make the thermal imaging device at issue in Kyllo v. United States seem like ancient technology.

In this era of endless budget battles and a competition between the major political parties as to which can show better fiscal restraint and responsibility, it is striking how little either party, particularly in Congress, is willing to question the need for such a vast and expensive security apparatus. The hesitancy of politicians of either stripe to question these programs is obvious: no politician wants to be seen as soft on terror or unwilling to do everything necessary to protect citizens. Hence, there has been virtually no effort in Congress to assert meaningful oversight of these programs, or even to become educated as to what programs actually exist. In one interview, the authors quote a senior Department of Defense official who says that only God knows the extent of the government’s security programs.

While Congress’ unwillingness to provide meaningful oversight is understandable, it is not excusable. There is, in fact, very strong precedent for Congress to perform necessary oversight and question the effectiveness and usefulness of important government programs even in time of war.

At the beginning of World War II Congress created a committee to investigate the nation’s defense program. The committee was headed by then Senator Harry Truman. Over the course of the next several years, Senator Truman’s committee held numerous public hearings, conducted investigations into defense spending programs, and visited countless military bases and factories. The Truman Committee became a powerful watchdog against fraud, waste and abuse. That committee is credited with saving the government billions of dollars, eliminating wasteful programs and saving American lives. All this, while the U.S. was fighting major wars on two fronts on opposite sides of the world. Where is the modern day Truman Commission?

Trying Former Soldiers in Federal Court

The Sixth Circuit Court of Appeals recently affirmed the conviction of a former Army Private, Steven D. Green, for sexual assault and the murder of four Iraqi civilians in 2006. What makes this case unique is that Green was tried in federal district court rather than in a military court-martial. By the time Army officials became aware of the allegations against Green, the military had discharged him from the service. Court-martial jurisdiction is based on the status of the soldier at the time of the offense and at the time of trial. Because Green was no longer a member of the military at the time the Army discovered the allegations, court-martial jurisdiction no longer existed.

Prior to 2000, this situation created a jurisdictional gap whereby former service members could avoid criminal prosecution for acts they committed but were not discovered before they were discharged. In 2000, Congress passed the Military Extraterritorial Jurisdiction Act (MEJA) to close that gap. Under MEJA, the U.S. Government may prosecute former soldiers for crimes they committed outside the special territorial and maritime jurisdiction of the United States while they were members of the military. Prosecutions under MEJA have been rare, and the case against Steven Green represents one of the few times federal authorities have used the statute.

Use of MEJA to prosecute former service members for crimes committed outside of U.S. territory raise several constitutional issues. The Sixth Circuit opinion in Green addresses a number of these issues, including Green’s contention that MEJA violates separation of powers. Green contended that MEJA violates this principle because it expands the executive’s power to enforce the law by expanding its jurisdiction. The Sixth Circuit rejected this argument. The court agreed that MEJA represents an expansion of executive authority, but that expansion does not come at the expense of another branch of government. Accordingly MEJA is no different than any other federal law that increases the categories of criminal conduct.

This holding is interesting in light of the ongoing debate over whether terrorist suspects should be tried in federal court or in military commissions. Those who have argued for trial in military commissions assert that federal courts lack the necessary tools to handle these cases and, therefore, a special and separate system of adjudication is needed. Cases like Green suggest the opposite. According to the Sixth Circuit’s decision in Green, Congress can in fact provide the executive with the authority to try problematic cases in federal courts, and, if this decision is any indication, courts are likely to give significant deference to those congressional grants of authority.

Libya and the War Powers Act

In a recent post, my colleague George Dargo suggested that the Obama administration has no reason not to comply with the terms of the War Powers Act regarding our support of NATO forced in Libya. One of the members of the Obama administration who has argued that the War Powers Act does not apply is Harold Koh, the Legal Advisor to the State Department. He recently addressed an audience of international law and law of war experts at the annual International Law Conference, hosted by the U.S. Naval War College.

Mr. Koh sought to highlight ways in which the Obama administration’s approach to many of these issues fundamentally differed from his predecessor. Among the topics discussed was congressional authorization for U.S. military involvement and support for rebels in Libya who are seeking to topple the Gaddafi regime. The War Powers Act requires the President to seek congressional authorization for U.S. forces engaged in hostilities for more than 60 days. The Obama administration has been under pressure from some members of Congress to seek this authorization for continued military action. The administration’s position is that the War Powers Act does not apply because the nature of our military involvement does not rise to the level of “hostilities” as defined by the War Powers Act.

Mr. Koh repeated that assertion in his address. In addition, he made the following points:

- The military involvement in Libya is not the kind of military action that Congress contemplated when it passed the War Powers Act.
- If Congress wants to prevent the President from supporting the rebel forces in Libya, then Congress must take some affirmative action.
- If Congress decides to withdraw U.S. military support for the rebels, then it should do so with the understanding that it is giving Colonel Gaddafi the green light to resume the slaughter of his own citizens.

The War Powers Act is certainly fraught with problems, not the least of which it that it requires the President to remove U.S. forces from hostilities unless Congress takes some affirmative action authorizing their continued participation. Mr. Koh, however, repeated several times that the Obama administration was not challenging the constitutionality of the War Powers Act; it was simply arguing, primarily for policy reasons, that the Act does not apply to the situation in Libya.

Mr. Koh might have been seeking to convince the audience that, because the administration was not attacking the constitutionality of the War Powers Act, its view of presidential power is more limited than Mr. Obama’s predecessor. I am not sure that is the case.

First, claiming that the President does not have to seek Congressional authorization and that, if Congress wants to prevent the President from committing military support to NATO’s effort in Libya, then Congress must take some affirmative step turns the law on its head. One of the primary purposes of the War Powers Act was to prevent the President from committing military forces and then escalating that commitment over time without congressional approval. Recognizing that the President should have some leeway, Congress gave the President a 60 day window to commit forces into hostilities, and then make the case to Congress at the end of the 60 days why those forces should remain engaged in hostilities. Mr. Koh ignores this very fundamental purpose of the War Powers Act when he claims that the situation is Libya is not the kind of military engagement contemplated by the War Powers Act. The President’s actions seem to be exactly what Congress was concerned about when it passed the Act.

Even more interesting and, perhaps, more troubling is Mr. Koh’s policy assertion that if U.S. forces were to disengage from Libya, then Colonel Gaddafi would be able to resume killing his own citizens. This may well be true, but it is hardly a reason why the President can ignore the legal requirement to seek congressional authorization. In essence, Mr. Koh claims that the President can ignore the requirements of the statute if the President believes that compliance would frustrate important policy objectives. This view of presidential power is not so different than the arguments made by the Bush administration lawyers that the President did not have to comply with the requirements of the Foreign Intelligence Surveillance Act (FISA) because FISA interfered with his Article II powers as commander-in-chief.

While Mr. Koh’s argument may be subtler, it may also be more disingenuous. At least the Bush administration lawyers openly asserted that, in certain matters of national security, the President had the authority to ignore laws passed by Congress. The Obama administration seems to me making that same argument under the guise of statutory interpretation.

Victor Hansen

Targeted Killings and Judicial Review

President Obama’s program of using drone attacks, often referred to as targeted killings or targeted assassinations, was recently challenged in federal court by the father of one of the alleged targets. Nasser Al-Aulaqi brought the suit on behalf of his son, Anwar Al-Aulaqi. Anwar Al-Aulaqi is a dual citizen of the United States and Yemen and he is believed to be an active member of Al Qaeda in the Arabian Peninsula. The lawsuit claims that the President’s unilateral decision to target Al-Aulaqi without some form of judicial process is a violation of his 4th and 5th Amendment rights and is a violation of the Alien Tort Claims Act. Last week a federal court dismissed the suit based upon lack of standing and the political question doctrine.

In its decision, the court did note that the case raised challenging questions, including whether the “Executive can order the assassination of a U.S. citizen without first affording him any form of judicial process whatsoever, based on the mere assertion that he is a dangerous member of a terrorist organization.” A New York Times Op-Ed following the dismissal of the case called for the creation of a secret court similar to the FISA court now used to authorize wiretaps of foreign agents within the United States, to conduct a judicial review of the terrorist suspect targets chosen by the President before any targeting could take place. In the paragraphs below Professors Dargo and Hansen debate the creation of such a secret court.

Professor Hansen: I agree that some scrutiny is in order, but I disagree that the scrutiny should come from the courts. Such a review is outside of a court's competence and federal judges, even holding hearings in secret, are not competent to make -- or review -- targeting determinations. In dismissing the Al-Aulaqi case the court correctly noted, “To be sure, this Court recognizes the somewhat unsettling nature of its conclusion -- that there are circumstances in which the Executive's unilateral decision to kill a U.S. citizen overseas is ‘constitutionally committed to the political branches’ and judicially unreviewable. But this case squarely presents such a circumstance.” Even having some kind of secret process reviewed by a FISA type court would not address very real concerns that the Executive may need to act quickly because of the nature of the threat. It would be unprecedented and unwise for courts to get involved in this level of targeting decisions. Should courts review all battle plans before execution to make sure that they are in compliance with the laws of war?

The primary limits on the President's authority in this context come first from the inherent right of self defense and from the laws of armed conflict. Certainly there is an open question as to the contexts in which the law of armed conflict should apply. For example, should its limits be tied to the territory where most of the actual fighting is taking place? Or should the law of armed conflict and the right to target an individual like Al-Aulaqi follow the individual terrorist and allow him to be targeted wherever he or goes? While there are no clear answers to these questions, the fact that these questions are being asked suggests that the law of armed conflict and the inherent right to self defense constrain the President's authority.

Congress and not the courts should be checking Presidential authority in this instance. Congress has the constitutional authority, the competence, and the power to place limits on such a program if Congress believes that the President is exceeding his authority.

Professor Dargo: I do agree that Congress should attempt to regulate this in some way. But your major approach -- to look at it through the prism of "the laws of war and armed conflict" -- I think is mistaken. As I see it, it should be viewed from the context of basic constitutional principles which govern the government and protect individual American citizens. Ours is a government of limited and specified powers, and even though those of the President are not as enumerated as those in Article I, this does not mean that the President's powers are unlimited. The basic principle is that the federal government -- any of its branches -- can only act upon authority which has been granted to it and not by some unlimited and vague assertion of necessity. Under Article I, Section 8 (necessary and proper clause), the Congress can give powers to the Executive in order to enable it to carry out its implied powers -- for example, to protect the country. That would at least give it some color of respectability under such landmark cases as Youngstown Sheet and Tube (Justice Jackson's concurring opinion). Then, of course, there is the rights aspect -- rights which are enumerated as a further check on the exercise of unlimited power. And the right in question, which is also part of the equation, of course would be Due Process. As the Times editorial notes, and the judge seems to say or imply, it makes no sense to require process to authorize electronic surveillance, but not to take away life. I just find that your approach -- viewing this through the lens of the laws of war -- does not adequately address the full dimensions of this issue.

Professor Hansen: No question that there are many dimensions to this issue. So let’s look at this issue in a more traditional battlefield context. Assume that during World War II, a U.S. solider decided to abandon his unit and join the German Army. Certainly, under the law of armed conflict and the inherent right to self defense, that solider could now be targeted and killed by U.S. forces without any resort to judicial review. If the law of armed conflict and the inherent right to self defense similarly applies in the Al-Aulaqi context, then the outcome should be the same. If, on the other hand the law of armed conflict and the inherent right to self defense do not apply (and that is an issue for debate), then the President has exceeded his authority. The point here is that the Executive’s authority is not unbounded. The check comes by way of the law of armed conflict and the inherent right to self defense. Congress, as the other political branch with the constitutional authority to oversee the Executive’s actions, not the courts, should act if it believes that the President has exceeded his authority.

Professor Dargo: We seem to be in agreement that Congress should establish some sort of mechanism for the purpose of authorizing executive action in this circumstance. The AUMF (Authorization for the Use of Military Force) adopted soon after the September 11th attacks are not sufficient for this purpose. To hold that the AUMF is sufficient would be to give a "blank check" to the President to conduct the so-called War on Terror against any persons, anywhere, anytime for any purposes he deems a threat to the security of the United States. I believe that Congress had no such intention back in 2001. Accordingly, in the absence of any other relevant authorizing power, then the President's action in ordering targeted assassination would be acting on the basis of his own Article II powers which, under Justice Jackson's formulation, would be a very weak reed indeed. For these reasons, I believe that targeted assassinations of American citizens in places like Yemen are beyond the powers of the President.

Professor Hansen: While I agree that the AUMF is not a “blank check” it is certainly not a “bounced check” either. If we say that in passing the AUMF Congress did not anticipate that the President would use the authorization to capture and kill those who pose a threat to the United States, I’m left to wonder what the AUMF authorized.

Whither Peremptories Part Deux

In his post earlier this week, my colleague, Lawrence Friedman, highlights Chief Justice Margaret Marshall’s concurrence in Commonwealth v. Rodriguez, where she ponders whether it is time to either eliminate or further restrict the use of peremptory challenges. The use of peremptory challenges, particularly by the prosecution in a criminal case against members of a cognizable group, certainly can create all kinds of mischief.

The fear, of course, is that the prosecution will use these challenges to eliminate members of a minority race from the jury. This problem is particularly acute when there are few minority members on the jury venire and when they share the same racial or ethnic background with the defendant. The Supreme Court sought to address these concerns in Batson v. Kentucky. There the Court created a three-step burden shifting mechanism whenever the prosecutor uses a peremptory challenge to eliminate a member of a cognizable group.

First, the defendant must show that he or she is a member of a cognizable racial group and that the prosecutor has used the peremptory challenge to remove members of the jury that share the defendant’s race. If this is established, the defendant is entitled to the irrebuttable presumption that the exercise of peremptory challenges constitutes a practice that permits those who are of a mind to discriminate to do so. Finally, the defendant must show that these facts and circumstances raise an inference that the prosecutor used the peremptory challenge to exclude the venireman from the petit jury on the account of the venireman’s race. Once this prima facie showing is made, the burden shifts to the prosecution to show there was a race-neutral reason for exercising the peremptory challenge against the veniremen.

Some have contended that requiring the prosecutor to articulate a race neutral reason for the challenge effectively eliminates the prosecutor’s peremptory challenge of racial minorities. However, experience, and subsequent Supreme Court opinions have shown that, even after Batson, the prosecutor’s peremptory challenge is alive and well and prosecutors intent on using the peremptory challenge to eliminate jurors based on race often can convincingly mask their reasons.

Perhaps what Chief Justice Marshall laments is that it is still all too easy for the prosecution to do an end-run around the Baton protections. In looking for ways to enhance these protections, Chief Justice Marshall would do well to consider two additional Batson enhancements found in the military context.

First, the military has eliminated the requirement that the defense make a prima facie showing of discrimination. Under military legal precedent, if the defendant is a member of a cognizable group, whenever the prosecution exercises a peremptory challenge against a member of the defendant’s race, upon objection by the defense, the prosecution must articulate a race neutral reason for the challenge. In essence, any time the prosecution uses a peremptory challenge to eliminate a cognizable member of the defendant’s racial group the presumption of improper motive exists. This automatic presumption alone forces the prosecution to think long and hard about the way they exercise peremptory challenges.

Second, the prosecution’s race neutral reason must not only be genuine, it cannot be unreasonable or implausible. This requirement that the race neutral reason be both reasonable and plausible is a departure from the Supreme Court’s holding in Purkett v. Elm, which only requires the prosecution’s reason to be genuinely not racially motivated. The problem with that approach, of course, is that racial motivations can easily be masked by seemingly genuine but implausible reasons. Accordingly, military case law imposes this further restriction on the prosecutor’s claimed race neutral reason to help prevent an end run around Batson’s requirements.

It seems to me that these additional protections strike a fair balance and preserve the legitimate use of peremptory challenges and they provide valuable guidance to courts seeking to give real meaning to Batson’s protections—all of which may alleviate Chief Justice Marshall’s concern that the process of discovering Batson violations is too time-consuming to make it worthwhile.

Victor Hansen

Miranda Takes Another Pounding

With Berghuis v. Thompkins, the U.S. Supreme Court decided its third Miranda case of the 2009-2010 term. This case follows a consistent trend by the Court to further limit the protections provided by Miranda warnings. It leaves us wondering what protections remain from the Court’s initial Miranda opinion, and raises the question of what the best way is to protect the interests the Court originally identified in Miranda.

In Berghuis, the defendant, Thompkins, was given his complete Miranda warnings and said virtually nothing for the next three hours. After this almost three hours of silence, where Thompkins neither expressly invoked or expressly waived his Miranda rights, the police asked him if he believed in God and if he prayed to God to forgive him for shooting the victim. To this question the defendant answered “yes” and this statement was admitted against him at trial.

The issue for the Court was whether by saying nothing at all, Thompkins had invoked his right to remain silent. Relying and expanding on its precedents in Davis v. United States and North Carolina v. Butler, the Court held that under these facts, Thompkins had not invoked his right to silence by saying nothing at all. What is most interesting and perhaps most telling about the Court’s current view of Miranda protections was the Court’s willingness to apply their holdings in Davis and Butler to these facts without any attempt to distinguish those cases.

In Davis, after the defendant had been advised of his Miranda rights and expressly waived those rights, during the course of the interrogation he made an equivocal request for counsel. The Court held that such an equivocal request for counsel made during the course of the interrogation is not an invocation of that right and the police are under no obligation to stop questioning or to clarify the accused’s intent. In Berghuis the Court saw no reason to craft a different rule with respect to the defendant’s right to silence.

It certainly makes sense and provides useful symmetry to apply the same standard to an invocation for the right to counsel and the right to remain silent. What the Court ignored in Berghuis, however, is what really distinguishes this case from Davis. In Davis, at the beginning of the interrogation, the defendant expressly waived both his right to silence and the right to counsel. Because of that express waiver, there was no real question that he understood his rights and that he intended to waive them. Berghuis presented the Court with a critical difference. At no time did Thompkins indicate that he understood his rights and there was never an express waiver. This difference certainly raises a question as to the knowing and voluntariness of the defendant’s waiver that did not exist in Davis. Other than Thompkins’ three-hour silence in the face of persistent questioning followed by a “yes,” there is nothing in the record to indicate that Thompkins either understood his rights or that he intended to waive them.

While this is not the first time the Court has held that a waiver can be implied from the facts and circumstances of the case (see North Carolina v. Butler), this is certainly the first case where the Court has held that a three-hour silence in the face of persistent questioning is evidence of an implied voluntary waiver.

Moreover, the Court’s opinion in Berghuis undermines one of the core rationales for Miranda warnings. One of the primary reasons the Miranda Court required warnings in a custodial interrogation setting was to empower the suspect with the knowledge that he does not have to submit to the interrogation and he can stop the interrogation at any point. If we now say that the suspect’s silence in the face of police questioning will earn him hours of persistent questioning until he says something, it is difficult to see how Miranda warnings really level the playing field.

Nevertheless, Berghuis has the value of consistency in that it is the latest reflection of the Court’s disdain for Miranda. In light of this hostility, maybe it is time for advocates of Miranda type protections to focus their efforts on statutory reforms that codify Miranda’s most important protections. These advocates would do well to look at how the military treats these issues. Interestingly, Article 31 of the Uniform Code of Military Justice codified Miranda type warnings years before Miranda was decided. Because these requirements are not court-created rules but requirements imposed by Congress, they are not so easily avoided or narrowed by the courts. Certainly getting legislators and policymakers to support statutes, rules, and procedures that at first blush might be seen to benefit criminal defendants is no easy task, but it seems a better option than being continually pounded by the Court.

Victor Hansen

Miranda's Real Legacy

My colleague Professor Friedman’s posting about Miranda rights and the enduring values represented by Miranda raises some very interesting issues, particularly in light of the Obama administration's recent efforts to create a legislative exception to Miranda warnings in terrorist cases. In seeking to create this terrorist exception, the administration seems to be exploiting the schizophrenic way the Supreme Court has treated Miranda warnings since the Court created them in 1966.

If the administration is successful in its attempt to get Congress to create a terrorist exception, it will not be the first exception to the Miranda rule. Shortly after Miranda was announced, in fact, the Court recognized an emergency exception to the warning requirements in Dunaway v. New York. That exception is still very much in use today. The Attorney General recently stated that the FBI interrogated Umar Farouk Abdulmutallaban, the alleged “underwear bomber,” without giving him Miranda warnings, citing to the emergency exception.

In addition, the Court has also significantly limited the application of the exclusionary rule when police conduct is a mere violation of Miranda warnings. In United States v. Patante, a majority of the Court held that the remedy for a Miranda violation is limited to the suppression of the statement so obtained. The suppression does not apply, however, to the derivative evidence that came from that unwarned statement, particularly when that derivative evidence is highly probative.

Finally, in Dickerson v. United States, while the Court did uphold Miranda’s validity and rejected Congress’ attempt to eliminate Miranda by statute, the basis of the Court’s rationale for upholding Miranda was anything but clear. In his dissent in Dickerson, Justice Scalia launched a powerful attack on the Court’s schizophrenic treatment of Miranda, noting that at various times the Court has referred to the warnings a “prophylactic rule,” a “constitutional decision,” “constitutionally based,” and a rule with “constitutional underpinnings,” but has never held that a failure to give Miranda warnings violates the Constitution. Indeed, if a failure to give Miranda warnings was a constitutional violation, the validity of the emergency exception which the Court recognized in Dunaway would be highly suspect.

So it is this against this background that the Obama administration is seeking to create a terrorist exception to Miranda. If the administration is successful, and if the courts uphold this terrorist exception, this will add yet one more chapter to Miranda’s storied history–a history that reflects a complex, confusing and inherently inconsistent body of caselaw. Scott Turow suggests that the legacy of Miranda is an expression of equality before the law. But in light of its history, the legacy of Miranda may be that courts are particularly ill equipped to legislate from the bench.

Justice Stevens and Bright Line Rules

Taking up the thread from my colleague, Professor Friedman, I too think now is a good time to think about some of the themes that we can see in Justice Stevens’ writings. Like Professor Friedman, I too see a consistent effort by Justice Stevens to resist an overly formalistic approach to constitutional jurisprudence. While many who favor formalism do so in the belief that this is the best way to curb judicial activism, Justice Stevens’s writings illustrate how such a goal can prove illusory when it comes to cabining the authority of judges.

There is no better example of this than in the contrast between Justice Stevens’s and Justice Scalia’s opinions in Kyllo v. United States. In Kyllo, the police, using a thermal imaging device, observed the suspect’s home from across the street. The police suspected Kyllo of illegally growing marijuana in his home and they hoped that the thermal imaging device would help them detect any excessive heat emanating from the house. The police scan revealed that Kyllo’s roof and a side wall were relatively hot. Based on this and other information, the police obtained a search warrant and discovered marijuana and evidence of a growing operation in the house.

The issue for the Court was whether Kyllo had a reasonable expectation of privacy in the heat emanating from his house that could be detected by this special imaging device. Concerned about the impact that advancing technology can have on privacy rights, a majority of the Court, in an opinion by Justice Scalia, held that Kyllo did have a reasonable expectation of privacy and the observations by the police constituted a warrantless search of the home. Critical to Justice Scalia’s analysis was his concern about protecting the sanctity of the home, the very core area of Fourth Amendment protection, from invasion through technological advances. He attempted to draw a bright line by ruling that sensory-enhanced observations that reveal information regarding the interior of the home that would not otherwise be observed without physical intrusion constitute a search, where the technology is not yet in use by the general public.

In his dissent, Justice Stevens took a less formalistic approach to the problem, noting that the heat waves observed by the thermal imager were not in fact information about the interior of the home. Rather, the device detected heat emanating off of the walls of the home, and that same information could be observed in any number of ways. Justice Stevens also saw the formalistic bright line rule that the majority hoped to craft as illusory. Most significantly, Justice Stevens noted that by linking the Fourth Amendment protections to the availability of new technology, Justice Scalia was setting the stage for a reduction in privacy protections once the technology achieves a certain level of general use.

At the end of this dissenting opinion, Justice Stevens states that, rather then resolving the rather mundane issue before it, Justice Scalia and the majority attempted to craft an all-encompassing rule for the future. According to Justice Stevens, the Court departed from the “tried and true counsel of judicial restraint.”

It is quite a role reversal to have Justice Stevens accusing Justice Scalia of excessive judicial activism, but his dissenting opinion in Kyllo demonstrates well one of the key guideposts of his jurisprudence. Wary of formalism and cognizant that an excessive devotion to bright line rules can produce benefits that are more perceived then real, Justice Stevens frequently opted for a different, more nuanced and, in many cases, a more common sense approach to the constitutional problems that confront the Court.

Victor Hansen

Close Counts in Horseshoes and Miranda Warnings

In February, the Court announced the latest in a line of cases related to the sufficiency of Miranda warnings. In Florida v. Powell, the Court held that even though the police did not specifically inform the suspect that he had the right to consult with an attorney during questioning, what he was told was sufficient to convey that information.

In Miranda v. Arizona, the Court set out what it hoped would be a set of simple, easy to apply set of warnings that the police must give to a suspect before engaging in any custodial interrogation. The Miranda Court hoped that these warnings would help to level the playing field between a suspect and the police in the pressure-filled and coercive environment of a custodial interrogation. The Court also believed that a simple set of warnings would help to extract the Supreme Court and the lower courts from having to sort out the very fact-bound and inherently conflicting evidence that had, up to that time, characterized much of the litigation over the voluntariness of confessions.

Looking back now 44 years after Miranda, Florida v. Powell is another reminder that the Miranda Court’s vision has not been realized. On the contrary, Miranda has created a complex, confusing and inherently inconsistent body of caselaw and it leaves us wondering whether Miranda really solved anything.

The specific rights and warnings that the Court set out in Miranda were: the right to remain silent, the warning that anything the suspect says could be used against the suspect, the right to have an attorney present during questioning, and the right to have an attorney appointed if the suspect could not afford one. In Powell, the Court was asked to rule on the adequacy of the standard warnings used by the Tampa Police Department. The Tampa warnings did not specifically tell the suspect that he or she had the right to have an attorney present during questioning. Rather, the warnings told the suspect that he or she has the right to talk to a lawyer before questioning, and that the suspect has the “right to use any of these rights at any time you want during questioning.” The Court, in an opinion written by Justice Ginsberg, found that, while these warnings did not track exactly the requirements of Miranda, the warnings sufficiently informed the suspect that he or she could have an attorney present during questioning.

It is true that the Tampa Police Department’s warnings do not depart drastically from the Miranda requirements, but the question remains: if Miranda set out such bright line guidance, why depart from it at all? Could it be that the police are hoping that by simply throwing in a catch-all phrase at the end of the warning, the suspect will not fully make the connection between the right to consult with counsel before questioning and the right to have counsel present during questioning? When the Court approves of these “close enough” warnings procedures like the one in Powell, is it also signaling that it too does not think much of the protections provided by Miranda? What does seem sure is that a healthy majority of the Court, both liberals and conservatives, will continue to pursue a course of Miranda jurisprudence that departs from the simple guidance that the Miranda Court hoped to achieve.

Victor Hansen

Expectations of Privacy in a Technological Age

A recent article in the New York Times reported on the ways people frequently share rather private information through social networking sites such as Facebook, as well as when engaging in online commerce and other Internet activity. The article reported on how relatively easy it was for third parties to gather information from these sites in order to make future predictions about someone’s purchasing or movie rental habits, and in some cases third parties were able to predict much more personal information, such as someone’s social security number, based upon their online activity.

There is no question that new technologies and new uses for the Internet have important privacy implications. I am often struck by how willingly and perhaps unthinkingly people who have grown up in the Internet era are to put what I view as very private information online. For me this raises the question: in which activities do we have a reasonable expectation of privacy?

This focus on reasonable expectation of privacy of course comes from the Supreme Court’s opinion in Katz v. United States. In Katz and in subsequent cases the Court held that the protections of the 4th Amendment applied to conduct for which there was a subjective expectation of privacy which society is prepared to recognize as reasonable. The short-hand test is “reasonable expectation of privacy.” In the years after Katz, the Court has been asked on a few occasions to apply that test in the arena of advancing technologies. In Kyllo v. United States, the Court held that the police officers’ use of a thermo-imaging device to detect the amount of heat that was radiating from a home was a search under the Fourth Amendment, because those living in the home had a reasonable expectation of privacy in that information. On the question of advancing technology, the Court noted that, because the thermo-imaging device was not something that was readily available to the general public, there was still a reasonable expectation of privacy in the information detected by the device.

While many would agree that the outcomes in both Katz and Kyllo are protective of individual privacy rights, the practices which we as a society seem to be developing and following when it comes to Internet use have me wondering whether “reasonable expectation of privacy” is the right threshold test for Forth Amendment protection. If the protections of the Fourth Amendment are triggered in large part by our societal norms, then it seems that in much of our daily lives, whether it is engaging in online shopping or banking, or social networking, texting, talking on our smart phones, or driving, we have set a pretty low threshold for the types of information we expect to be private.

Perhaps it is time, given these social dynamics, to re-examine the reasonable expectation of privacy test, and also to re-examine exactly what core interests the Fourth Amendment was intended to protect. Was it to protect privacy, or is there something more or a different interest at stake? In this age of information collection and sharing that seems to occur seamlessly between governmental entities and the private sector, can the Fourth Amendment be used to draw meaningful distinctions between information held in the private sector and information to which the government has access? When people engage with the most modern technological tools, do they really understand and appreciate the privacy issues at stake? How does our experience in the post 9/11 world change our view, if at all, toward the role of government? Just what does it mean to have a reasonable expectation of privacy in the 21st Century? These are important questions to think about next time we pick up a smart phone or order a movie online or share pictures of our friends over a social networking site.

Supreme Court Draws a Bright Line for the Edwards Bar

In Maryland v. Shatzer, the Court definitively answered a question that had remained open since Edwards v. Arizona, regarding the effect of a suspect’s invocation of his right to counsel following Miranda warnings. In Edwards, the Court held that once a suspect in custody had requested to talk with a lawyer before speaking to the police, the police must cease questioning and they cannot reinitiate questing unless and until the suspect’s counsel is present. This requirement has come to be known as the “Edwards bar.” According to the Court, this additional level of prophylactic protection is necessary to preserve the integrity of an accused’s choice to communicate with police only through counsel. Without this additional protection, nothing prevents the police from simply badgering the suspect until he agrees to waive his right to have counsel present for questioning.

The issue not addressed in Edwards is, once the suspect invokes the right to counsel and the Edwards bar is raised, can anything short of providing counsel, such as releasing the suspect from custody, lower the Edwards bar and allow the police to reinitiate questioning? Until Maryland v. Shatzer, the Court had not addressed that issue directly.

In Shatzer, the suspect was serving a sentence for child-sexual-abuse conviction. While in jail, a detective wanted to question Shatzer on another, unrelated allegation of child abuse. Shatzer was read his Miranda rights, and he invoked his right to counsel and the police terminated the questioning. Some two and a half years later, while Shatzer was still incarcerated, the police once again sought to question him about this unrelated incident. This time, after reading him his Miranda rights, Shatzer waived his rights and agreed to talk with the police, eventually incriminating himself in this other incident.

In resolving this case, the Court addressed two issues. First, does a break in custody lower the Edwards bar so that the police can at some point reinitiate questioning without counsel being present, and if so, how long of a break in custody is required? Second, what amounts to a break in custody for Miranda purposes? The interesting thing about this case is how the Court took two very different and diametrically opposed approaches to resolving these issues.

On the question of whether a break in custody can lower the Edwards bar, Justice Scalia writing for the majority, held that a break in custody can lower the Edwards bar. Justice Scalia reasoned that once the suspect is released from custody, he is no longer in the police dominated atmosphere, cut off from his normal life and companions. He is free to seek the advice of friends, family and an attorney. He knows from past experience that he can stop the questioning by requesting counsel and the risk that his will would be worn down by police reinitiating questioning is highly unlikely. If the police were prevented from reinitiating questioning in such a case, the cost in terms of the inability to obtain and use voluntary confessions would be too great.

How long of a break in custody is necessary before the police can reinitiate questioning? Here the Court arbitrarily selected 14 days as the magic number. In selecting this as the time frame, Justice Scalia acknowledged that it was an arbitrary choice. He justified the Court’s authority to do this, noting that since the Edwards bar is not a constitutional mandate but a prescribed prophylaxis, the Court has the authority to impose a rule setting out its limits. Opting for this bright line rule of 14 days over a less specific fact bound and factor driven rule, Justice Scalia said that the police need a rule of certainty in order to know when renewed interrogation is lawful. So the clear holding of this case is that the police can reinitiate questioning after a break in custody of at least 14 days.

If this new rule was applied in Shatzer’s case, the police could not have reinitiated questioning because, of course, Shatzer was still in custody, serving time for the unrelated offense. And this is where the case gets even more interesting. In order to account for the fact that Shatzer was still in custody, the Court distinguishes custody for Miranda purposes from the type of custody that a suspect may be under in normal prison life. According to the Court, they are not the same. In prison-custody the suspect is able to do such things as move around and mingle with other inmates, visit the library, have visitors, get mail and phone calls, work in the prison, and otherwise interact with members of the prison community. In Miranda-custody on the other hand, the suspect’s freedom of movement is further restricted and his contact with the outside world, even the prison world, is further limited. The Court reasoned that in the two and a half years between questionings Shatzer was not in Miranda custody, but rather just prison-custody. Therefore, there had been a sufficient break, allowing the police to reinitiate questioning.

The arbitrariness of the 14 day break in custody and the distinction between Miranda-custody and prison-custody can, and likely will, be debated by commentators well into the future. What is of particular interest to me is how in choosing the 14 day rule, the Court opted for a bright line rule over a fact and factor based analysis, yet, when distinguishing between Miranda-custody and prison-custody, the Court went the opposite direction. Rather then applying the much brighter line rule that custody exists anytime a person’s freedom of movement is restrained, the Court chooses to examine the specific facts of this case and particular factors that might distinguish Miranda custody from prison custody. So why the bright line rule in one context and the fuzzy fact bound rule in the other?

Of course, one answer might be that this is just an example of outcome determinative justice. In order to reach the result it wanted, the Court simply had to take two different approaches. That may very well be the answer. It also may be that the Court simply feels more willing to create bright line rules for a law enforcement audience and less compelled to do so when it is the courts that will be sorting out the issues. Perhaps there is less of a need for a bright line rule on the custody question because, in order for any confession to be voluntary, the Miranda custody would have to be relativly short. This case is a good example of a Court less guided by principle then pragmatisim. It will also be interesting to see just how bright this 14 day line really is in future cases. If past history is any guide, many of the Court’s bright line rules in the Miranda context have dulled over time.