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The Legal and Foreign Policy Implications of American Counterterrorism Policies

Well after quite a bit of research, writing, editing, and frustration, I have completed an article for the UCLA Undergraduate Law Journal concerning the legal and foreign policy implications of U.S. counterterrorism policies post-9/11. The article mostly discusses the implications that the AUMF, drone strikes, and the war on terror’s preventive warfare policies will have on the international political landscape as well as at home.

It is, I think, an interesting article but, to be honest, much too ambitious for its own good. The project started over the summer and I think that in reality it may have been more prudent to limit the scope of the article quite a bit more than I have. While I think the discussion presented is productive, the article most certainly could go into more depth and provide a more substantial analysis. As of now, it is primarily surface-level. However, if you’re someone who is brand new to understanding the U.S. “War on Terror” and all of the lovely legal and political ambiguities and implications that it brings, this may be an interesting read for you.

I’d love to hear what you think.

You can read the article here.

Same Sex Marriage at the Supreme Court: Part I of IV – Granting Cert

In a case that is likely to end the debate over gay marriage (at least in the political realm) once and for all in the U.S., the Supreme Court announced today that it will hear a case that will decide whether all 50 U.S. states must allow same-sex couples to marry. As a result and due to the fact that this will likely be one of the Supreme Court’s most-watched decisions of 2015, I have decided to create a short, four part blog series on the case as it leads up to June. Today, in Part I, I will briefly cover a bit of judicial history on this issue, the petitions for cert. that the Court accepted, and the interest choice of language the Justices set out in framing the issue that will be before the Court. Part II will come in early March and will examine the briefs for both the petitioners and the respondents and break down the arguments on both sides after they have been filed with the Court. Part III will cover the oral argument (yet to be scheduled). Finally, Part IV will be a (likely very long) post breaking down the Supreme Court’s decision which is expected to arrive in late June.

I’m sure this will be a very fun adventure to follow this historical case as it makes its way through the Supreme Court and I hope that the analysis I provide on the issue can help illuminate the process.

 

Accepting the Petition at Last

The issue of gay marriage has been a long time coming to the Supreme Court and is undoubtedly the only example in history of a social issue changing so dramatically, so quickly, largely due to the aid of the judicial system. In 2013, followers of the Supreme Court thought there may be a chance that they could tackle the issues of gay marriage in the cases United States v. Windsor and Hollingsworth v. Perry. Windsor was a case that had to do with a New York woman, the widowed spouse of a same-sex marriage recognized by her state, who was unable to benefit from the same federal estate tax exemptions that protect the surviving spouses of heterosexual couples. Hollingsworth, on the other hand, was a case directly challenging the constitutionality of state-enacted same-sex marriage bans. While the Court did decide the case in Windsor, ruling that the federal Defense of Marriage Act violated the Fifth Amendment by unfairly discriminating against couples whose unions were recognized by their respective states (largely an issue of federalism that had no bearing on the constitutionality of statewide bans), it dismissed the Hollingsworth case based on issues of standing. Thus, the Court was effectively able to duck the issue in the first go around.

However, the Windsor decision ended up becoming hugely influential in the fight against same-sex marriage bans. Shortly after the Court handed down its decision—and Justice Scalia warned that the decision would open the floodgates for lower courts to “reach the same conclusion with regard to state laws denying same-sex couples marital status”—a plethora of federal court cases challenging same-sex marriage bans began to make their way through the judiciary. Largely citing the Court’s decision in Windsor, federal courts invalidated same-sex marriage bans in 36 states with appeals courts in the 4th, 7th, 9th, 10th, and 11th Circuits all upholding the decisions. Today, over 70 percent of Americans now live in a location where these same-sex marriage bans have been struck down and can now begin same-sex marriages.

This brings us to today. Earlier in the Supreme Court’s October 2014 term, the Justices refused to hear appeals from the above Appellate courts and let stand their decisions. However, in November, the 6th Circuit Court of Appeals broke the chain of appellate decisions striking down these same-sex marriage bans and, instead, decided to uphold the bans in Kentucky, Michigan, Ohio, and Tennessee. This created a circuit split and is likely the reason that the Justices have now decided to hear the case in an effort to resolve this discrepancy.

 

Framing the Issue

One interesting point to note about the Supreme Court’s certiorari grant in this case is that they chose interesting language in framing the legal questions at issue. All cases before the Supreme Court—or any appellate court—has a central legal question that the court resolves to answer. Most of the time, these questions come from the briefs of the petitioners and respondents and aren’t modified too heavily by the Justices. However, in this case, the wording of the legal question was chosen as such:

The cases are consolidated and the petitions for writs of certiorari are granted limited to the following questions: 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state? A total of ninety minutes is allotted for oral argument on Question 1. A total of one hour is allotted for oral argument on Question 2. The parties are limited to filing briefs on the merits and presenting oral argument on the questions presented in their respective petitions

The wording certainly is odd. Richard L. Hasen of the University of California, Irvine Law School noted on his blog that the new wording reframes the question away from the rights of same-sex couples to marry and, rather, focuses on the rights of states to refuse to recognize such marriages. On the surface, this appears to put the onus of proof that same-sex marriages are unequivocally protected by the 14th Amendment on the side of same-sex marriage advocates. However, the wording could also stem from an attempt by the Justices—very likely the Chief Justice—to rule as narrowly as possible on the issue and even to sidestep a ruling that would provide heightened scrutiny for discrimination based on sexual orientation.

There are more innocuous reasons for the new wording as well. The cert. grant in this case consolidated cases from Kentucky, Michigan, Ohio and Tennessee and may have simply used a more precise, albeit odd wording to limit the petitioners and respondents to only these two questions.

As a matter of personal opinion, I hope that the Supreme Court does not opt to rule narrowly in such a case. I believe that the American people have made it clear that there is no feasible reason why a final decision on the same-sex marriage issue should be postponed. The legal ground has been thoroughly sown the Court cannot risk creating any more confusion about the legal status of same-sex couples and their unions which have now promulgated throughout the country at a rapid rate. We live in fast times of social change and it would not hurt to have the Court finally affirm that discrimination of any kind based on sexual orientation, including but not limited to marriage equality, is unacceptable.

 

Up next: We’ll talk about the briefs from the petitioners and respondents in this case once they arrive at the Court in early March!

OPEC And Plummeting Oil Prices

As most people have noticed in the news—and, even better, in the falling gas prices—oil prices have been plummeting drastically this year beginning in June. While this is great news for consumers who are going to save lots of money on gasoline with some prices at the pump dropping to as low as $2 per gallon of regular unleaded (I filled up my tank the other day for $30, almost unbelievable), this price plummet is a serious problem for countries who are dependent on their oil exports for economic stability (namely, Russia and Venezuela) and who don’t have the economic fortitude to be able to ride out these extremely low prices for very long before the threat of economic disaster becomes imminent.

 

Why Oil Prices Began to Fall

Since 2011, oil prices were primarily stable, floating around the $110/barrel mark. Since that time, prices have dropped as much as 50% to $59/barrel. This is a huge shock in the market and many analysts now believe that these low prices could continue deep into 2015.

Now, why were oil prices so stable between 2011 and June of this year? A couple of reasons. Looking back to the graph of the price of Brent Crude Oil over the last 10 years, we can see that prices rose until they reached a record high around 2008, then dropped drastically during the financial crisis, before rebounding up to 2011 during the economic recovery and remaining relatively stable until this year.

 

Up until 2008, rapidly increasing consumption of oil in China drove global demand up while global supply through oil production was unable to keep up, thus driving prices higher and higher. However, these increasingly high prices also meant that higher-cost producers in countries such as the U.S. could start drilling in harder to reach, more expensive areas such as in North Dakota and Texas shale formations.  Prices stabilized as demand for oil in the U.S. and EU began to taper due to more energy efficient economies in both regions and the increased supply by the higher-cost producers in regions such as the U.S. and Canada did little to decrease prices because tensions in the Middle East with an unstable Iraqi government, war-torn Libya, and economically crippled Iran producing an increasingly smaller share of world oil production, essentially evening out the U.S. and Canadian impact on the market.

 

However, this trend would not last very long. Soon, many of the disruptions in production that had lowered global supply of oil began to ebb. Libya began to export oil once more and consumers in the U.S. and Europe who had just made their way through a long recession that was still having lasting effects on their respective economies had factored in the consistent, high prices of oil into their long-term economic calculus and began to cut back their use, buying smaller, more fuel efficient cars and consuming less energy. These factors, along with economic slowdowns in China beginning in 2012 would create a situation where global supply was rising and global demand was falling. And, as even the most rudimentary microeconomics courses teach, this divergence between supply and demand would force prices down, reaching about $75 by the end of November, a 32% decrease since 2011.

 

OPEC’s Response

The Organization of Petroleum Exporting Countries (OPEC), an oil cartel which produces 40 percent of the world’s supply of oil, met at the end of November and faced the decision of what to do in response to the falling oil prices. Obviously, it would be in the interest of the organization and its members—whose economies are heavily founded on oil exports—for oil prices to remain high. Thus, many analysts assumed that OPEC would vote to reduce production, thus artificially constricting supply and raising prices once again. Many of its members including Venezuela and Iran wanted the organization—particularly Saudi Arabia who, with the UAE, account for 40% of OPEC’s supply—to cut production in order to raise prices and save their economies from collapse.

However, Saudi Arabia and the United Arab Emirates actually decided against cutting their production, instead calling on other producers to cut their supply if they wished. There are a few different possible reasons behind this decision. First, Saudi Arabia more than other countries such as Venezuela, Iran, and Russia can survive off of the lower oil prices without devastating effects to their economy in the short run, stating that they can survive at least two years with the new, low prices, thanks in part due to the country’s $750 billion in foreign-exchange reserves. The Saudis also likely did not want to cut production in order to prevent a repeat of the 1980s where low oil prices combined with their decision to cut production resulted in even lower prices and a loss in market share for Saudi oil. The Saudis are now placing their bets that, while they can survive these low prices for the foreseeable future, new, high-cost exporters that are driving up supply in the market such as the U.S. and Canada won’t be able to keep up. Indeed, U.S. revising down crude-oil output outlooks for 2015 and beyond. Essentially, the Saudis have initiated a price war between OPEC and the U.S. with the hope that they can run the high-cost producers out of the market with the low oil prices, pushing supply down and prices up without having to risk losing their own market share. It still remains uncertain how the U.S. oil producers will behave, but, for now, U.S. oil production still looks to be growing for 2015 despite producers already beginning to pull out of certain high-cost drilling projects

With this battle over the course of OPEC’s production, the organization decided to maintain their current output, with OPEC Secretary-General Abdalla El-Badri stating, “We will produce 30 million barrels a day for the next 6 months, and we will watch to see how the market behaves.” With this decision, the price of oil began to once again free-fall. As of this writing, prices are hovering slightly less than $60/barrel, a crucial cut-off point for many U.S. oil projects.

 

How These Prices Will Affect Nations

While we have covered how these low prices are intended to affect the U.S. and other high-cost producers, members of OPEC are also going to feel some pain because of the organization’s decision not to cut output.

Russia is already feeling this pain deep in their economy. Russia’s economy prior to this drop in the price of oil was already weak, with slow growth and a weakening ruble. Now, the economy is in shambles with the drop in oil prices putting even more increased downward pressure on the Russian currency. The ruble dropped nearly 50% versus the U.S. dollar and Apple even stopped selling products in their Russian online store for a number of days while they waited for the currency to stabilize. Though the currency appears to have stabilized now, deep economic troubles lie ahead for Russia with consumers having much less market buying power than they had before and the issues of having a broad economic impact on the Russian economy. If the prices stay low, the Russians may have to decide between using up their $74 billion in foreign-exchange reserves or cutting their planned spending which could result in a recession.

Venezuela is in an even more precarious position, with serious concerns that the country could default due to the low oil prices running down their profits from the oil exports which comprise a major portion of the Venezuelan economy.

Quick Post: Mubarark Acquitted

Former Egyptian dictator Hosni Mubarak had all charges against him dropped by Egypt’s Cairo criminal court this week. Mubarak was being tired on charges of the unlawful, premeditated murder of protestors involved in the 2011 Egyptian protests as well as corruption charges, ranging from misuse of influence to misusing public funds for personal profit. Mubarak had already been tried on charges of deliberately harming the Egyptian economy as a result of his cutting off telephone and internet services in the country during the protests and had been ordered to pay a fine of $33.6 million from his private assets. Mubarak now faced the murder charges which, if convicted, could have had him face the death penalty.

Important to note here that Mubarak was not simply acquitted of his charges, relieving him of any wrongdoing. The charges, instead, were thrown out of court on a legal technicality by the Egyptian court without a decision, a clearly politically-motivated move. The judge in Mubarak’s case dismissed the charges on the grounds that Mubarak was added as a co-defendent to the trials already taking place over the murder of protesters too late, implying that “there were no grounds for criminal proceedings” against him. Originally, the public prosector in Egypt had indicted only Mubarak’s senior assistants and only added Mubarak himself to the case when he faced increased pressure from more public protests to hold Mubarak accountable as well.

Obviously, while I am usually fascinated by the ins and outs of ongoing legal trials, especially high-profile ones such as these, the important part of this story is not the legal minutia. Here, a violent dictator has had his charges dropped in what is obviously an intensely political move, despite the Egyptian judge’s assurances to the contrary, that signals a major step backward for Egypt and a shift back to the political corruption that incited the initial revolution that ousted Mubarak. Mubarak’s initial charges were hastily brought in a mood of revolutionary fervor that had swept across the nation in one of the most impressive displays of revolutions for peace and democracy in the Middle East in recent history. However, now that much of these emotions have settled and the passions of the protestors have cooled, the outcome which many outsiders looking into this revolution feared—a return to a brutish dictatorship—is beginning to take hold once again. Egypt went through many phases and many leaders during its revolution, but it has now landed back to a regime that is strikingly similar to Mubarak’s with President Abdel Fatah el-Sisi.

Peace and democracy are difficult values to cement into a society, even when you have as many and as passionate protestors as in the 2011 Egyptian Revolution. People can only endure so much fighting and so much protesting until their will becomes weak. This is the state of Egypt today. It remains to be seen if we can hope for another strengthened call for democracy after so many disappointments.

Obama’s Immigration Action: A Breakdown

As I have managed to somehow find five free minutes in my busy schedule between the exams that ended yesterday and the new papers and exams I will be working on after this weekend, I thought the timing would be perfect to sit down and write a bit about a topic that will undoubtedly monopolize headlines over the next few days and yet be understood by few: President Obama’s Immigration Plan.

I use the term “plan” loosely as Obama’s directive should not really be thought of as a comprehensive plan, or solution, to the nation’s immigration problems. Rather, they serve a dual purpose. First, to provide temporary relief to undocumented persons who have been residing in the U.S. for over 5 years, allowing them opportunities to work and become educated legally by instruction to Department of Homeland Security to un-prioritizing their deportations and, instead, focusing on deporting undocumented individuals with criminal histories and preventing new immigrants from entering the country. The second purpose is purely political, a way to hopefully spur Congress into action to come up with a long-term reform that can replace this executive directive.

In this short article I will try to clarify (1) an explanation of exactly what President Obama’s directive entails and accomplishes, (2) the legality of this new directive, and (3) the politics at play in this situation and why Obama chose to take executive action and what that means for immigration policy in the near future.

I. An Explanation of Obama’s Immigration Directive

In essence, Obama’s new immigration directive makes three key changes: (A) Expansion of Deferred Action, (B) Prioritized Deportation, and (C) Expanded Border Security.

A.

Obama’s deferrals for current undocumented immigrants is twofold. First, Obama will introduce a new deferral program that will affect an estimated 4 million undocumented persons who have been in the country for at least five years and are also the parents of American citizens or legal permanent residents. This program will allow these undocumented immigrants to remain in the country and legally work for a period of three years at which point their deferral would be subject to renewal.

The plan will also expand the Deferred Action for Childhood Arrivals program created by Obama in 2012. The plan, which currently covers over 1.2 million young immigrants and would expand to approximately 300,000 more, allowing these young immigrants deportation deferrals as well as work permits.

Crucial to note is that deferred action does not confer any lawful immigration status to immigrants that it effects. In other words, deference does not “legalize” these immigrants, it merely allows their current stay to be a little bit more stable, allowing them opportunities for gainful employment or education, while deferring their deportation priority to a later date in favor of immigrants who present a higher priority to deport (such as those who present immediate security risks).

B.

Another large part of Obama’s plan is directing the Department of Homeland Security (DHS) to prioritize the deportation of immigrants that pose more serious and immediate security threats over those who have been living in the U.S. for periods of over five years and are related to legal residents here when allocating their limited resources to enforce immigration law. Now, what exactly does this mean?

There are currently an estimated 11.4 million unauthorized immigrants residing in the U.S. according to the Migration Policy Institute. Despite this, Congress has appropriated only enough funds for DHS to have the capacity to deport approximately 400,000 persons per year. Due to this strikingly large discrepancy, DHS necessarily must decide which 400,000 immigrants to deport. They could do this in one of two ways: (1) haphazardly, choosing merely to deport as many persons as possible regardless of any specific criteria save for their undocumented status; or (2) by creating a strict criteria of priority that dictates which persons they will target first. This is where Obama’s plan comes in.

Obama’s plan sets out three distinct levels of priority which are as follows:

  1. The Highest Priority – Aliens who pose a serious threat to national security, border security, or who are related to gangs, violent offenses, and terrorism.
  2. Second Highest Priority – Aliens who have been convicted of multiple misdemeanors, who have been apprehended in the act of illegally entering the country, or who have abused the visa waiver programs.
  3. Third Priority – Parents of U.S. citizens or legal permanent residents who have been in the U.S. for less than five years

The policy would also lay out a large list of factors that DHS personnel should consider when making their deportation decisions, however this list, along with the priority levels laid out above, are by no means absolute and there is significant room left for DHS personnel to make judgments based on other factors. It is important to note that these new DHS policies are very much consistent with the priorities outlined by Congress. When appropriating funds for immigration enforcement, Congress specifically directed the DHS to “prioritize the identification and removal of aliens convicted of a crime by the severity of that crime.”1

C.

Finally, Obama has promised to commit more resources to border security in an effort to prevent more immigrants from making their way to the U.S. Not much to this one.

Overall, Obama’s plan has the potential to protect anywhere from 4-5 million undocumented immigrants in some way or another while 1.2 million were previously covered under the Deferred Action for Childhood Arrivals plans of 2012.2

II. Is this legal?

What a lot of people are wondering, and what the major commentators on both sides of this issue will be debating, is whether what the President did was legal. The short answer is: yes, this is completely legal. For those interested in a full legal analysis of these policies, the Department of Justice has kindly published a memorandum on the legal authority of the President to prioritize the removal of certain unlawful immigrants and defer others.

First, let’s look at the deportation prioritization directive given to DHS. As we mentioned earlier, the DHS has finite resources to combat a very large problem with the ability to deport just slightly over 3% of the undocumented immigrant population currently residing in the U.S. per year. Thus, by the very necessity of their situation, DHS must make some decision on how they will allocate these resources, and traditionally this has been by setting definite priorities on immigrants to target for deportation. The executive retains the power of prosecutorial discretion to determine exactly when and how to enforce our immigration laws. In this situation, the President is using this power to decide exactly how we will allot the limited resources of the DHS to prioritize the deportation of the massive illegal immigration population currently residing within the country.

The second legal concern would be over the President’s deferred action program, which the Justice Department’s memo similarly notes as being within the legal discretion of the President. The practice of providing immigration deferrals has long been recognized by both Congress and the Supreme Court3 The process is highly individualized, with much of the discretion over its implementation being given to the appropriate DHS personnel. This practice greatly resembles deferred action programs implemented by Congress and similarly lies within the realm of the prosecutorial discretion power that the executive holds, making it undoubtedly legal. Additionally, over 100 law professors have affirmed their support over the legality of both the DACA and DAPA programs under the President’s authority4

III. The Politics

Now, it’s quite clear that Obama’s plan is absolutely not a long-term solution. Deferments given out to undocumented immigrants today, though they last longer than previous deferments–3 years instead of 2–are still a short-term solution to a long-term problem. So why is this move being so hotly debated, and why would the President make such a move? Surely it would be better to work on a long-term immigration reform plan?

The answer is that this move comes after a long and ultimately fruitless effort at creating a bipartisan immigration reform law in Congress. Specifically, the most recent failure came in the House which refused to vote on a bipartisan Senate bill (the “Border Security, Economic Opportunity, and Immigration Modernization Act”).5

Obviously Obama’s immigration “plan” is less than ideal. It fails to repair a system in which the wait time on the upper end for immigrants from countries such as Mexico to become naturalized citizens can be up to 10 years and in which approximately 11.4 million undocumented immigrants continue to stay out of the reach of the system.6 The best possible outcome from this executive action is to spur a defiant Congress into action to pass some kind of top-down, comprehensive immigration reform package. Until then, we have no choice but to continue applying patches, such as Obama’s, to prevent the gaping holes in the U.S. immigration system from becoming even larger at the expense of both American citizens as well as those who wish to attain such status.

  1. Department of Homeland Security Appropriations Act, 2014, Pub. L. No. 113-76, div. F, tit. II, 128 Stat. 5, 251 []
  2. Migration Policy Institute, 2012 data []
  3. Am.-Arab Anti-Discrim. Comm., 525 U.S. at 484. []
  4. https://pennstatelaw.psu.edu/sites/default/files/documents/pdfs/Immigrants/executive-action-law-prof-letter.pdf. []
  5. https://www.congress.gov/bill/113th-congress/senate-bill/744. []
  6. http://www.cnn.com/2013/11/06/us/immigration-statistics-fast-facts/. []

Precedents in the War on Terror

This post is an excerpt of a new article I am currently working on about the legal and foreign policy implications of U.S. counterterrorism policies today. 

 

The terrorist attacks of September 11, 2001 were undoubtedly transformative of the ways Americans, and their government, would view the threat of terrorism to their security and the lengths they would go to combat this threat. While the 9/11 attacks certainly represented a major shift in the importance placed on counterterrorism by the US government, the foreign policy and military strategies adopted by the Bush administration, and continued by the Obama administration, were not as revolutionary as some may believe. In fact, many of the strategies in use today and the debates surrounding them have deep roots in US policies in combatting various threats throughout recent history. Understanding these links and the extent to which 9/11 represented a shift in US counterterrorism policy provides a clearer picture of how we arrived at the policies of today and how we should view their domestic and international legal implications.

 

Understanding the Threat

Prior to the 9/11 attacks, there were fundamental misunderstandings and disagreements between administrations on the nature of the threat that terrorism posed as well as the appropriate means to combat them. In the decades between the Richard Nixon and the George W. Bush administrations, nearly every President had radically different views on the threat of terrorism and, thus, employed very different approaches to handling counterterrorism policy. This led to a complete lack of long- term, consistent counterterrorism strategies or policies between administrations. Take, for example, the Nixon administration. President Nixon formed the Cabinet Committee to Combat Terrorism in response to the 1972 Munich Massacre of 11 Israeli Olympians, stating, “It is vital that we take every possible action ourselves and in concert with other nations designed to assure against acts of terrorism.”2 However, after Nixon, President Ford downplayed the threat and made no real progress, as did Carter after him. As a result of Carter’s inaction, President Reagan came into office with terrorism as a top priority.3 The cycle continued with George H.W. Bush after him, downplaying the threat once more, only for it to be renewed one final time by the Clinton administration. The cycle ended when President George W. Bush failed to heed the Clinton administration’s conclusion that al-Qaeda and its leader Osama bin Laden posed a new, significant threat to the security of the US and focused very little on counterterrorism in his initial foreign policy strategies after entering office. In the end, prior to 9/11, each President felt the need to distance themselves from the policies of the previous administrations and set a new course, leaving no room for the long-term development of any consistent counterterrorism strategy.1

Even during administrations that prioritized counterterrorism strategy very little was accomplished and few changes were made. Much of this was due to the fact that fighting terrorism is often a risky endeavor with a high potential for public embarrassment and political disaster if unsuccessful.2 A prime example is President Clinton’s pursuit of Osama bin Laden. After unsuccessful attempts to coerce the Taliban into handing over bin Laden in 1998, Clinton refused to use the Delta Force to attempt to capture him so as to avoid a disaster akin to that of the failed rescue mission in the Iran hostage crisis.3 Compare this to today where Presidents have a much greater propensity for risk in pursuing counterterrorism goals—including sending Special Forces to capture bin Laden again. Even Reagan who came into office with terrorism as a top priority refused to repeat the Libyan bombing raids of 1986 for fear that they would be unpopular among the public.4 In other cases, changes simply didn’t take place due to bureaucratic inefficiencies and poor communication between federal agencies. When the Reagan administration announced an intelligence clearinghouse in their National Security Decision Directive in 1984, very few changes in the operations of the CIA or FBI actually took place.5

However, underlying the problems of disagreements, inconsistency, and weariness to take action lied a fundamental misunderstanding of the nature of the threat that terrorism presented and how to adequately combat it. Prior to 9/11, many different problems competed for the attention of the President, both foreign and domestic. On the foreign policy front, administrations were primarily interested in traditional interstate conflicts that presented traditional military threats. Only if a terrorist threat was state-sponsored—thus elevating it to the level of a traditional tactic of interstate warfare—or potentially capable of procuring a WMD was it considered a top foreign policy issue.6 Administrations instead viewed terrorism as a mere offshoot of regional politics and a nuisance that complicated larger issues, such as Arab- Israeli peace, rather than an independent, culminating problem. As such, it was not until 9/11 that the US would stop reacting to terrorism on an event basis and instead take into account the consequences of our foreign policies on the development of regional terrorist threats and develop appropriate, long-term counterterrorism strategies.

 

Historical Strategies

The Bush administration set out many new policies in response to the terrorist attacks on 9/11 including invoking the doctrine of preventive warfare, unilateralism, and an increased reliance on targeted killings, and an explicit expansion of the power of the President to protect the country. In this brief history, we will primarily focus on the histories of preventative warfare and targeted military killings. While we will cover the details of these strategies as implemented by the Bush administration further in the next section, it is important to examine the historical uses of these strategies in the past to understand their relevance today.

One of the cornerstone features of the Bush administration’s new counterterrorism strategy was the use of preventive warfare and a vigorous military buildup which led to the US’s wars in both Iraq and Afghanistan. However neither of these policies were unique to Bush. In the mid-1990s President Clinton signed a national security directive declaring that “the United States shall pursue vigorously efforts to deter and preempt, apprehend, and prosecute … individuals who perpetrate or plan to perpetrate such attacks.”7 And it was during Clinton’s era that the US started spending more than any other nation on defense.8 The strategies stretch back even further to Franklin Delano Roosevelt’s anticipatory self-defense in response to German ships in the Atlantic prior to the US’s entry into World War II and John F. Kennedy’s imposition of a quarantine around Cuba during the missile crisis—an international act of belligerence invoked to prevent the threat to our security that Soviet missiles in Cuba presented. Nor was the decision to act unilaterally in our pursuit to combat terrorism uncharacteristic of American foreign policy. The US has had a long history of acting unilaterally against potential security threats including during the Cold War. In fact, Clinton’s final National Security Strategy document before leaving office explicitly promised to do the same.9

Targeted military killings also predate 9/11. Although today the most common image that comes to mind when discussing the practice of targeted military strikes is that of an unmanned “drone” aircraft dropping bombs on a country across the globe via remote control, this is not the only practice that falls under the targeted killing umbrella. Specifically, there are two different types of operations that today’s drone program makes use of: targeted killings and signature strikes. In targeted killings, decision makers identify and intentionally kill an individual. Conversely, in signature strikes, targeted operations are based on the patterns of behavior an individual exhibits, i.e., their “signature,” and then kills that individual for that behavioral signature rather than their identity. Both of these strategies predate 9/11 and the new drone program. A prime example of a targeted killing was the operation against Japanese Admiral Isoroku Yamamoto, chief architect of the attack on Pearl Harbor. American intelligence was able to decipher the Admiral’s flight itinerary and American aviators were sent to shoot down the plane.10 Another example comes from the Reagan administration when, in 1986, President Reagan authorized an airstrike against, among other facilities, the home of Libyan leader Muammar Qaddafi. Of particular note in this operation was the international legal justification used by President Reagan to conduct the strike: the right to self-defense as stipulated by the United Nations Charter, a defense commonly used in today’s targeted strikes.11

Signature strikes also have a long history of use. Today, characteristics such as travel towards areas of armed conflict, handling of explosives, and involvement in known terror training compounds are used to target low-level militants of al-Qaeda. These types of strikes don’t target high-level commanders with known identities but, instead, low-level fighters. The US used this exact process during the Vietnam War to identify and eliminate Viet Cong fighters.12 Later, the Reagan administration also directly advocated for a similar policy in their 1984 National Security Directive 138.13 While never implemented, the policy clearly set out a preemptive counterterrorism strategy very similar to that of today.

 

Counterterrorism after 9/11

After 9/11, the Bush administration launched a global war on terror with strategies outlined in the administration’s 2002 National Security Strategy document. Key among these was the adoption of a strategy of “anticipatory self-defense”—essentially preventive warfare—in which the administration vowed to take action against not only imminent threats, but culminating ones, and would act alone if necessary. The administration also emphasized strategies included the promotion of democratization around the world as a means of protecting our security through the democratic peace and an increased military buildup to take on counterinsurgency missions—including through the use of targeted killings—and increase intelligence. Most importantly, the administration oversaw the explicit expansion of the power of the President, by Congress, to broadly pursue those “nations, organizations, or persons” that perpetrated the attacks.14

All of these major policies implemented soon after the 9/11 attacks— preventive warfare, unilateralism, and targeted strikes—were largely made possible by the express will of the President and, often, without the express approval of Congress. Presidential supremacy over Congress in controlling military operations is a historically recurring theme in US military operations and continues to be today, particularly in the realm of counterterrorism. While recent examples of this trend can be found as recently as in President Clinton’s cruise-missile strikes against al-Qaeda in Afghanistan and Sudan, the passage of the AUMF by Congress has the potential to set an entirely new precedent for Presidential power to wage war.

While historical precedents can also be found for both the use of preventive war actions by the US and for targeted killings, 9/11 has drastically changed the way they are used in both the US and abroad. For one, targeted strikes are now much more transparent—even boasted about—than they were in the past. Far from the days of covert CIA operations that maintained plausible deniability for the administration that authorized the strikes, today’s drone strikes are publicly ordered by the President and successful strikes against high-level militants by both the US and other countries with the capability of drone warfare are announced with pride. The proliferation of these targeted killings in response to terrorist threats combined with the increasing use of the strategy of preventative warfare in justifying bombing campaigns in states such as Iraq, Afghanistan, and Syria have stretched the UN’s right to self defense and have created an interesting legal grey area for the extent to which such practices can avoid being described as belligerence.

 

While it is certainly not outrageous to view 9/11 as a point of inflection in US counterterrorism policy, it is also important to note that virtually all of the policies in use today have clear connections to historical policies undertaken throughout the history of the US. In the coming sections we will explore these policies in greater depth to understand exactly how they differ from past precedents and how those difference will have serious implications on international and domestic law in the US.

 

  1. TIM NAFTALI, BLIND SPOT: THE SECRET HISTORY OF AMERICAN COUNTERTERRORISM ___ (2005). []
  2. TIM NAFTALI, BLIND SPOT: THE SECRET HISTORY OF AMERICAN COUNTERTERRORISM ___ (2005). []
  3. TIM NAFTALI, BLIND SPOT: THE SECRET HISTORY OF AMERICAN COUNTERTERRORISM ___ (2005). []
  4. TIM NAFTALI, BLIND SPOT: THE SECRET HISTORY OF AMERICAN COUNTERTERRORISM ___ (2005). []
  5. TIM NAFTALI, BLIND SPOT: THE SECRET HISTORY OF AMERICAN COUNTERTERRORISM ___ (2005). []
  6. TIM NAFTALI, BLIND SPOT: THE SECRET HISTORY OF AMERICAN COUNTERTERRORISM ___ (2005). []
  7. Presidential Decision Directive 39. []
  8. TIM NAFTALI, BLIND SPOT: THE SECRET HISTORY OF AMERICAN COUNTERTERRORISM ___ (2005). []
  9. TIM NAFTALI, BLIND SPOT: THE SECRET HISTORY OF AMERICAN COUNTERTERRORISM ___ (2005). []
  10. Damian Mencini, Blast from the Past: Using History to Shape Targeted Strikes Policy, Georgetown Security Studies Review (June 10, 2014), http://georgetownsecuritystudiesreview.org/2014/06/10/blast-from-the-past-using-history-to-shape- targeted-strikes-policy/ []
  11. Damian Mencini, Blast from the Past: Using History to Shape Targeted Strikes Policy, Georgetown Security Studies Review (June 10, 2014), http://georgetownsecuritystudiesreview.org/2014/06/10/blast-from-the-past-using-history-to-shape- targeted-strikes-policy/. []
  12. Damian Mencini, Blast from the Past: Using History to Shape Targeted Strikes Policy, Georgetown Security Studies Review (June 10, 2014), http://georgetownsecuritystudiesreview.org/2014/06/10/blast-from-the-past-using-history-to-shape- targeted-strikes-policy/. []
  13. National Security Directive 138, in an effort to combat the increasing threat of terrorism, authorized the CIA to: “Develop, in coordination with other friendly security services, capabilities for the pre-emptive neutralization of anti-American terrorist groups which, plan, support, or conduct hostile terrorist acts against U.S. Citizens, interests, and property overseas.” []
  14. Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001) (hereinafter AUMF). []

A New Campaign Finance Case — McCutcheon v. FEC

A new campaign finance case is at the Supreme Court this term which, for some, harkens back to the Court’s decision in Citizens United v. FEC in 2010. However, there are some very important distinctions between this case, which involves aggregate campaign contribution limits for individuals, and Citizens United, which dealt with limits on independent expenditures of corporations, associations or labor unions.

First, a little bit of history on Citizens United. Prior to 2010, the Federal Elections Commission (FEC) prohibited corporations and unions from “to mak[ing] a contribution or expenditure” to fund “electioneering communications”1 within 30 days before a primary or 60 days before a general election.2 Citizens United is a conservative, non-profit, political organization in the U.S. that is “dedicated to restoring our government to citizens’ control.”3 During the 2004 election season, Citizens United filed a complaint with the FEC, claiming that commercials promoting Michael Moore’s new film Fahrenheit 9/11, which criticized President Bush’s response to the 9/11 terrorist attacks, were inherently political in nature and should not be allowed to air during the 60 days before the general election. The FEC dismissed the claim, stating that “the film, associated trailers and website represented bona fide commercial activity, not “contributions” or “expenditures” as defined by the Federal Election Campaign Act.”4 As a result, Citizens United began itself producing conservative documentaries. In the 2008 election season, Citizens United made another film, which was highly critical of Senator Hillary Clinton, called Hillary: The Movie.5. In the months leading up to the Democratic primaries, Citizens United sought to advertise their new film on television, but were blocked by the U.S. District Court for the District of Columbia which found that the ad and films were solely intended to be political commentary and “electioneering communications” and thus violated FEC regulations. The Supreme Court took up the case and reversed the decisions of the lower courts on free speech grounds.6. Contrary to popular belief, the Supreme Court did not overturn the ban on direct campaign contributions to candidates on behalf of corporations and labor unions or remove the limits on how much donors can contribute to a campaign. What it did do was find unconstitutional the limitations placed on corporations’ and labor unions’ free speech rights by forbidding them from advocating for political candidates of their choosing. Thus, corporations can now freely spend their own money to support or oppose political candidates through independent communications such as advertisements.

To understand McCutcheon, we need to look at a case called Buckley v. Valeo,7 which is the current definitive authority on campaign finance case law. In this case, the Supreme Court ruled that the First Amendment forbids Congress from limiting expenditures made by candidates. Specifically, Congress couldn’t regulate how much a candidate spends on TV ads or how much of their own personal money they use. However, Congress can place limits on contributions. The Court ruled that Congress can impose reasonable limits on how much any one individual can provide to one particular candidate. Under current law, that is $2,600 for a federal candidate per election cycle, including both primaries and general elections, or $5,200 per year. While federal election law doesn’t limit how many candidates or campaign committees an individual can donate to, it does impose an overall aggregate limit on how much someone can give over a 2-year period: just over $48,000 in gifts to candidates and over $70,000 in donations to campaign committees or approximately $123,000 in total. 

McCutcheon is not Citizens UnitedMcCutcheon is challenging the aggregate limits proposed on individuals. The plaintiff, Shaun McCutcheon, a businessman and Republican campaign contributor from Alabama, says he wants to give more money to a wider variety of candidates and campaign committees and that federal laws limiting his ability to do so are a violation of his First Amendment rights. So, this case revolves around individual donations directly to candidates and campaign committees. In Citizens United, the Court said that the only legitimate interest Congress has in regulating campaign finance is preventing something called “quid pro quo corruption”—when an individual gives money to a candidate with the expectation that the candidate will vote a particular way on a particular issue as a result of that donation. Congress naturally would want to prevent this type of corruption—or the appearance of such corruption—and the Court has ruled that it has the power to do so. However, McCutcheon argues that an overall aggregate limit on how much he can donate has nothing to do with quid pro quo corruption and that this is prevented through the contribution limits on individual candidates. On the other hand, those in favor of aggregate contribution limits argue that it is far too easy for candidates and campaign committees to pass money between each other—transactions that are not regulated by the federal government. Thus, by lifting aggregate limits, it may be theoretically possible for  a wealthy donor to give unlimited amounts of money to a particular candidate or campaign and evade the individualized limits. It also raises the question: if Congress has a legitimate interest in preventing quid pro quo corruption on the candidate level, wouldn’t they also have some interest in preventing the same quid pro quo corruption on a much larger scale encompassing entire political parties and the wealthiest contributors in the country. In the event that aggregate limits are lifted, the wealthiest donors could personally give political parties and their innumerable campaign committees exorbitant amounts of funds, giving them the influence required to shape the entire party’s agenda.

So, what will the Court decide come June? Very likely, the aggregate limits will be struck down. The Roberts Court has a consistent history of ruling in favor of free speech cases including in campaign finance. It is unlikely the Court will find that Congress has a signifiant enough interest in regulating the aggregate expenditures of wealthy political donors and will find that the interest created by the risks of quid pro quo corruption  are met by current laws.

  1. Essentially any broadcast advertisement mentioning a candidate []
  2. This was accomplished through the McCain-Feingold Bipartisan Campaign Reform Act of 2002, 116 Stat. 81, which amended the Federal Election Campaign Act of 1971, 2 U.S.C. §441b. []
  3. CITIZENS UNITED, http://www.citizensunited.org/who-we-are.aspx (last visited Mar. 4, 2014). []
  4. http://www.fec.gov/press/press2005/20050809mur.html. []
  5. This practice of making political “films” before elections seems to be gaining traction as a way to subtly advocate for or against a certain candidate. See 2016: Obama’s America (Rocky Mountain Pictures 2012). []
  6.  Citizens United v. Federal Election Commission, 558 U.S. 310 (2010). []
  7. 424 U.S. 1 (1976). []

Like Throwing Away Your Umbrella in a Rainstorm: The End of Section 4 and the Future of the Voting Rights Act

After months of research and writing, I have finally finished my first undergraduate law journal article! In this paper I discuss the history of the 14th and 15th Amendments, voter discrimination, and the Voting Rights Act. I also analyze the recent 2013 Supreme Court decision that struck down the Act’s coverage formula which enabled it to require states with rampant voter discrimination records to submit all changes to their election laws to the federal government for approval.

 

Link to the article.

 

If the article is too long for you, I’ll be posting excerpts from important bits of it over the next few weeks on this blog!

Lack of Posts and News from Virginia

I have been incredibly neglectful to this blog as of late. But, in lieu of a lengthy post about some boring legal/political issue, I’ll just link to the court order from a Federal District Court in Virginia which invalidated the state’s same-sex marriage ban. This is just another in a long line of cases (seeThe Increasing Role of the Judiciary in Deciding the Issue of Same-Sex Marriage) invalidating similar state laws. Will be very interesting to see what happens when this reaches the Supreme Court in the next couple years!

Link to the order: http://www.scribd.com/doc/207069119/2-13-cv-00395-135

 

I hope to be able to post more of my own analysis on current events and issues in the next few weeks!

The Effect of the VRA’s Absence on Voter Discrimination

Just hours after the Supreme Court handed down their ruling in Shelby County v Holder, it became clear that it would not take long for states previously covered by the Voting Rights Act’s coverage formula to relapse, with states such as Texas, Mississippi, and Alabama moving immediately to enforce various voter identification laws that had not received approval from the Department of Justice.

The Voting Rights Act of 1965 required that states with histories of blatant voter discrimination—such as through the use of poll taxes, literacy test, or white-only primaries—would have to submit any proposed changes to their election laws to the federal government’s Department of Justice (DOJ) for approval before they could be implemented.1 The Attorney General would then have the power to approve or deny the proposed change based on whether or not he thought it had a discriminatory intent or effect.

After the ruling in Shelby, states rushed to enact voting laws which had previously been denied preclearance. In Texas, state officials moved to reenact a voter ID law which in 2012,2 along with a new redistricting plan, had been struck down by a three-judge panel in the United States District Court for the District of Columbia which called the voter identification law the “most stringent in the country.”3 The DOJ is now involved in section 2 litigation against Texas over both the new voter identification law and the redistricting plan, citing in their complaint filed in Federal District Court in Corpus Christi that the state’s plans put an undue burden on the Hispanic and African-American population in Texas who disproportionately lack IDs, causing some in extreme cases to have to “travel approximately 200 miles roundtrip in order to obtain [one]” to be able to vote. In other cases, Nate Silver, a popular statistician during the 2012 Presidential Election, found that in states such as Pennsylvania and Kansas, such laws would result in a 2.4 percent decrease in voter turnout overall with a 1.2 percent net swing to the Republican candidate in any given election.4 Legal battles such as this will undoubtedly characterize the fight over voter discrimination in the wake of an overturned VRA coverage formula and an increasingly heated debate over the voter ID movement.

While laws such as those requiring voters to show identification to be able to vote or those redrawing district maps and moving polling locations seem innocuous on their face, Justice Ginsburg, in her dissenting opinion in Shelby, warns of the effects racial polarization in voting can have on influencing changes in election laws.5 By this, she means that “when political preferences fall along racial lines, the natural inclinations of incumbents and ruling parties to entrench themselves have predictable racial effects. Under circumstances of severe racial polarization, efforts to gain political advantage translate into race­ specific disadvantages.”6 Thus, it is easy to see how laws as seemingly innocuous as those requiring voters to present identification at the polls can have a much more insidious racial effect in states with particularly racially polarized voting as incumbents pass election laws to ensure they remain in office. It is no coincidence, then, that states such as Texas and Pennsylvania, deemed some of the most “prejudiced” in the country in a study by law professors at UC Davis and the University of Connecticut, are in the process of passing some of the nation’s strictest voter identification laws.7 The Courts would be well advised to look very closely at the effects of such laws which should, by all accounts, be considered a second-generation voting barrier given their track record of voter suppression, when determining their constitutionality as they will doubtlessly be called on to do over the coming years.

  1. 42 USC §1973c(a). []
  2. Michael Cooper, After Ruling, States Rush to Enact Voting Laws, NY Times (NY Times July 5, 2013), online at http://perma.cc/RT55-ZMTJ (visited Feb 5, 2014). []
  3. Justice Department brief against Texas, United States v State of Texas, Civil Action No 13-cv-00263, *4 (TXSD filed Aug 22, 2013) (“Texas Complaint”). []
  4. Nate Silver, Measuring the Effects of Voter Identification Laws, FiveThirtyEight Blog (NY Times July 15, 2013), online at http://perma.cc/PG3D-JUKS (visited Feb 5, 2014). []
  5. Shelby, 133 S Ct at 2663 (Ginsburg dissenting). []
  6. Ansolabehere, Persily, & Stewart, Regional Differences in Racial Polarization in the 2012 Presidential Election: Implications for the Constitutionality of Section 5 of the Voting Rights Act, 126 Harv L Rev F 205, 209 (2013). []
  7. Law professors from UC Davis and the University of Connecticut used data from the National Annenberg Election Survey that asked people to rank the intelligence and trustworthiness of groups of people on a scale from 0 to 100. By comparing how people rated their own ethnic group, compared to how they rated blacks, the study was able to estimate the prejudice level of a given state. The study found several states with 75 or more percent of non-blacks more prejudiced than the U.S. average including Texas, Pennsylvania, and a number of formerly covered jurisdictions including Mississippi, Alabama, Georgia, South Carolina, and Louisiana. The Formula Behind the Voting Rights Act, NY Times (NY Times June 22, 2013), online at http://perma.cc/JQ7T-997R (visited Feb 5, 2014). []