Standing and Covert Surveillance

Article by: Christopher Slobogin

42 PEPP. L. REV. 517 (2015)

This Article describes and analyzes standing doctrine as it applies to covert government surveillance, focusing on practices thought to be conducted by the National Security Agency. Primarily because of its desire to avoid judicial incursions into the political process, the Supreme Court has construed its standing doctrine in a way that makes challenges to covert surveillance very difficult. Properly understood, however, such challenges do not call for judicial trenching on the power of the legislative and executive branches. Instead, they ask the courts to ensure that the political branches function properly. This political process theory of standing can rejuvenate the “chilling” arguments that the Supreme Court has rejected in Fourth and First Amendment cases.

Additionally, the theory provides a third, independent cause of action against covert surveillance that is based on separation of powers principles, specifically the notion that, in a representative democracy governed by administrative law principles, one role of the courts is to ensure that the legislative branch authorizes and monitors significant executive actions and that the executive branch promulgates reasonable regulations governing itself. Litigants who can show that their participation in the political process has been concretely compromised by covert surveillance should have standing to bring any of these causes of action.

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The Future as a Concept in National Security Law

Article by: Mary L. Dudziak

42 PEPP. L. REV. 591 (2015)

With their focus on the future of national security law, the essays in this issue share a common premise: the future matters to legal policy, and the law must take the future into account. But what is this future? And what conception of the future do national security lawyers have in mind?

The future is, in an absolute sense, unknowable. Absent a time machine, we cannot directly experience it. Yet human action is premised on ideas about the future, political scientist Harold Lasswell wrote in his classic work, The Garrison State. The ideas about the future that guide social scientific work are rational predictions, he suggested.

If law is premised on ideas about something unknowable, something that can, at best, be a prediction, then it seems important to examine what those ideas, assumptions, and predictions are. This Essay examines future-thinking in prominent works related to national security, including the ideas that the future is “peacetime,” a “long war,” a “next attack,” and a “postwar.” Drawing from scholarship on historical memory and conceptions of temporality, this Essay argues that understandings of the future depend on more than the rational empirical predictions that Lasswell had in mind. The future is a cultural construct that depends, in part, on the way we remember the past. It does not exist apart from the politics and values that inform our perceptions. The future does not unfold on its own. We produce our future through both our acts and our imaginations. Culture matters deeply in this context, for the future we imagine is a well-spring of law.

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The Admissibility of Confessions Compelled by Foreign Coercion: A Compelling Question of Values in an Era of Increasing International Criminal Cooperation

Article by: Geoffrey S. Corn & Kevin Cieply

42 PEPP. L. REV. 467 (2015)

Imagine a defendant is brought to trial in a U.S. district court. Key to the prosecution’s case is the defendant’s confession—a confession extracted by coercive methods used by foreign government agents. That the defendant was subjected to official maltreatment is not in dispute; the U.S. Attorney prosecuting the case concedes that the methods used to extract the confession would certainly qualify as coercion in violation of due process had the agents been U.S. government actors. But, she argues, because the agents responsible for the coercion were officials of another country, the confession is beyond the scope of due process based exclusion and must be admitted. And, while the methods used to procure the confession will certainly raise reliability concerns, she argues that such concerns relate only to the confession’s probative value, and not admissibility. Of course, a prosecutor in this situation is unlikely to offer such a confession without the expectation that it will align with other evidence. Accordingly, exempting such confessions from the scope of due process scrutiny will not only tacitly endorse the official maltreatment of the defendant, but will also likely produce a devastating evidentiary consequence against him. For both these reasons, the defendant moves to prohibit the introduction of his confession. While he is able to provide a compelling factual basis for exclusion—the conceded coercion he was subjected to—his legal basis is far less conclusive.

The prosecution’s concession of coercion would appear to make exclusion an easy call. It is, however, anything but. Indeed, because of the lack of official United States government responsibility for the coercion, it is questionable whether due process bars admission of a confession coerced at the hands of foreign government actors even when offered against the defendant by the United States. Admissibility of such confessions is ostensibly consistent with the Supreme Court’s seminal coercion decision in Colorado v. Connelly. This Article questions whether Connelly actually compels such a pernicious outcome, and argues that no U.S. court should allow the use against a defendant of a confession procured by coercion at the hands of any government official, even those of foreign governments.

It is, of course, impossible to predict how the Supreme Court might rule on the admissibility of evidence of coercive treatment procured by foreign government officials but offered against a defendant in U.S. court. However, it is certainly plausible that the Court will decide that torture and other forms of coercion are so abhorrent as to justify extending exclusion to such confessions—an extension likely to be justified by either due process or self-incrimination analyses or by a combination of both. Connelly may be an obstacle to such an outcome, but it is not insurmountable. In Connelly, the Court declined to apply the due process exclusion to the confession that by all accounts was not the product of Connelly’s free will. But in that case the defendant’s free will was overborne by his own mental illness, making it distinguishable from the issue presented in this Article.

This Article therefore proceeds on a simple and clear premise: a confession extracted by torture or cruel, inhuman, or degrading treatment should never be admitted into evidence in a U.S. criminal trial. Whether accomplished through extending the Due Process or Self-Incrimination based exclusionary rules to foreign official coercion, or by legislative action, such exclusion is necessary to align evidentiary practice regarding confessions procured by foreign agents with our nation’s fundamental values as reflected in the Fifth Amendment and our ratification of the CAT. This outcome is not incompatible with Connelly. Rather, this Article explores the limits of the Court’s language in that case, and the potential of that language in prohibiting the admission of evidence obtained by foreign official coercion. The Article concludes by calling on federal and state courts to exclude statements obtained under such circumstances and encourages Congress to end any uncertainty surrounding this issue by enacting appropriate legislation that prohibits the use of any evidence extracted by torture or by cruel, inhuman, and degrading treatment in criminal trials.

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War, Law, and the Oft Overlooked Value of Process as a Precautionary Measure

Article by: Geoffrey S. Corn

42 PEPP. L. REV. 419 (2015)

Never in recent memory has the relationship between law and war been so central to strategic legitimacy. This has resulted in both positive evolutions of the law of armed conflict (LOAC) and a remarkable increase in interest, understanding, and analysis of this law. No state, or even non-state group, is immune from the increasingly informed critique of its planning and execution of military operations and the quite proper demand that its military personnel comply with LOAC obligations.
Central to the regulation of hostilities are the core LOAC principles of distinction and discrimination. Distinction mandates restricting deliberate attack to only those persons, places, and things that qualify as lawful military objectives pursuant to conventional and customary international law. Discrimination imposes an additional obligation to forego engaging in such an attack whenever the incidental and collateral effects will be indiscriminate, and thereby unjustifiably endanger the civilian population. While Article 51 of Additional Protocol I establishes a three-part definition of indiscriminate for purposes of implementing the discrimination obligation, an “excessive” impact on civilians and civilian property—the so called proportionality rule—is a definitive standard for compliance with the discrimination obligation and is central to debates on the legality of employing lethal combat power during contemporary armed conflicts.

This Article will explain why the precautions obligation should be universally embraced as a core LOAC principle, analogous in significance to those of distinction and discrimination. To support this assertion, this Article will explain the relationship of precautions to both the targeting process and the implementation of those fundamental substantive LOAC principles. This Article will ultimately propose that the true scope of the precautions obligation in the targeting process imposes a more comprehensive obligation than the measure included in Article 57, which is linked to this Article’s ultimate argument: precautions provide the critical link between the planning and execution of combat operations and compliance with the LOAC’s most fundamental targeting regulatory norms, distinction and discrimination.

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Lost in Translation? The Relevancy of Kobe Bryant and Aristotle to the Legality of Modern Warfare

Article by: Rachel E. VanLandingham

42 PEPP. L. REV. 393 (2015)

What do Kobe Bryant, Aristotle, and the continuing U.S. response to the terrorist attacks on September 11, 2001, have in common? President Barack Obama told the New Yorker in early 2014, in response to a question regarding the seeming resurgence of al Qaeda in Syria and Iraq, that “[t]he analogy we use around here sometimes, and I think is accurate, is if a jayvee team puts on Lakers uniforms that doesn’t make them Kobe Bryant.” As this example demonstrates, the Obama Administration and others, in reference to the legality of the use of armed force against al Qaeda and similar groups, have frequently employed an ancient tool of thought dating back to Aristotle—the use of analogies in reasoning.

Reasoning by example, or making legal assessments by highlighting similarities and differences among examples, seems to dominate the Obama Administration’s discussions of the legality of its armed response to al Qaeda and its associates. This is reflected in the above Kobe Bryant example, as well as in high-ranking U.S. government lawyers’ repeated use of the U.S. shoot-down of Japanese Admiral Yamamoto’s plane over the Pacific Ocean during World War II to legally justify today’s lethal targeting of individual al Qaeda members. Yet this method of analogical legal reasoning is not restricted to U.S. government lawyers and other officials when arguing the legality of modern drone strikes. It is a hallmark of legal debates, inside and outside of government, regarding the use of military force against non-state terrorist groups in general since September 11, 2001.

This Article’s primary point is simply that the inherent vagueness in international law and its interpretive methodologies, and the opaqueness particularly resident in the international legal regulation of the use of force against non-state actors, encourage resort to legal interpretation by analogy when addressing post-9/11 law of war issues. Normatively, this Article warns that such an approach should be more transparent and that its use should be infused with greater methodological rigor. This scene-setting discussion leaves substantive analysis of discrete law of war analogies and process recommendations to a future law review article.

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A Proposal for Improving Argument Before the United States Supreme Court

Article by: Louis J. Sirico, Jr.

42 PEPP. L. REV. 195 (2015)

With rare exceptions, the U.S. Supreme Court allots thirty minutes to each side for oral argument. A review of transcripts and recordings of oral arguments confirms that the Court poses questions and makes comments with remarkable frequency. When students and lay people listen to the recordings, they may remark on the constant interruptions and view the Justices as rude interrogators.

With the many questions that the Justices have and the limited time available, the advocates have little opportunity to present their arguments fully. The Justices may interrupt counsel with questions concerning the law or the relevant facts of a case. They may wish to pose hypotheticals. They may wish to present direct or indirect arguments in hopes of swaying a fellow member of the bench. With respect to these questions and hypotheticals, the Justices are asking counsel to think on their feet and may catch counsel unprepared to give a full and accurate response.

This Article offers a simple solution for reducing the overload of questions at oral argument. Justices, individually or collectively, could pose written questions on facts and law to the litigants’ counsel before oral argument and expect written responses.

The submitted questions might inquire about the facts of the case, about the litigant’s interpretation of the relevant law, about the response that the litigant would make to a hypothetical scenario, or about the precise holding that the litigant wishes the Court to propound. The responses should allow for more thought-out answers than oral argument can produce and might both reduce the number of questions that the Justices ask during oral argument and improve the quality of the answers.

The Article places this proposal in historical context by examining how Supreme Court rules on presenting argument have developed—shifting the emphasis from oral argument to written argument. After explaining the value of oral argument and the ways in which courts have tried to deal with the brevity of oral arguments, the Article illustrates the value of the proposal by closely analyzing the oral argument in Kelo v. City of New London.

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