Are Foreign Nationals Entitled to the Same Constitutional Rights As Citizens?

Are foreign nationals entitled only to reduced rights and freedoms? The difficulty of the question is reflected in the deeply ambivalent approach of the Supreme Court, an ambivalence matched only by the alternately xenophobic and xenophilic attitude of the American public toward immigrants. On the one hand, the Court has insisted for more than a century that foreign nationals living among us are persons within the meaning of the Constitution, and are protected by those rights that the Constitution does not expressly reserve to citizens. Because the Constitution expressly limits to citizens only the rights to vote and to run for federal elective office, equality between non-nationals and citizens would appear to be the constitutional rule

Neo-Democracy, National Security, and Liberty

In his new book, Liberty and Security, Conor Gearty, professor of law at the London School of Economics and one of the United Kingdom’s leading authorities on civil liberties and national security, argues that many Western nations are in effect “neo-democracies” that fail systematically to live up to the fundamental egalitarian premises of true democracy, and that this development is seen in particular in the context of counter-terrorism policy. This review assesses that claim, and maintains that while Gearty is correct that many counter-terrorism measures are predicated on double standards, that critique is insufficient to answer the many difficult questions that national security efforts raise, even in the absence of discrimination. Thus, while a universalist critique is an important element in assessing the status of human rights in the context of national security measures, the demand for universal protection of human rights does not answer when a targeted killing might be lawful, or how best to preserve privacy in the digital age from mass surveillance of the sort Edward Snowden has revealed. Gearty’s book perspicaciously identifies a transnational phenomenon and a critical problem in many counter-terrorism policies and practices, but the universalist critique still leaves many questions unresolved

Hanging With the Wrong Crowd: Of Gangs, Terrorists, and the Right of Association

Part I will sketch the current contours of the right of association, a right limited to expressive and intimate association, and will describe the government\u27s attempts to extend this categorical approach by limiting associational protection still further to membership per se. Part II will argue that the Court\u27s limitation of associational rights to expressive and intimate associations and the government\u27s attempt to distinguish association from conduct are unworkable, inconsistent with the Court\u27s own precedents, and fail to reflect the normative reasons for protecting the right of association. Part III will offer an alternative framework for addressing the right of association, borrowing from the Court\u27s jurisprudence with respect to another potentially limitless but critical constitutional right, the right of symbolic speech. I will argue that the focus of a jurisprudence of association ought to be on association, not expression or intimacy, and that it should protect association in its physical manifestations as well as its abstract essence. The critical inquiry should not be whether an association is expressive or intimate, nor whether the individual affected is engaged in conduct or pure association, but rather whether the government\u27s regulation arises from or is targeted at the associational character of the conduct. Where government seeks to regulate conduct without regard to its associational character, its actions should be subject to relaxed review, but where government seeks to regulate conduct because of its associational character, its actions must satisfy heightened scrutiny. Only that approach, which mirrors the Court\u27s jurisprudence of symbolic expression, does justice to the freedom of association

Security and Freedom: Are the Governments\u27 Efforts to Deal With Terrorism Violative of Our Freedoms?

One of the most common things that is said about September 11th is that it changed everything. In some respects, that is true. In the most important respects it would be more accurate to say it has changed everything for some, far more than it has for others. One instance of that can be seen in a pole that National Public Radio did one year after September 11th. They asked people to what extent their life had changed. They asked them whether they had to give up any important rights or freedoms in the war on terrorism. Only seven percent said yes. I think that is a telling statistic. I think the reason for that is we have not, in the wake of September 11th, been forced to ask which of our rights we as American citizens are willing to give up in order to gain more security. The attacks of September 11th have left all of us feeling vulnerable in ways that we were privileged not to have felt before September 11th. There may well be a need to recalibrate the balance of liberty and security. That is not the question our government has asked us. Rather, the question it has asked us is, are you willing to give up their rights and their liberty for your security? The they being the foreign nationals; more specifically Arab and Muslim nationals. That is an easy way to strike the balance between liberty and security for a politician, because foreign nationals have no voice in the political process. Citizens do. So, you put citizen security interests on one side and the liberty interests of a group who has no voice on the other side. You can see where the balance is struck

Turning the Corner on Mass Incarceration?

For the first time in forty years, the national incarceration rate is flattening out, even falling in state prisons. For the first time in three decades, the number of adults under any kind of correctional supervision—in prison or jail or on probation or parole—fell in 2009. At the same time, legal reforms that might have seemed impossible in prior years have increasingly been adopted, reducing penalties for certain crimes, eliminating mandatory sentencing for others, and increasing expenditures for reintegration of prisoners into society. And racial disparities, a persistent and deep-rooted problem in the American criminal justice system, after rising for decades, have begun to drop from their highest levels. This essay examines these trends and asks what might be done to accelerate them. I survey the reforms that states and Congress have adopted and look at the interplay of such reforms with the historic racial disparities that have characterized the criminal justice system. I then speculate about the forces that have contributed to these developments, including drops in crime rates, budget pressures, and, paradoxically, the war on terror. We still have a long way to go. If we are to reduce incarceration in any significant measure, it is essential that legislatures (1) authorize more non-incarceration responses to low-level crimes, especially drug offenses; (2) shorten sentences substantially for crimes generally, to bring them more in line with those of other industrialized nations; and (3) invest in inner-city communities where children face the biggest barriers to achieving law-abiding, productive careers. In the essay’s final section, I discuss strategies that might encourage such developments

Secret Trials

Today, U.S. immigration authorities use secret evidence to lock up immigrants in deportation proceedings, to exclude aliens at the border, and to oppose applications for relief from deportation, including asylum

Terror Financing, Guilt by Association and the Paradigm of Prevention in the ‘War on Terror’

Material support has become the watchword of the post-9/11 era. Material support to groups that have been designated as terrorist has been the U.S. government\u27s favorite charge in post-9/11 terrorism prosecutions. Under immigration law, material support is a basis for deportation and exclusion - even where individuals have been coerced into providing support by the terrorist group itself. And under the Military Commissions Act, it is now a war crime. This essay argues that the criminalization of material support to designated terrorist organizations is guilt by association in twenty-first-century garb, and presents all of the same problems that criminalizing membership and association with the Communist Party did during the Cold War. I first outline the ways in which guilt by association has been revived through the concept of penalizing \u27material support\u27 for organizations labeled terrorist. I then discuss the constitutional questions that these laws present, and sketch how the courts have thus far resolved those questions. In short, the courts have sought to trim the worst excesses of the laws, but have been largely unwilling to confront head on their fundamental infirmity - the imposition of guilt by association without any proof of intent to further any terrorist acts. The essay concludes by explaining how the material support laws fit into the United States\u27 broader paradigm of prevention in confronting the threat of terrorism. That term, coined by former Attorney General John Ashcroft, describes an amalgam of tactics in which the government employs highly coercive and intrusive measures against groups and individuals based not on proof of past wrongdoing, but on necessarily speculative fears about what they might do in the future. The material support laws further this goal by expanding the definition of what constitutes a past crime, just as the Smith Act membership provision of the Cold War era did. These laws are not purely preventive, in that they do require proof of some past wrongdoing. But their expansive definitions of wrongdoing stretch that concept beyond its limits in the name of preventing future harm