Authors: Owen Fiss

A War Like No Other (43 page)

54
. See note 6, above, and accompanying text.

55
. Ibid., § 703 (codified at 50 U.S.C. § 1881b).

56
. 494 U.S. 259 (1990).

57
. Ibid., 274–75.

58
. Ibid., 275 (Kennedy, J., concurring).

59
. Ibid., 276–77.

60
. Ibid., 277–78.

61
. Ibid.

62
. 553 U.S. 723 (2008).

63
. Foreign Intelligence Surveillance Act § 102.

64
. FISA Amendments Act of 2008 § 702 (g)(2).

65
. See, e.g., United States v. Perillo, 333 F. Supp. 914, 919-21 (D. Del. 1971) (citing Alderman v. United States, 394 U.S. 165, 175 n.10 [1969]) (deeming constitutional the government’s use of conversations between the target of surveillance and a third party in a subsequent criminal prosecution of the third party, where the surveillance was conducted pursuant to a warrant applying only to the target of surveillance and the government had made no prior probable cause showing regarding the third party); see also United States v. Kahn, 415 U.S. 143, 157 (1974) (holding that the government’s interception of incriminating telephone calls by the wife of a target of surveillance, and the subsequent use of those calls in a criminal prosecution against the wife, did not violate the Fourth Amendment even though the government had not established probable cause regarding the wife before beginning surveillance).

66
. U.S. Constitution, Fourth Amendment (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . .”).

67
. Ibid. (“[A]nd no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”).

68
. See, e.g., Akhil Reed Amar,
The Constitution and Criminal Procedure: First Principles
(New Haven, CT: Yale University Press, 1998), 31–45; Akhil Reed Amar, “Fourth Amendment First Principles,”
Harvard Law Review
107 (1994): 757, 762, 774. But see Carol S. Steiker, “Second Thoughts about First Principles,”
Harvard Law Review
107 (1994): 820–57.

69
. 389 U.S. 347, 357–58 (1967).

70
. Ibid.

71
. See, e.g., United States v. Edwards, 498 F.2d 496, 499–500 (2d Cir. 1974).

72
. Justice Blackmun introduced the phrase in New Jersey v. T.L.O., 469 U.S. 325, 351 (1985) (Blackmun, J., concurring in the judgment). See also MacWade v. Kelly, 460 F.3d 260, 268 (2d Cir. 2006) (acknowledging that
United States v. Edwards
exemplifies what later came to be known as the “special-needs exception”).

73
. 50 U.S.C. 1881a(a) (2012).

74
. Although the attorney general and the director of national intelligence must ordinarily wait for a judicial order before authorizing surveillance, the 2008 FISA amendments permit the institution of a wiretap without a judicial order where the attorney general and the director determine that “exigent circumstances” exist. Id. § 1881a(c)(2); see also id. § 1881a(a) (granting the attorney general and the director the ability to authorize surveillance). In such cases, the attorney general and the director must submit a certification for the interception within seven days of its commencement, if such a certification is not already pending. Ibid., § 1881a(g)(1)(B).

75
. Ibid., § 1881a(g)(1)(A).

76
. Transcript of Oral Argument at 4, Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013),
www.supremecourt.gov/oral_arguments/argument_transcripts/11-1025.pdf
(remarks of Solicitor Gen. Donald Verrilli, Jr.) (“Your Honor, under the statute, there are two clear examples of situations in which the individuals would have standing. The first is if an aggrieved person, someone who is a party to a communication, gets notice that the government intends to introduce information in a proceeding against them.”); see also ibid., 42–43. As it turned out, however, the notice promised by the solicitor general has seldom been furnished. See Charlie Savage, “Justice Dept. Defends Its Conduct on Evidence,”
New York Times,
February 14, 2014,
www.nytimes.com/2014/02/15/us/justice-dept-defends-its-conduct-on-evidence.html
; Adam Litpak, “A Secret Surveillance Program Proves Challengeable in Theory Only,”
New York Times,
October 29, 2013,
www.nytimes.com/2013/07/16/us/double-secret-surveillance.html
.

77
. 132 S. Ct. 945 (2012).

78
. Ibid., 957–64 (Alito, J., concurring in the judgment).

79
. Ibid.

80
. Ibid., 948 (majority opinion).

81
. Ibid., 949–53.

82
. Ibid., 958, 964 (Alito, J., concurring in the judgment).

83
. Ibid., 964.

84
. Ibid.

85
. Ibid.

86
. Ibid.

87
. Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, § 6001(a), 118 Stat. 3638, 3742 (codified as amended at 50 U.S.C. § 1801(b)(1)(C) [2012]).

88
. See Dombrowski v. Pfister, 380 U.S. 479 (1965).

89
. As discussed earlier, see note 55, above. The Supreme Court in
Berger v. New York,
388 U.S. 41 (1967), declared unconstitutional a New York statute establishing a process to obtain warrants allowing eavesdropping. The Court declared the statute invalid on its face and spoke of its “broad sweep,” ibid., 54, but did not formally invoke the First Amendment overbreadth doctrine.

Chapter 10: The Targeted Killing of Alleged Terrorists

1
. Al-Aulaqi v. Obama, 727 F. Supp.2d 1, 17 (2010).

2
. HCJ 769/02 Pub. Comm. Against Torture in Isr. v. Gov’t of Isr. (PCATI) (December 11, 2005), available at
elyon1.court.gov.il/files_eng/02/690/007/a34/02007690.a34.pdf
.

3
. See chapter 1, “In the Shadow of War.”

4
. See Owen Fiss, “Silence on the Street Corner,”
Liberalism Divided: Freedom of Speech and the Many Uses of State Power
(Boulder, CO: Westview Press, 1996): 47, 51.

5
. Eric Holder, Attorney General, “Speech at Northwestern University School of Law,” March 5, 2012,
www.justice.gov/iso/opa/ag/speeches/2012/ag-speech-1203051.html
.

6
. President Barack Obama remarks that “no civilians will be killed or injured—the highest standard we can set.” Note that the president used the words “killed or injured” rather than “targeted.”

7
. Although Aharon Barak (see note 2, above, paragraphs 41–46) would allow the killing of civilians provided such killings were proportional to the gain to be achieved by the targeted killing, he fashioned this rule for a geographically limited area, specifically the Occupied Palestinian Territories.

8
. Barack Obama, “Presidential Statement on Signing the National Defense Authorization Act for Fiscal Year 2012, 2011,”
Daily Compilation of Presidential Documents,
December 31, 2011, 1, 2 (Obama stated, “I want to clarify that my Administration will
not authorize the indefinite military detention without trial of American citizens”). The National Defense Authorization Act for Fiscal Year 2012 codified and affirmed the policy of imprisonment without trial, but declared that the act was not applicable to American citizens or lawful resident aliens of the United States. See the National Defense Authorization Act for Fiscal Year 2012, Pub. Law. No. 112-81, § 1021(e), 125 Stat. 1298, 1562 (2011). See chapter 6, “Imprisonment Without Trial.”

9
. Owen Fiss, “Between Supremacy and Exclusivity,”
Syracuse Law Review
57 (2007): 187–208.

10
. Obama acknowledged that such an arrangement would raise “serious constitutional issues about presidential and judicial authority.”

11
. In reaching that judgment, Justice Kennedy specifically pointed to the inadequacies of the procedures of the military tribunals set up in Guantánamo to determine the status of prisoners. Kennedy’s willingness to extend the writ of habeas corpus to the Guantánamo prisoners might not constitute an outright rejection of O’Connor’s proposal but only a rejection of the way in which the Department of Defense implemented that proposal. Boumediene v. Bush, 553 U.S. 723, 787–92 (2008).

12
. See chapter 2, “The War on Terror and the Rule of Law.”

13
. 403 U.S. 388 (1971).

14
. Ashcroft v. al-Kidd, 131 S. Ct. 2074 (2011).

15
. See chapter 7, “Torture and Extraordinary Rendition.”

16
. See note 2, above, paragraph 59.

17
. Vieth v. Jubelirer, 541 U.S. 267 (2004).

18
. In addressing the standing issue, Judge Bates considered the possibility of Anwar al-Aulaqi’s “presenting himself to the United States Embassy in Yemen and expressing the desire to vindicate his constitutional rights in U.S. courts.” Bates appreciated that al-Aulaqi might be extremely hesitant to do so for fear that he would be endangering his life. At that point, Bates added that under these circumstances both international and domestic law would “prohibit using lethal force or other violence against him” and cited
Tennessee v. Garner,
471 U.S. 1 (1985) as support for that proposition.
Garner
arose under the Fourth Amendment and in that context indicated that domestic law enforcement officers may use deadly force to prevent the escape of a suspected felon only if the officers have reason to believe that the suspect poses a threat of serious physical harm to themselves or others. Professor Jack Goldsmith pounced on this passage in Judge Bates’s opinion and declared it a minor victory for al-Aulaqi’s lawyers. He read Bates to suggest that there are constitutional limits on the president’s targeting practices and that some of these limits arise from the Fourth Amendment. See Jack Goldsmith, “What ACLU and CCR Won in al-Aulaqi,”
Lawfare,
December 7, 2010,
www.lawfareblog.com/2010/12/what-aclu-and-ccr-won-in-al-aulaqi
; Jack Goldsmith,
Power and Constraint: The Accountable Presidency After 9/11
(New York: W.W. Norton, 2012): 198. As indicated by Holder’s Northwestern speech in March 2012 and Obama’s National Defense University speech in May 2013, the administration fully acknowledges the constraints of the Constitution on their
action, but treats the Fifth Amendment, not the Fourth, as the most relevant source of these constraints. What is disputed is the content of those constraints and who has the authority to formulate them.

19
. Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).

20
. See e.g., “Get the Data: Drone Wars,”
Bureau of Investigative Journalism,
www.thebureauinvestigates.com/category/projects/drones/drones-graphs/
(accessed October 14, 2013); “Drone Wars Pakistan: Analysis,” Year of the Drone Project: New America Foundation,
natsec.newamerica.net/drones/pakistan/analysis
(accessed October 14, 2013); “Air and Drone Wars Yemen: Analysis,” Year of the Drone Project: New America Foundation,
natsec.newamerica.net/drones/yemen/analysis
(accessed October 14, 2013); Bill Roggio and Bob Barry, “Charting the Data for US Air Strikes in Yemen, 2002–2013,”
Long War Journal,
www.longwarjournal.org/multimedia/Yemen/code/Yemen-strike.php
(accessed October 14, 2013); and Bill Roggio and Alexander Mayer, “Charting the Data for US Airstrikes in Pakistan, 2004–2013,”
Long War Journal,
www.longwarjournal.org/pakistan-strikes.php
(accessed October 14, 2013). See also “Numbers,” Living Under Drones: Stanford/NYU Project,
www.livingunderdrones.org/numbers/
(accessed October 14, 2013) (analyzing the various drone strike data aggregators and their methodologies).