In my view, that’s the wrong result. Never before has the government singled out a media outlet and forced its closure, much less one used by half of Americans.  Even if there are legitimate national security concerns raised by the possibility that China may gain access to TikTok’s customer data, there are plainly less restrictive alternatives to protecting those interests than shuttering a platform for expression. And the government’s only other justification for its law – the possibility that China might covertly influence the content that appears on the platform – is per se impermissible under the First Amendment, which does not allow the government to regulate the content of our public debate, even if it believes the ideas expressed are against its interest, and even if they come from abroad.

All that said, how the Court reaches its result may now be more important than the bottom line.

In particular, the Court should reject the government’s principal argument, namely, that the TikTok law is “content-neutral” because it is concerned only with who controls the platform, not the content the platform features. Accepting that rationale would not only harm TikTok, but would weaken First Amendment law across the board. It is vital that the Court recognize that this type of law is content-based.  If it doesn’t the Court will erase important lines that are designed to guarantee freedom of speech for all, while granting the government a powerful censorship tool.

The difference between laws that discriminate on the basis of content and those that are content-neutral is the most fundamental distinction in First Amendment law. That’s because the First Amendment requires the government to remain neutral as to the ideas and messages that make up public debate. Where a law singles out speech because of its content or viewpoint, the risk that the government is impermissibly skewing the debate is at its greatest.

By contrast, when the government enacts laws that are truly agnostic as to content, but simply have some incidental effect on speech, the concern about government manipulation of the marketplace of ideas is much less concerning. Accordingly, the Court has long insisted that where laws on their face draw lines based on content, or where the interest underlying the law is related to the content of speech, strict scrutiny, the Constitution’s most demanding standard of review, applies. Under that standard, the government can prevail only if the law is the least restrictive means to further a compelling interest. By contrast, where laws are content-neutral, a less strong interest can suffice and a looser “fit” between the law’s means and the end is permitted.

The TikTok law is clearly content-based.

The Protecting Americans from Foreign Adversary Controlled Applications Act singles out a particular communication platform out of concern about its content, and exempts other platforms based on their e-commerce content, even though they pose similar data security concerns.  The  government justifies the law as a response to the risk of “covert content manipulation” by China. The United States argues that even though TikTok is a U.S. company, its parent company, ByteDance, is headquartered in Beijing, and therefore subject to Chinese influence. Although China has apparently not done so yet, the government argues that China could coerce ByteDance to configure its algorithm to favor messages that further China’s interests over those of the United States. That justification is inescapably related to the content on the platform, and under longstanding First Amendment law, should trigger strict scrutiny. As Justice Neil Gorsuch said, referring to the government’s explicit interest in content manipulation, “I mean, the word — it’s kind of hard to avoid the word ‘content.’”

But that’s exactly what the United States argues, and a number of justices seemed open to accepting. Solicitor General Elizabeth Prelogar characterized the law as directed “with laser-like focus” at China’s potential control of TikTok, and noted that it does not proscribe any particular message or view. But if the Court were to accept the Solicitor General’s rationale as sufficient to make a law content-neutral, the government would be free to force the removal of owners of any media outlet whose fealty it did not trust.

Justice Samuel Alito made the point by asking the Solicitor General whether her analysis would be different if an American corporation, rather than a foreign corporation, owned TikTok and Congress had mandated its divestiture for the same reasons Congress acted here—namely content manipulation and data security. Prelogar acknowledged such a law would be content-based, but insisted that the TikTok law is different because:

all of the same speech that is happening on TikTok could happen post-divestiture. The Act doesn’t regulate that at all. So it’s not saying you can’t have pro-China speech, you can’t have anti-American speech. It’s not regulating the algorithm. TikTok, if it were able to do so, could use precisely the same algorithm to display the same content by the same users.

But Prelogar could say the same thing about Alito’s hypothetical. As long as the disfavored American corporation divested, the platform could carry all the same content and use the same algorithm. The fact that the government targets an owner rather than any specific message does not make the law any less content-based, where, as the government concedes here, its concern relates to the content that owner might promote.  Controlling ownership is at least as potent a censorship tool as prohibiting particular messages, and maybe even more effective.

The fact that the owner in this case is a foreign company, ByteDance, ought not change whether the law is content-based.  It’s the content TikTok’s American users might see, after all, that animates the law.  In extending speech protection to corporations, even though they are not “natural persons,” the Court long ago ruled that the First Amendment protects “speech,” regardless of its source, in the interest of protecting the rights of listeners as well as speakers.  It also ruled that American citizens have a First Amendment right to receive literature created by a foreign government, even if our government considered it communist propaganda, again for the same reason. Otherwise the government could freely censor the BBC, the Guardian, Oxford University Press, all based in the United Kingdom, or Politico, owned by the German publisher Axel Springer.

The Court should also reaffirm, as it stated as recently as last year’s decision in Moody v. NetChoice, that efforts to control the “mix of content” on social media platforms is at its core, “related to the suppression of free expression.” The Solicitor General sought to distinguish the TikTok law on the ground that the government’s concern is not merely with potential content manipulation, but potential “covert” content manipulation.  But that makes no sense.  Essentially all editorial decisions are covert (including the ones Just Security made in editing this essay), in the sense that the reader of a finished article or watching a newscast is not privy to the countless decisions made about what to cover, what not to cover, and what views to include, promote, or exclude in any expressive product. All content published by any media outlet is the result of “covert manipulation.” That fact hardly makes the government’s interest in controlling ownership of a media platform out of concern about its content somehow content-neutral.

If the Court rules that strict scrutiny applies, but this law satisfies it, that will be a huge loss for TikTok and its 170 million American users. But if the Court accepts the government’s contention that laws targeting owners of media companies are somehow content-neutral because they don’t literally specify particular messages to prohibit, the First Amendment and press freedoms more broadly would be the losers.

The post How Not to Decide TikTok: U.S. press freedom hangs in the balance appeared first on Just Security.

As I’ve written before, Trump has repeatedly made crystal clear his intent to ban Muslims from entering the United States.  As a candidate, he stated several times that he intended, if elected, to ban Muslim immigrants from entering the United States.  He has never repudiated that commitment. When confronted with the fact that his proposal would violate the Constitution, Trump said on NBC’s Meet the Press in July, that he would use territory as a proxy for religion.  And, when asked after his election victory whether he still intended to ban Muslim immigrants from the United States, President-elect Trump confirmed that was still his plan. Two days after the original Executive Order was issued, former NYC Mayor Rudy Giuliani, an advisor to President Trump, stated that then-candidate Trump had asked him for help in “legally” creating a “Muslim ban”; and that, in response, Mr. Giuliani and others decided to use territory as a proxy; and that this idea is reflected in the signed Order. There is overwhelming evidence that the most recent Executive Order was likewise intended to discriminate against Muslims.

First, it continues to target only countries that are predominantly Muslim.  All of the six countries targeted by the immigration ban are over 90 percent Muslim.  Second, it does so without a valid security justification.  Trump’s own Department of Homeland Security recently concluded that an individual’s “country of citizenship is unlikely to be a reliable indicator of potential terrorist activity” and that “few of the impacted countries [under the EO] have terrorist groups that threaten the West.” Third, on February 21, White House advisor Stephen Miller explained that any changes to the first executive order would be “mostly minor, technical differences….Fundamentally, you are still going to have the same, basic policy outcome for the country.” Exempting lawful permanent residents, and others with visas, does nothing to alter the purpose or design of disfavoring a specific religion.  

So the new executive order is, like the old executive order, intended to target Muslims. That intent violates the first principle of the Establishment Clause, which forbids the government from singling out particular religions for favor or disfavor (Larson v. Valente, 456 U.S. 228, 247 (1982)).  The fact that the government has repackaged the ban does not alter its intent or effect – to target members of a particular religion.  And the purported national security justifications for doing so have been refuted by none other than the DHS itself. 

The executive order has other flaws as well.  For example, it maintains the first executive order’s unilateral reduction to the annual level of refugee admissions, cutting it from 110,000 to 50,000.  That reduction, imposed unilaterally by the president without consultation with Congress, is unauthorized.  The immigration statute does not allow the president to order a mid-year reduction in the level of refugee admissions—an action no president has ever done before—much less to do so without consulting Congress. To the contrary, it states expressly that the “number of refugees who may be admitted” in a particular fiscal year “shall be such number as the President determines, before the beginning of the fiscal year and after appropriate consultation, is justified by humanitarian concerns or is otherwise in the national interest.”  8 U.S.C. § 1157(a)(2).  The Republicans objected strenuously to President Barack Obama’s allegedly unilateral decision not to prioritize the deportation of certain undocumented people here.  But Obama was exercising prosecutorial discretion expressly granted to him.  In unilaterally reducing the annual level of refugees admitted to the US, at a time of virtually unprecedented world need for refugee placements, Trump is not only acting unilaterally, but in violation of the statute that establishes the process for setting the cap in the first place.

President Trump, we’ll see you in court.

Image: Chip Somodevilla/Getty

The post We’ll See You in Court, 2.0: Once a Muslim Ban, Still a Muslim Ban appeared first on Just Security.

In both respects, the Executive Order violates the “clearest command of the Establishment Clause.”  First, as I developed in an earlier post, the Constitution bars the government from targeting Islam.  One of the lowest of many low moments in Donald Trump’s presidential campaign was his December 2015 call for a “total and complete shutdown” of Muslim immigration.  The proposal treated as presumptively suspect a religion practiced by about 1.6 billion people worldwide, nearly a quarter of the globe’s population. Trump soon retreated to talk of “extreme vetting,” but never gave up his focus on the religion of Islam.  Friday’s executive orders are of a piece with his many anti-Muslim campaign promises.

As I wrote earlier, one of the critical questions with respect to the validity of executive action challenged under the Establishment Clause is its intent and effect; if intended to disfavor a particular religion, it violates the Establishment Clause. Here, there is copious “smoking gun” evidence that the President intended to disfavor Muslims on the basis of their religion.  It includes:

• On December 7, 2015, the Trump campaign issued a press release stating that “Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.”
• In July 2016, he effectively admitted that his revamping of the proposal was designed to target Muslims without expressly saying so. In an interview on “Meet the Press: with NBC’s Chuck Todd,” Trump said he would target immigrants from certain countries, but resisted the suggestion that this was a retreat from his proposal to target Muslims. “I actually don’t think it’s a rollback. In fact, you could say it’s an expansion… People were so upset when I used the word Muslim. Oh, you can’t use the word Muslim. Remember this. And I’m OK with that, because I’m talking territory instead of Muslim.”
• In November 2015, Trump told NBC News he “would certainly implement” a database to track Muslims in the United States … “I would certainly implement that. Absolutely.” Would Muslims be legally required to register? “They have to be — they have to be,” Trump replied.
• In March 2016, Trump said, “Frankly, look, we’re having problems with the Muslims, and we’re having problems with Muslims coming into the country.”

Nor is this mere campaign rhetoric.  In signing the executive order on Friday, Trump pledged to “keep radical Islamic terrorists out of the United States of America.”  Not “terrorists.”  Not “radical terrorists.” But only “radical Islamic terrorists.”   Of course we should be keeping terrorists out, but why limit our concern to those of one faith?

Second, the flipside of the order, equally invalid, is that it is intended, as Trump candidly admitted on Christian Broadcast News, to favor Christians fleeing persecution over others.  Here, too, Trump has violated the Establishment Clause’s “clearest command.”  Christians suffering persecution deserve asylum, but so do Muslims suffering persecution, and Buddhists, and Jews, and Sikhs, and Zoroastrians.  There is no legitimate reason to favor Christians over all others who are persecuted for their beliefs.

The executive order, of course, does not say in express terms that it is favoring Christians and disfavoring Muslims. But Trump is the signatory, and he has said so explicitly. Moreover, even absent that evidence of Trump’s invidious intent, the order on its face favors refugees from “minority religions” over those from “majority religions” in any given country. That distinction independently violates the principle of denominational neutrality, even if in some countries it means we will be privileging Christians and in other countries Muslims.  The law struck down in Larson v. Valente did not name any particular denominations, but simply imposed differential registration and reporting requirements on religions that received more than half of their total contributions from members, and those that did not.  Even though the law did not single out a specific religion by name, it failed to treat all denominations the same, and therefore violated the Establishment Clause.  Thus, even if Donald Trump hadn’t admitted his unconstitutional purpose on TV, the executive order would be unconstitutional.

The notion that it is improper to use religious litmus tests at the border has wide appeal.  When Trump initially proposed his Muslim ban in December 2015, Senator Pat Leahy introduced a resolution expressing “the sense of the Senate that the United States must not bar individuals from entering into the United States based on their religion, as such action would be contrary to the fundamental principles on which this nation was founded.”  It passed 96-4.  (Jeff Sessions, Trump’s nominee for Attorney General, was one of the four holdouts).  It will be interesting to see whether the Republicans continue to oppose religious discrimination now that it’s the official policy and practice of their President, not just the proposal of a a maverick candidate.

The ACLU has already filed suit to challenge the Executive Order, working with the International Refugee Assistance Project at the Urban Justice Center, the National Immigration Law Center, Yale Law School’s Jerome N. Frank Legal Services Organization and the firm Kilpatrick Townsend & Stockton.  The suit was filed on behalf of two Iraqi refugees stopped at John F. Kennedy International Airport on the authority of the Executive Order, and argues that the order violates due process, equal protection, international law, and immigration law.  We are also preparing an Establishment Clause challenge.  As we told President Trump two days after he was elected, if he pursues the many unconstitutional measures he proposed during the campaign, “we’ll see you in court.”

[Editor’s Note: Be sure to check out Just Security‘s complete coverage of these issues, and stay tuned for more soon.]

Image: President Donald Trump sits during a meeting to sign executive orders in the Hall of Heroes at the Department of Defense on January 27, 2017 – Getty

The post We’ll See You in Court: Why Trump’s Executive Order on Refugees Violates the Establishment Clause appeared first on Just Security.

As a candidate, Donald Trump notoriously called for a ban on the entrance of all Muslims, a database to track Muslims in the United States, for aggressive surveillance of “the mosques,” and for closing down mosques. When many pointed out that such religiously targeted enforcement actions would be unconstitutional, he began talking instead about “extreme vetting” – apparently not getting that what the Constitution forbids is selective targeting of a religious group, regardless of the type of burden imposed. Now that he’s President-elect, his transition team is reportedly discussing requiring immigrants from Muslim-majority countries to register with the immigration authorities. Reince Priebus said on “Meet the Press” Sunday that “we’re not going to have a registry based on a religion.” But this is semantics; the transition team is reportedly planning just that, only under the guise of focusing on countries that happen to be majority Muslim. Kansas Secretary of State Kris Kobach, a virulently anti-immigrant hard-liner who introduced a similar registration scheme when he worked for President George W. Bush, is now working with the Trump transition, and told Reuters that the team was discussing reviving the registration scheme, which President Obama had ended in 2011. Kobach maintained that because the program he was discussing would be focused not on religion, but on countries that have a terrorist presence, the scheme would survive constitutional challenges. But there’s a huge difference between what Bush did and what Trump is proposing. Bush’s scheme had a disparate effect on Muslims, but there was no evidence that Bush himself had adopted it to target Muslims. Trump, by contrast, has left a long trail of smoking guns making clear his anti-Muslim intent. 

When executive action is challenged as targeting religion, the critical question is intent: If the government can be shown to have intentionally targeted a religious group, its actions violate the Free Exercise Clause. The law need not name the religion by name. It is enough to show that an anti-religious intent was at play. As with race or sex discrimination, if the government takes action that appears neutral on its face but was adopted for the purpose of singling out a racial minority, it is subject to stringent scrutiny and virtually always invalid.

In Church of Lukumi Babalu Aye v. City of Hialeah, for example, the Supreme Court in 1993 struck down a local Florida ordinance banning animal sacrifice because it found that the laws were triggered by animus against the Santeria religion, an Afro-Cuban sect that had recently moved into Hialeah and practiced animal sacrifice. The law did not mention Santeria on its face, but the surrounding circumstances made it clear that its intent was to single out that religion.

Of course, it is often difficult to prove improper intent. Even where they might be acting for impermissible purposes, the architects of a program rarely admit it outright. As a result, the Supreme Court has ruled that circumstantial evidence can support a finding of unconstitutional intent – things like the history of the act, its impact, the sequence leading up to its adoption, any unusual departures from business as usual, etc.

So what’s the evidence on Trump? It’s almost too numerous to detail, but here’s a sampler.

• On December 7, 2015, the Trump campaign issued a press release stating that “Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.”
• In July 2016, he effectively admitted that his revamping of the proposal was designed to target Muslims without expressly saying so. In an interview on “Meet the Press: with NBC’s Chuck Todd,” Trump said he would target immigrants from certain countries, but resisted the suggestion that this was a retreat from his proposal to target Muslims. “I actually don’t think it’s a rollback. In fact, you could say it’s an expansion… People were so upset when I used the word Muslim. Oh, you can’t use the word Muslim. Remember this. And I’m OK with that, because I’m talking territory instead of Muslim.”
• In November 2015, Trump told NBC News he “would certainly implement” a database to track Muslims in the United States … “I would certainly implement that. Absolutely.” Would Muslims be legally required to register? “They have to be — they have to be,” Trump replied.
• In March 2016, Trump said, “Frankly, look, we’re having problems with the Muslims, and we’re having problems with Muslims coming into the country.”

The Trump team has even sought to defend its proposed plan to target Muslims by citing the Japanese internment of World War II (which in itself is another admission that the registry is not simply based on geography but religion and descent). In November, Carl Higbie, a spokesman for the pro-Trump Great American PAC, argued that a registry of immigrants from Muslim countries would pass constitutional muster, citing the internment of Japanese-Americans during World War II. But Korematsu v. United States, the case that upheld the Japanese internment, is more an anti-precedent than a precedent. As of 9/11, every justice on the Supreme Court except David Souter was on record condemning the decision. Congress ultimately issued a formal apology for the wrong and paid reparations. When Trump supporters have to resort to citing a decision like Korematsu, it only underscores how dubious their proposals really are.

Others, including law professors Eric Posner and Eugene Volokh, have argued that the “plenary power” doctrine would permit an immigration measure targeted at Muslims. To be clear, Posner and Volokh think such a proposal would be “stupid and offensive,” and “a very bad idea,” respectively, but not unconstitutional. In their view, “plenary power” trumps all, so to speak. But theirs is a vast overreading of the doctrine, which grants the political branches broad discretion over who may enter the United States. It is true that in the 19^th century the Supreme Court cited “plenary power” to permit the exclusion of Chinese immigrants, and that the doctrine has often been cited to exclude foreigners based on nationality and political associations. But while the power over immigration is broad, the Court has also insisted, in Carlson v. Landon, that “this power is, of course, subject to judicial intervention under the ‘paramount law of the constitution.’” The plenary power is not a blank check. And of course, surveilling and closing mosques is not an exercise of immigration authority, and would directly burden the rights of citizens.

What is more, the fact that the Court has been lenient with respect to nationality distinctions in immigration law governing admission does not mean it would tolerate religious distinctions even at the border. It is difficult to imagine how one might regulate immigration without making nationality-based distinctions, and our immigration laws have long drawn such lines. We have different visa rules for immigrants and visitors from different countries, and we not infrequently adopt country-specific immigration rules to address particular problems, such as a refugee crisis in a particular country. So making distinctions on the basis of nationality is intrinsic to immigration. But it is another thing entirely to use the immigration power to target people of a specific religion. We have no history of doing so and no legal precedent allowing it. There is simply no reason why religion should be relevant to immigration.

Moreover, under the Establishment Clause, which protects all of us from government actions favoring or disfavoring particular religions, the government is precluded from taking actions that make people of a particular religion feel that they are outsiders, especially once they are in the country. This is why it is unconstitutional, for example, for a city to display a Christian cross; it makes those who are not Christian feel excluded. If citizens have a constitutional right to object to the mere display of a cross because of the message it sends, surely they have at least as strong a right to object to a policy that treats Muslim human beings as suspect based on nothing more than their religious identity.

It’s true that President Bush’s special registration program, targeted at 25 majority-Muslim countries and North Korea, withstood constitutional challenge. (The courts relied on the history of drawing distinctions based on nationality cited above). Special registration was eventually scrapped not because courts declared it unconstitutional but because DHS itself found that it was a counterproductive waste of resources: it generated no terrorist convictions and caused widespread resentment in the very communities with which law enforcement sought to work to identify potential terrorists.

But under President Bush, there was no smoking gun evidence that the program was intentionally targeted at Muslims. It had that effect, but effect alone is rarely alone to demonstrate intent. With Trump, by contrast the evidence of anti-Muslim intent is overwhelming. Imagine that as a candidate, Trump had announced plans to ban the admission of blacks, create a national database of blacks, and investigate black churches, and then, upon election, instituted a registration requirement for immigrants from African countries. Would anyone doubt that his action was based on racial animus? Trump’s targeting of Muslims is just as blatant—and just as unconstitutional.

The post Why Trump’s Proposed Targeting of Muslims Would be Unconstitutional appeared first on Just Security.

So it has come to this. In yesterday’s New York Times, David Rieff, a human rights skeptic, argued that in light of continuing terrorism across the world, Western democracies have only two choices: “either the wall Mr. Trump wants to build and the mass deportations that many right-wing European politicians have begun calling for, or a vast expansion of the national security apparatus.” The latter, he continued, “would require serious increases both in budgets and personnel and in the methods at their disposal.” It would also require sacrificing “a certain amount of our humanity,” although he did not specify which aspects of “our humanity” he would sacrifice. Absent such a “vast expansion,” Rieff maintains, the people will opt for the draconian approaches pressed by Trump and other right-wing demagogues. We must give the security forces more power if we are to deny Donald Trump power. There are no other options.

This is a remarkably dangerous argument. It comes on the heels of the Republican convention, in which Trump did all he could to fan the flames of fear, and immediately before the Democratic convention, in which Hillary Clinton will set forth her national security vision. Rieff is right that Trump’s fear-mongering cannot simply be ignored or dismissed. It demands a response. But Rieff’s solution – an unspecified but “vast” expansion of the national security state – is no different from Donald Trump’s wall. It is, on the one hand, a dramatic piece of theater, designed to make the masses think that the government is doing something. And at the same time, it is patently ill-conceived, and fails for the same reasons the wall would fail – it favors simple dramatic “solutions” over measures that address the full complexity of the issue. And most disturbingly, it concedes rather than challenges the fear-mongering, thus playing on Trump’s turf.

What would the “vast expansion” of the security state consist of, and what would it get us? Rieff offers no particulars. He does not explain in what ways the security apparatus would be extended, or what new methods it would employ. Nor does he offer any evidence that it would stop the kinds of terrorist attacks that have become increasingly common, namely those in which an individual or small group not connected to an organized terrorist group kills as many people as possible without notice. Orlando, Nice, and San Bernardino are examples. There is simply no guarantee that even a vastly expanded security apparatus would have identified these individuals before they acted. And if they did, what could they have done, as the individuals had done nothing illegal? Moreover, as Rieff acknowledges elsewhere in the piece, it is simply impossible to secure all public places from the suicidal actions of deranged individuals.

Rieff never explains how he has determined that the considerable resources already dedicated to the national security state are inadequate—other than by noting that attacks, which he concedes cannot be stopped, continue. According to a 2013 Washington Post report based on leaked intelligence documents, the United States spent more than $500 billion on antiterrorism measures in the first twelve years after 9/11. What makes Rieff think this is insufficient? What would be sufficient? And how would he measure sufficiency, if, as he concedes, no state can stop all terrorist attacks? It makes perfect sense to buttress security where there is a specific showing of inadequacy, a sound basis to believe that additional measures will make us safer, and a determination that the benefits outweigh the costs. But those decisions need to be made at retail, not wholesale.

Meanwhile, the costs of Rieff’s approach would be considerable. He concedes that a “vast expansion” would entail some unspecified sacrifice to “our humanity,” but dismisses that concern as inevitable in wartime. He does rule out torture, military dictatorship, and a war of civilizations, but that leaves lots to sacrifice—such as privacy, freedom of speech, the right of association, freedom of religion, equality, and physical liberty. Again, which of these aspects of our humanity does Rieff want to give up? He does not say. And Rieff neglects entirely another significant cost of such an expansion – it would necessarily divert resources from society’s many other needs, including education, economic development, and ordinary criminal law enforcement—all of which have a greater impact on our long- and short-term security than terrorism.

Finally, Rieff’s argument accepts the premise of Trump’s fear-mongering. But the premise is deeply flawed. As disturbing as terrorist attacks are, they pose far less risk to Americans than demagogues like Trump want us to believe. In fact, the odds of an American dying in a terrorist attack are something like one in 20 million. We are more likely to be killed in a traffic accident, by ordinary gun violence, from post-surgery complications, or even by a lightning strike.

A responsible leader (or pundit, for that matter) would not simply respond to Donald Trump by saying, “I’ll see you and raise you one.” He or she would explain that countering terrorism, like fighting crime, requires a multitude of approaches, and is not susceptible to simple solutions like walls or “vast expansions” of the security state. He or she would support specific security measures where they could be shown to be defensible, but would not simply call for expansion for expansion’s sake. And he or she would remind Americans that our values include respect for individual dignity, privacy, equality, and fundamental freedoms; that these values entail living with some risk; and that in the end they are a source of strength, not weakness. Sacrificing those values without clear showings of necessity undermines not only the character of the society we live in, but plays into the terrorists’ hands, by delegitimizing our efforts and fueling sympathy for our enemies. And he or she would explain that if a “vast expansion” would entail substantial sacrifices in our most important values, divert funds from more pressing concerns, and do little to make us safer, it’s just as wrong-headed as Donald Trump’s wall.

Very shortly after 9/11, I appeared on a panel at the Open Society Institute in New York City with the late Susan Sontag, who is David Rieff’s mother. She warned that we must resist the temptation to label the fight against terrorism a “war.” At the time, I didn’t quite get it. What difference would a label make, I thought. The fifteen years since have borne out Sontag’s prescience. Rieff’s “Long War on Terror” is only the latest piece of evidence that Sontag was right.

The post Donald Trump’s Wall, David Rieff’s Long War, and the Dangers of Fear-Mongering appeared first on Just Security.

He is also the reason I became a lawyer. He took me under his wing at CCR when I was a law student pretty sure I never wanted to practice law, and showed me that it could be done with grace, passion, creativity, and courage.

I wrote this about him for The Nation.

The post Michael Ratner, RIP appeared first on Just Security.

As Europe reels in reaction to the terrorist bombings in Brussels, amid warnings of future attacks, one thing is certain: Government officials on both sides of the Atlantic will respond with proposals to abandon basic principles of civil liberties and human rights. After the Paris attacks in November 2015, French President François Hollande declared war and imposed a state of emergency that remains in effect to this day. After the Brussels attacks, Senator Ted Cruz recommended patrolling all Muslim neighborhoods in the United States, and Donald Trump urged torture of suspected terrorists.

The pattern is all too familiar. We saw it in the US in World War I, when anti-war protestors were jailed for years; in World War II, when 110,000 US citizens and residents of Japanese descent were interned; and after the September 11, 2001 attacks, when thousands of Arab and Muslim men with no connections to terrorism were nonetheless detained, and many deported. In hindsight, we recognize that government officials overreacted and unjustly trampled on political freedoms and rights. But how do we restore some sense of balance in the wake of terrorist attacks?

It’s been nearly 15 years since 9/11, and the US is still engaged in practices of questionable legality. Nearly one hundred men are still detained at Guantánamo, the Obama administration regularly employs armed drones to kill suspects in faraway places by remote control, and the NSA continues to collect massive amounts of data about the private lives of wholly innocent persons.

At the same time, it’s important to acknowledge that the situation has improved dramatically. And indeed, it did so even before President Obama succeeded George W. Bush. By the time Bush left office, his administration had released over five hundred men from Guantánamo, transferred all detainees out of the CIA’s secret prisons, suspended its use of torture as an interrogation tool, halted extraordinary renditions of terrorism suspects to countries for purposes of torture, afforded Guantánamo detainees access to lawyers, and placed its previously unilateral and warrantless wiretapping program under judicial supervision. And none of these measures were undertaken pursuant to court order.

What, then, brought about these changes? We know from their memoirs that neither President Bush nor Vice President Dick Cheney has any regrets about the measures they put in place after 9/11. Yet by the time they left office, they had significantly curtailed or abandoned nearly all of them. In my new book, Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law, published this week by Basic Books, I ask what led the Bush administration to reform substantially its counterterrorism practices My answer: the credit lies with civil society, as much if not more than the separation of powers, judicial review, and the formal checks and balances of constitutional government.

When civil liberties and human rights groups formulated their initial responses to the “war on terror,” they had little reason for optimism. Michael Ratner of the Center for Constitutional Rights, who filed the first habeas petition challenging Guantánamo detentions, Rasul v. Bush, told me he considered the case “completely hopeless.” And for good reason. As a matter of history, presidents had been free to do whatever they deemed necessary to respond to national security crises, especially concerning “the enemy” or their supporters. The Supreme Court sustained the criminal convictions of anti-war protesters in World War I and the internment of Japanese Americans in World War II, and did not intervene to protect the rights of suspected Communists in the Cold War until after the Senate had censured Joe McCarthy and McCarthyism was on the wane. The “steel seizure case,” Youngstown Sheet & Tube Co. v. Sawyer, is notable principally as the exception that proves the norm, and in any event involved domestic labor relations, not the president’s power to deal with “the enemy.” The closest precedent on point to the Guantánamo case was Johnson v. Eisentrager, which had denied habeas jurisdiction to German prisoners of war in World War II. And the Supreme Court that heard the first Guantánamo case was no foe of the Bush administration; indeed, it had installed Bush in office by blocking the Florida recount in the 2000 presidential election.

Yet to nearly everyone’s surprise, the Supreme Court ruled that the Guantánamo detainees had a right to judicial review of the legality of their detentions — initially, in Rasul, on statutory grounds, but four years later, in Boumediene v. Bush, on constitutional grounds, after Congress had expressly denied habeas jurisdiction to the detainees. What explains these decisions? In my view, the results were driven more by forces outside the Court than by the arguments presented to the Court.

Doctrine certainly did not dictate the outcome in either case. The Court in Rasul relied principally on a statutory argument that the petitioners barely advanced. And Boumediene marked the first time in the Court’s history that it extended constitutional rights to foreign nationals outside our borders. But by the time the Court decided the cases, a variety of initiatives outside the Court had framed the disputes as pitting the rule of law vs. lawlessness — and given that choice, it’s not so surprising that the Court chose the rule of law.

Some of the most important work involved transnational advocacy, designed to bring pressure to bear on foreign governments, so that they would in turn lobby the Bush administration for change. Clive Stafford Smith of Reprieve, a UK-based organization, worked with Ratner and Gareth Peirce, a legendary British defense lawyer, to bring attention to the plight of the British detainees held at Guantánamo. They filed a hopeless habeas suit in the UK, in which a British court, while understandably denying relief as it had no authority over Guantánamo, nonetheless expressed grave concern lest the detainees be deprived of all judicial review, essentially encouraging the US courts to exercise jurisdiction. Stafford Smith and Peirce objected to the kangaroo-court process the Bush administration proposed to use in a military trial against one of their clients. They generated constant press coverage, and ultimately created so much public pressure that Prime Minister Tony Blair had to reverse his initial pro-Bush position and demand the British detainees’ return. Shortly thereafter, three British detainees, known as the “Tipton Three,” became the first to be released from Guantánamo.

Upon their release, Gareth Peirce worked with the Tipton Three to recount the abusive treatment they suffered at the hands of their captors, offering graphic depictions of torture and cruel interrogation tactics. The British press covered these accounts in detail just one month before the US Supreme Court heard oral argument in Rasul. Even though Rasul itself had nothing to do with torture, at oral argument, Justice Ruth Ginsburg specifically asked about it. Paul Clement, representing the administration, assured the Court that the US doesn’t torture. That very week, The New Yorker and CBS’s 60 Minutes II published the photographs of prisoner abuse from Abu Ghraib, depicting many of the practices the Tipton Three had described suffering at Guantánamo.

Stafford Smith and Reprieve repeated this tactic in the countries of origin of many of their 85 detained clients at Guantánamo, and ultimately won release of more than 70 of them — not one by virtue of a court order. More broadly, human rights groups worked with foreign governments, officials, and institutions to bring criticism to bear on the Bush administration’s counterterrorism initiatives. Lord Steyn, a former British Law Lord, called Guantánamo a “legal black hole.” More than one hundred members of Parliament filed an amicus brief in the Rasul case. And European institutions and officials harshly condemned the extraordinary rendition program. Over time, these criticisms took their toll. Several former Bush security officials, including Ambassador Dan Fried, NSC and State Department legal advisor John Bellinger, and Matt Waxman, who worked on detainee affairs for the NSC, the Defense Department, and the State Department, told me that the criticism of foreign government criticism played an important part in convincing the Bush administration to curtail many of its practices in its second term. As Fried said, “We were getting beaten up for our unilateral policies all over the world, especially on Guantánamo. We were taking shots every day. … It got in the way of getting anything done.”

Another civil society initiative that helped frame the Guantánamo cases began years before 9/11, in the aftermath of World War II. When the Supreme Court upheld the conviction of Fred Korematsu for failing to report for internment, civil liberties groups refused to accept the decision as final. Japanese American groups and the ACLU advocated for decades to “reverse” the decision in the eyes of history. More than 40 years later, in 1988, President Ronald Reagan signed the Civil Liberties Act, which formally apologized for the internment, and paid reparations of $20,000 to each survivor. When the Supreme Court took up the Rasul case, the Brennan Center for Justice filed an amicus brief on behalf of Fred Korematsu himself, asking the Court not to make the same mistake again. Civil society’s hard-fought historical reversal of Korematsu cannot help but have been on the Justices’ minds as they addressed whether to defer to President Bush’s assertion of unchecked executive power.

In Engines of Liberty, I recount these and many other campaigns, most of them undertaken outside the federal courts, as examples of how executive power was curbed in the wake of 9/11. I argue that especially in times of crisis, when formal checks on executive power are likely to be compromised, those who value civil liberties and human rights must seek out alternative forums for their campaigns. There remains plenty to be critical about in US counterterrorism policy, especially with respect to secret targeted killing of suspects far from any battlefield. But absent work of civil society, we would undoubtedly be much worse off. And when one compares US practices in the first couple years after 9/11 with those in place at the end of the Bush administration, much less today, civil society has much to be proud of.

Precisely because the formal separation of powers is often so anemic in the face of national security crises, human rights and civil liberties groups play a critically important role in preserving constitutional guarantees in this sphere. But the point is a more general one. Engines of Liberty also examines the two most successful domestic constitutional rights campaigns of recent years — that of gay rights groups for marriage equality, and that of the National Rifle Association for an individual right to bear arms. In both settings, citizens with a particular constitutional vision not reflected in existing doctrine worked through associations to lay the ground for constitutional transformation. As with the civil liberties and human rights groups, the lion’s share of the NRA’s and the gay rights advocates’ advocacy took place outside the federal courts. And as with civil liberties after 9/11, so with marriage equality and the right to bear arms, the course of constitutional law and practice was determined more by civil society than by the courts.

The post Engines of Liberty: How Civil Society Helped Restore Constitutional Rights in the Aftermath of 9/11 appeared first on Just Security.

If the goal of the Islamic State terrorists who launched a brutal and cold-blooded attack on hundreds of innocent civilians in Paris was to spread fear and induce overreaction, they have plainly succeeded. The attacks, which brought to the heart of Europe the sorts of horrific calamities that have become all too frequent in Iraq, Syria, Afghanistan, Pakistan, and North Africa, have triggered predictable responses, not only from the French, but from American politicians as well. While the French reaction is understandable, if misguided, too many of the American responses appear to be no more than sheer political opportunism. Both sets of reactions are almost certain to be viewed in the light of history as overreaching. With the exception of President Obama, who has refused to stoop to fear-mongering, it seems that very few of us on either side of the Atlantic have learned from our past mistakes.

When al-Qaeda terrorists hijacked airliners and flew them into the World Trade Center and the Pentagon 14 years ago, we, too, overreacted. The Bush administration promptly declared a global “war on terror.” It authorized the NSA to conduct warrantless wiretapping in violation of a criminal statute, and directed the CIA to disappear terrorism suspects into secret prisons in order to subject them to torture and inhumane interrogation tactics. It okayed the CIA to abduct other suspects and render them to foreign countries that its own State Department had condemned for using torture as an interrogation tool. And it asserted the right to use wartime powers for detention of “enemy combatants,” while refusing to abide by the limits the laws of war place on such detentions.

At the time, much of Europe, including France, was highly critical of the US response. One of the most common complaints was that a “war on terror” is fundamentally ill-conceived. Terrorism is a criminal problem, critics maintained, and declaring war only gives the terrorists what they want — status as warriors, rather than brutal criminals. (The French, of course, have their own history of overreaching, in particular in the deployment of collective responsibility and torture in opposing Algerian independence.)

Yet one day after the Paris attacks, French President François Hollande declared a war on terrorism. At the same time, he sought — and has received — extraordinary emergency powers from the French National Assembly. They include the authority to ban radical groups, suppress websites that glorify terrorism, conduct searches and arrests without warrants, and impose house arrest and electronic ankle bracelets on suspects not convicted of any crime. President Hollande also wants, and will probably get, the power to strip French citizenship from dual nationals who are deemed security threats in order to expel them. In just the first week following the Paris attacks, French authorities carried out more than 414 raids, arrested 64 people, and placed 118 under house arrest. One raid, in the Paris suburb of St. Denis, resulted in the death of the man suspected of being the mastermind of the Paris attacks. But it remains to be seen how many of the other raids, or individuals rounded up, are in any way connected to terrorism.

If history is any guide, nearly all of those targeted will be Muslim — but few if any will be terrorists. In the wake of the 9/11 attacks, the Bush administration rounded up thousands of Arab and Muslim foreign nationals in the United States on pretextual immigration charges and subjected them to lengthy preventive detention while it investigated them; none turned out to be terrorists. In 1919, when terrorist bombs exploded in eight different cities in the United States on the same day, the Justice Department responded by using immigration powers to round up and deport thousands of foreign nationals — not for their involvement in the attacks, but for their alleged connections to the Communist Party. None was ever charged with the bombings. And in World War II, President Franklin Delano Roosevelt authorized the internment of over 110,000 Americans and foreign nationals, solely because of their Japanese ancestry. Again, none was convicted of espionage or sabotage, the ostensible reason for the internment order.

These measures are driven by an understandable concern to prevent the next attack in times of crisis. But when it’s not evident where the next attack might arise, government officials inevitably reach more broadly than necessary, sweeping up countless persons whose only “crime” is to be of the same nationality, ethnicity, or religion as the suspects. And in the long run, such responses often do more harm than good, alienating the very communities with which the authorities need to develop healthy ties if they are to have a chance at identifying potential problems before they manifest themselves in another attack. New York City’s Police Commissioner Bill Bratton ended the NYPD’s controversial program of monitoring mosques and Muslim businesses when he took office, and recently asserted that “not one single piece of actionable intelligence ever came out of that unit in its years of existence.” But that program has caused deep distrust in the Muslim communities of New York and New Jersey.

While the French overreaction may be comprehensible, if misguided, the reactions of American politicians are not. Republican Presidential candidates have fallen over themselves to advance the most xenophobic and bigoted responses. Ben Carson compared potential terrorists to “rabid dogs,” and urged screening of all Syrian refugees — even though refugees are already more carefully screened than any other foreign national seeking entry to the United States. Donald Trump, never to be outdone, said that if he were president he’d institute registration, a database, and perhaps special ID cards for all Muslims in the United States. Ted Cruz has proposed a religious litmus test, suggested that we accept only Christian refugees from Syria, a majority-Muslim country. And on Thursday, November 19, the House of Representatives voted to halt all admission of Syrian refugees, with nearly 50 Democrats joining the Republicans, despite a veto threat from President Obama, who has admirably kept his cool during the crisis, and has rightly condemned the Republicans’ demagoguery.

It is worth underscoring the singular courage of President Obama’s response. The easy thing to do in times like this is to play to fear, to appeal to the least common denominator, and to target foreign nationals, arguing that we can beef up our security by denying rights to others.  As Louis Post, an immigration official who opposed the Palmer Raids, wrote of that period, “the delirium caused by the bombings turned in the direction of a deportation crusade with the spontaneity of water seeking out the course of least resistance.” Few leaders have been able to withstand “the course of least resistance.” Thus far, Obama has.

With reactions like those of Carson, Trump, and Cruz, one might even begin to feel nostalgic for George W. Bush, who despite his many faults, understood from the outset that it was critical not to confuse terrorism with Islam. Just six days after 9/11, Bush visited a mosque and insisted that the conflict was not with Muslims, but with terrorists. The Republican candidates would do well to pay heed to that message. Nothing serves ISIS’s interests better than portraying the conflict as pitting Islam against the West. Targeting innocent Muslims in the name of preventing the next attack will inflict needless suffering, make us less, not more safe, and play into ISIS’s hands. So far, only President Obama seems to understand that.

ISIS undoubtedly poses an unacceptable threat. We and other nations will need to use all the tools available — criminal, diplomatic, economic, and military — to address the problem. Hillary Clinton, to her credit, responded to the Paris attacks not by fear-mongering, but by laying out a concrete plan for defeating ISIS. As Steve Coll makes abundantly clear in a recent comment in the New Yorker, there is no straightforward way to achieve that goal at the moment. In the meantime, we need to manage the risk. And if history teaches us anything, it is that invoking unnecessary emergency powers, sweeping up thousands of innocents, and calling for religious registration and databases is mismanagement of the worst kind.

The post The Course of Least Resistance: Ignoring the Lessons of History in Responding to ISIS appeared first on Just Security.

My own view, as set forth in more detail in my article in Dissent, is that this is not a zero-sum game. One can and should oppose both unjust wars and the deployment of unjust means to fight wars, whether the wars as a whole are just or not. Progressives have in fact opposed what Moyn calls “endless war” at the same time that they have opposed torture and other atrocities. And some of the rights-based criticisms themselves turn on the problematic character of the war as endless. For example, detention of enemy forces during wartime is not, by any standard, per se illegal. But if the war has no foreseeable end, so that the detention is effectively a term of life imprisonment, the detention’s legality is far less clear.

It is of course possible that one who seeks to end violations of human rights in a given war may, by succeeding, render the war itself less vulnerable to challenge in a fundamental way. An unjust war that is characterized by torture and disappearances may be easier to oppose than an unjust war that avoids such atrocities. But surely that does not mean that if one confronts a war that is both unjust and full of atrocities, one should ignore or downplay the atrocities on the speculation that their continuation may help bring about an end to the war. On that view, opponents of Hitler should have disregarded his extermination of the Jews because doing so would have strengthened the case that the war itself was an illegal act of aggression. In my view, one need not, and cannot morally, sacrifice the victims of ongoing atrocities in the hope that allowing them to be tortured or exterminated may advance a greater cause. If the war is unjust and violates human rights, one should oppose both the war and the human rights violations. But on no account ought one ignore or diminish one’s efforts to protect victims of human rights as a tactical matter.

In the particular instance of the US response to al-Qaeda, Moyn’s argument appears to assume that the war is unjust. He never bothers to make that case, however. This is a rather significant omission, for Moyn’s critique collapses if responding to the 9/11 attacks with military force was just. In that case, what made the “war on terror” problematic was not the fact that we responded to an armed attack with force of our own, but that we pursued the end of countering the threat al-Qaeda posed through particular illegal and immoral means — torture, disappearances, extraordinary renditions, and the like.

Moyn’s evocation of the halcyon days of Vietnam War protests is telling. The argument then was that the war itself was unjust. Vietnam posed no threat to us, and we should not have been engaged in the conflict at all. Moreover, because of the draft, many more Americans had a direct stake in ending the war altogether, because it threatened them and their friends and loved ones in a personal and direct way. (But protesting the war did not mean overlooking war crimes — see, for example, Lt. William Calley and the My Lai massacre). By contrast, while some have argued that, as a tactical matter, we would have been better off responding to al-Qaeda with traditional law enforcement measures rather than with military force, few contend that the choice to defend ourselves with military force and law enforcement measures was legally proscribed. The UN and NATO both viewed the 9/11 attacks as giving rise to the right of self-defense. And when the Taliban refused to turn over the perpetrators or hinder their continued training and planning for future attacks, a military response was certainly within the lawful options available to the president. The war itself was not unjust; it was the way we went about it that caused alarm at home and abroad.

The Iraq war was another matter, of course. That war was unjust from the outset. Saddam Hussein had not attacked us, nor did he pose any imminent threat. But I see no evidence that progressives ignored that fact and instead chose to focus on human rights violations. Many on the left opposed the war from its inception. Americans (and citizens of many other countries) took to the streets in protest. But when, months later, the photos of prisoner abuse at Abu Ghraib were disclosed, was it not incumbent on all of us to raise our voices in protest to that conduct as well? Even if, by doing so, we might “cleanse” the war?

Unless one is pacifist, wars are sometimes unjust and sometimes just. But torture and genocide are never permissible. It is conceivable that if we eliminated torture and genocide from warmaking, the wars that were thereby “cleansed” would be more difficult to oppose politically. But that’s because they would actually be less objectionable. If the act of going to war in a particular circumstance is unjust, then by all means we should say so. But Moyn has offered no evidence that by advocating for the victims of human rights violations in both just and unjust wars, progressives have legitimated unjust wars. And if they have legitimated otherwise just wars by reducing the atrocities therein, the only ground for complaint would be that there is no such thing as a just war. I don’t take Moyn to be making that argument. But if not, then his argument is premised on a false choice. I choose to follow not Moyn but Martin Luther King, Jr.: “Injustice anywhere is a threat to justice everywhere.”

The post The False Choice of Opposing Torture or Endless War: A Response to Samuel Moyn appeared first on Just Security.

Yesterday, Senator John McCain, who knows of what he speaks when he talks about the horrors of torture, introduced an amendment to the FY 2016 National Defense Authorization Act, designed to ensure that indeed the United States never again engages in torture and cruel treatment of detainees in wartime. The amendment, which has an impressive list of bipartisan co-sponsors, including Dianne Feinstein, Jack Reed, and Susan Collins, would do two things: limit wartime interrogations to the tactics expressly authorized by the Army Field Manual, and guarantee the International Committee of the Red Cross access to all wartime detainees. If indeed we mean what we say when we say we abhor torture, the amendment deserves Congress’ and the administration’s unstinting support.

Some might ask why an amendment is necessary, given existing legal bans on torture and cruel treatment. The Geneva Conventions already prohibit all inhumane treatment of prisoners of war. The Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment absolutely forbids torture and cruel treatment, under all circumstances. We participated in drafting both treaties, and have ratified and implemented them as part of US law. An earlier “McCain Amendment,” made part of the Detainee Treatment Act, makes clear that the prohibition on cruel, inhuman, and degrading treatment applies to all persons detained by the United States, wherever they are detained and whatever their nationality. So isn’t this new amendment unnecessary? 

Unfortunately, it’s not. While any objective reading of existing US law would conclude that coercive interrogations are prohibited, that’s not how the existing law was interpreted in the wake of 9/11. Lawyers in the Justice Department’s Office of Legal Counsel interpreted all of the existing prohibitions on torture and cruel treatment to permit what they were plainly designed to prohibit — harsh coercive interrogation tactics, including physical assaults, stress positions, and sleep deprivation. Those memos, written between 2002 and 2007, have all been rescinded and rejected. The lesson of history is that once one allows interrogators to violate the dignity of human beings they are interrogating, serious abuse will inevitably follow.

But that lesson needs to be etched in legislation. The existing torture and cruel treatment bans include broad definitions of banned activity, and Justice Department lawyers showed that these broad bans can be willfully misinterpreted to permit what they are designed to prohibit. The Anti-Torture Amendment addresses the challenge differently. Instead of expressing a broad prohibition, it confines interrogators to a set list of expressly approved techniques. That approach, already used by the military for their interrogations, avoids ambiguity; if a technique is not affirmatively approved, it is banned. The law recognizes that interrogation tactics may develop over time, and envisions that the Army Field Manual will be updated from time to time, subject to public notice. And given the existing broad bans, the Army Field Manual could not affirmatively authorize any tactic that constitutes torture or cruel, inhuman, or degrading treatment. But by limiting interrogations to specified techniques, the law would take away the wiggle room that allowed the United States for at least five years to engage in officially approved tactics that the world recognizes as torture and cruel treatment. And by guaranteeing ICRC access to all wartime detainees, the law ensures that there is a mechanism to keep interrogators honest.

The bill has received bipartisan endorsement not only in Congress, but also from former interrogators and a group of retired generals and admirals. David Keene, former President of the National Rifle Association and editorial page editor of the Washington Times, and I have also written a letter supporting the bill.

When Senator McCain was pressing passage of his earlier amendment on torture, he maintained that this debate was not about who they are, but about who we are. The same can be said of the Anti-Torture Amendment. We have learned that existing law can be misinterpreted to permit what it was designed to bar. If we are to be true to the commitments we have already made, Congress should pass the Anti-Torture Amendments.

The post No Torture Means No Torture – Why We Need the McCain-Feinstein Anti-Torture Amendment appeared first on Just Security.