an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
A silver lining in Holder v. Humanitarian Law Project? Terrorism is not “war”
Mary L. Dudziak
In one courtroom this week, the problem of terrorism was framed as a “war.” In another, it was more plainly a problem of national security and international relations, but not war.
The war on terror was invoked by Faisal Shahzad, the failed Times Square bomber. Upon pleading guilty in a Manhattan courtroom, he said that he was a soldier, and that “It’s a war.”
We might have expected something similar in Holder v. Humanitarian Law Project, in which the Supreme Court this week upheld a federal statute criminalizing material support for terrorist organizations. The case has been set in the context of the “war on terror.” “It's the War on Terror against the First Amendment,” announced Fox News in reporting on the case in February. Steve Vladeck called this week’s ruling “one of the most significant legal victories that the government has obtained to date in the war on terrorism.” Michael Doyle concurred, calling it “the year’s most anticipated war-on-terrorism decision.” This case did not involve Al Queda, or groups with ties to Afghanistan or Iraq, but instead Sri Lanka and Turkey. But President George W. Bush had framed the “war on terror” in broad terms, finding it a global threat defined more by ideology than national interest.
And so we might have expected a Court opinion that invoked a “wartime” context, reinforcing the idea that the balance between government power and individual rights shifts away from rights and toward the government during wartime. But the Court didn’t say that. “War on terror” does not appear in the opinions.
Chief Justice John Roberts’ majority opinion kept the focus on “foreign terrorist organizations.” Roberts invoked national security and foreign relations, but he did not situate the case in the context of wartime, as did the Court in Boumediene. The closest the opinion came was at the end when Roberts invoked the Constitution’s Preamble, which “proclaims that the people of the United States ordained and established that charter of government in part to ‘provide for the common defence,’” and noted Madison’s statement in Federalist 41 that “[s]ecurity against foreign danger is...an avowed and essential object of the American Union.” Similarly, Justice Stephen Breyer, in dissent, suggested that “these cases require us to consider how to apply the First Amendment where national security interests are at stake,” rather than invoking the idea of wartime.
When the majority discussed war, it was to suggest that the dissent’s arguments extended too far. “If only good can come from training our adversaries in international dispute resolution,” Roberts wrote, “presumably it would have been unconstitutional to prevent American citizens from training the Japanese Government on using international organizations and mechanisms to resolve disputes during World War II.”
In finding the case to be framed by national security concerns short of war, the Court parallels the Obama Administration’s attempt to step back from the broad framing of our era as a “war on terror,” and instead to confine war-talk to more focused arenas of military engagement.
Whatever else might be said about the ruling, it is helpful that the “war on terror” connections are confined largely to press statements and not to the Court’s reasoning. “Wartime” has often been invoked as a justification for restrictions of rights, and so in an era of conflict that seems endless, it is at least helpful to see the absence of an argument that this is a wartime, so that a relaxing of rights can be expected.
A question for the future is just what the terms of the Court’s national security jurisprudence might be. David Cole, who argued the case challenging the statute before the Supreme Court, suggested that the Court used “the same sort of deferential approach that the Supreme Court took to anti-Communist laws in the early days of the McCarthy era.”
As Cole’s argument suggests, backing away from the frame of “wartime” does not solve all the difficulties, as an Amicus Brief on behalf of victims of the McCarthy era makes clear. It may even create more pressing ones. As with the Cold War era, there are no neat and tidy boundaries around the national security state. But in focusing on terrorism and on national security, the Court is at least focusing on the right sort of problems, and not reinforcing the idea of a global war on terror. Posted
by Mary L. Dudziak [link]