Farber on Lincoln, Presidential Power, and the Rule of Law

Daniel A. Farber, University of California, Berkeley, School of Law, has published Lincoln, Presidential Power, and the Rule of Law as a UC Berkeley Law Research Paper. Here is the abstract.

Every era has its unique challenges, but history may still offer lessons on how law empowers and restrains presidents. This lecture examines how Lincoln negotiated the tension between crisis authority and the rule of law. This analysis requires an appreciation of the wartime imperatives, institutions, and political forces confronting Lincoln and of the legal framework in which he acted. Similar issues unexpectedly arose in our times in the aftermath of the 9/11 attacks, providing a new point of comparison with Lincoln’s era. We need to better understand how political actors and institutions, the media, and public opinion can provide support for legal norms, lest we place all of our trust in Presidential self-restraint and good judgment.

Download the article from SSRN at the link.

Corbin on Picturing Terrorists: "Always Muslim But Never White" @CarolineMCorbin

Caroline Mala Corbin, University of Miami School of Law, is publishing 'Terrorists are Always Muslim But Never White': At the Intersection of Critical Race Theory and Propaganda in the Fordham Law Review. Here is the abstract.

When you hear the word “terrorist,” who do you picture? Chances are, it was not a white person. In the United States, two common though false narratives about terrorists who attack America abound. We see them on television, in the movies, on the news, and, currently, in the Trump Administration. The first is that “terrorists are always (brown) Muslims.” The second is that “white people are never terrorists.” Different strands of critical race theory can help us understand these two narratives. One strand examines the role of unconscious cognitive biases in the production of stereotypes, such as the stereotype of the “Muslim terrorist.” Another strand focuses on white privilege, such as the privilege of avoiding the terrorist label. These false narratives play a crucial role in Trump’s propaganda. As the critical race analysis uncovers, these two narratives dovetail with two constituent parts of propaganda: flawed ideologies and aspirational myths. Propaganda relies on pre-existing false ideologies, which is another way to describe racist stereotyping. Propaganda also relies on certain ideals and myths, in this case, the myth of white innocence and white superiority. Thus, the Trump Administration’s intentional invocation of both narratives amounts to propaganda in more than just the colloquial sense. Part I illustrates each of the two narratives. Part II analyzes them through a critical race lens, showing how they map onto two strands of critical race theory. Part III examines how these narratives simultaneously enable and comprise propaganda. Finally, Part IV argues that the propagation of these false narratives hurts the nation’s security.

Download the essay from SSRN at the link.

On "Homeland" @_Juliet_K

Juliet Kleber assesses the popular series Homeland, now in its sixth season, for The New Republic. Noting that the show has moved away from its explicitly anti-Muslim and pro-national security focus to a much more culturally accepting view of Islam and the U.S.'s Islamic citizins beginning in late 2015. Ms. Kleber traces the changes to the Paris attacks and to the rise of Donald Trump, opining that while the show's counter-terrorism narrative is popular, it is also dangerous. 

In reality, Muslims live in our country. They endure prejudice and violence. Most are not terrorists. But as most Americans rarely or never encounter a Muslim person in their actual lives, they are routinely subject to television’s views of them. On just the night it aired, the season six premiere of Homeland garnered two and a half million viewers. Season five, which focused on Islamic terrorism in Europe, had an average weekly viewership of six million. That is almost twice the size of the entire Muslim population of the United States.  

The “conundrum” is, as Gordon himself noted, that “the show is about counterterrorism.” Does Homeland make entertaining television? Sometimes. Has it been harmful? Very probably.

 Read the entire article here. 

Kahn @Jeff_Kahn1 on National Security, Rudolf Abel, and "Bridge of Spies"

Jeffrey Kahn discusses the arrest of Rudolf Abel, the central figure familiar to contemporary audiences through the Tom Hanks film Bridge of Spies, here in a National Security Law and Policy article (5 National Security Law and Policy 263 (2011)).

More with Professor Kahn here in a CSPAN discussion from earlier this year, and here in a Washington Post article.

"Mr. Robot", Technology, Privacy, and Security

Corey Nachreiner reviews every episode of Mr. Robot at Geekwire; his take on the latest episode is here.  Dan Solove gives his view of the series, complete with analysis of privacy and security issues, here.

A Review Essay of David Luban's Torture, Power, and Law

Milan Markovic, Texas A&M University School of Law, is publishing Of Monsters and Lawyers in Criminal Justice Ethics. Here is the abstract.

This is a review essay of David Luban's important and prescient new book, Torture, Power, and Law. The review essay focuses on two of Luban's central arguments: The fallacious trade-off between civil liberties and national security after the 9/11 attacks and the manipulation of anti-torture law by Bush administration lawyers. Although I largely agree with Luban's analysis, I contend that the "coercive interrogation program" and other war on terror policies cannot be fully understood without considering anti-Muslim attitudes in the United States. I also question whether, in analyzing the ethics of government lawyers, the distinction between frivolous and non-frivolous legal positions is as marked as Luban suggests.

Download the review essay from SSRN at the link.

David Greenglass, Prosecution Witness In Rosenberg Trial, Dies

The New York Times has published an obituary of David Greenglass, the brother of Ethel Rosenberg. Mr. Greenglass provided crucial testimony during the trial of Julius and Ethel Rosenberg that ended in their convictions for conspiracy and espionage. They were executed in 1953. Fifty years later, Mr. Greenglass, who served nearly ten years in prison for his role in the conspiracy, admitted to reporter Sam Roberts that he lied on the witness stand.

Mr. Roberts published a book about Mr. Greenglass and the trial, The Brother: The Untold Story of Atomic Spy David Greenglass and How He Sent His Sister, Ethel Rosenberg, to the Electric Chair  (2001). Other books on the topic include Michael and Robert Meeropol, We Are Your Sons: The Legacy of Ethel and Julius Rosenberg (1975),

The Rosenbergs figure in E. L. Doctorow's novel The Book of Daniel (1971), a fictionalized version of the trial which is based on the Rosenberg trial (filmed as Daniel (1983)), which stars Timothy Hutton, and in Robert Coover's The Public Burning (1977). Ethel Rosenberg appears as a character in Tony Kushner's play Angels in America: Millennium Approaches (1993) (revised 2014).

More about the trial here at Professor Douglas Linder's Famous Trial website.

A New TV Thriller About Law, Hi-Tech, and National Security

From The Hollywood Reporter, a review of CBS's new series, Intelligence, which premieres January 7 at 9 p.m. (8 Central time), after NCIS. According to the website,

INTELLIGENCE is a dramatic thriller starring Josh Holloway as a high-tech intelligence operative enhanced with a super-computer microchip in his brain. With this implant, Gabriel is the first human ever to be connected directly into the global information grid and have complete access to Internet, WiFi, telephone and satellite data. He can hack into any data center and access key intel in the fight to protect the United States from its enemies. Leading the elite government cyber-security agency created to support him is Director Lillian Strand, a straightforward and efficient boss who oversees the unit's missions. Strand assigns Riley Neal, a Secret Service agent, to protect Gabriel from outside threats, as well as from his appetite for reckless, unpredictable behavior and disregard for protocol. Also on the team is Chris Jameson, a resourceful federal investigator. The brains behind the design of the chip is Dr. Shenendoah Cassidy, whose son, Nelson, is jealous of Gabriel's prominent place in his father's life. As the first supercomputer with a beating heart, Gabriel is the most valuable piece of technology the country has ever created and is the U.S.'s secret weapon. 

The New York Times' Mike Hale discusses the series here. 

Interpreting Guantanamo

The New England Journal on Criminal and Civil Confinement has published the proceedings of a fall play and panel discussion and spring symposium, all discussing the US government's policies at Guantanamo since 9/11. Michael Meltsner, one of the nation’s leading authorities on capital punishment, wrote the play, In Our Name, and Victoria Marsh, Company One Boston, directed it. The symposium proceedings include contributions by Victor Hansen, Joseph Hutson, Bradley Wendel and Elizabeth Wilson.  Here is a link to more information about the proceedings.

The Other Big Brother

According to the "Tuned In" column in the June 24, 2013 issue of Time, U.S. popular culture has been predicting government surveillance of U.S. citizens for a while now.Think shows like Chuck and Person of Interest, and next season's new series Intelligence.  The essay, by James Poniewozik, discussses the attractions that such issues have for writers. After all, a good secret makes for good drama. Time's content is available to subscribers online, but the issue is available for purchase on newsstands now.

International Law, Torture and "24"

Knut Fournier has published Torture Justification in ‘24’: Aesthetics of the Bush Administration

In the context of the War on Terror, fiction is a support of ideologies for the Bush administration. The TV series '24' resorts on all legal justifications of torture made by the Bush administration, and justifies torture as being necessary, effective, and lawful. In that justification process, the thesis of the main international lawyers supportive of the Bush doctrines are used in a very detailed way, maintaining a 'simulacra' in the sense of Baudrillard.

Download the paper from SSRN at the link. NB: The text is in French.

Terrorism and Armed Conflict

Andrea Bianchi, Graduate Institute of International and Development Studies, has published Terrorism and Armed Conflict: Insights from a Law & Literature Perspective at 24 Leiden Journal of International Law 1 (2011). Here is the abstract.

This article examines some selected issues relating to terrorism and international humanitarian law (IHL): the characterization of the nature of armed conflicts in which armed groups, qualified as ‘terrorist,’ are involved; terrorism as a war crime; and the determination of the status and treatment (including detention) of terrorist suspects apprehended in the course of an armed conflict. The analysis emphasizes the importance of legal categories and legal qualifications of factual situations for the purpose of determining the applicable law as well as the crucial importance of taking societal practice into account when evaluating the state of the law in any given area. The main focus of the article, however, is on providing a few basic insights, drawn from the law & literature movement, on international humanitarian law and terrorism. Short of any epistemological ambition, literature is used as a remainder that the law is not a set of neutral rules, elaborated and applied independently of context and historical background; that the human condition remains central; and that legal regulation cannot be oblivious to it. Finally, mention is made of interpretive techniques, developed in the field of literary studies, that may help establish social consensus on the interpretation of IHL grey areas.

The full text is not available from SSRN.

Jack Bauer Syndrome

Tung Yin, Lewis and Clark Law School, has published Jack Bauer Syndrome: Hollywood's Depiction of National Security Law, at 17 S. Cal. Interdisc. L.J. 279 (2008), also presented at the 2008 AALS Section on Law and Humanities panel. Here is the abstract.

In this Article, which was presented at the Law & Humanities Section Panel at the 2008 Annual AALS Conference, I examine the way that the Fox television series "24" portrays two issues relevant to national security law: the use of torture to extract information in order to stop an imminent terrorist attack, and the depiction of Arabs as villains (and non-villains) with the concomitant impact on racial profiling and other stereotyping of Arab-Americans and Arabs. I conclude that the depiction of torture is narratively stacked in favor of government agent Jack Bauer. I also conclude that "24" attempts to balance its portrayal so that not all villains are Arabs, and not all Arabs are villains. However, I point out points of improvement in this area.

Download the article from SSRN at the link.

The Wire, National Security, and War

Dawinder S. Sidnu has published Wartime America and The Wire: A Response to Posner’s Post-9/11 Constitutional Framework in volume 20 of the George Mason Univesrity Civil Rights Law Journal (2009). Here is the abstract.

Pragmatists subscribe to the view that an individual’s practical experiences shape and inform an individual’s concept of the law. In Not a Suicide Pact: The Constitution in a Time of National Emergency, one of the legal community’s most admired and prolific pragmatists, Judge Richard A. Posner, presents his thoughts on how courts should resolve questions of constitutional law that implicate national security and individual rights.

As the relationship between security and liberty remains largely undefined in the post-9/11 world, Posner offers an important and timely perspective on a critical area of constitutional law. His framework is one in which security interests invariably supercede liberty interests in times of crisis. As such, according to Posner, an executive possesses significant authority to respond to national security needs in wartime and despite established rights, the judiciary should commensurately play a limited checking role on relevant executive action, profiling and discrimination of Muslims may be condoned, torture can be used to elicit information from detainees, and an executive may invoke the “law of necessity” to step outside of the “law of the Constitution.”

This essay uses an element of practical reality -- specifically themes from the acclaimed television series on law enforcement and crime, The Wire -- to challenge each of these conclusions from Not a Suicide Pact. Drawing on those themes, it argues that security and liberty are not locked in a zero sum game, that the judiciary should robustly check executive action especially in these perilous times, that profiling and discrimination of Muslims in the absence of any evidence of wrongdoing should be deemed impermissible, that torture is not only inconsistent with American legal obligations but also counterproductive to the war campaign, and finally that the executive is bound by and must not act beyond the Constitution, exigent circumstances and moral positions notwithstanding.

The essay thus suggests that the courts should give pause to the direction of constitutional law urged by Posner. Appealing to both law and practical reason, it admits that the law must be flexible in the post-9/11 era, but posits that the law and traditional constitutional norms still must guide and restrain the executive temptation to defend the nation at all costs.

Download the article from SSRN at the link.

Note also that some college instructors are using the show in courses. Here's a story from NPR.

Law and the Humanities Institute Presents a Symposium

Law & Humanities Institute, the Benjamin N. Cardozo School of Law Program in Holocaust and Human Rights Studies, and the
Louise and Arde Bulova Fund

present

The Risks of Interpretive Flexibility When Basic Traditions Are
Challenged by an “Emergency”

August 11, 2010
at
Prospect House
Princeton University
Princeton, New Jersey 08544

Registration 8:30am to 9:00am Program 9:00am to 5:30pm

Panelists:


Richard Weisberg
Event Co-Chair,
President, Law & Humanities Institute,
Walter Floersheimer Professor of Constitutional Law and Founding Director, Program for Holocaust and Human Rights Studies, Benjamin N. Cardozo School of Law

Elaine Scarry
Walter M. Cabot Professor of Aesthetics and General Theory of Values, Harvard University

Marci Hamilton
Paul R. Verkuil Chair in Public Law, Benjamin N. Cardozo School of Law

Peter Brooks
Event Co-Chair,
Andrew W. Mellon Foundation Scholar,
Professor in Comparative Literature and the University Center for Human Values, Princeton University



Sanford Levinson
Charles Tilford McCormick Professor Law, University of Texas
Author of Torture the Debate






This program examines why professional communities have yielded their finest traditions to a perceived sense of “emergency.” The results are often disastrous, as in the case of the French legal community during World War II, and perhaps with the equivocal redefinition and application of “torture” in our own country. This program brings the methods, sources, and readings of the Humanities to a focused inquiry into the reasons lawyers, theologians, and many other professional communities have so often lost their way. A panel and public discussion will delve into the inquiry of professional communities in an “emergency.” CLE credit will be available. Please RSVP to stephanie.spangler@gmail.com with intention of attendance and CLE option.

This program was made possible by a grant from the New Jersey Council for the Humanities, a state partner of the National Endowment for the Humanities. Any views, findings, conclusions or recommendations in this program do not necessarily represent those of the National Endowment for the Humanities or the New Jersey Council for the Humanities.

"The Dark Knight," Counterterrorism, and Law

John Ip, University of Auckland Faculty of Law, has published The Dark Knight’s War on Terrorism. Here is the abstract.

This article considers Christopher Nolan’s 2008 film, The Dark Knight, as a reflection on legality and security in the post-9/11 era. The article examines how the film depicts three specific counterterrorism policies associated with the war on terrorism (namely rendition, coercive interrogation and warrantless surveillance), and argues that none of the film’s depictions of these actions can properly be seen as endorsement of their Bush Administration-era equivalents.

Accordingly, the film is better viewed as something other than an endorsement of the Bush Administration’s war on terrorism. This article contends that, unusually for a film about a superhero, The Dark Knight is ultimately about the importance of law, legal institutions, and popular courage.

Download the paper from SSRN at the link.

National Security TV

Dawinder S. Sidhu, Hosh Law, has published "Wartime America and The Wire: A Response to Posner’s Post-9/11 Constitutional Framework." Here is the abstract.

Pragmatists subscribe to the view that an individual’s practical experiences shape and inform an individual’s concept of the law. In Not a Suicide Pact: The Constitution in a Time of National Emergency, one of the legal community’s most admired and prolific pragmatists, Judge Richard A. Posner, presents his thoughts on how courts should resolve questions of constitutional law that implicate national security and individual rights.

As the relationship between security and liberty remains largely undefined in the post-9/11 world, Posner offers an important and timely perspective on a critical area of constitutional law. His framework is one in which security interests invariably supercede liberty interests in times of crisis. As such, according to Posner, an executive possesses significant authority to respond to national security needs in wartime and despite established rights, the judiciary should commensurately play a limited checking role on relevant executive action, profiling and discrimination of Muslims may be condoned, torture can be used to elicit information from detainees, and an executive may invoke the “law of necessity” to step outside of the “law of the Constitution.”

This essay uses an element of practical reality -- specifically themes from the acclaimed television series on law enforcement and crime, The Wire -- to challenge each of these conclusions from Not a Suicide Pact. Drawing on those themes, it argues that security and liberty are not locked in a zero sum game, that the judiciary should robustly check executive action especially in these perilous times, that profiling and discrimination of Muslims in the absence of any evidence of wrongdoing should be deemed impermissible, that torture is not only inconsistent with American legal obligations but also counterproductive to the war campaign, and finally that the executive is bound by and must not act beyond the Constitution, exigent circumstances and moral positions notwithstanding.

The essay thus suggests that the courts should give pause to the direction of constitutional law urged by Posner. Appealing to both law and practical reason, it admits that the law must be flexible in the post-9/11 era, but posits that the law and traditional constitutional norms still must guide and restrain the executive temptation to defend the nation at all costs.

Download the paper from SSRN here.