Reviewed by Tobias T. Gibson, Department of Political Science, Westminster College (Missouri). E-mail: tobias.gibson [at] westminster-mo.edu
This excellent volume, supported by the ABA’s Standing Committee on Law and National Security (SCOLANS), follows a tried and true methodology. In the famed manner of the summer blockbuster movie, this book is a sequel which relies on mega-watt star power. This volume is the follow up to a title in which national security law experts debated the USA Patriot Act. The essays in this title are written by a “who’s who” in the field of national security law, including: John Yoo and Louis Fisher provide the initial chapter, and other authors include Stewart Baker, Charles Dunlop, Orin Kerr, Christopher Slobogin and Stephen I. Vladeck.
As the title suggests, the format of the book is a series of debates, organized by chapter, in which an author presents ideas in a short essay, and another offers a response. Most often, there are very brief “closing arguments” that respond to thoughts from the opposing view. While this style of book is not uncommon, the format works well for this topic. National Security Law is a growing field which has major impact on many United States citizens, and is one of the most salient areas of law. For example, there has been much more public discussion of whether Dzhokhar Tsarnaev, the surviving Boston marathon bomber should have been “mirandized” than the role of Contractor-Controlled Insurance Policies, considered by the ABA to be a “hot topic” in insurance law.
The strength of Patriots Debate is its accessibility. While this book is recommended to the readers of LPBR, my hope is that the audience would also include semi-informed journalists, news outlets with political bents and other high profile purveyors and creators of public opinion that offer ill-informed or under-informed stories on the very issues highlighted in this book, including executive power, homegrown terrorism, interrogation, issues related to cyber- security, privacy and war, targeted killing and detention (for discussion of this issue, see Goodman). This book provides informed, educated legal reasoning so that students, professors and other citizens may be able to have a basis for understanding of the foundational legal opinions, laws, policies and mores that form both the policies of the United States government, and the surrounding debates based on competing views of the Constitution, statutes, presidential directives, judicial decisions and, occasionally, history itself.
Moreover, this book is extremely timely. While all of the ten chapters of this book are good to superb, there are four that I highlight, based largely on the excellent [*378] treatment in the book coupled with current headline grabbing issues: Interrogations; Targeted Killing; Cyberwar; and Detention Policies.
The 2013 Boston Marathon bombings and the aftermath reveal a need for the general public to understand the legal issues surrounding interrogations. When Tamerlan and Dzhokhar Tsarnaev used pressure cookers to kill three and injure hundreds at the Boston Marathon in April, it set off one of the most thorough manhunts in American history. Tamerlan, the elder brother was killed in a firefight with law enforcement officers, but Dzhokhar was apprehended. When he was not immediately mirandized, because the government invoked the public safety exception to Miranda warnings, a large scale national debate exploded in the traditional and social media spheres (Bazelon; Scherer).
As luck would have it, Patriots Debate has a chapter, featuring Norman Abrams of UCLA Law School and Christopher Slobogin of Vanderbilt Law School, discussing whether or not there is a need for a “cabined exception” for interrogating terrorists (for more information on a cabined exception, see Abrams, 2012). Professor Abrams makes a strong case for the exception, based on nine supporting reasons including his interpretation of New York v. Quarles and protecting FBI interrogators from civil or criminal proceedings. In particular, he argues that Quarles provides support if the social cost of mirandized interrogation is greater than benefits (in the case the suspect, Quarles, had discarded his gun in a public place during a foot pursuit by police officers). And, using Dickerson v. United States (2000), which upheld both Miranda and Quarles, he observes “[s]o much for the notion that the Fifth Amendment is intolerant of exceptions” (p.50).
Professor Slobogin counters that it is unclear an exception is needed. He notes that since the 1950’s in which the High Bench protected detained individuals’ rights by preventing involuntary confessions in Spano v. New York (1959) and Leyra v. Denno (1954), the Court has become much more relaxed in their definitions of “involuntary” (pp.52-54). Yet, Slobogin also argues that “a cabined exception is not justifiable on legal grounds, nor is it a good idea on policy grounds” (p.57). He notes, for example, based on Quarles that the public safety exception should be used only when danger is imminent (recall that there was a loaded gun located at an unknown location on or close to a playground). He also expressed concern about a slippery slope for coercive interrogation, following Judge Richard Posner’s concern that once coercive interrogation has become “regularized, the practice will become regular” (p.58).
In June 2013, Edward Snowden, a former Central Intelligence Agency employee and National Security Agency contractor, released documents indicating the NSA was spying on US and foreign citizens. The fervor that this leak caused in the Intelligence Community, the White House and the halls of the U.S. Capital cannot be overstated (Ackerman). Snowden further complicated his position when he took cover with two of the United States’ biggest geopolitical nemeses, China and (as I write) Russia, neither of which seem willing to expedite his return to U.S. soil (Pearson). Because of the totality of this situation, there are [*379] enormous implications for U.S. cyber policies. A program with even more potential ramifications, Snowden recently released evidence that the United States has been spying on European embassies, allegedly by bugging structures in Washington, DC and European Union leaders, allegedly by tracking their electronic correspondence in a similar fashion to PRISM (Castle and Schmitt).
These recent instances of cyberespionage, especially when coupled with purported U.S. efforts to derail Iranian efforts to obtain a functional nuclear weapons program by using destructive cyberweapons Stuxnet and Flame, allows one to conclude that an era of cyberwar is upon us (Zetter).
This issue is tackled in what may be the best chapter in the book, “Cyberwar”, penned by former NSA general counsel and Assistant Secretary of the Department of Homeland Security Stewart Baker and Charles Dunlop, Jr., former Deputy Judge Advocate General of the U.S. Air Force and current Duke Law School Professor. Baker makes two primary arguments. First, cyberwar is of real, genuine concern. In particular, his concern is that the history of cyberwar is focused on the types of infrastructure that would impact U.S. citizens directly, causing damage to food and fuel supplies, the banking industry, travel, the energy sector and the like. Second, he is concerned that although lawyers will not win a war, their insistence on law that confines military acts may lead the nation to lose a war. Using the laws and mores of early air wars, he dismisses the need and wisdom of constructing a legal framework for cyberwar.
Dunlop takes issue with Baker’s position, introducing his contribution by claiming “Lawlessness cannot win America’s 21st-century wars, but it can surely lose them” (p.188). He also notes that despite Baker’s claims, military commanders are satisfied with a legally sound cyberwar plan, including offensive capabilities. Dunlop argues that previous presidential administration’s lack of legal framework for policy spaces including “interrogation, detention and military tribunals” led to “disastrous” policy (p.191). Thus, while agreeing with Baker that a future cyberwar is a serious concern, Dunlop argues that the complexity of modern war means that to win a war, a military must have a wll designed, legally sound policy.
On May 23, 2013, President Barack Obama gave a national security policy speech at the National Defense University. There were two primary foci of his speech, the use of drones in targeted killings and his reenergized hope of closing the detention center for enemy combatants at Guantánamo Bay, Cuba (Obama).
Obama, not surprisingly, reinforced his administration’s view that its drone program is lawful, arguing that “America’s actions are legal …. So this is a just war ‒ a war waged proportionally, in last resort, and in self-defense” (ibid.). While commentators disagree on whether or not the speech brought the clarity the president intended, the media coverage of the speech is indicative of the importance and scrutiny of targeted killings in today’s domestic and foreign affairs (Bellinger; Gibson 2013). Additionally, the president’s inclusion of his rationale [*380] for closing the Gitmo detention center, something he has tried to do since he entered the office in 2009, signals that the U.S. detention of enemy combatants is an important policy consideration for this administration (Johnson, Gibbons and Gibson; Herb). Recent media coverage of a mass hunger strike among those held in the detention center confirms this (Finn).
The editors, again, prove to be prescient with the addition of chapter about both targeted killing policy and detention in Guantánamo. “A Legal Framework for Targeted Killing”, featuring Amos N. Guiora, Professor of Law at the University of Utah and Monica Hakimi, of the University of Michigan Law School, offers competing policy proposals to improve the legality of targeted killing. Using relevant case law, including a leading Israeli Supreme Court case, Professor Guiora proposes a policy comprised of five standards for a target to be legitimate: 1, a target must have made “significant steps” towards a terrorist attack; 2, the target must be planning a future attack; 3, the target must continue to be part of a planned terrorist attack, and not have disassociated from the plan; 4, the target’s contribution “must extend beyond mere passive support” of the attack; and, 5, verbal threats do not constitute a threat (p.165). Professor Hakimi agrees that there must be a standard policy for recognizing a legitimate target, but differs in her conception. Hakimi attempts to use tenets of Just War Theory, including jus ad bello for both combatants and civilians. She suggests a three pronged test. Hakimi’s test includes: 1, the liberty-security principle, in which the security of the state “must be proportional to outweigh” the value of the life to be taken; 2, the mitigation principle, in which the state is required “to try to lessen the liberty costs”; and 3, the mistake principle, in which the target is, in fact, a significant threat and cannot be “contained less intrusively” (pp.169-170). While both authors acknowledge that similarities exist in their proposals, significant differences appear as well. For instance, Guiora argues that a terrorism financier may pose a legitimate target, while Hakimi’s position is that financier is too removed from an attack to be a legal target (p.175).
Stephen I. Vladeck, Professor at American University College of Law, and Greg Jacob, former attorney in several executive branch positions, including former U.S. Solicitor of Labor, provide the final chapter in the book, “Detention Policies.” It is an excellent, articulate debate and one of the finest chapters in the book. Vladeck’s primary argument is that the Supreme Court’s detention cases, including in particular Hamdi v. Rumsfeld (2004), Padilla v. Rumsfeld (2004) and al-Marri v. Spagone (2009) (dismissed as moot due to Obama administration transfer of al-Marri to civilian custody) suggest that judicial review in military detention cases impacts national security policy (pp.208-209). Specifically, Vladeck goes on to note that the federal judiciary’s willingness to hear each of these cases has led to policy changes, suggesting, perhaps, a “second face of power” for the federal bench (Bachrach and Baratz; Cameron; Gibson 2006). In short, the federal judiciary has provided a significant check on detention policy in Guantánamo Bay.
Jacob does not take issue with Vladeck’s [*381] point, only its impact, asking whether the federal judiciary “has struck the right balance in establishing parameters for judicial review of executive branch decisions” related to enemy combatant detention (pp.212-213). In brief, his answer is no. Jacob notes that the Gitmo cases have not had the effect of allowing habeas corpus rights to detainees generally. Because the Supreme Court has allowed habeas rights to Gitmo detainees, the federal government has simply stopped sending enemy combatants there, but has not ceased detaining them. Instead, they are, or will be in future military conflicts, held at Bagram or other detention facilities which are not subject to judicial review. This is because, as Jacob concludes, “the military will simply keep detainees where it captures them, preferring the risk of prison breaks and enemy attacks to the certain cost and disruptions to intelligence gathering that are inevitably caused by repeatedly being dragged into court” (p.218).
This is the not the book for a serious national security law scholar. And, while it is a good undergraduate text, if used for an undergraduate national security law or homeland security law course, it still needs to be supplemented. In my course, I used the essays included in the book to introduce further, more detailed readings and discussion. Alternatively, the book could also be used as an “applied” constitutional law supplement, in which students read the chapters and formulate discussion based on foundational cases in the policy spaces debated in this book. I will certainly use it in future iterations of my undergraduate classes, but it is not the graduate level book I had hoped it might be.
To conclude, this is an excellent book. It is well written, informative, and provides foundational knowledge for those seeking an introduction to current issues in national security law. The essays are certain to lead a great deal of discussion points in a classroom setting. Rishikof, Baker and Horowitz are to be commended for assembling an all star cast, for the accommodating prose of the book, and for the thoughtful analysis provided in most of these chapters.
Abrams, Norman. March 19, 2012. “Terrorism Prosecutions in Federal Court: Exceptions to Constitutional Evidence Rules and the Development of a Cabined Exception for Coerced Confessions.” UCLA School of Law Research Paper No. 11-14. Available at SSRN: http://ssrn.com/abstract=1846963.
Ackerman, Spencer. June 10, 2013. “Snowden leak shines light on US intelligence agencies' use of contractors.” http://www.guardian.co.uk/world/2013/jun/10/edward-snowden-booz-allen-hamilton-contractors (last accessed June 23, 2013).
American Bar Association, “Construction Law ‘Hot Topics.’” http://apps.americanbar.org/litigation/committees/insurance/hot_topics.html#construction (last accessed July 1, 2013).
Bachrach, Peter and Morton S. Baratz. 1962. “Two Faces of Power.” American Political Science Review 56: 947-952. [*382]
Bazelon, Emily. April 25, 2013. “Dzhokhar Tsarnaev Talked for 16 Hours Before He Was Read His Rights.” http://www.slate.com/articles/news_and_politics/jurisprudence/2013/04/dzhokhar_tsarnaev_s_interrogation_his_miranda_warning_shouldn_t_have_taken.html (last accessed June 25, 2013).
Bellinger, John. May 23, 2013. “The President’s Speech: The Good, the Bad, and the Ugly.” http://www.lawfareblog.com/2013/05/the-presidents-speech-the-good-the-bad-and-the-ugly/ (last accessed July 2, 2013).
Cameron, Charles M. 2000. Veto Bargaining: Presidents and the Politics of Negative Power. Cambridge University Press.
Castle, Stephen and Eric Schmitt. June 30, 2013. “Europeans Voice Anger Over Reports of Spying by U.S. on Its Allies.” http://www.nytimes.com/2013/07/01/world/europe/europeans-voice-anger-over-reports-of-spying-by-us-on-its-allies.html?_r=0 (last accessed July 1, 2013).
Finn, Peter. June 6, 2013. “Guantanamo Bay hunger strike grows; 41 now being force-fed.” http://articles.washingtonpost.com/2013-06-06/world/39782811_1_detainees-hunger-strike-guantanamo-bay (last accessed July 2, 2013).
Gibson, Tobias T. 2006. The Office of Legal Counsel and the Presidency: The Legal Strategy of Executive Orders. Washington University in St. Louis. Unpublished dissertation.
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Goodman, Adam. April 22, 2013. “How the Media Have Misunderstood Dzhokhar Tsarnaev's Miranda Rights.” http://www.theatlantic.com/national/archive/2013/04/how-the-media-have-misunderstood-dzhokhar-tsarnaevs-i-miranda-i-rights/275189/ (last accessed June 25, 2013).
Herb, Jeremy. May 22, 2013. “Obama, lawmakers ready to renew push to shutter Guantánamo Bay prison.” http://thehill.com/homenews/administration/301203-obama-lawmakers-ready-to-renew-push-to-shutter-guantanamo-bay (last accessed July 2, 2013).
Johnson, Alexandra D., Meredith Gibbons, and Tobias T. Gibson. 2010. “Rethinking Unilateral Powers in the Obama Administration.” PRG Report XXXII (2): 13-15.
Obama, Barack. May 23, 2013. “As Delivered: Obama’s Speech on Terrorism” http://blogs.wsj.com/washwire/2013/05/23/prepared-text-obamas-speech-on-terrorism/ (last accessed July 2, 2013). [*383]
Pearson, Michael. June 28, 2013. “Obama won't 'wheel and deal' for NSA leaker Snowden.” http://www.cnn.com/2013/06/27/politics/nsa-leak/ (last accessed July 1, 2013).
Scherer, Ron. April 26, 2013. “Boston bombing interrogation: Will prosecutors have a Miranda problem?” http://www.csmonitor.com/USA/Justice/2013/0426/Boston-bombing-interrogation-Will-prosecutors-have-a-Miranda-problem (last accessed June 25, 2013).
Zetter, Kim. June 11, 2012. “Researchers Connect Flame to US-Israel Stuxnet Attack.” http://www.wired.com/threatlevel/2012/06/flame-tied-to-stuxnet/ (last accessed June 30, 2013).
al-Marri v. Spagone 555 U.S. 1220 (2009)
Dickerson v. United States 530 U.S. 428 (2000)
Hamdi v. Rumsfeld 542 U.S. 507 (2004)
Leyra v. Denno 347 U.S. 556 (1954)
Miranda v. Arizona 384 U.S. 436 (1966)
New York v. Quarles 467 U.S. 649 (1984)
Padilla v. Rumsfeld 542 U.S. 426 (2004)
Spano v. New York 360 U.S. 315 (1959)
Copyright 2013 by the Author, Tobias Gibson.