Page 1

The Yale Undergraduate Law Review www.yulr.org Editorial Board and Staff:

info@yulr.org

Editor-in-Chief Editor-in-Chief Emeritus Tobias Kuehne David Chan Managing Editors Treasurer Jennifer Bright Allen Granzberg Andrene Dabaghi Mindy Gee Lauren Koster Executive Development Director Jordan Orosz Katherine Giaccone Beau Wittmer Social Chair Executive Business Director Samuel Gamer Paulo Coelho Filho Assistant Editors Sarah Atkins Jessica Blanton Bradley Cho Grayson Clary Shanaz Chowdhery Andrew Giambrone Emily Graham Samuel Greenberg Amanda Hall Luke Hawbaker Alexandra Hess Carys Johnson Chistopher Lee Thomas Meyer Markus Moretti Alexander Porro Ewelina Rudnicka Chase Ross Cameron Rotblat Hala Siraj

Caroline Tan Traci Tillman Mimi Wu Sharon Yin Sophia Yoo Copy Editors Erin Biel Caroline Chang Julie Kim Webmaster Daniel Stein Marketing and Events Jonathan Marquez Paul Wasserman Cecilia Xie Finance Rosie Buchanan Nnamdi Iregbulem

Board of Advisors James Silk Clinical Professor of Law, Allard K. Lowenstein International Human Rights Clinic, and Executive Director, Orville H. Schell, Jr. Center for International Human Rights, Yale Law School Linda Greenhouse Senior Research Scholar in Law, Knight Distinguished Journalist-in-Residence, and Joseph Goldstein Lecturer in Law, Yale Law School ___________________________________________________ All rights reserved. No part of this publication may be reproduced or transmitted without the YULR’s written consent.

Letter from the Editor:

The Yale Undergraduate Law Review is charting its second year, and exciting things are in the making. The new editorial team is picking up where the old one has left off under the sound leadership of the previous Editor-in-Chief David Chan, who has assumed the role of Editor-in-Chief Emeritus for the journal. While Yale students were away (or stayed in New Haven) for their summer adventures, the world saw markets inch dangerously close to financial abyss on both sides of the ocean. Hence we decided to make the financial crisis the featured theme of this issue. Beau Wittmer covers the legal intricacies around the United States’ debt ceiling, while the editorial team’s article on the European debt crisis explores how recent events left the EU core treaty in a strange legal limbo. Economic cataclysm is not the only topic that this issue investigates from a legal angle: Katherine Aragon wrote on juvenile life without parole in the U.S., the only country in the world in which the sentence is still served. Grayson Clary explored the shifting definitions of war that the U.S. employs, and Andrew Giambrone interviewed U.S. Attorney for the District of Connecticut David Fein, who shared details in his prosecution of a recent death penalty case in Connecticut. Make sure to visit our revamped website www.yulr.org for an extended version of David Fein’s interview and other online-exclusive content, such as the Julio Garzon’s proposal to try terrorist suspects in a newly created national security court. Be on the lookout for our blogs, law school admission forums, and useful links for the law school admissions process. For questions, concerns, ideas, or article pitches, contact us at editor@yulr.org. A warm thank you goes out to all the writers and editors, as well as the business and events people that have helped to make this issue of the Yale Undergraduate Law Review a reality. A special thanks also to our sponsors—we are especially proud to have won the generous support of the New York-based law firm Fried Frank Harris Shriver and Jacobson LLP. Cheers! Tobias Kuehne Editor-in-Chief Yale Undergraduate Law Review __________________________________________________ The Yale Undergraduate Law Review would like to thank the following organizations at Yale University for their generous support: Orville H. Schell, Jr. Center for International Human Rights, Yale Law School; Undergraduate Organizations Funding

Committee (UOFC); Manhattan LSAT; and Fried Frank Harris Shriver & Jacobson LLP


Fall 2011 Volume 2, Issue 1 ______________ Domestic Law Linguistic Minority Rights: Picking a Side, Juliana Biondo While Canada has pushed for equal treatment of linguistic minorities, state legislations in the U.S. have created a more ambiguous picture.

[1]

When Levers Broke: Texas Education Finance, Zak Newman Years of Texas Supreme Court interference have exposed the Court’s inability to adjudicate education finance.

[3]

Juvenile Justice: Why Juvenile Life Without Parole Sentences are a Mistake, Katherine Aragon The U.S. is the only country in which youths serve life prison sentences. A New Legal Framework Against Terrorism: A National Security Court, Part I, Julio Guillermo Garzon The U.S. has been mired in an incoherent mix of using civilian trials and military commission to deal with terrorist suspects.

[6]

[9]

International Law Security in Discourse or Terror in Disguise?, Michael Magdzik The Holder v. Humanitarian Law Project Dilemma.

[12]

If a Drone Flies in Yemen: The U.S. and the Modern Definition of War, Grayson Clary In recent decades, definitions of war have been blurred, and power has slipped from Congress.

[15]

Spot the Hacker: Combating Cyberwarfare under the International Rule of Law, Bradley Cho Cyber attacks, conducted by obscure perpetrators, baffle governments and confound traditional theories of war.

[18]

Yale Undergraduate Law Review • Volume 2, Issue 1


Feature Washington to the Brink, Beau Wittmer The American debt ceiling, its constitutionality, and a summer of bad behavior.

[21]

[25] Integration without Ratification, YULR Editorial Team The European debt crisis illuminates a curious dual phenomenon: the rapid integration of crucial policy areas, happening in circumvention of EU core treaties Featured Interview: George Canellos Interview with the Regional Director of NY Regional Office, U.S. Securities and Exchange Commission

[28]

Legal Education Law in the Motherland: My Summer Internship in Russia, Andrew Squire

[30]

A Deep Breath Before the Big Leap, Traci Tillman Taking gap years before law school is en vogue with current college grads.

[32]

Interviews Interview: David B. Fein, Andrew Giambrone An interview with the U.S. Attorney for the District of Connecticut.

[34]

Interview: Stephen W. Preston, Alexander Porro An interview with the General Counsel of the Central Intelligence Agency.

[36]

Interview: Robert M. Morgenthau, Jenny Bright An interview with the former NY County District Attorney (Manhattan).

[38]

Yale Undergraduate Law Review • Volume 2, Issue 1


Domestic Law

Linguistic Minority Rights: Picking a Side While Canada has pushed for equal treatment of linguistic minorities, state legislations in the US have created a more ambiguous picture. Juliana Biondo

~

S

ome say it can explain everything. Some say it lacks the ability to express deeper meaning. Others claim it is our very bond: language. According to the theories of sociologist Friedrich Schleiermacher, reaching an understanding happens through a reciprocal relationship between a sum and its parts; one cannot exist without the other. This means that no single text, exchange or even word can be understood without knowing its cultural context, the summative backdrop against which it was formed. As a result, the process of interpretation becomes extremely ambiguous and fluid, with every group of people having their own methods.1

So if language is fluctuating, how can we place a firm legal framework on top of it to secure its proper use? This question becomes especially pressing with regard to linguistic minority rights, such as the right of non-native speakers to choose their language of communication in a public sphere, in a work place or educational environment. The ability to communicate seamlessly is absolutely vital in the public sphere; yet, as of now, the United States is still waiting on a clearly stated and enforced policy on language rights. The U.S. and Canada deals with minorities in different ways. (Flickr Creative Commons)

Canada: United in Difference Unclear notions about minorities’ language rights can create delicate social situations. Suppose a person walks into a coffee shop, only to realize that the individuals serving her are not native English-speakers. The workers do not notice the customer and are having a seemingly intense conversation in Spanish. Should the buyer attempt to interrupt them with the only Spanish word or phrase she may know, or should she use English? One may worry about talking too fast for fear of misunderstanding. Yet, it could also be rude to assume that the workers don’t know English. The ambiguity of the situation highlights the need for a framework that defines the status and linguistic rights of minorities. It is necessary to investigate legislators’ dealing with the ideas of exchange and mutual understanding. When discussing what constitutes “understanding” another person, group, or culture, Canada is an apposite example to investigate. Canada is the first nation with a federally declared “adoption” of multiculturalism.2 This means that all actions done by the state or federal government are driven by the ideology that one could, and should, take pride in their ancestry, keep their identity, and still be able to feel a national belonging to Canada.3 Canada is united by its differences, and it is in the country’s legal fabric to preserve them. In 1969, Canada passed the Official Languages Act, which recognized French as a second official Canadian language. However, with the influx of new immigrants just a few years later, French and English as the only official languages no longer seemed adequate. By 1971, Canada produced a Multiculturalism Policy that made the country a place where anyone may have citizenship without the condition of assimilation, or a giving up of personal cultural traditions to fit into Canadian culture. Over the next 30 years, Canada would continue to create legislation that specifically targeted to remove any societal barriers based on disrespect for cultural differences.4 Canada is a melting pot. However, it is one that does not wish to meld together, and would rather exist as individual entities simply sharing the same space. Canada’s interpretation of “understanding” means having respect for, and giving space to, other cultures.

[1]

Yale Undergraduate Law Review • Volume 2, Issue 1


Linguistic Minority Rights: Picking a Side The United States’ definition of a melting pot, on the other hand, walks a fine line between striving for cultural assimilation and maintaining the nation’s heterogeneous parts.

zona shirked a clear stance on the issue by passing a law that leaves it to the individual businesses the discretion to decide on an English-only policy.

California and Arizona: Different Approaches

Picking a Side

In California, the laws surrounding linguistic rights and English-only policies are guided not by an ideal of multiculturalism, but by the question: Is the policy in question “business necessary”?5 In other words, does the existence of an English-only policy protect businesses from failure? The slippery part of this question is how to define “business necessary.” What may be deemed necessary in a construction company may not be considered necessary in a medical office. For example, if someone cannot communicate clearly in a doctor’s office, incorrect procedures may be carried out, or necessary operations ignored. In a doctor’s office, an English-only policy may be justified as a way of protecting people, while an English-only policy at a construction site could be seen as discriminatory.

It is necessary for the U.S. to adopt a clear position on linguistic rights of minorities. Just as Canada has created legislation founded in their desire for a consistent and true “adoption” of multiculturalism, the United States must make a similarly clear choice. Are we trying to permanently integrate and assimilate non-English-speaking groups into American society? If so, we need to learn how to accommodate them eco-

Another question that arises is: Does the concept of “business necessary” hold any weight when compared to Title VII of the Civil Rights Act of 1964? The Act prohibits an employer from discriminating against an employee “with respect to his compensation, terms, conditions, or privileges of employment,” and from depriving “an individual of employment opportunities or otherwise adversely affect[ing] his status as an employee” because of the individual’s race, color, religion, sex, or national origin.6 This presents two questions to answer; first, does language get classified under national origin and second, if it does (which would make English-only policies illegal), what happens if there is a miscommunication in a “business necessary” situation? California does not prohibit English-only policies, but it is clearly illegal to discriminate. California’s reliance on the business necessary principle creates a tension between economic concerns and civil rights. In Arizona, it is up to the individual businesses to decide whether or not they want to adhere to English-only policies. In May of 2010, Governor Jan Brewer signed into law a bill that states it is not required for a business to provide translation services to someone who walks into their office speaking a language other than English. One situation that contributed to the law’s creation was a happening at a doctor’s office. A mother, unable to speak English, came in asking her doctor for help. Her son, a minor who spoke relatively good English and was fluent in Spanish, acted as a translator for his mother. The doctor felt he could not trust the son to translate correctly because he could not be sure that the son properly understood what the doctor had to communicate. The doctor was concerned about a possible lawsuit for malpractice and hence refused to help the woman, unless she brought someone over the age of 18 to translate. This instance illustrates a similar tension between business and individual concerns: Because minority language rights were not clearly regulated, professional obligations to give medical help to an individual clashed with the doctor’s personal business concerns. Ari-

The doctor was concerned about a possible lawsuit for malpractice and refused to help the woman. nomically and socially. Or, are we trying simply to open our doors to them, but without catering to them? If that is the case, then we must be rigorous in our application of Englishonly policies. The problem lies in the ambiguity of the situation—the U.S. needs to pick a side. To engage in further discussion on this topic, visit www.yulr.org and leave a comment on the article. Juliana Biondo is a junior in Ezra Stiles College. ______________________________________________ 1. The Life of Schleiermacher as unfolded in his Autobiography and Letters, trans. Frederica Rowan, (London, 1860), Vol. 1, pp. 7, 26. 2. “Canada’s Multicultural Policies.” Alberta Online Encyclopedia. The Heritage Foundation, n.d. 10 Aug 2011. http://www.edukits.ca/multiculturalism/student/diversity_ multiculturalism_e.html (accessed Sep 15, 2011) 3. “Multiculturalism.” Citizenship and Immigration Canada. Canadian Government, 17 May 2011. http://www.cic.gc.ca/ english/multiculturalism/index.asp (accessed Sep 15, 2011) 4. “Justice Laws Website.” Department of Justice. Canadian Government, 11 Aug 2011. http://laws-lois.justice.gc.ca/eng/ (accessed Sep 15, 2011) 5. Burns, Michael. “English Only Rules for the California Employer.” Horan, Lloyd, Karachale, Dyer, Schwartz, Law & Cook, Incorporated. N.p., 2009. Web. http://www.horanlegal.com/attorney/English-Only-Rules-for-the-CaliforniaEmployer.html (accessed Sep 15, 2011) 6. United States. Teaching with Documents: The Civil Rights Act of 1964 and the Equal Employment Opportunity Commission. Washington, D.C.: , http://www.archives.gov/education/lessons/civil-rights-act/ (accessed Sep 15, 2011)

Yale Undergraduate Law Review • Volume 2, Issue 1

[2]


Domestic Law

When Levers Broke: Texas Education Finance Years of Texas Supreme Court interference have exposed the Court’s inability to adjudicate education finance. Zak Newman

~

state should first be considered. On May 16, 1968, 400 students at Edgewood High School in San Antonio, Texas staged a walkout in protest of the dire state of their school facilities. The windows were cracked; the air conditioning was non-­existent; the school was crumbling—all despite the fact that the Edgewood Independent School District (ISD) had one of the highest property tax rates in San Antonio. Parents, among them Demetrio Rodriguez, a sheet metal worker at the nearby Kelly Air Force Base, shared their children’s’ concerns and quickly formed the Edgewood District Concerned Parents Association to investigate the situation.1 Arthur Gochman, the attorney representing the Parents Association, found that even though tax rates were considerably higher in Edgewood, low property values meant that the school district could raise only a small percentage of the tax revenue in comparison to that other school districts, such as the nearby Alamo Heights ISD.2 Filing Papers Gochman filed suit against Edgewood ISD as well as six surrounding school districts and the Attorney General of Texas on behalf of Rodriguez and the Parents Association in the federal district court for the Western District of Texas on June 30, 1968. The papers claimed that Texas’ education statutes were “unconstitutional and unenforceable insofar as they interfere with the creation of a system of providing for equal education…”3 Specifically, the petitioning parents contended that the Texas education system violated the Equal Protection Clause of the Fourteenth Amendment for impinging on their students’ constitutionally protected right to an education. Gochman and his clients believed they would be aided in the case by the Supreme Court’s then liberal use of the Equal Protection Clause. Based on existing case law, Gochman would need to show that the Texas funding system unjustly discriminated against Texas students based on their wealth or based on their race. Success on either front would call the court to use strict scrutiny in evaluating the finance system. The Court ultimately rejected both his claims on discrimination and his claim on the existence of a fundamental right to education. To understand why, the history of the education finance system in the

[3]

Texas Education Finance, Pre-Rodriguez: Urbanization Shifting Taxing Powers The current Texas State Constitution, adopted in 1876, provided for an “efficient system of public free schools,” to be supported and maintained by the state legislature. Texas schools would be funded through a mix of local and state funding. At the local level, school districts were granted the power to levy ad valorem property taxes for schools even though the state government was barred from mandating property taxation (Article VII, §3e). For the 19th and into the 20th century, this system of school finance was sufficient given the highly rural nature of the state and the fairly equitable property values across the state. But as noted by Justice Lewis Powell in the decision of San Antonio Independent School District v. Rodriguez, 20th-century industrialization in Texas began to urbanize the state and disproportionately increase the taxing power of urban school districts relative to those in rural areas. The Gilmer-Aikin bills passed in 1949 aimed to address these funding disparities by establishing minimum funding levels for schools but were unsuccessful due to the new system’s continued reliance on local tax revenue. In 1967, average

“As of today, the standard sanctioned by the Supreme Court allows less funding equality than those of previously rejected frameworks.” land values and median family income in the Edgewood ISD attendance zone were both the lowest in the city, at $5,960 and $4,686, respectively. With those property values, Edgewood ISD could raise only $26 per pupil more than its Local Fund Assignment with a property tax of 1.05%. At that rate, Edgewood ISD families took on the highest tax rate burden in the city. A mere eight miles away in the Alamo Heights attendance zone, average property values were greater than $49,000 and median family income was $8,001. The considerably higher property values found in the Alamo Heights area allowed the district to tax property values at a lower rate

Yale Undergraduate Law Review • Volume 2, Issue 1


When Levers Broke: Texas Education Finance than in Edgewood, a mere .85%. At that rate, the district was able to bring in $333 above its minimum requirement . Refusing to Pull the Lever In writing the Opinion of the Court, Justice Powell first considered the petitioners’ contention that the funding system was discriminatory. Based on the evidence, the poorest area in San Antonio had far fewer resources for education under the Gilmer-Aikin system than did the wealthiest area in the city. However, all students did receive an education, just potentially a less expensive one if they lived in an area with lower property values. As such, the Court found no evidence that a certain class of “poor” were all universally discriminated against within the system. The claim that the system discriminated against minorities was also rejected because many other school districts in the city had significant numbers of minority students.

of education policy was too contested for courts to be able to effectively intervene and supply a beneficial remedy. Intervening in education finance issues as they relate to adequacy was simply not prudent for the Court, he claimed. The Court believed that “the consideration and initiation of fundamental reforms with respect to state taxation and education are matters reserved for the legislative process” and ought not be led by the judiciary. Despite this warning, Edgewood parents and the Supreme Court of Texas continued to look for judicial remedies. Aftermath of Rodriguez: The Edgewood Cases

In a move that would only ultimately vindicate Justice Powell’s warning, many of the original petitioners from the Rodriguez case went to the state trial court in the spring of 1984 claiming that the system violated the Texas Constitution’s Article VII mandate that the legislature The Court then took “make suitable proviup and ultimately resion for the support jected Gochman’s claim and maintenance of an that there was a right to efficient system of pubeducation, as it found lic free schools.” When education finance an their case, Edgewood inappropriate area for Independent School judicial intervention. District v. Kirby, went Gochman argued the to the Texas Supreme importance of educaCourt in 1989, the tion for the exercise Court read the word efof First Amendment ficiency to convey “the rights and the right to meaning of effective vote: “[The] electoral or productive results process… depends on and [to connote] the an informed electoruse of resources so as ate; a voter cannot cast to produce results with his ballot intelligently little waste” . Though unless his reading skills this did not mean that and thought process all students were guarhave been adequately anteed a certain educadeveloped.” Justice tion as Gochman had Powell refused to acpursued in Rodriguez, cept Gochman’s argu- Demonstrators in front of the White House demand a better education for their children. it did invalidate the ment for education as (Flickr Creative Commons) Texas system of high a fundamental right, taxes in property-poor as establishing a right to education would open the door to areas and low taxes in property-wealthy areas for being “incountless other fundamental rights instrumental to the right efficient.” To remedy this defect, the Court ruled that there to vote (like a right to food or housing) and would make the must be a “direct and close correlation between a district’s Court’s authority limitless. tax effort and the educational resources available to it.” The state was given seven months to codify this remedy in legislaJustice Powell’s most critical argument against a judicially tion before all state funding for public education would be protected fundamental right to education was that the area cut completely.

Yale Undergraduate Law Review • Volume 2, Issue 1

[4]


Domestic Law In finally acknowledging the funding disparities suffered by Edgewood students and opening the finance system to judicial review, the Texas Supreme Court started a volley of case law and state legislation that continues to the present day. As a response to the Court’s mandate in Edgewood, the state quickly mandated that 95% of the state’s schools receive the same amount of funding per student . But the Court almost immediately shot down the system in 1991 for not putting in place “efficient” caps on local property taxes. The state legislature then passed Senate Bill 351 to create county-based taxing districts that would allow for funding equalization at the county level based on payroll taxes in each school district in the county. In the eyes of the court, this system was tantamount to an unconstitutional statewide property tax. The state legislature was able to arrive at a temporary peace with the funding system it created in Senate Bill 7 in 1993. The plan created a complicated tier system with maximum and minimum taxing requirements and opportunities for property-rich districts to earn “credits” to increase their local property tax revenues if they supported other districts nearby. However, this system too was shot down in the case West Orange Cove Consolidated ISD v. Neeley (2005). Because of increased expenses, districts were forced to tax at the upper limit of the state’s prescribed tax system—thus effectively creating a statewide mandated tax. The state enacted a number of reforms as a result of the West Orange Cove case, nearly all of which locked in earlier funding inequalities or encouraged greater inequalities. Dr. Richard Middleton, superintendent of the Northeast Independent School District of San Antonio, confirmed this: “Winning the Supreme Court case for us created the dilemma that we find ourselves in today [with even more entrenched inequalities across the board].” One measure the state implemented was a Target Revenue system wherein state funding formulas were reoriented so as to ensure that districts received as much state aide as they had before 2006. Despite its good intentions, the policy was largely successful at locking in poor school districts in a funding system that was inherently to their disadvantage. The damaging effects of this transition are most salient in the aftermath of the recent budgeting process in the state legislature. Whereas Senate Bill 7 had been successful in reducing funding disparities from a 700-to-1 ratio to a 28-to-1 ratio, a local education policy think tank found that property-poor school districts brought in an average $2,189 less per student than property-rich school districts under the West Cove system. As part of its budgeting process in the legislative session ending this past June, the legislature cut approximately $4 billion from the state’s public education system. Propertypoor districts will most likely be the hardest hit. Targeted revenue systems that make it difficult to receive more funding from the state and the reliance on state minimum funding in the tier system will bind property-poor districts to the fewer funds the state has allowed for public education. Meanwhile, property-rich school districts will be able to make use of un-

[5]

equalized local enrichment above and beyond the state minimum and will look to private donations from wealthy families for the funding that they need to weather the storm. The state Supreme Court has made the situation even more difficult for property-poor districts. The Equity Center in Texas is currently exploring what legal action would be most effective. The Damage Done The judicial interference offered by the Texas Supreme Court in its work to make education in Texas “efficient” and has been anything but productive. The Supreme Court’s decision not to intercede seems to have been wise. The Texas Supreme Court’s endeavors to find meaningful remedies where Rodriguez stood silent created a years-long exchange between the Supreme Court and the legislature on the competing constitutional prohibition of a statewide tax and requirement for educational efficiency and adequacy. As of today, the standard sanctioned by the Supreme Court allows for less funding equality than those offered by previously rejected frameworks. Property-poor districts stand only to be further harmed by this system under the state’s new budget. The Texas Supreme Court’s indecisive and harmful efforts to find a judicial remedy vindicate Justice Powell’s warning in the Rodriguez opinion that courts are poorly equipped to adequately adjudicate questions of education finance and should avoid doing so at all costs. Zak Newman is a junior in Jonathan Edwards College. 1. Sracic, San Antonio v. Rodriguez and the pursuit of equal education: the debate over discrimination and school funding, 20 2. Ibid. 3. Ibid., p.36 4. He would also argue that education was a fundamental right, although this argument would not have been necessary to render the financing unconstitutional under the Equal Protection Clause. 5. Texas Constitution, Art. VII 6. Taxes based on the value of the real estate. 7. Rodriguez 8. Sracic, 126-­‐127 9. Edgewood 10. Sracic,, 128 11. Ibid, pg. 129 12. Êdgewood 13. Imazeki and Reschovsky, 2003, page 7 14. Middleton, 2011 15. Cortez, 2008 16. Cortez, pg. 9 17. Philpott, 2011

Yale Undergraduate Law Review • Volume 2, Issue 1


Juvenile Justice: Why Juvenile Life Without Parole Sentences are a Mistake

Juvenile Justice: Why Juvenile Life Without Parole Sentences are a Mistake The U.S. is the only country in which youths serve life prison sentences. Katherine Aragon

~

“ All they want is a second chance” -Steven Watt, Senior Staff Atttorney, American Civil Liberties Union’s Human Rights Program Bobby’s Story

B

obby Hines was 15 when he, 19-year-old Christopher Young and 16-year-old Darius Woolfolk went to confront James Warner. Warner was accused of having stolen a jacket from a local boy as payment for drugs. When the trio came upon Warner, 16-year-old Woolfolk shot and killed him. Hines had neither touched the weapon, nor the victim, yet he was convicted of felony murder and sentenced to serve “the rest of [his] natural life to hard labor and solitary confinement.” He had just finished his eighth grade.1 Bobby’s co-defendants, Young, who provided the weapon, and Woolfolk, who fatally shot Warner, were convicted of second-degree murder and are serving paroleable life sentences. These sentences and Hines’ sentence are vastly different. Why the discrepancy? By definition, second degree murder is “a non-premeditated killing, resulting from an assault in which death of the victim was a distinct possibility.”2 Felony murder is “any death which occurs during the commission of a felony is first degree murder, and all participants in that felony or attempted felony can be charged with and found guilty of murder,”3 (emphasis added) even if the death is accidental, and encompasses the crime of “aiding and abetting” if it results in a death. In Michigan, where this crime took place, the current sentencing laws force an automatic life-without-parole sentence for juveniles who are convicted of felony murder, even if, like Hines, they were only an accessory to the crime. Though in reality the physical murder that Woolfolk and Young were convicted of is a more serious offense, in practice, the felony murder conviction is a more serious sentence for juveniles. At the time of the offense, Bobby had average grades and regular attendance. Today, Bobby is assigned to the lowest custody level available for his sentence. He has now served twenty-

A juvenile prison cell. (Flickr Creative Commons) one years in prison on a non-paroleable life sentence, and will, according to the terms of his confinement, die in prison.4 Bobby’s story is not unique. Countless children have been sentenced to life in prison without parole (JLWOP) for crimes that are often less than murder. Many are simply in the wrong place at the wrong time. Hines’ case sharply frames the issue of whether it is ever appropriate, both from a constitutional perspective or as reasonable public policy, to mete out a sentence of life in prison without possibility of parole to a person who is 18 years or younger. Even when a child commits murder, it is erroneous to hold them to the same level of accountability as adults, without any opportunity to prove that they have changed for the better. Imprisonment, International Norms and the Constitution Why do we imprison people? According to the Justice Kennedy Commission convened by the American Bar Association in 2003 to examine the purposes of incarceration and the vast differences in sentencing in the U.S., the goals of incarceration are rehabilitation, deterrence, punishment and protection.5 However, by retaining JLWOP sentences the justice system openly casts aside the

Yale Undergraduate Law Review • Volume 2, Issue 1

[6]


Domestic Law

rehabilitative goal for children (those most likely to be truly changed) by nixing the possibility of eventually reincorporating a juvenile offender back into society. According to a Human Rights Watch report done in 2005, life without parole (LWOP) is an acceptable sentence for various crimes committed by juveniles in 42 states of the U.S.6 As of May 2009 there were still approximately 2,600 juveniles in the U.S. serving LWOP sentences.7 Nowhere else in the world are youth sentenced to such a term.8

The UN Convention on the Rights of the Child specifically prohibits incarcerating children for life,9 and the United States and Somalia are the only countries in the world that have yet to ratify it.10 The U.S. was also the sole country to vote against a 2006 UN resolution that called for the abolition of the life without parole sentence for children and young teenagers.11 Though a small number of countries have laws that could theoretically imprison a juvenile for life, the U.S. remains the only country with juveniles serving this type of sentence out.12 This makes the U.S. the only violator of international human rights standards that ban incarcerating children for life. By allowing juveniles to be sentenced to life in prison without parole, the United States is also, arguably, violating its Constitution. It can be reasonably argued that the sentence is “cruel and unusual punishment” and violates the 8th Amendment of our Constitution. While the average person would consider any prison sentence joyless and severe, both the young age at which a minor is sentenced (which means more time in prison than adult lifers) and the undeveloped nature of a minor’s brain elevate the punishment to a unique level of cruelty. Unfair Sentencing For the same reasons that juveniles should be considered less culpable for crimes committed, it should be recognized that the very point of sentencing as a means of deterrence is negated. A juvenile can’t fully comprehend the weight of a lengthy prison sentence, and the possibility of a harsh sentence will not be deterrent to them due to their inability to perceive the consequences of the sentence itself on their life. Not only are young offenders less mature and physically able to make informed, calculated decisions, many of them are grappling with a host of other issues prior to committing their crime. For example, “delinquent youths have higher rates of mental and psychological disabilities such as mental retardation, attention deficit disorder (ADD), depression and post-traumatic stress disorder (PTSD).” In addition, young offenders are much more likely to have been physically or sexually abused than children in the general, non-prison population. Youth who have consistently come under the negative power of adults are more easily manipulated. A sizeable number of juvenile lifers had adult co-defendants who oftentimes exerted their influence on impressionable youngsters and used them to commit a crime. Furthermore, due to unjust sentencing laws these adults often receive lighter sentences than their juvenile codefendants.

[7]

In addition, juvenile LWOP sentences are objectively harsher than adults’: if you are sentenced to life in jail without parole when you are 14 your sentence will be longer than someone sentenced to life at age 36. Juveniles will have also been sentenced in their most formative years, when they would “otherwise finish their education, form relationships, start families, gain employment, and through those experiences learn to become adults.”13 Moreover, there is a gaping racial disparity among minors sentenced to LWOP. 85% of youth sentenced to LWOP in California, for example, are people of color, with African Americans serving LWOP at a rate 18 times higher and Hispanic youth serving at a rate 5 times higher than the rate of white youth.14 In no way can these numbers be considered just or equitable. Progress and Reasoning Progress has already been made in increasing equitable sentencing in the U.S. The 2010 Supreme Court ruling in the case of Graham v Florida, 982 So. 2d 43 (2010) declared that sentencing juveniles to LWOP was unconstitutional in nonhomicide cases (crimes like burglary and armed robbery where no murder is involved) because the punishment was “cruel and unusual” and “inconsistent with basic principles of decency”. The same rationale justifying this decision applies to the JLWOP sentence. The death penalty has been outlawed as a sentence for children since 2005, when the Supreme Court ruled in Roper v. Simmons, 543 U.S. 551 (2005) that it was unconstitutional. The Court cited “evolving standards of decency” and the growing body of evidence that suggests that juveniles are inherently unable to be considered “among the worst offenders” due to an underdeveloped frontal lobe and limited capacity for mature decision making. Cognitive capacity was also taken into account in 2002, when the Supreme Court ruled in the case of Atkins v Virginia, 536 U.S. 304 (2002) that it was unconstitutional to impose the death penalty on mentally retarded individuals. While no one is arguing that people under 18 are mentally retarded, the Supreme Court has indicated that it deems mental development a crucial consideration when determining whether or not to impose the harshest sentences on an individual.15 Indeed, there is a consensus among neuroscientists that brain regions and systems responsible for foresight, self-regulation, risk assessment and responsiveness to social influences are not fully developed in minors. This is a key point to be made, as these scientific findings and court decisions suggest that the logic for imprisoning a minor for life is similarly flawed. Aside from the humanitarian perspective, why should the nation take interest in this issue? There are many potential positive benefits of rehabilitation: more tax-paying individuals, a more educated populace (which based on current statistics would seem to correlate with a lower overall crime rate), and reconstruction of broken families. Additionally, at

Yale Undergraduate Law Review • Volume 2, Issue 1


Juvenile Justice: Why Juvenile Life Without Parole Sentences are a Mistake

a time when states are struggling more than ever to balance budgets and manage overflowing prison populations, successful rehabilitation and release from prison of minors currently being held for life would be a welcome relief of monetary burden for faltering detention centers. National Consensus and Activism

When determining whether or not there is a place for a law or sentence in our justice system and legislative body, it is crucial to consider public opinion. Is there a national consensus against JLWOP? In most states, there are few to zero inmates serving out JLWOP sentences. In fact, in 2002 a trial judge in Illinois refused to impose the mandatory LWOP sentence, ruling it disproportionate to the crime, unconstitutional, and against international law.16 The case, called People v. Miller, involved a 15-year-old lookout, and the Illinois Supreme Court upheld the ruling. This and numerical statistics point to a national consensus against juvenile Life Without Parole. Anti-JLWOP activists are working to drum up grassroots opposition to sentences of LWOP and other disproportionate punishment of persons 16 years and younger. As Steven Watt, the ACLU’s senior attorney for the Human Rights Program and counsel in the ACLU’s lawsuit against the State of Michigan says, “if there isn’t a public discourse on the issue and a case is litigated in isolation then you can get decisions like [the Allen case] in Connecticut, where the judge ruled on appeal that it was ultimately a “public policy determination reserved to the legislative branch of government.” It begs for … an awareness-raising at all levels of society. That’s the way to litigate a case effectively, to have a groundswell of opinion in support of the case.”17 The case, made by Anthony Allen against the State of Connecticut, appealed the JLWOP sentence mandated by the court because Allen was convicted of a capital felony as a minor. Conclusion With age comes a maturing of impulsive behavior. Accordingly, rates for homicide and other violent crimes are highest among 18 to 24 year-olds and decrease markedly after this point—an age at which individuals have more emotional tools at hand to deal with conflict. 25 A criminal justice system will be imminently more just when JLWOP laws are amended to include the possibility of a ‘meaningful opportunity for parole’ for juveniles, at a time when their judgment and behavior have substantially matured, thus rendering them less of a threat to society. This approach seems to model a criminal justice system and its “evolving standards of decency,” as the United States Supreme Court has stated. For our justice system to move one step closer to being a truly equitable and fair one, we must recognize children for what they are: beings who, though, intelligent, have not yet attained emotional and mental maturity and thus possess a large capacity (more than adults) to fundamentally change.

To cast a 15 year old away to die in prison is to submit to the idea that we as a society are unable to apply the judgment, maturity and justice to these children that we unforgivingly expect of them. Katherine Aragon is a sophomore in Timothy Dwight college. 1. Diane Bukowski. “The Rest of Their Lives: Death in Prison for Child Offenders.” The Michigan Citizen. http://michigancitizen.com/the-rest-of-their-lives-death-in-prison-forchild-offenders-p2269-1.htm (accessed Sep 15, 2011) 2. The Free Dictionary. “Second degree murder.” http://www. thefreedictionary.com/second-degree+murder (accessed Sep 15, 2011) 3. Legal Dictionary. “felony murder doctrine.” http://dictionary.law.com/Default.aspx?selected=741 (accessed Sep 15, 2011) 4. “The Rest of Their Lives: Death in Prison for Child Offenders.” 5. “Report of the ABA Justice Kennedy Commission.” http://www.abanow.org/wordpress/wp-content/files_flutter/1267822008_20_1_1_7_Upload_File.pdf (accessed Sep 15, 2011) 6. Amnesty International. “The Rest of Their Lives: Life Without Parole for Child Offenders in the United States.” Oct 11, 2005. http://www.amnesty.org/en/library/info/ AMR51/162/2005 (accessed Sep 15, 2011) 7. PBS Frontline. “When Kids Get Life.” May 8, 2007. http:// www.pbs.org/wgbh/pages/frontline/whenkidsgetlife/ (accessed Sep 15, 2011) 8. American Civil Liberties Union. “ACLU Lawsuit Challenges Life Without Parole for Michigan Juveniles” http://www. aclu.org/human-rights-racial-justice/aclu-lawsuit-challenges-life-without-parole-michigan-juveniles (accessedSep 15, 2011) 9. United Nations. “Convention on the Rights of the Child.” http://www2.ohchr.org/english/law/crc.htm (accessed Sep 15, 2011) 10. LaBelle, Deborah, Anna Phillips, and Laural Horton. American Civil Liberties Union. Second Chances. Detroit: ACLU of Michigan, 2004, p.21. http://www.aclu.org/humanrights-racial-justice/second-chances-juveniles-serving-lifewithout-parole-michigan-prisons (accessed Sep 15, 2011) 11. Agyepong, Tera. “Children Left Behind Bars: Sullivan, Graham, and Juvenile Life Without Parole Sentences.” Northwestern Journal of International Human Rights 9.1 (2010): 83-102. 12. Atkins v. Virginia 536 U.S. 304 (2002) 13. Second Chances. p.18 14. “Juvenile Justice in California Fact Sheet” http://hrwstf. org/jjtoolkit/CA%20Juvenile%20Justice%20Sheet.pdf (accessed Sep 15, 2011) 15. Atkins v. Virginia 536 U.S. 304 (2002) 16. Illinois v. Miller, 202 Ill. 2d 328, 781 N.E. 2d 300 (Ill. 2002) 17. Steven Watt, American Civil Liberties Union. Senior staff attorney Human Rights Program. Personal interview

Yale Undergraduate Law Review • Volume 2, Issue 1

[8]


Domestic Law

A New Legal Framework against Terrorism: A National Security Court, Part I The United States has been mired in an incoherent mix of using civilian trials and military commission to deal with terrorist suspects. Julio Guillermo Garzon

~

Introduction

I

t has become an accepted understanding that the United States is engaged in an unconventional war against terrorist forces. Almost ten years after the 9/11 attacks, however, U.S. policy regarding detention and prosecution of terrorist suspects remains legally uncertain and politically disputed. The Bush and Obama administrations have sought to use two seemingly conflicting judicial models – military commissions and civilian trials – in an increasingly incoherent manner. Neither president has been willing to address the proper relationship between the two models. This development results from one of the central conundrums of the post-9/11 era: Are terrorists criminals who should be tried through the civilian law enforcement process? Are they enemy belligerents who should be held in military detention, even when acting within the United States? Or do they fall somewhere in between, and we lack an adequate legal framework? Starting from the premise that it is undesirable to encourage the continuation of current detention policy, this article has 3 aims: (1) to demonstrate the procedural and substantive shortcomings in the civilian trial model; (2) to appraise the incongruities of both traditional models with respect to meeting the central legal challenges of modern terrorism; and (3) to expand upon constructive reforms, namely the creation of a national security court that would deflate the civil liberties and national security concerns currently associated with the prosecution of terrorism. Such a court would have several advantages over the existing patchwork system. Such a court would operate with a Congressionally approved definition of the enemy and the rights it is willing to extend to them; it would develop a new method for monitoring and reviewing the detention of alien enemy combatants captured outside U.S. territory; it would lessen the burden on military commissions and ordinary civilian courts; and it would manage classified evidence in a sensitive manner—all without the need to provide detainees with a full array of criminal protections. Discovery Dilemmas in the Criminal Justice System

Because of their essential position in the criminal justice system as a bulwark against government overreach, judges tend

[9]

to promote individual rights at the expense of public safety. When in doubt, the operating assumption of federal courts (or Article III courts) is to err on the side of dispensing more due process. This is the suitable default position in the civilian justice system but in the prosecution of international terrorism and the domain of national security, such a position is not workable. On the international stage, the government faces a myriad of sovereign states and sub-national entities (namely terrorist organizations) and generally does not extend rights to these hostile foreign operatives under the American constitution. Regarding them as if they were citizens charged with ordinary crimes can have devastating consequences. Criminal prosecution itself also faces a considerable problem with regard to intelligence discovery. Under discovery rules, the government is obliged to grant accused persons any information within its possession that can be deemed “material to preparing the defense.”1 Furthermore, under the existing construction of the Brady doctrine, the prosecution is required to divulge any information that is even conceivably material and exculpatory.2 When there is any uncertainty about whether sensitive information needs to be revealed, the problem is decided by Article III courts in regard to what an equitable trial demands, rather than by the Executive Branch according to what national security dictates. The U.S. justice system’s discovery requirements thus have the potential to endanger national security; the propagation of valuable intelligence to terrorist defendants, which the government is bound by law to do, allows terrorists to disclose what they learn in discovery to their accomplices—and the government has, in fact, done so.3 Rasul, Article III Courts, and Military Detentions The court’s efforts to reassess the detention of alien enemy combatants illuminate the clear tension between traditional judicial review and historical judicial deference to wartime judgment of the political branches of government. In such cases, the courts historically have declined to apply judicial review. In Johnson v. Eisentrager, the Supreme Court declined to entertain a habeas corpus appeal brought by German detainees who disputed their trial by military commission for war crimes. The Court found that their petition was outside the province of Article III courts and that judicial deference

Yale Undergraduate Law Review • Volume 2, Issue 1


A New Legal Framework to Combat Terrorism: A National Security Court, Part I to the decisions of the political branches were acceptable because “trials would hamper the war effort and bring aid and comfort to the enemy” as well as engender a “conflict between judicial and military opinion.”4 In such cases, judicial review is subordinated to decisions made by the political branches. In Al Odah v. United States, a unanimous panel of the U.S. Court of Appeals for the District of Columbia Circuit concurred that Johnson signified that al-Qaeda and Taliban prisoners detained at Guantanamo Bay were also outside the province of habeas corpus protection. Discerning that the naval base in Cuba was located outside the territorial jurisdiction of the United States, the panel held that the combatants were aliens outside the United States not entitled to constitutional rights, and could thus not obtain judicial review.5 This decision reaffirmed the judiciary’s historical hesitation to interfere in decisions to conduct military hostilities, decisions constitutionally entrusted to the political branches. Nevertheless, the interference of the federal courts in the management of military operations – particularly detention and interrogation of enemy combatants captured overseas – came to head in June 2004, when the Supreme Court decided the fundamentally important cases Hamdi v. Rumsfeld and Rasul v. Bush. In Rasul, the Court held for the first time that alien enemy combatants taken captive by the U.S. military overseas have a right, even as war proceeds, to challenge their detention in federal court proceedings under the scope of the Great Writ.6 Further employing its discretion to promote the purported privileges of alien enemy combatants over the exigencies of national security, the Rasul-imposed system created provisions of counsel to these combatants. These provisions proved severely obstructive to vital intelligence collection. Senators John Kyl and Lindsey Graham, two key sponsors of the 2005 Detainee Treatment Act,7 described this problem in 2005. Senator Kyl observed: “Giving detainees access to federal judicial proceedings threatens to seriously undermine vital U.S. intelligence-gathering activities…shortly after al-Qaeda and Taliban detainees arrive at Guantanamo Bay, they are informed that they have a right to challenge their detention in Federal court and the right to see a lawyer. Detainees overwhelmingly have exercised both rights…The system imposed last year as a result of Rasul – access to adversary litigation and a lawyer – completely undermines these preconditions for successful interrogation.”8

A Guantanamo Bay Courthouse. (Flickr Creative Commons) at Guantanamo Bay, boasted…about how he has made it harder for the military to do its job… : ‘The litigation is brutal for them. It’s huge. We have over a hundred lawyers now from big and small firms working to represent these detainees. Every time an attorney goes down there, it makes it that much harder to do what they’re doing.’”9

Commenting on the actual practice of these methods at Guantanamo Bay, Senator Graham described the audacity of detainee counsel:

Federal courts, however, do possess the opportunity to serve as a weapon against terrorists. The judicial process can offer another method for combating terrorism that may prove more efficacious than military means. Some cases are workable in civilian trials, especially when the defendants cooperate freely.10 However, in the role begun by Rasul and not interrupted until the Military Commissions Act of 2006, the judiciary instead served as an international adjudicator, conferring the full panoply of rights under the federal justice system to foreign nationals. This proved as irrational a development as the aforementioned treatment of a war against international terrorism as a strictly criminal justice issue.

“Perhaps the best evidence that the current Rasul system undermines effective interrogation is that even the detainees’ lawyers are bragging about their lawsuits having that effect. Michael Ratner, a lawyer who has filed lawsuits on behalf of numerous enemy combatants held

Following the 9/11 attacks, the United States has had to significantly adjust its approach to counterterrorism. It began to consider al-Qaeda and its affiliates as a military threat worthy of a comprehensive government reaction, not merely a criminal justice response, as it had eight years earlier after

Yale Undergraduate Law Review • Volume 2, Issue 1

[10]


Domestic Law the 1993 World Trade Center bombing. Nevertheless, this new paradigm has since given rise to new problems, the most pressing of which has been the intrusion of the federal court system into the management of military operations—specifically the detention and interrogation of alien enemy combatants captured overseas. This interference has created difficulties comparable to those mentioned above with respect to terrorist trials in civilian courts.

“When in doubt, the operating assumption of Article III courts is to err on the side of dispensing more due process.”

To observe that this has developed is not to disparage our judicial system. The main role of the judiciary is not to ensure the security of the United States, but rather to vindicate the rule of the law in the domestic setting. In the international arena, however, the top national priority is not to ensure justice for those parties who come to court; it is to protect the welfare of the American people. This is a function vested chiefly within the executive branch. Thus did Justice Oliver Wendell Holmes Jr. write in Moyer v. Peabody, “Public danger warrants the substitution of executive process for judicial process.”11 The handling of detainees captured in international military operations is precisely such a national security matter. It has long been considered part of the conduct of war, which is a chiefly executive branch function, and supported by Congress in the exercise of its Article I regulatory authority.12 There thus must be a development of a new system for detention and prosecution of terrorists in the United States. That does not mean that there could be no conceivable role for Article III courts in national security matters. But the Rasul decision illuminates the fact that any such role would most likely have to be significantly regulated in the future. Furthermore, certain presumptions of the domestic criminal justice system would be utterly inappropriate in a system designed to deal with alien enemy combatants. The latter system would not exist to promote conferred constitutional protections but would instead be conceived for the purpose of providing the minimum of due process required to guarantee the integrity of the result. Even after the passage of the Military Commissions Act of 2006,13 the matter of combatant detention has lamentably not been brought to a close and continues to reverberate politically and diplomatically. Moreover, despite the opportunity to validate its capacity to deal judiciously and expeditiously with alien enemy combatants before national and international spectators, the executive branch has failed to bring a single military commission to conclusion in the first five years since 9/11, and no more than three in the nearly five years since the passage of the Military Commissions Act. While a good case still exists that military proceedings are the best way to address alien combatants, this can no longer be assumed given the stakes involved. The military commission procedures are, it bears repeating, comprehensive and exceedingly fair to combatants.14 Had they been carried out with greater efficacy, we would now

[11]

have had many concluded commissions recognized by U.S. courts and the international community as models of integrity. Furthermore, while the Military Commissions Act is an improvement, it mainly addresses the problems attendant to dealing with detainees at Guantanamo Bay. It is not an all-inclusive answer to the manifold challenges sure to arise in the future in a conflict against militant Islam that could last for decades. The State Department and the Supreme Court would not prohibit the Humanitarian Law Project from teaching a nonviolent civil rights leader of the Kurds to use the same legal methods they wanted to teach the PKK; the U.S. government is undoubtedly concerned with the development of safe, prosperous, and stable societies across the globe, and protest or petition can be a means to that end. However, the curse of working with any terrorist group in the way the HLP desired is this: any successful resolutions of violence that fulfill terrorist objectives simply fan the flames of terrorism itself, inspiring others to take up arms in the hopes that governments and citizens will tire of violence and submit once more. For this reason, the Supreme Court denied designated terrorist organizations any respite, tools, or assistance, no matter how seemingly benign it seemed. Julio Guillermo Garzon recently graduated from Yale College. A more effective solution to the detention and prosecution of individuals arrested during the operation of the global war on terrorism will be outlined in the continuation of this piece, available online. Visit www.yulr.org. 1. Rule 16(a)(1)(E), Fed. R. Crim. P. 2. Brady v. Maryland, 373 U.S. 83 (1963). 3. See McCarthy, Andrew C. Willful Blindness: a Memoir of the Jihad. New York: Encounter, 2008. 304-05. 4. Johnson v. Eisentrager, 339 U.S. 763 (1950). Finding that Article III courts had no jurisdiction over their petition, the Court observed that “these prisoners at no relevant time were within any territory over which the United States is sovereign, and the scenes of their offense, their capture, their trial and their punishment were all beyond the territorial jurisdiction of any court of the United States.” 5. Al Odah v. United States, 321 F.3d 1134 (D.C. Cir. 2003). 6. Rasul v. Bush, 542 U.S. 466 (2004). 7. Detainee Treatment Act of 2005 (H.R. 2863, Title X). 8. 151 CONG. REC. S14256-01, 14260 (daily ed. Dec. 21, 2005) 9. 151 CONG. REC. at S12652-60 (statement of Sen. Graham). Roychoudhuri, Onnesha. “The Torn Fabric of the Law: An Interview With Michael Ratner | Mother Jones.” Mother Jones | Smart, Fearless Journalism. 03 Aug. 2010. http:// motherjones.com/politics/2005/03/torn-fabric-law-interview-michael-ratner. (accessed Sep 18, 2011) 10. “Eric Holder and the Zazi Terrorist Case - WSJ.com.” Business News & Financial News - The Wall Street Journal - WSJ.com. 25 Feb. 2010. http://online.wsj.com/ article/NA_WSJ_PUB:SB10001424052748704188104575083512250354250. html (accessed Sep 15, 2011) 11. Moyer v. Peabody, 212 U. S. 78, 85 (1909). 12. See, e.g., 10 U.S.C. 821 (codifying military commissions). See also Military Commissions Act of 2006. 13. “Military Commissions Act of 2006” Pub. L. No. 109-366, 120 Stat. 2600 (October 17, 2006), §949. 14. See, e.g., Andrew C. McCarthy and Alykhan Velshi, “We Need a National Security Court” (John Yoo [editor] Outsourcing American Law), 30.

Yale Undergraduate Law Review • Volume 2, Issue 1


Security in Discourse or Terror in Disguise?

Security in Discourse or Terror in Disguise? The Holder v. Humanitarian Law Project Dilemma Michael Magdzik

~

Holder: Background and the Court’s Reasoning

I

n a world where non-state actors constitute some of the most dangerous enemies of the United States, our laws governing interactions with designated terrorists have in many instances been the source of contention in national political discourse. Numerous legal challenges have accompanied public debates, as seen in the recent Supreme Court decision Holder v. Humanitarian Law Project,1 decided in June 2010. In the case, a group of lawyers supporting a pair of designated terrorist organizations (the Kurdistan Workers Party, which operates in Turkey, and the Liberation Tigers of Tamil Eelam from Sri Lanka) challenged a provision of the Antiterrorism and Effective Death Penalty Act, which authorizes the Secretary of State to designate a group as a “foreign terrorist organization.” The act also makes it a stiffly-punished crime to deliver any “material support or resources” to such a group—even in support of its nonviolent and legal activities. The Humanitarian Law Project (HLP) had never intended to advance the terrorist activities of these groups, but had hoped instead to give them legal assistance that would enable them to petition international organizations for disaster relief or human rights complaints, or to use international law to peacefully negotiate disputes with their respective governments. The program was designed to give these terrorist organizations alternatives to violence and thereby encourage them to lay down their arms. After the “material support” provision of the Antiterrorism and Effective Death Penalty Act was ruled unconstitutionally vague by the courts, Congress passed the Intelligence Reform and Terrorism Prevention Act, which established the additional requirement that providing aid be “knowingly rendered.” The act also further clarified the term “material support or resources.” The definition of aid came to encompass, in more specific terms, property (tangible or intangible) and service (including currency, weapons training, safe-houses, false documentation, communications platforms, and explosives, among others). In Holder v. HLP, the district court held that some parts of the revised act were unconstitutionally vague, and the U.S. Court of

(Flickr Creative Commons) Appeals for the Ninth Circuit affirmed, holding that the terms “service,” “training,” and “other specialized knowledge” under the Antiterrorism and Effective Death Penalty Act were unclear as applied specifically to the plaintiffs. The Supreme Court disagreed, and rejected both the Due Process Clause challenge concerning vagueness under the Fifth Amendment and a First Amendment challenge on the grounds of free speech and association. While the Court acknowledged that the law was not perfectly clear in every aspect, it reasoned that the act was sufficiently unambiguous with respect to the Humanitarian Law Project. All nine justices agreed on the vagueness component of the appeal. The relevant question then became the supposed First Amendment violation; on a 6-3 decision, the Court did not find one. Chief Justice John Roberts wrote for the majority, which included Justices Antonin Scalia, Samuel Alito, Clarence Thomas, John Paul Stevens, and Anthony Kennedy. Justice Stephen Breyer wrote for the dissent, acknowledging the lack of unconstitutional vagueness but arguing that the compelling government interest necessary to prosecute the plaintiffs for their speech was absent. He was joined by Justices Ruth Ginsburg and Sonia Sotomayor.2 The decision provoked considerable public outcry from many liberal members of the political establishment and media. Former President Jimmy Carter, renowned for his post-presidential work with numerous humanitarian NGOs and conflict resolution processes (including the one in Israel-Palestine), criticized the decision3 for setting back attempts to find peaceful solutions to political situations involving terrorist groups. Violation of the law carries a fifteen-year prison sentence as a penalty; consequently, many lawyers interested in such conflict resolution would conceivably shy away from risking an unfavorable judicial decision, and abandon any attempts to work with terrorist groups toward peaceful conclusions. Justice Breyer’s dissent and the general argument for the

Yale Undergraduate Law Review • Volume 2, Issue 1

[12]


International Law HLP is a familiar refrain in our post-9/11 society. It suggests that we have gone too far in the pursuit of ironclad national security and have consequently sacrificed crucial liberties,4 including those that might have enabled a less antagonistic conclusion to terrorist activities. The deaths of several thousand American soldiers and many more civilians in the war in Afghanistan and other counterterrorist operations have soured many on the idea of violence as a means to deal with non-state actors who have turned to violence themselves. A modern-day Clausewitz might observe that they are simply carrying out “politics by other means.”5 The central question in Holder v. Humanitarian Law Project revolves around the ability to deal with those who have abandoned established political processes within their nations. The HLP’s vision is one that reflects faith in the ability to broker deals and bring people in from the cold.

across the region. Turkey has experienced a turbulent and controversial past with its Kurdish minority, having gone so far at one point as to outlaw the Kurdish language. Yet because Turkey has proved a stalwart partner of the United States on other issues (logistical support for military operations in Iraq, for instance), perhaps the State Department “terrorist” designation is not a statement of uncontestable fact. Rather, keeping in mind that many nations (including our Western European allies) do not designate the same groups we do, the State Department’s categorization may act more as a political tool to advance decidedly political agendas.6 This leads us to consider whether we handicap ourselves by criminalizing attempts to find non-violent solutions, and if the decision in Holder v. Humanitarian Law Project reflects continued blind faith in an executive branch that has adopted an irrational, hypocritical, and self-destructive eliminate-at-all-costs policy in our War on Terror.

Ambiguities of Non-Violent Aid At the same time, one must consider potential negative consequences of non-violent assistance for terrorist groups. There are, for example, categories of non-violent assistance that nevertheless aid those same violent means they aim to supplant, instead of facilitating the political accord originally intended. Simply giving cash to a terrorist organization is problematic, for instance—even if it were routed to a terrorist bank account for a stated purpose, such as facilitating training in human rights law, some of it would almost certainly be funneled towards weapons, propaganda, or other terrorism-related objectives of the organization. This principle of the fungibility of money in terrorist hands is a well-known phenomenon acknowledged by both sides of the Court in the case, and is directly stated in congressional findings pertaining to the laws in question. Legal advice, however, does not seem to have that same impact, and it was legal advice that the HLP wanted to grant, not money. Could groups like the PKK use the knowledge of how to file reports about human rights abuses the Turkish government supposedly perpetrates against the Kurds to blow up buildings? This conclusion seems difficult to justify, but was what the Court determined. Granted, the success of such a report could undermine the sitting Turkish government and galvanize popular support for political alternatives, such as the PKK. Yet we must question whether this is necessarily wrong and thus something we should prevent. The same kind of criticism of the Turkish government could have been levied by a New York Times editorial piece or countless other forms of world media, all of which are free to assert the morality of the causes of groups like Hamas; as the U.S. government took pains to emphasize in its oral argument in the case, and as the Court reaffirmed its decision, it is not illegal to advocate for the goals of a terrorist group in public. Is this distinction between independent advocacy and association meaningful? Perhaps we are simply in bed with the wrong people, as many have argued we were when we supported recently ousted autocrats like Ben-Ali in Tunisia, Mubarak in Egypt, and other Middle Eastern strongmen

[13]

“In a society that believes in the ability of the legislature and the courts to address grievances without resorting to violence, terrorism to achieve political ends is a fundamental rejection of the social contract.” Fungible Money and Counseling As tempting a narrative as it may be, this analysis is ultimately misguided and fails to take into account the realities of terrorist group tactics and modern political warfare. When passing the law in question, Congress found that foreign terrorist organizations are “so tainted by their criminal conduct” that any assistance whatsoever, no matter how seemingly benign, facilitates that conduct. And indeed, terrorist groups around the world frequently use humanitarian methods to advance ultimately destructive goals. When Pakistan suffered intense flooding in 2010, one of the largest contributors of humanitarian aid was the Pakistani Taliban, particularly in regions where government assistance proved incompetent or nonexistent. It would be naïve to believe that they did so solely out of the goodness of their hearts; instead, this was a concerted attempt to rally support for their cause from the populace. Even though the HLP did not want or intend to donate directly to terrorist organizations, enabling them to petition more effectively for disaster aid (as with the tsunami in Southeast Asia, which was one of the HLP’s stated goals) would help them obtain funding from different sources that would still be subject to the same fungibility effect. There are no financial firewalls between the weapons-buyers and the relieffunders. Even if there were no leaks, in the event that all the money the terrorists received towards disaster relief was in fact used for disaster relief, money they would have other-

Yale Undergraduate Law Review • Volume 2, Issue 1


Security in Discourse or Terror in Disguise? wise committed to disaster relief would be freed up to buy or build weapons. As current Justice Elena Kagan succinctly stated in her oral argument for the government side in this case: “Hezbollah builds bombs. Hezbollah also builds homes. What Congress decided was, when you help Hezbollah build homes, you are also helping Hezbollah build bombs.”

war that is fought asymmetrically, with tactics (and often resources) shared among terror groups across several continents, words can be just as important as death counts. Humanitarian Aid, but Not to Terrorists This does not mean that humanitarian disasters must go unanswered or that human rights abuses should not be decried. The inability to assist people with filing such petitions only applies to designated terrorist organizations, of which there will always be a relatively limited number. Furthermore, their statuses can be challenged and reviewed by the courts on appeal, independent of the Secretary of State’s input. Designated terrorist organizations are put on the list because they are perceived as some of the greatest threats not only to physical lives and safety, but also to democratic systems of government. In a society that believes in the ability of the legislature and the courts to address grievances without resorting to violence, the use of terrorism to achieve political ends represents a fundamental rejection of the social contract.

Afghani refugees are carrying off humanitarian aid packages. (Flickr Creative Commons) Furthermore, more skillful negotiation and public posturing are deadly assets in the hands of these highly adept individuals. If a group can use the promise of peace talks to slow the pace of government crackdowns on terrorism, or to win crucial ceasefire concessions, it can much more effectively buy time to recover from setbacks. The motivations and mindsets of such groups must be taken into consideration. Terrorist campaigns are rarely waged with the goal of actually winning a direct conflict with a particular state. Such victory is simply infeasible; by definition, these campaigns are asymmetrical struggles against much more powerful political entities. Instead, terrorist organizations try to win using propaganda efforts and by channeling popular support and anger. In the past decade, the masterful way in which al Qaeda in particular has used propaganda videos to respond to political events in the West has helped nurture the development of aligned terror movements—such as al Qaeda in the Arabian Peninsula and al Shabab in Somalia. If groups like the PKK or LTTE temporarily appear to embrace peaceful means or even seem like legitimate political actors in a region, they cultivate more interest in their organizations and raise more antagonism towards governments – as with Turkey – that consequently begin to look significantly less reasonable. This appearance of moderation makes it easier to recruit individuals into the initial stages of the organization: Afterwards, they can gradually indoctrinate the new members into a group’s more violent and vitriolic elements. In an ideological and political

The State Department and the Supreme Court would not prohibit the Humanitarian Law Project from teaching a nonviolent civil rights leader of the Kurds to use the same legal methods they wanted to teach the PKK; the U.S. government is undoubtedly concerned with the development of safe, prosperous, and stable societies across the globe, and protest or petition can be a means to that end. However, the curse of working with any terrorist group in the way the HLP desired is this: any successful resolutions of violence that fulfill terrorist objectives simply fan the flames of terrorism itself, inspiring others to take up arms in the hopes that governments and citizens will tire of violence and submit once more. For this reason, the Supreme Court denied designated terrorist organizations any respite, tools, or assistance, no matter how seemingly benign it seemed. Michael Magdzik is a junior in Berkeley College. 1. “HOLDER v. HUMANITARIAN LAW PROJECT,” The Oyez Project at IIT Chicago-Kent College of Law, http://www. oyez.org/cases/2000-2009/2009/2008_08_1498. (accessed Sep 18, 2011) 2. Ibid. 3. “Supreme Court Rules Material Support Law Can Stand,” American Civil Liberties Union http://www.aclu.org/nationalsecurity/supreme-court-rules-material-support-law-can-stand (accessed Sep 18, 2011) 4. “A Bruise on the First Amendment,” New York Times, http:// www.nytimes.com/2010/06/22/opinion/22tue1.html (accessed Sep 18, 2011) 5. “The Forum”, The Online Library of Liberty. Carl von Clausewitz. http://oll.libertyfund.org/index.php?option=com_content &task=view&id=1123&Itemid=290 (accessed Sep 18, 2011) 6. Scott Atran and Robert Axelrod, “Why We Talk to Terrorists.” New York Times, June 29, 2010. http://www.nytimes.com/2010/06/30/ opinion/30atran.html (accessed Sep 18, 2011)

Yale Undergraduate Law Review • Volume 2, Issue 1

[14]


International Law

If a Drone Flies in Yemen: The United States and the Modern Definition of War In recent decades, definitions of war have been blurred, and power has slipped from Congress. Grayson Clary

O

n March 19, 2011, the United States Navy launched An Inconsistent History dozens of Tomahawk missiles against Libyan targets in support of a multilateral military intervention.1 History provides some context but little guidance as to what On June 23, a drone attack on Somali militants made Somaexactly constitutes the litmus test for war. Formal declarations lia the sixth nation in which the United States is known to of war by Congress as defined in Article One, Section Eight conduct drone strikes.2 A contingent of U.S. Navy Seals killed of the United States Constitution7 are few and far between 3 al-Qaeda terrorist leader Osama bin Laden in a raid in Abin U.S. history; in fact, there have been no such declarations bottabad, Pakistan on May 2. All these actions, however – as since World War II.8 Large-scale military engagements with combative and deadly as they might Congressional funding but no exhave been – weren’t exactly acts of “When Seal and CIA operators executed the plicit authorization are justified with war. U.S. military strikes in Libya resolutions passed by the United Nadid not receive prior Congressional raid on Osama bin Laden’s compound, they did tions Security Council. Other miliauthorization,4 attacks in Libya were tary conflicts have received Congresconsidered “targeted killings,”5 and so on the order and authority of the President, sional stamps of approval just short the Navy Seals responsible for killof a full declaration of war, the most ing Bin Laden were under temponot of Congress.” notable instance being the Gulf of rary civilian command of the Central Intelligence Agency.6 Tonkin Resolution in 1964 that allowed for U.S. military acThese operations highlight the increasingly fuzzy jurisdiction in Vietnam.9 tion behind the use of lethal force by the United States. In the shadow of 9/11 and the flush of a newly minted age for In response to the escalation of United States military involveglobal politics, the laws of war are foggier than ever. ment in Southeast Asia and the perceived threat to Congress’ authority to dictate war, the War Powers Resolution was passed in 1973 (over the veto of President Nixon) in an attempt to define more rigidly the United States’ military involvement.10 Its success, however, has been decidedly mixed; interspersed along this timeline are dozens of other military actions that never received the Congressional nod and were instead ordered on the authority of the President.

A U.S. Navy Seal parachuter is dropped. (Flickr Creative Commons)

[15]

Into this mire comes the Authorization for Use of Military Force Against Terrorists, the Congressional resolution that has done more than any other law to

Yale Undergraduate Law Review • Volume 2, Issue 1


If a Drone Flies in Yemen: The United States and the Modern Definition of War complicate the discussion of military action in the era of the War on Terror. Passed on September 14, 2001 in response to the September 11 attacks, the joint resolution granted the President the following, wide-ranging authorization: “… to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”11 The consequences of the resolution soon snowballed.12 It served as a justification for the invasion of Afghanistan and prompted the controversial decision by the Bush Administration to treat Taliban fighters as “enemy combatants” subject to trial before a military commission, rather than as lawful combatants subject to the protections of the Geneva Conventions.13 The resolution provided a legal argument for warrantless wire-tapping14 and led to the development of drone campaigns for targeted killings. Too Many Cooks: Sidelining Congress In broad strokes, the resolution had two crucial impacts: It largely shifted the authority to initiate military action against terrorists from Congress to the President, and it framed that authority in terms of a proactive and preemptive mandate. Consequently, when Seal and CIA operators executed the raid on Osama bin Laden’s compound, a combat operation on foreign soil, they did so on the order and authority of the President, not of Congress.15 When a Predator drone launches its payload of Hellfire missiles at suspected al-Qaeda militants in Yemen, the United States government considers that attack an act of self-defense justifiable under international law.16 Congruently, the War Powers Resolution of 1973 has proven to be toothless and ineffective in restraining executive authority. As U.S. involvement in the 2011 Libyan conflict dragged on and President Obama chose not to seek Congressional approval for the U.S. presence there, infuriated members of Congress introduced a number of resolutions calling on the President to justify the conflict. Speaker of the House John Boehner wrote to Obama to demand that the President comply with the War Powers Resolution and seek Congressional authorization.17 The Obama Administration responded that the War Powers Resolution did not apply since the Libyan intervention fell short of an actual war.18 Former President Bill Clinton, who similarly chose to disregard cries for Congressional authorization during the NATO intervention in Kosovo in 1999,19 supported Obama’s decision to act in Libya.20 Again, differing definitions of war jockey for supremacy. Each one allocates the authority to initiate military action in a different manner, yet, consistently, this authority increasingly seems to be slipping away from Congress. Cloak, Dagger, and Drone

The last decade has seen an accelerating erosion of the distinction between the military and civilian spheres due to the growing prominence of the CIA as a participant in the War on Terror. This on-going conflict requires a different toolkit than that of a typical inter-state war, and the CIA has adapted to fit that niche. It is now agents of the CIA who operate the deadly drones and choose their marks, while their paramilitary officers conduct cross-border raids in Pakistan or designate targets for air strikes in Yemen.21 All this is the work of a civilian agency, a fact that conjures up prickly questions for the U.S. government: On what authority can CIA agents, non-combatants in theory, claim the right to use lethal force against foreign nationals? The attacks are technically permissible, largely because the governments of states like Yemen and Pakistan give either their explicit22

“It is now agents of the CIA who operate the deadly drones.” or tacit23 consent for these attacks.24 Still, the strikes have prompted ire in the international community, including rebukes from the United Nations Council on Human Rights, related to civilian casualties and lack of CIA accountability to international law. Despite the fuzzy legality of quasi-military CIA activities in the War on Terror, the U.S. seems unlikely – and unwilling – to scale back or discontinue them. Speaking to the mindset of the current administration, General David Petraeus, Commander of U.S. forces in Afghanistan, was chosen as the next Director of the CIA, while CIA Director Leon Panetta was tapped as Secretary of Defense.25 CIA involvement in the business of war is an increasingly crucial element of U.S. military engagement. Modern War: Waged in Shades of Grey All these developments suggest a gradually blurring framework for the waging of a modern war. The saying that generals habitually prepare to fight the war they just fought seems to fall flat now; the United States’ practice of war-making has demonstrated a striking flexibility over the past decade, an adaptability born of the exigencies of the War on Terror that is fundamentally reshaping what military engagement means for the superpower. The structure of war has been recast, producing a vision of conflict that is predicated on executive rather than Congressional authority and executed by a motley blend of military and civilian operators, soldiers and spies. Each drone, flying its sortie at the hands of a CIA pilot and at presidential behest, represents a new paradigm in 21st century conflict. Grayson Clary is a sophomore in Jonathan Edwards College. 1. BBC News. “Libya: US, UK and France attack Gaddafi forces.” BBC News Africa. March 20, 2011. http://www.

Yale Undergraduate Law Review • Volume 2, Issue 1

[16]


International Law bbc.co.uk/news/world-africa-12796972 (accessed July 1, 2011). 2. Estes, Adam Clark. “American Boots Hit the Ground in Somalia After Drone Attacks.” The Atlantic wire. July 2, 2011. http://www.theatlanticwire.com/global/2011/07/american-boots-hit-ground-somalia-after-drone-attacks/39539/ (accessed July 2, 2011). 3. Cooper, Helen. “Obama Announces Killing of Osama bin Laden.” The New York Times. May 1, 2011. http:// thelede.blogs.nytimes.com/2011/05/01/bin-laden-dead-us-official-says/ (accessed July 1, 2011). 4. Silverleib, Alan. “White House defends Libya response.” CNN Politics. March 24, 2011. http://articles. cnn.com/2011-03-24/politics/libya.obama.criticism_1_ libya-response-moammar-gadhafi-regime-change?_ s=PM:POLITICS (accessed July 1, 2011). 5. Kaplan, Eben. “Q&A: Targeted Killings .” The New York Times. January 25, 2006. http://www.nytimes.com/cfr/ international/slot3_012506.html?_r=1&pagewanted=print (accessed July 1, 2011). 6. Burns, Robert, and Kimberly Dozier. “Raid Raises Question: Who’s Soldier, Who’s Spy?” ABC News. May 5, 2011. http://abcnews.go.com/US/wireStory?id=13532735 (accessed July 1, 2011). 7. Formal declarations of war are defined as congregational resolutions that actually ues the phrase “declaration of war.” 8. Friedman, George. “What Happened to U.S. Declaration of War?” Real Clear World. March 29, 2011. http://www. realclearworld.com/articles/2011/03/29/what_happened_ to_the_american_declaration_of_war_99458.html (accessed July 1, 2011). 9. America, 88th Congress of the United States of. “1964-Tonkin Gulf Resolution.” Footnote. January 7, 1964. http://www.footnote.com/image/#4346698 (accessed July 1, 2011). 10. Lithwick, Dahlia. “Wrestling Over War Powers.” Newsweek. July 1, 2008. http://www.newsweek. com/2008/07/11/wrestling-over-war-powers.html (accessed July 1, 2011). 11. 107th Congress. “Joint Resolution of the 107th Congress.” U.S Governmwnt Printing Office. September 18, 2001. http://frwebgate.access.gpo.gov/cgi-bin/getdoc. cgi?dbname=107_cong_public_laws&docid=f:publ040.107 (accessed July 1, 2011). 12. Although later Supreme Court decisions, such as Rasul vs. Bush and Hamdan vs. Rumsfeld, challenged and scaled back some expressions of executive power, the Authorization for Use of Military Force Against Terrorists decisively laid the groundwork for a striking extension of Presidential power and the creation of a broad grey area in which the War on Terror might be waged with substantial legal leeway. 13. Stohr, Greg. “U.S. Supreme Court Bars Bush’s Military Tribunals (Update8).” Bloomberg. June 29, 2006. http:// www.bloomberg.com/apps/news?pid=newsarchive&sid=a MGQ4fP81moQ&refer=us (accessed July 1, 2011). 14. Bradley, Curtis A., et al. “Letter to Members of Con-

[17]

gress.” NSA Watch. January 9, 2006. http://www.nsawatch.org/DOJ.Response.AUMF.final.pdf (accessed July 1, 2011). 15. ABC News. “TARGET: Bin Laden – The Death and Life of Public Enemy Number One .” ABC News. June 9, 2011. http://abcnews.go.com/Politics/target-bin-laden-deathlife-osama-bin-laden/story?id=13786598&singlePage=true (accessed July 1, 2011). 16. “Drone Warfare Is Lawful Self-Defense Under International Law.” Inside Justice. March 26, 2010. http://insidejustice.com/law/index.php/intl/2010/03/26/asil_koh_ drone_war_law (accessed July 1, 2011). 17. Ferrechio, Susan. “Boehner warns Obama that Libya will violate war powers Read more at the Washington Examiner: http://washingtonexaminer.com/blogs/beltway-confidential/2011/06/boehner-warns-obama-libya-will-violate-warpowers#ixzz1UvxcMgqU.” The Examiner. June 14, 2011. http://washingtonexaminer.com/blogs/beltway-confidential/2011/06/boehner-warns-obama-libya-will-violate-warpowers (accessed July 1, 2011). 18. Landler, Mark, and Charlie Savage. “White House Defends Continuing U.S. Role in Libya Operation.” The New York Times. June 15, 2011. http://www. nytimes.com/2011/06/16/us/politics/16power s. html?pagewanted=all (accessed July 1, 2011). 19. Corn, Geoffrey S. “Clinton, Kosovo, and the Final Destruction of the War Powers Resolutio.” William and Mary Law Review 42, no. 4 (2001): 1149-1190. 20. Miller, Sunlen. “Former President Bill Clinton Praises Obama on Libya.” ABC News. March 29, 2011. http:// blogs.abcnews.com/politicalpunch/2011/03/former-president-bill-clinton-praises-obama-on-libya.html (accessed July 1, 2011). 21. Perlez, Jane. “Pakistan Tells U.S. It Must Sharply Cut C.I.A. Activitie.” The New York Times. April 1, 2011. http:// www.nytimes.com/2011/04/12/world/asia/12pakistan. html?pagewanted=all (accessed July 1, 2011). 22. Mazzetti, Mark. “U.S. Is Intensifying a Secret Campaign of Yemen Airstrikes.” The New York Times. June 8, 2011. http://www.nytimes.com/2011/06/09/world/ middleeast/09intel.html (accessed July 1, 2011). 23. Ignatius, David. “A Quiet Deal With Pakistan.” The Washington Post. November 4, 2008. http://www.washingtonpost.com/wp-dyn/content/article/2008/11/03/ AR2008110302638.html (accessed July 1, 2011). 24. States may also be in no position to object, as seen with the Transitional Federal Government in Somalia, which controls a small fraction of the country that they obstensibly govern. 25. Bumiller, Elisabeth, and Mark Landler. “Panetta and Petraeus in Line for Top Security Posts.” The New York Times. April 27, 2011. http://www.nytimes.com/2011/04/28/ us/28team.html (accessed July 1, 2011).

Yale Undergraduate Law Review • Volume 2, Issue 1


Spot the Hacker: Combating Cyberwarfare under the International Rule of Law

Spot the Hacker: Combating Cyberwarfare under the International Rule of Law Cyber attacks, conducted by obscure perpetrators, baffle governments and confound traditional theories of war. Bradley Cho Introduction

T

~

Challenges to Current Theories of Self-Defense

he days when cyber attacks were discredited as minor nuisances are rapidly coming to an end. In July 2010, a malware program, known as “Stuxnet,” sabotaged computer systems that monitored Iran’s covert uranium enrichment program. On June 12, 2011, hackers breached the computer systems of the International Monetary Fund (IMF) and acquired sensitive economic data worth billions of dollars. Cyberwarfare is a new form of waging war that challenges both governments and conventional theories of war in developing appropriate responses.

Until the advent of cyberwarfare, the universal pattern of open warfare was one of physical aggression and retaliation, whether it was a conflict in the Bronze Age or the Cold War. An armed attack justified a proportionate response, and usually, the identity and motivation of the aggressor were fairly clear. In cyberspace, however, this dynamic has become distorted to the disadvantage of the defender. Attacks can be planned secretly over a significant period of time, with no warning until the attack is well underway, and the aggressor’s identity and motivation are much more difficult to discern. Because of the new nature of cyberwarfare, a victim nation of a cyber attack has to realize that the conventional criteria of necessity, distinction, and proportionality fail to provide a straightforward response.

President Obama has declared America’s digital infrastructure to be a “strategic national asset,”1 and the Pentagon has now designated cyberspace as an official domain of warfare under its jurisdiction.2 Yet, it remains unclear what the appropriate responses to such attacks should be. How does a nation adequately respond to acts of aggression that are non-lethal and committed by elusive perpetrators? Proper defense measures are tough to decide on, because cyberwarfare escapes the traditional Law of Armed Conflict (LOAC) as outlined in Article 51 of the United Nations Charter, and does not fulfill the conventional criteria for employing self-defense: military necessity, distinction, and proportionality. These traditional definitions of conflict severely hinder current cyber defense laws and tactics in providing an effective solution to cyberwarfare. Computer code has become a vehicle for crime. (Flickr Creative Commons)

Necessity. At its core, the principle of necessity determines whether a forceful response is warranted in a given situation. The Lieber Code of 1863 defines military necessity as limited to “those measures which are indispensable for securing the ends of the war.”3 Given that cyber attacks are non-violent in nature, and that the perpetrators are difficult to identify, the principle of necessity runs into two problems: First, it is difficult to justify reasons for a military response to an attack that did not destroy any physical property. Second, in cyberwarfare, a military counter-response must fall short of fulfilling the principle of necessity because a military offensive is unlikely to deter or defeat the source of the cyber attacks. Cyberwarfare is an asymmetrical conflict, conducted by the aggressor with minimal resources and oversight, and pinpointing the exact culprits in a heavily networked adversarial nation is virtually impossible. The Hague Convention of 1907 bars the destruction of enemy property unless it is “imperatively demanded by the necessities of war,”4

Yale Undergraduate Law Review • Volume 2, Issue 1

[18]


International Law so it can be argued that any response that exceeds the purpose of disabling cyber attacks would be causing unnecessary suffering or damage, thus overstepping the limitations of military necessity. Distinction. Distinction between combatants and civilians is one of the most fundamental concepts in international humanitarian law. The 1949 Geneva Convention directly states that “combatants are obliged to distinguish themselves from the civilian population.”5 In cyberwarfare, however, distinction becomes problematic. Nations with cyber offensive capabilities are often accused of masking their attacks by hiring “digital privateers”: Authorities unofficially contract civilians to attack or steal information from specific targets, as in the case of suspected Chinese hackers infiltrating the US military’s $300 billion fighter program in 2009. With such little definitive evidence, aggressor nations can plausibly deny involvement in a cyber attack if implicated in an investigation. The ambiguous identity of combatants is one of the key challenges in effectively stopping digital attacks. The distinction principle rests on the assumption that, in any conflict, military entities are the only legitimate targets of attack while every effort must be made to minimize civilian casualties. Aggressors in cyberwarfare, too, actively violate the distinction principle, as the majority of cyber attacks directly infect a large number of civilian computers as “zombie devices,” machines compromised by hackers to avoid detection or execute large scale attacks. The collateral damage of civilian property is often unavoidable and deliberately anticipated, violating the fundamental principle of distinguishing civilians from intentional targeting. Proportionality. Although the United States has threatened an active military response to cyber attacks that pose a serious danger to the nation’s infrastructure,6 international law dictates that the amount of force used in retaliation must be proportionate to the suffered harm. Under the current international law, this generally means that a country may only respond with force to an attack that qualifies as “armed.” No cyber attack to date has met the standards of an “armed attack,” which limits the range of available defensive countermeasures. Even in the case of a serious cyber attack, proportionality does not give license to a quid pro quo response. For example, the crippling of a nation’s banking system does not legally justify the harmed nation to launch a similar counterattack on the aggressor’s own banking system. Given the difficulty of tracking down the culprits and the near impossibility of permanently disabling their systems, cyberwarfare currently remains a battlefield where a proportionate response is grossly ineffective, while any step further constitutes an illegal response.

[19]

Solutions to Cyberwarfare As of yet, there is no answer in sight for the ongoing trend of ambiguous cyberwarfare between nation states. Even as national governments race to develop digital weapons and self-contained “turtle defenses,”7 non-governmental institutions, such as the IMF, become increasingly vulnerable. Digital attacks on these supposedly secure systems have caused billions of dollars in damage, leaked confidential information, and strained international relations. Ultimately, defense against cyberwarfare cannot come from unilateral policies or from the efforts of individual nations. The unique nature of digital warfare requires a new, cooperative approach from the international community. First and foremost, there is a pressing need for a global framework that establishes a standardized code of legal behavior within cyberspace. Similar guidelines exist in other

“The unique nature of digital warfare requires a new, cooperative approach from the international community.” transnational fields, such as commerce, communications, and transportation. Transnational agencies such as the World Intellectual Property Organization and the International Maritime Organization are only two examples of successful international cooperation in regulating certain specialized fields. Similarly, an international agency could be formed under the auspices of the United Nations to oversee this framework in response to cyberwarfare, as well as ensure the peaceful application of digital network technologies and provide safeguards against their misuse. It could also function as an inter-governmental forum to diplomatically resolve hostile network incidents and facilitate cooperation against international cybercrime and terrorism. With such an organization in place, blatant or repeated violations of the new digital network agreement would be subject to UN scrutiny, open to UN Resolutions, and subject to the rulings of the International Court of Justice. While the relative anonymity of assailants will continue to be an ongoing concern, stronger dialogue and international cooperation would help stamp out privateering in the digital world, just as it was phased out in the high seas. Furthermore, the existing Law of Armed Conflict (LOAC) must be clarified and expanded to account for the unique developments of the digital age. Since the advent of the World Wide Web, states have attempted to apply traditional armed conflict laws to cyberwarfare—with limited and frustrating results. Because the terms of Article 51 of the Geneva Convention only vaguely capture cyberwarfare, a new international convention must be

Yale Undergraduate Law Review • Volume 2, Issue 1


Spot the Hacker: Combating Cyberwarfare under the International Rule of Law established. Such a convention should strive to limit the excessively injurious or indiscriminate practices of cyberwarfare, such as the development of programs that target a large number of civilian computers as proxies, and the preemptive deployment of dormant malware into critical systems. The convention must also ban digital espionage in times of peace and prohibit civilians from participating in hostilities. As the world continues to grow increasingly interconnected through digital networks, renegade nations will continue to have incentives to engage in covert cyber attacks. The number of state-sponsored cyber attacks has grown dramatically in recent years,8 as some governments begin to recognize their value as low-cost means of war in an asymmetric setting. Nations constrained under the limitations of international law have found it difficult to protect their citizens or effectively respond to these acts of aggression, as the traditional criteria for an armed response – necessity, distinction, and proportionality – are largely inapplicable to cyberwarfare. A solution to this problem can only come from close international cooperation, bringing the “final frontier” under the rule of law.

2. United States Department of Defense. “Department of Defense Strategy for Operating in Cyberspace” July 14, 2011. 3. Francis Lieber, Instructions for the Government of Armies of the United States in the Field. (New York, 1863), pg. 7. 4. The Hague Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land, Art. 23 (1907). 5. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts. Art. 44. (1977) 6. Siobhan Gorman, “Cyber Combat: Act of War,” Wall Street Journal (New York), May 31, 2011 7. Turtle defenses are tactics by which national organizations such as the U.S. Department of Defense increasingly press for non-integrated networks. This includes hesitance in purchasing foreign-made components for use in their computer systems. 8. Andrew Erickson and Gabe Collins. “Did China Tip Cyber War Hand?” The Diplomat. August 25, 2011.

Bradley Cho is a junior in Jonathan Edwards College.

1. Barack Obama, “Remarks by the President on Securing Our Nation’s Cyber Infrastructure” (speech, White House, Washington, D.C., May 29, 2009).

INTERESTED IN BECOMING INVOLVED WITH THE YALE UNDERGRADUATE LAW REVIEW? E-MAIL INFO@YULR.ORG

ALSO BE SURE TO VISIT WWW. YULR.ORG TO LEARN MORE ABOUT THE JOURNAL Yale Undergraduate Law Review • Volume 2, Issue 1

[20]


Feature

Washington to the Brink The American Debt Ceiling, Its Constitutionality, and a Summer of Bad Behavior. Beau Wittmer

~

B

rinkmanship is a dangerous game. No matter who the or rebellion, shall not be questioned” (emphasis added). participants are, the very practice of this strategy can spell certain doom if one side slightly miscalculates Law professor Garrett Epps of the University of Baltimore the other. Whether it be the Cuban Missile Crisis or countwas one of the first to articulate the interpretation that this less arms races, leaders have clause sets significant portions long engaged in this high-stakes “Ah, this is a constitution. Now, mark my words. So of the national debt above the game of chicken. The most refray of politics: “[Section Four] cent example of this strategy long as we are a young and virtuous people, this instru- does not simply say that the was this past summer, as Washnational debt must be paid; it ington debated whether to raise ment will bind us together in mutual interests, mutual says that its ‘validity…shall not the federal government’s debt be questioned’…From this lanceiling above $14.3 trillion. To welfare, and mutual happiness. But when we become guage, it’s not hard to argue many, it seemed that Congress that the Constitution places was willing to watch the United old and corrupt, it will bind no longer.” both payments on the debt States of America default for and payments owed to groups the first time. At the 11th-hour, – Alexander Hamilton like Social Security recipients political leaders reached a compensioners, that is - above the promise, hated by many and regrettably supported by Amerivagaries of Congressional politics…If Congress won’t pay cans of all political stripes them, the executive will.”4 Professor Epps goes on to outline another, perhaps more radical, interpretation, pointing out But did this fight even need to happen? This summer, some that a default on government bonds would not directly rere-raised an old question: Is the debt ceiling even constitupudiate debt; it would only delay payment. However, a delay tional? To defeat brinkmanship, you need to change the rules opens the door to questioning the debt’s validity. Therefore, of the game, to throw the steering wheel out of the proverit is imperative that the government meets its financial prombial car. Can we throw out the debt ceiling? ises, payments on interest, pensions, and troops, at all costs. Public Debt: “The validity shall not be questioned.”

The Post-Civil War Debt Struggle

“I think the Constitution is clear, and I think this idea that the Congress gets to vote twice on whether to pay for [expenditures] it has appropriated is crazy,”1 said former President Bill Clinton this summer when asked what he would do in the debt standoff. Simply put, the former president claimed that he would have raised the debt ceiling unilaterally, instructing the Secretary of the Treasury to continue issuing credit to meet the federal government’s obligations.2 Democratic Senators seized on this and urged President Obama to do exactly that, should negotiations with Congressional Republicans continue to stall.3 The legal grounds for these claims was Section Four of the Fourteenth Amendment, which states that, “[t]he validity of the public debt of the United States, authorized by law, including debts incurred for payments of pensions and bounties for services in suppressing insurrection

Section Four of the Fourteenth Amendment grew out of a previous bipartisan threat to U.S. fiscal stability. During the Reconstruction era, congressional Republicans feared that, should Democrats return to power in the 1866 or 1868 elections, they would vote to repudiate the Union’s debts incurred from the Civil War (such as payments to Union soldiers and veterans). As Senator Benjamin Wade of Ohio said, “[The Fourteenth Amendment] puts the debt incurred in the civil war on our part under the guardianship of the Constitution… so that a Congress cannot repudiate it…I have no doubt that every man who has property in the public funds will feel safer when he sees that the national debt is withdrawn from the power of a Congress to repudiate it.”5 Wade stressed the importance of meeting obligations for veterans and pensioners especially. Yale Law professor Jack Balkin, who has writ-

[21]

Yale Undergraduate Law Review • Volume 2, Issue 1


To the Brink execute each of the laws as much as legally possible. Only when all options are exhausted - including unpopular and difficult Treasury tactics - and a government shut-down has occurred could the president invoke his Article II powers and leave Congress to “put up or shut up,” i.e. to approve of his actions or impeach him.7 Note, however, even in the face of a government shut-down may occur, the government can still use incoming tax revenue to meet its financial obligations on interest payments, pensions, and troop salaries. The disaster scenario forcing the president’s hand would occur when these revenues are no longer enough to meet these most basic obligations. The Case for the Ceiling Of course, not every law professor believes that the Constitution grants these powers or permits these behaviors. Harvard’s Laurence Tribe (and former teacher to President Obama) has publicly argued against using Section Four as a “constitutional deus ex machina” for the debt ceiling fight. Tribe points out that only Congress has the power to “borrow money n the credit of the United States,” enumerated in Article I, Section 8 of the Constitution. Further, it was settled in Perry v. United States (1935), that Section Four does not allow Congress to “alter or destroy” debts incurred. Tribe argues that the direct repudiation of debt is forbidden, not mere delay or default in the payment. As to the perceived power of the Executive in this case, what could call “into question” the public debt more than for the Executive, not Congress, to issue more? Would markets believe these new payments to be valid? Unilaterally ignoring the debt ceiling, constitutionality aside, could cause many to doubt the debt’s validity, making the use of Section Four almost nigh self-defeating.8 Yet, Professor Tribe’s most compelling arguments against such an interpretation of Section Four center on the text and

“‘Is the debt ceiling even constitutional?’”

Bipartisan politics brought the U.S. close to a default. (Flickr Creative Commons) ten prolifically on the debt ceiling, argues that, with Wade’s speech at center-stage, Section Four was meant to remove the threat of defaulting on government obligations from partisan politics, a very real fear during Reconstruction.6 Professor Balkin is quick to point out, however, that this means each branch of government has a constitutional duty to refrain from calling the validity of the public debt into question. This does not mean that the debt ceiling itself is unconstitutional, nor does it provide a judicial remedy, such as a court order compelling Congress or the president to act. Should Congress fail to raise the ceiling, the president must

history of ratification. There are two clauses in Section Four, one containing “debt,” the other, “debt and obligation.” Each clause is treated differently, and as such, an “intratextual” analysis would lead to the conclusion the terms “debt” and “obligations” are not synonymous. As for history, Congress rejected a draft of this section in which government obligations, and not merely debts, were to be protected as “inviolable.”9 This leaves the interpretation of what is truly considered debt under the constitution open, and prudence would suggest that not all of the federal budget is debt; some items are “obligations,” and they are not constitutionally protected. As such, the president cannot ignore the debt ceiling to issue payments on “obligations,” only on debt. The “Contradictory Commands” Theory10 As the chief executive of the country, the president has a

Yale Undergraduate Law Review • Volume 2, Issue 1

[22]


Feature primary obligation to enforce the law. However, what happens if two commands are contradictory or mutually exclusive? Under this current discussion, the president has been charged with executing a budget and appropriating funds valued at a certain amount. Without raising the debt ceiling, he has also been told that he must do this with only so much money. If the budget is larger than the debt ceiling allows, these two commands become impossible to enforce simultaneously. Chapman University School of Law professor Larry Rosenthal argues that, in this case, “when two laws are in conflict, the more recent law is understood to supersede the first law.”11 While the president cannot declare the debt ceiling unconstitutional outright, in this case, Jack Balkin argues, “He has a constitutional duty to treat at least one of the laws as unconstitutional.”12 Even previous detractor Professor Tribe is mostly in agreement on this point. In Clinton v. City of New York (1998), the Supreme Court ruled that the president could not use a lineitem veto to disregard a validly made appropriation by Congress.13 On the other hand, painstaking steps have been taken in the United States through our history and the writing of the Constitution to ensure that revenues cannot be raised by the Executive, preserving that duty with Congress instead. From this, Tribe argues that if there is a true conflict between these two as in the contradictory commands scenario above, then the former must superseded the latter: The president cannot raise new revenues, so he must choose what gets paid first and foremost (following the necessary payments outlined

in the Constitution first, and then those with highest legal or precedential priority thereafter).14 Once again, however, no one referenced above argues that President Obama could have performed such actions unless Congress had failed to raise the ceiling. “Force the courts to stop me”15 Legal or not, suppose a president did instruct Treasury to ignore the debt, treat it as unconstitutional, and proceed to issue debt. Could Congress do anything about it short of impeachment? The consensus is fairly clear: unlikely. In order to bring a case before the Supreme Court, one must meet certain requirements. In order to possess standing to sue, one must have suffered a particularized harm and a remedy must exist that can be sought, such as declaring the source of the harm unconstitutional. Congressmen certainly did not suffer a particularized harm, and even a group of bond-holders organized together is unlikely to see their day in court.16 Moreover, it is unclear what remedy could be adduced. Would the Court declare the payments issued days and possibly weeks earlier by the president as invalid, thus further questioning the validity of the public debt? Raising revenue and executing expenditures are constitutional duties given clearly to other branches of government. The Court would most likely declare the case a “political question,” a long-standing tradition for cases of such nature. The courts are not always the remedy; there is a process for political questions: impeachment, conviction, and removal from office.

(Flickr Creative Commons)

[23]

Yale Undergraduate Law Review • Volume 2, Issue 1


To the Brink

President Obama did not have to make these choices, as Congress raised the debt ceiling at the last moment. Regardless, the president did not even invoke the above arguments, claiming his lawyers had advised him that such tactics were not defensible.17 President Obama never argued that the debt ceiling in and of itself is unconstitutional, and for that matter, neither have professors Balkin or Tribe.18 In the democratic world, only Denmark and the United States separate the approval of a budget from the approval of new debt.19 However, since the ceiling was created in 1917, the two were mostly dealt with in tandem, and when not, raising the ceiling was a formality.20 More recently, that tradition has waned and, by doing so, the debt ceiling may be circumstantially unconstitutional. Why? Think back to the ratification of the Fourteenth Amendment: After a brutal civil war, amongst a country still divided, it was decided that the U.S. would remove from the table of politics the ability to deny debts we have incurred, the promises we have made. From this, a value is enshrined in our Constitution: We will not hold our government hostage for our own political goals. Our word as a country and our promises mean more than that. The debt ceiling may not be unconstitutional, but the use of it this past summer was. Beau Wittmer is a junior in Ezra Stiles College. 1. James Oliphant. “Bill Clinton would raise debt ceiling, bypass Congress.” Los Angeles Times. July 19, 2011. http:// articles.latimes.com/2011/jul/19/news/la-pn-clinton-debtceiling-20110719 (accessed Sept 18, 2011) 2. Garrett Epps. “The Speech Obama Could Give: ‘The Constitution Forbids Default.’” The Atlantic. April 28, 2011 http://www.theatlantic.com/politics/archive/2011/04/ the-speech-obama-could-give-the-constitution-forbids-default/237977/ (accessed Sep 18, 2011) 3. Ryan Grim, Samuel Haass. “14th Amendment: Democrat Senators See Debt Ceiling As Unconstitutional.” Huffington Post. http://www.huffingtonpost. com/2011/06/28/14th-amendment-debt-ceiling-unconstitutional-democrats_n_886442.html (accessed Sep 18, 2011) 4. Garrett Epps. “Our National Debt ‘Shall Not Be Questioned,’ the Constitution Says.” The Atlantic. May 4, 2011. http://www.theatlantic.com/politics/archive/2011/05/ our-national-debt-shall-not-be-questioned-the-constitutionsays/238269/ (accessed Sep 18, 2011) 5. Balkinization. “The Legislative History of Section Four of the Fourteenth Amendment.” Blogspot. June 30, 2011. http://balkin.blogspot.com/2011/06/legislative-history-ofsection-four-of.html (accessed Sep 18, 2011) 6. ibid. 7. Balkinization. “Under What Circumstances Can the President Ignore the Debt Ceiling?” Blogspot. July 6, 2011. http:// balkin.blogspot.com/2011/07/under-what-circumstancescan-president.html (accessed Sep 18, 2011)

8. Laurence H. Tribe. “A Ceiling We Can’t Wish Away.” New York Times. July 7, 2011. http://www.nytimes. com/2011/07/08/opinion/08tribe.html?_r=1 (accessed Sep 18, 2011) 9. Eugene Volokh. “Guest Post from Prof. Larry Tribe on the Constitutionality of the Debt Ceiling.” The Volokh Conspiracy. July 16, 2011. http://volokh.com/2011/07/16/ prof-larry-tribe-on-the-constitutionality-of-the-debt-ceiling/ accessed Sep 18, 2011) 10. Jack M. Balkin. “3 ways Obama could bypass Congress.” CNN Opinion. July 28, 2011. http://www.cnn. com/2011/OPINION/07/28/balkin.obama.options/index.html?hpt=hp_t2 (accessed Sep 18, 2011) 11. Zachary A. Goldfarb. “Obama, Democrats not ready to play 14th Amendment card with debt ceiling.” Washington Post with Bloomberg. July 6, 2011.http://www. washingtonpost.com/business/economy/obama-democratsnot-ready-to-play-14th-amendment-card-with-debt-ceiling/2011/07/06/gIQAVU1O1H_story.html (accessed Sep 18, 2011) 12. For this and other interesting arguments on possible alternatives for President Obama, including the “jumbo coin” option of creating two “trillion dollar coins,” see “3 ways Obama could bypass Congress”: http://www.cnn.com/2011/OPINION/07/28/balkin.obama.options/index.html?hpt=hp_t2 (accessed Sep 18, 2011) 13. Clinton v. City of New York, 524 U.S. 417 (1998). Cf. Cornell University Law School, http://www.law.cornell.edu/supct/ html/97-1374.ZS.html (accessed Sep 18, 2011) 14. http://volokh.com/2011/07/16/prof-larry-tribe-on-theconstitutionality-of-the-debt-ceiling/ (accessed Sep 18, 2011) 15. Bill Clinton on the debt ceiling. Cf. Kimberly Schwnadt. “Bill Clinton Says He’d use 14th Amendment in Debt Talks.” Fox News. http://politics.blogs.foxnews.com/2011/07/19/ bill-clinton-says-hed-use-14th-amendment-debt-talks-forcecourts-stop-me (accessed Sep 18, 2011) 16. http://www.cnn.com/2011/OPINION/07/28/balkin. obama.options/index.html?hpt=hp_t2 (accessed Sep 18, 2011) 17. “3 ways Obama could bypass Congress.” http://content. usatoday.com/communities/theoval/post/2011/07/obamaspeaks-at-university-of-maryland/1 (accessed Sep 18, 2011) 18. Balkinization. “Bruce Bartlett Connects the Dots-- It’s the National Security, Stupid.” Blogspot, July 8, 2011. http:// balkin.blogspot.com/2011/07/bruce-bartlett-connects-dotsits.html (accessed Sep 18, 2011) 19. Amy Bingham. “Only One Democratic Country, Besides America, Has a Debt Ceiling.” ABC News. July 19, 2011. http://abcnews.go.com/blogs/politics/2011/07/only-onedemocratic-country-besides-america-has-a-debt-ceiling/ (accessed Sep 18, 2011) 20. Gail Russell Chaddock. “Five ways Republicans will change the House.” The Christian Science Monitor. http:// www.csmonitor.com/USA/Politics/2011/0104/Five-waysRepublicans-will-change-the-House/Repeal-of-the-Gephardt-rule (accessed Sep 18, 2011)

Yale Undergraduate Law Review • Volume 2, Issue 1

[24]


Feature

Integration without Ratification The European debt crisis illuminates a curious dual phenomenon: the rapid integration of crucial policy areas, happening in circumvention of EU core treaties. YULR Editorial Team

~

T

he European debt crisis, ushered in by the American recession after the 2008 collapse of Lehman Brothers, arrived on European shores with Greece’s near-default in May 2010, exposing a fundamental weakness in the legal underpinnings of the EU. The Treaty of the Functioning of the European Union (TFEU)1 failed to provide a fast fix to the crisis, as the political decision-making procedures that it prescribed turned out to be too complex and sluggish to enable quick, concerted action. As a result, political leaders carved out new avenues for taking joint action that circumvented the provisions of the TFEU. In other words, the European debt crisis has furthered European integration, but it is an integration that is unfolding in (a?) legal no-man’s land. Fiscal Policy Shortcomings in the EU Core Treaties European integration skidded to a screeching halt in 2005 when the European Constitution failed to gain approval in the Dutch and French referenda. What was supposed to be a major step to a federal state of Europe ended in the watered-down Treaty of the Functioning of the European Union, approved in 2009. Although the TFEU strengthened the European Parliament,2 sovereignty over crucial policy areas remained scattered among the member states.3 European integration via the route of treaties had been shot down. The structure set out in the TFEU proved to be entirely unworkable in a crisis that required a swift and coordinated response. Article 294 of the TFEU sets out the so-called codecision process,4 an intricate procedure in which the EuThe European Central Bank, Frankfurt, Germany (Flickr Creative ropean Commission (the executive arm of the EU) initiates Commons) legislative proposals that have to pass through the European Parliament and the European Council (the second legislative chamber after Parliament). The Parliament gives the Commission’s proposal a “first reading,” forms an opinion on it, and sends it to the Council. The Council may accept the Parliament’s position (in which case the proposal becomes law) or reject it. In the latter case, the Council sends its own position to the Parliament. This procedure can repeat itself quite a few times, and may bring a Conciliation Committee and the Commission to the table if no compromise is reached. During every reading, the relevant party has three months to adopt a position.5 This messy and drawn-out decision-making process can severely delay effective policy-making. On sensitive issues, such as giving up fiscal sovereignty, member states – represented in the Council – become strongly protective of their national interests. Not surprisingly, the Parliament and the Council ran into a deadlock when the Commis-

[25]

Yale Undergraduate Law Review • Volume 2, Issue 1


Integration without Ratification sion proposed tighter fiscal integration. On September 29, 2010, the Commission drew up a package of six legislative proposals—dubbed the “Six-Pack”—aimed at centralizing budgetary surveillance,6 allowing the Commission greater access to national macroeconomic data,7 and, most notably, equipping the Commission with an enforcement mechanism if national governments repeatedly failed to address excessive macroeconomic imbalances. With this last tool, delinquent national governments, with approval of the Council, could ultimately be forced to pay a yearly fine of 0.1% of its GDP.8

“The structure put in place by Art. 294 TFEU proved to be incapable of dealing with the European debt crisis.” On June 22, 2011, the Council and the Parliament clashed over the voting procedure that would authorize the Commission to use its enforcement mechanism: Should the Council have to put up a qualified majority vote (55% of EU member states, representing 65% of the EU population) to block or to approve the 0.1% fine? The Six-Pack went into a second reading and, as of late August 2011, has been stuck in legislative mire for almost a whole year. The legislative structure put in place by Art. 294 TFEU proved to be utterly incapable of effectively dealing with the swiftly developing European debt crisis. The European Financial Stability Facility: Outside the Architecture of the Treaties As a result of its inefficient procedures, the TFEU has occupied a strange position since the inception of the debt crisis—the players and instruments aiming to resolve the crisis are no longer relying on the treaty’s provisions for procedural guidance, but are now working their way around them before tackling the problems. The European Financial Stability Facility (EFSF), the credit facility created in 2010 to help out Greece and other struggling Eurozone countries, is a prime example of an entity edging its way around the TFEU to properly address the crisis. Legal scholars and observers have expressed concerns that the EFSF is in violation of Art. 125(1), Sentence 2 TFEU, which states that “a Member State shall not be liable for or assume the commitments of central governments … or public undertakings of another Member State, without prejudice to mutual financial guarantees for the joint execution of a specific project.” With the second Greek bailout in July 2011, several academics9 filed a claim before the German Constitutional Court, making precisely that claim.

rescue package for Greece violated Art. 125 TFEU on September 7, 2011.10 The decision is not surprising, since European lawmakers guarded themselves against such a claim by relying on Art. 122(2) TFEU to create the EFSF: “Where a Member State is in difficulties or is seriously threatened with severe difficulties caused by natural disasters or exceptional occurrences beyond its control, the Council, on a proposal from the Commission, may grant, under certain conditions, Union financial assistance to the Member State concerned” (emphasis added). The EFSF is a separate legal entity that consists of bilateral guarantees among Eurozone member states to loan money to each other if a country requests it. In the words of Thomas Klau, Editorial Director of the European Council of Foreign Relations and cofounder of the Financial Times Deutschland, “The EFSF is outside of the architecture of the EU treaties.”11 With an expanding fiscal crisis, the powers of the EFSF have only grown to meet the new challenges. When Spain and Italy – economies too large to be saved by the EFSF – faced contagion from the crisis during the summer of 2011, EU leaders convened to increase the EFSF’s powers and enable it to act preemptively: The EFSF could now buy sovereign bonds on the secondary market, grant loans to countries that had not officially requested a bailout, and recapitalize teetering banks.12 All of this was legally possible because the EFSF had carved out its legal niche under the protection of Art. 122(2) TFEU. Lawmakers have stretched the TFEU to create a Limited Liability Company that is now taking the role of a political actor. The EFSF financed the bailouts of Ireland, Portugal, and the second bailout of Greece13 in exchange for harsh economic austerity measures, largely dictated by Germany. The EFSF, despite operating outside the scope of the EU’s governing treaty, has transferred large segments of Greek, Irish, and Portuguese budgetary policy

“‘The EFSF is outside of the architecture of the EU treaties.’” under EU jurisdiction. Instead of relying on transparently negotiated treaties that pass popular approval, European integration has taken the route of backroom politics that circumvents, rather than utilizes, EU core treaties. The European Central Bank: Intervening in National Fiscal Policy Shortly after the EU leader summit in July 2011, sovereign bond yields of Spain and Italy jumped above 6%, a rate which investors and analysts viewed as unsustainable.14 To shield Spain and Italy from difficulties in accessing financial markets, the EFSF would had to have purchased Italian and Spanish bonds to lower the yield rate. It was unable to do so, as Eurozone member states’ national parliaments had not yet approved this new power of the EFSF.

The Constitutional Court rejected the complaint that the

Yale Undergraduate Law Review • Volume 2, Issue 1

[26]


Feature

The only institution with the financial firepower to jump to the rescue was the European Central Bank (ECB). On August 4, 2011, the ECB announced that it would revive its Securities Markets Programme and purchase Spanish and Italian debt.15 This measure raised concerns over a possible violation of Art. 123(1) TFEU,16 which dictates that “overdraft facilities or any other type of credit facility with the European Central Bank … in favour of … central governments … shall be prohibited, as shall be the purchase directly from them by the European Central Bank … of debt instruments.” This article was intended to keep the ECB out of interfering directly in member states’ national budgetary policies. The ECB usually takes government bonds as collateral for loans it offers to a national government—purchasing bonds to keep their yields stable thus creates a legally questionable circularity. Hence, there was much skepticism when the ECB bought Spanish and Italian debt. The concern that the ECB’s purchase violated Art. 123(1) TFEU is, however, unfounded. The Central Bank was circumspect enough not to run into such a legal trap; it purchased Spanish and Italian bonds from the secondary market, meaning that it bought bonds from investors who were holding them—a move which is not prohibited by Art. 123(1) TFEU.17 Nonetheless, the move reflects that the ECB had to carefully consider how to work its way around the TFEU. Conclusion The bonds purchase killed two birds with one stone in that it furthered European fiscal integration while circumventing the TFEU. As in the case with the EFSF, the ECB did not breach the core EU treaty. All these approaches to solving the Euro crisis are legal, but will likely create a fundamental problem in the future. The TFEU has, at best, been an obstacle in saving the Eurozone and has thus been denigrated in the process. Approaches to solving the crisis have been made in legal no-man’s land, leading to a more strongly integrated fiscal structure. At the same time, European integration has come to a halt on the conventional treaty track. If the current mess that is the European Union is to be set straight, the legal underpinnings need to quickly catch up with the developments of recent months. 1. More commonly known as the Treaty of Lisbon. 2. Treaty of the Functioning of the European Union, Articles 223-234; cf. European Parliament, http:// www.europarl.europa.eu/parliament/expert/displayFtu.do?language=en&id=73&ftuId=FTU_1.3.2.ht ml (accessed August 20, 2011) 3. Cf. e.g. Articles 145-150 TFEU (employ-

[27]

ment policy), Articles 151-161 TFEU (social policy): http://europedia.moussis.eu/discus/discus-1283276094-529725-4160.tkl (accessed August 20, 2011) 4. Cf. Art. 294 TFEU: Consolidated Version of the Treaty of the Functioning of the European Union, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do? uri=OJ:C:2008:115:0047:0199:en:PDF (accessed August 20, 2011) 5. In the later stages of the process, each party has six weeks to reach a decision. 6. European Commission. “EU economic governance: the Commission delivers a comprehensive package of legislative measures.” Sep 29, 2011. http://europa.eu/ rapid/pressReleasesAction.do?reference=IP/10/1199 &format=HTML&aged=0&language=EN&guiLangu age=en (accessed August 20, 2011) 7. Ibid. 8. Ibid. 9. Full names of the five professors and the full text of their complaint are available in German: http:// www.asm-ev.de/upload/pdfs/Texte/Klage_KAS%20 insg_%20endg_vom%2005_07_10.pdf (accessed August 20, 2011) 10.http://www.bundesverfassungsgericht.de/pressemitteilungen/bvg11-055en.html (accessed September 14, 2011) 11. Personal interview, July 25, 2011 12. Joshua Chaffin. “Bail-out fund bolstered.” Financial Times, July 22, 2011. http://www.ft.com/intl/ cms/s/0/1a3679b0-b3b3-11e0-855b-00144feabdc0. html#axzz1VboW2Y4v (accessed August 21, 2011 13. The bailouts occurred in November 2010, May 2011, and July 2011, respectively. 14. Brian Blackstone. “ECB Takes New Steps to Rein In Crisis.” Wall Street Journal, August 5-7, 2011. http://destinationsmedia.newspaperdirect.com/epaper/viewer.aspx (accessed August 21, 2011) 15. The Central Bank had done this once before during the time of the first Greek bailout in May 2010, raising equally loud voices of concern, especially from the German Bundesbank. 16. Alexander Thiele. “EZB Anleihenkäufe: Jetzt auch noch Spanien und Italien.” Legal Tribune Online, http://www.lto.de/de/html/nachrichten/4005/ezb_anleihekaeufe_jetzt_auch_noch_spanien_und_italien/ (accessed August 21, 2011) 17. Cf. ibid.

Yale Undergraduate Law Review • Volume 2, Issue 1


Featured Interview: George Canellos

YULR Featured Interview:

George Canellos Regional Director of NY Regional Office, U.S. Securities and Exchange Commission Allen Granzberg

~

George S. Canellos is Director of the New York Regional Office of the U.S. Securities and Exchange Commission, the largest of the SEC’s regional offices. In that position, to which he was appointed in July 2009, Mr. Canellos oversees nearly 400 professional staff of enforcement attorneys, accountants, investigators and compliance examiners. The New York Office has responsibility for the largest concentration of SEC-registered financial institutions, including more than 4,000 investment banks, investment advisers, broker-dealers, mutual funds and hedge funds. Mr. Canellos began his career as a litigation associate at Wachtell, Lipton, Rosen & Katz. In 1994, he became an Assistant United States Attorney in the Southern District of New York. During his nine years at the U.S. Attorney’s Office, Mr. Canellos served in a number of positions, including Chief of the Major Crimes Unit, Senior Trial Counsel of the Securities and Commodities Fraud Task Force, and Deputy Chief Appellate Attorney. Following his service at the U.S. Attorney’s Office and immediately prior to assuming his position at the SEC, Mr. Canellos served for more than six years as a litigation partner at the law firm of Milbank, Tweed, Hadley & McCloy LLP. 1. When did you start considering law as an option for a career? Were you considering anything else when you were in college? I was in college, an undergraduate at Harvard, when I started considering law as an option for a career. I was an Economics and History major and I was giving some serious thought to pursuing graduate education in Economics. But ultimately, I soured on Economics. At least in that era, there was such an orientation on regression analysis and I was a little less interested in that. I was interested in Economics as more of a political science. In the end, I went to law school and I went straight out of college. I went sort of blindly. 2. Having worked extensively in the public and private sector, what are the drawbacks and benefits of each sector? Why have you decided to work in the public sector? Look, government is absolutely great. This is my second

stint in government; I spent nine years as a federal criminal prosecutor. There is just something so unique about the feeling of public service. During much of my first stint in law in the public sector, I almost felt like I could not believe I got paid to do what I was doing. Someone essentially told me when I was a federal prosecutor: ‘Your job is to do justice. You have the whole FBI at your disposal—use those resources to investigate whatever you need to do. You have grand jury power. Your mission is just to be fair and do the right thing, never to prosecute someone for the sake of prosecuting someone.’ There is no greater feeling of satisfaction that comes from that work. I felt like I had the best job in America. The pay was not what the private sector would be, but I do not think that should bother anyone in the relatively early stage of his or her career. Many private sector careers do not offer the same amount of responsibility that the government does. You are kind of crazy to trade off the responsibility for money. I began my career at a great law firm – loved it – Wachtell Lipton.

Yale Undergraduate Law Review • Volume 2, Issue 1

[28]


Feature But to compare the experience I had as a junior associate at Wachtell Lipton, three times the pay, to the experience I had in government, I definitely preferred the latter. 3. For someone who does not know much about the SEC, how would you describe the work of your organization? What are some of its main goals? The SEC does three key things: it makes all the rules governing the securities market. The securities laws are: the Securities and Exchange Act of 1934, the Securities Act of 1933, the Investment Company Act of 1940, and the Investors Advisement Act of 1940. These are the four big pillars of the securities laws, but many of these laws are framed in generalities and they delegate authority to the SEC to promulgate rules that interpret and amplify the statutes. So, the first important core issue of the SEC is to make the rules that govern the markets. Second, the SEC also enforces those same rules, and, third, the SEC is responsible for inspecting financial institutions that are required to be registered with the SEC. Enforcement, regulating, and making the rules. These are not the only ones, but these are the three core missions of the SEC. 4. How does the New York office fit in with the central Washington office and the other regional offices? What sets it apart from the other offices? We are the largest regional office of the SEC. I think we are more than twice as large as the next regional office because we have the securities industry here. How do we interact with DC? There is a large number of staff in DC. A number of those staff members do things that are different than what we do in the regional offices. In the regional offices, we are out in the field where the rubber hits the road. We do two things: inspections, also known as examinations, and enforcement work. We do not have any significant participation in making the rules; they are in Washington, the socalled rule-making divisions. 5. Everyone has been talking about the Dodd-Frank reform, which the federal government has passed in response to the recent financial meltdown. What are some of the most interesting changes and how has your office been dealing with the new changes? There are some more enforcement powers that Dodd-Frank has given us. I do not think they are that significant in the grand scheme. If you are really into SEC practice, however, you could identify five or six elements of Dodd-Frank that in some respects changed enforcement practice, including standards for aiding and abetting; the standards have been clarified.

there will be more transparency in the practices of hedge funds. Number two, and this has not yet been felt because these rules are not final, are the rules relating to derivatives, including credit default swaps. The derivatives market is a multi-trillion dollar market and it has never been a regulated market. Derivative trading happens through over-the-counter trades. It is between institutions that are not publicly reported anywhere. And, for the first time, Dodd-Frank is requiring a greater degree of transparency. 6. There have been new whistle-blower regulations, which have encouraged those inside of companies who commit fraud to speak up. Can you elaborate on the new regulations and their effect? First, basic whistle-blower provisions provide that if you or someone else provides original information and that leads to a successful enforcement action in which we collect at least one million dollars, the whistle-blower is entitled to at least 10% of that and maybe as much as 30%. This creates a huge incentive that did not exist for people before who work in companies that observe illegal activity, people who worked at companies who observed violations of the securities laws, or even people who observe their competitors or others in the market place violating securities law. 7. The SEC’s recently created Microcap Fraud Working Group targets fraudulent penny stocks and the promoters that provide deceptive information across the web about these companies. It seems that the SEC always tries to keep up with technology and fight against new waves of fraud. How does the SEC try to battle this fight? To some extent, there is an inevitable lag between events and developments in the industry and regulators learning about them. A business practice needs to develop before you can scrutinize it. What will happen is business practices will development or evolve, the product will come into existence, and only then will they then begin to gain some currency and expand and become observable. So, there is always a little bit of a lag. The best way for us to stay on top of the industry is through a very vibrant inspection program in which we are constantly inspecting new products and evaluating the manner in which registered financial organizations are changing their business on a real time basis. Allen Granzberg is a junior in Davenport College. The interview was conducted on July 19, 2011.

In my opinion, there are two Dodd-Frank-related changes that are most significant for our work: One is registration of hedge fund advisors, which essentially means that our inspection teams will have access to information about hedge funds which they never had access to before. In other words,

[29]

Yale Undergraduate Law Review • Volume 2, Issue 1


Law in the Motherland: My Summer Internship in Russia

Law in the Motherland: My Summer Internship in Russia Andrew Squire

~

T

his past summer, I spent a month working at a top20 U.S. law firm’s office in Moscow, Russia. Law had always been one of the career ideas bouncing around my head, and I wanted to spend more time in Russia this summer to sharpen my language skills—especially considering my lack of fluency after four years of study. Having already studied abroad, I decided I wanted to work and get a taste of the expat life. I managed to find an international law firm with an office in Moscow that was willing to take me on as an intern and offer me a stipend, despite the fact that I was not a law school student. Once I knew I would be spending my summer in Russia, I set a few goals for myself: I would see more of the expansive country I had visited for the first time two years ago, learn some new Russian curse words, and maybe pick up a clue or two, by process of elimination, about what I might want to do with my life after this college joyride came to a screeching halt. Facing Anxieties As a Russian & Eastern European Studies major, I often hear the frustrating question, ”So what are you going to do with that degree?” My plan for this summer was, in a way, an effort to assuage some of my own fears about what I would be able to do with a background in Pushkin and Peter the Great, and to see if this Russian thing might not be as useful as it was personally fulfilling after all. I was going to be working for an American firm, but, hav-

“My plan for this summer was to assuage some of my fears about what I would be able to do with a background in Pushkin and Peter the Great.” ing done a little research, I also knew that its Moscow office was populated mostly by Russians (not always the case for big firms’ offices in Russia). As a result, I wasn’t sure if my daily working language would be English or Russian, or if this place would be in any way comparable to the office culture in the United States. I was especially nervous about

the prospect of being thrown into a professional environment with its own specialized vocabulary that might be unfamiliar in English, much less Russian. I was also well aware of the stereotypes about the Russian workplace. I had heard that many Russians were experts in appearing to be busy, while actually just counting the minutes till quitting time. I also knew of the rampant corruption in Russia – from police officers soliciting bribes on the street, to students paying their teachers for better grades, to companies paying off government officials for permits and licenses – and I was curious about the extent to which it would be visible, even if it didn’t exist in my own workplace. Overcoming Anxieties Soon, though, my sources of anxiety were quelled and my curiosity satisfied. I was surrounded by Russians in an office just a stone’s throw from the Kremlin, and yet it was a remarkably un-Russian environment—at least in terms of how I had been primed to think about the Russian workforce.

“I was a stone’s throw from the Kremlin, yet it was a remarkably un-Russian environment.” While most of the water-cooler conversations in the office were in Russian, the level of English among my colleagues ranged from decent to fluent. Business was done in English as well as Russian, since many of the international contracts handled by the firm are between Russian and foreign companies often governed by English (or other foreign) law. As for the stereotypical corruption and laziness, our office actually held workshops on compliance with a recently passed anti-corruption law, and the attorneys were far from lazy, many of them frequently working until late in the evening – well past my very manageable 10 am to 6 pm workday. In any international law office, the practice is usually geared to the peculiarities of the particular country or region in which it operates. Our office had seven partners (I got to know and work with three of them) and a wide-ranging

Yale Undergraduate Law Review • Volume 2, Issue 1

[30]


Legal Education

practice, including intellectual property disputes, labor law and family law, but the firm mainly focused on mergers and acquisitions and energy and natural resources – popular areas in Russia. In Russia, banks and companies are currently buying one another left and right, and the large, mostly state-

tive clients or other topics, showing off my Word and Powerpoint skills in the process. But it can’t all be glamorous, right? Though unexpected, the best part of my experience was working with my colleagues. With all my preconceived concerns about the kind of environment I was walking into, I hadn’t accounted for the possibility that it would be a tight-knit group of warm, friendly people who loved where they worked and the people they worked with, from the partners down to the secretaries. When the whole office gathered for an employee’s birthday on one of my first days there, judging by the heartfelt speeches and thoughtful gifts, I honestly thought it was a farewell party. I found out over the next several weeks that this treatment was standard. As for me, I was practically barraged with helpful tips on where to go and what to do, and how to get tickets to this and that. I was even invited to my boss’s “dacha” (a Russian country house). My experience this summer probably fulfilled the last goal that I had set for myself before I left for Russia – picking up clues on what career I might want to pursue – but that was mostly due to the low bar I set. In a way, the time I spent working in law was comforting: I’m fairly certain I wouldn’t hate it if I ended up veering down the legal path, and it seems that opportunities are out there for a Slavophile like me. Lingering Doubts

St. Basil’s Cathedral on Red Square, Moscow. (Andrew Squire) owned oil, gas and mining companies are constantly looking for foreign partners to help finance their latest ventures. Getting to Work My work at the firm was, for the most part, surprisingly engaging, even if my responsibility (considering I was an intern from college, not law school) was limited. While my tasks look dull on paper – proofreading contracts, sitting in on conference calls, researching companies or business deals – the projects I was involved in sometimes made my head spin. I got to read through contracts between some of the world’s largest companies, who hoped to undertake projects of almost unfathomable scope that would affect the international economy for decades to come. One extra clause or one omitted word could mean a loss of billions of dollars, adding a whole new significance to my supposedly minor task of proofreading. I got to listen to charismatic foreign executives map out strategies for negotiations with notoriously slippery Russian companies. I got to... well, research is research. I wrote up some reports on prospec-

[31]

Ultimately, however, I worry that law might be personally unfulfilling. Part of what attracts me to the idea of a legal career is the ability to represent something or someone, to advocate for something you theoretically care about. Of course, that will not always be the case, but I’m not sure if it ever will be if I’m looking to be successful representing oil companies and banks. Certainly, there are other, more appealing aspects of working for a law firm: As I mentioned, the firm I worked at also deals with labor disputes (protecting workers from the government or their employers), intellectual property issues, and does a good deal of pro bono work as well. These legal areas sound a lot more idealistic and fulfilling, but I couldn’t help noticing that none of the firm’s top partners were deeply involved in them. Did I fall in love with the idea of pursuing a career in law this summer? No. But if I was with the people I met in Russia (more so than with the work I was doing), I certainly wouldn’t rule it out. Perhaps the most valuable lesson I took away from my internship was that before committing to three more years of intense schooling, it would be good to at least have an idea of what you are working toward. Andrew Squire is a senior in Silliman College.

Yale Undergraduate Law Review • Volume 2, Issue 1


A Deep Breath before the Big Leap

A Deep Breath before the Big Leap Taking gap years before law school is en vogue with current college grads. Traci Tillman

E

~

very year, college seniors ponder their post-grad plans. And, every year, a sizeable number decides to turn the flirt with law in their first constitutional law class into a more serious commitment: law school. But not every potential attorney attends law school immediately after graduation. In fact, according to the Law School Admissions Council’s (LSAC) 2010 “Analysis of Law School Applicants by Age Group,” students aged 22-24 comprised only half of applicants each year from 2005 to 2009.1 In their debate which law institutions to apply to, aspiring attorneys often take a detour through the “school of life.” Decreasing Numbers of Recent College Grads at Law Schools

some time off, gone out and gotten a diverse array of experiences,” Rubenstein said. “We’re looking for students with leadership experience, with the potential to drive change.”2 In fact, 65% of UVA Law School’s class of 2013 has postcollege work experience, and the students have, on average, taken off two years between academic institutions.3 Robert Schwartz, the Dean of Admissions and Financial Aid at UCLA Law School, said only about a third of each UCLA class is comprised of recent college graduates.4 In the case of Yale and Harvard, that percentage is even lower: Only 20% of Yale and 28% of Harvard Law Schools’ classes of 2013 migrated to New Haven and Cambridge directly from college.5 6 Rubenstein said the percentage of similar students in Harvard’s class of 2014 is even smaller than the previous year: between 24 and 25%.7

While the decision to take a hiatus from academic learning between College and law school Pondering the is a deeply perBig Investment sonal choice, law school admisSome college graduates are not immediately ready for the law school classroom. Rubenstein said the sions officers from (Flickr Creative Commons) decreasing represenHarvard, UCLA, tation of recent coland UVA all agree that students might gain a much needed lege graduates at Harvard Law School might be attributed break and valuable real world experience during their time to students’ realization that law school is a three-year investaway from text books; experience that could benefit them bement of time and funds. Recent Yale College graduate Kiet yond the construction of personal statements and answering Lam ’10 agreed that law school is a significant investment LSAT logic questions. that students should ponder on before making. He said, with that in mind, he decided to take time off before applying Though LSAC statistics show that the dominant law school to law school. Though law school had been a consideration applicant group is comprised of students aged 22-24, similarthroughout his four years at Yale, Lam said he had other ly aged recent grads do not comprise the majority of students interests he had hoped to pursue and wanted to gain work actually attending schools like Yale, Harvard, UCLA, and experience to make himself a more competitive law school UVA. Harvard Law School Assistant Dean and Chief Adapplicant. missions Officer Josh Rubenstein said the process of selecting students might explain some of the discrepancy: “We’re seLam – an economics major and seasoned dancer – said he lecting for it more. We’re looking for people who have taken chose to spend a couple of years in New York before law

Yale Undergraduate Law Review • Volume 2, Issue 1

[32]


Legal Education school because the city provided several valuable dance opportunities, like the Broadway Dance Center Summer Intensive program he participated in during the summer of 2010, as well as the numerous shows and videos he has performed in since moving to the city.8

take time off because “it can be good for the individual to find out if law school is really the right course. Each person needs to choose the course she wants to. That year or two off after college should be for personal growth and development.”11

A Richer Applicant Pool

Don’t Pad Your Resume

Lam is one of many potential law students to pursue various non-academic activities during the years between College and law school. UVA Law School’s Assistant Dean for Admissions, and previous George Washington University ““‘We’re looking for students admissions officer, Anne Richard LAW ’84 said she has come ence, with the potential to across applicants who have taken time off to work in a diverse range of fields, including Teach For America, the Navy, the military, journalism, bar tending, and the Peace Corps. “The talents I’ve seen both in the [George Washington] pool and [at UVA] is just amazing,” Richard said. “There are all kinds of different, interesting people... There is a wealth of experience and knowledge.”9

Still, admissions officers said time off – much like law school in general – is not for everyone. Some students, Richard said, know they want to go into law and seek to complete the required schooling as quickly as with leadership experi- possible.12 And Schwartz of UCLA said taking time off bedrive change.’” fore law school is certainly not a prerequisite for admission. In fact, there is no single “right answer” from an admissions perspective, he said. “I wouldn’t recommend [taking time off] thinking it would enhance your application, specifically for that reason,” Schwartz said. “If you want to do something, you should go ahead and do it.”13

But admissions officers said several admitted students at UVA, UCLA, Harvard, and Yale also have backgrounds as paralegals, a title Lam now holds at Fragomen, a top global immigration law firm with an office in New York. Valuable Lessons in the School of Life Lam said that, while working as a paralegal in immigration law has introduced him both to the legal field and a community of legal professionals, experiences specific to living in The Big Apple have been responsible for reaffirming his interest in law. He said seeing the many homeless people in New York – and New Haven – has given him a new understanding of and appreciation for humanitarian interests and human rights. Additionally, since living in New York, Lam has narrowed down his future field of study to public policy, a decision he said he would not have made if he had gone directly to law school from Yale College. Lam said the epiphany came the moment he sat in an Albany, NY balcony, a few feet away from Senate members, as officials approved the same-sex marriage bill. Lam said the experience was inspiring. “On the policy level, people change, and changes happen,” he said. “That experience was formative.” But while Lam’s time off has solidified his interest in law, it has not had the same effect for some of his fellow paralegals. In fact, many of them have begun to set their sights on various non-legal professions. “I’d say half of the people working as paralegals use it to decide if they want to go into law or law school,” Lam said.10 Richard confirmed that many students

[33]

Admissions officers agree that taking time off is a highly individualized choice to be made based on personal need and preference, not as an admissions tactic. Harvard’s Rubenstein recommends that students use their “level of certainty” about their interest in law as their ultimate guide when deciding whether to take time off before law school. “If all you want to do is practice law, that’s absolutely a good reason to come straight to law school,” Rubenstein said. “If you’re not sure, or are interested in something else, you might want to explore a different career.”14 Traci Tillman is a junior in Davenport College. 1. Kimberly Dustman, Phil Handwerk. “Analysis of Law School Applicants by Age Group.” LSAC. October 2010. http://www.lsac.org/LSACResources/Data/PDFs/AnalysisApplicants-by-Age-Group.pdf, p.2 (accessed Sep 8, 2011) 2. Rubenstein, Josh. Phone interview. 11 July 2011. 3. University of Virginia Law School. “Class of 2013 Profile.” http://www.law.virginia.edu/html/prospectives/class13.htm (accessed Sep 15, 2011) 4. Schwartz, Robert. Phone interview. 12 July 2011. 5. Yale Law School. “Entering Class Profile.” http://www.law. yale.edu/admissions/profile.htm (accessed Sep 15, 2011) 6. Harvard Law School. “Class Profile and Fact Sheet.” http:// www.law.harvard.edu/prospective/jd/apply/classprofile.html (accessed Sep 15, 2011) 7. Rubenstein, Josh. Phone interview. 11 July 2011. 8. Lam, Kiet. Phone interview. 10 July 2011. 9. Richard, Anne. Phone interview. 13 July 2011. 10. Lam, Kiet. Phone interview. 10 July 2011. 11. Richard, Anne. Phone interview. 13 July 2011. 12. Ibid. 13. Schwartz, Robert. Phone interview. 12 July 2011. 14. Rubenstein, Josh. Phone interview. 11 July 2011

Yale Undergraduate Law Review • Volume 2, Issue 1


Interview: David B. Fein

YULR Interview:

David B. Fein U.S. Attorney for the District of Connecticut Andrew Giambrone

~

1. What are your duties as U.S. Attorney for the District of Connecticut? Do you receive any directives from the Department of Justice? As U.S. Attorney, I am the chief federal law enforcement officer for the District of Connecticut, as are my U.S. Attorney colleagues in their respective districts. We are the lead lawyers for the U.S. on all matters of federal law enforcement as well as for all civil matters, whether the U.S. is being sued or is suing another party. I was nominated by the President and confirmed by the Senate; my allegiance is to the President, but also to the Attorney General. I look to him for direction in a lot of ways. This particular Attorney General [Eric Holder], having been a U.S. Attorney previously in his career, understands the role of a U.S. Attorney and how, while there are national initiatives and national efforts, a U.S. Attorney has to tailor their work to the district. When he came to the district for my swearing in, he said that his only requirement was that everyone needed to do the right thing. On issues such as discovery, he insisted that we treat our adversaries fairly, that we play by the rules, and that we be candid and not deceptive—all of those things that hopefully everybody comes to this job doing anyway. Beyond that, he looks to each U.S. Attorney to decide what efforts are important for the district. Everybody has national security as the top priority. That comes from the President and the Attorney General and is quite obvious. But after that, there are the priorities that I have set, many of which are national priorities, some of which are specific to the district here in Connecticut. 2. What are some of your priorities that are specific to the District of Connecticut? Violent crime is one. While violent crime overall is down in Connecticut and in the country, it is not down in certain neighborhoods of New Haven, Hartford, and Bridgeport in particular. It is often gang-related so our work involves enforcement against gangs, narcotics trafficking, and firearms trafficking.

David B. Fein is the 50th United States Attorney for the District of Connecticut, serving since May 10, 2010. Mr. Fein has years of experience in both public and private law. Before becoming U.S. Attorney, Mr. Fein was a partner at the law firm of Wiggin and Dana, where he co-chaired the firm’s White-Collar Defense, Investigations, and Corporate Compliance Practice Group. From 1995 to 1996, Mr. Fein was an Associate White House Counsel to President Clinton, dealing with anti-crime initiatives, communications issues, and the Administration’s regulation to combat underage use of tobacco. He served as Deputy Chief of the Criminal Division from 1993 to 1994 and Counsel to the United States Attorney from 1994 to 1995. Mr. Fein graduated cum laude from Dartmouth College in 1982 and the New York University School of Law in 1985, where he graduated Order of the Coif and was a member of the Senior Board of the N.Y.U. Law Review. Mr. Fein has served as a Visiting Lecturer in Law at the Yale Law School, where he taught a class on Federal Criminal Prosecution.

3. Can you give some examples of the most memorable cases you have seen or ones that have taught you the most about law? Let us start with the death penalty case. We had a death penalty trial this spring and received verdicts of guilty in the guilt phase and for death in the sentencing phase. We believe it is the first time a federal jury has ever convicted and sentenced a defendant to death in the district’s history. It was a triple murder in a Bridgeport housing project for which the motive was protecting a drug organization and getting rid of a potential competitor, or an actual competitor, in the same building. The murder was premeditated, planned, and absolutely heinous. The victims’ homes were invaded, they were tied up with duct-tape and they were killed by assault with a baseball bat. The verdict followed a tremendous amount of investigative and prosecutorial work. 4. Do you think that this particular case says anything about public perception of the death penalty in Connecticut or the Untied States? I am just a prosecutor so I just look at this case. We thought that this case was worthy of the federal death penalty and, well, the jury agreed.

Yale Undergraduate Law Review • Volume 2, Issue 1

[34]


Interviews 5. Is your department supporting any initiatives in New about these dangers. Haven to reduce the number of violent crimes ? Yes we are. One of the programs is a clergy-ambassador program. 8. What are the qualities that the best lawyers have? We are trying to help foster better relations between the community During our hiring process, we conduct a series of interviews and at a and the police department, and encourage more communication, certain point, we ask the candidate to deliver an opening statement. more reporting of crimes, and more assistance to the police in apWe give them a fact pattern and ask them to develop a short opening prehending violent criminals. One of the ways we are doing that statement, so that we can see their ability to take a series of facts and is by encouraging the clergy in the city to serve as a bridge between put them together. We also do it to see their ability to stand on their the community and the government, because the members of the feet and deliver an address in what is obviously a nervous situation. clergy have very good relationships with the community. We are Public speaking is very important. Personally, I am looking for excelalso listening to the clergy about community concerns, and why lence in what the person has done in terms of their education and members of the community may not be speaking up, even when their experience. Then I am looking for some intangibles, judgment they have information about the offenders of the violent crimes. being the most important one, because at the end of the day they are Another effort we are doing is focusing on the worst of the worst and standing up in court representing the U.S. and I need to know they figuring out which people are causing a disproportionate amount of are going to exercise good judgment. I also look for passion and their criminal activity. This includes people with very serious criminal reenthusiasm. cords, but who have come in and out of the system many “His only requirement was that everyone needed to do the right thing.” 9. Do you have any role times, and individuals who models? are engaged in large scale narcotics trafficking, firearms trafficking, One is Mary Jo White, who was a tremendous U.S. Attorney of the and other criminal activity. Southern District of New York whom I served under. She was tireless, exacting, demanding, and immersed herself in the minutiae of 6. Did you see any major changes in the types of crimes cases to make sure that the office was doing as well as it could. The committed during your career as a prosecutor? current Attorney General is another role model for me. I have been The rise in cybercrime is tremendous, as well as the role of comfortunate to see him both here in the district and in Washington. puters in almost every crime that we work on. This has certainly He is transforming the Department of Justice in many ways, includchanged from when I was a prosecutor years ago. Cybercrime ining by improving the relationships between its component parts and volves identity theft, outright fraud and embezzlement, and many making sure that we all work together in a cooperative way that has other things. The big project we undertook was combating the not always been the case. Coreflood Botnet. There was an effort that was successful by cyber criminals to take over individuals’ computers through the use of a 10. Is there a way for Yale students to see what your office Botnet—essentially a virus that took control of the computer and does? gave cyber criminals access to personal and financial data, which We have internships here for not only law students but also college they could use to steal money. This was largely undetected by indistudents. My sense is that they have a tremendous experience workviduals and pretty much immune to a lot of the anti-virus protecing here. Law students in particular get to work on cases and when tion that people use. One of the things we did was to take control our assistants feel they can trust the law students, and that happens of the Botnet and give a sleep command to all of the infected compretty quickly, they have them stand up in court, which is just fanputers. We were able to hold the status quo while Microsoft and tastic. While I have been here, I have seen students arguing motions other companies created the latest and the appropriate anti-viral that they have prepared and putting on witnesses at criminal trials, software to fit that virus. By not letting new iterations of the virus including at a murder trial. It was not the most important witness in go into infected computers, the anti-virus software worked. We had the case, but they did a fine job and I think that is just an amazing a 100% success rate at ridding the affected systems of the virus. We experience for a law student to have. When we have a college studid all of this with court orders in a very forward-looking way that dent intern, we keep them very occupied. They know that they learn had not really been done before. about the case and they are working as full team members. I think they have a great chance to see what the office of a prosecutor does. 7. You fought the dissemination of child pornography. Does that connect with your fight against cybercrime? 11. What advice do you have for students who are interIt is. It is also been horrible for me to learn the extent of trafficking ested in the law, public or private? and production of child pornography that is going on. I have made Follow your passion, whatever that is. Law can be a fantastic, challenging prosecuting these crimes a priority for the office. We have made sure and satisfying profession, but I think it mostly is if people are doing in law we are addressing these cases as quickly as possible because some of that which they really care about. They should pursue it with whatever the people that are defendants are people in positions of trust in the passion they have, and not do something because it looks good on their community. Sometimes there are allegations of child abuse along resume or because other people like it. with child pornography, so it is very important that we pursue these matters aggressively and quickly. The kinds of people that we have This interview has been shortened. For the full version, visit www.yulr.org. prosecuted include teachers, camp counselors, police officers, and others in positions of trust, so I think we serve a very important function, Andrew Giambrone is a sophomore in Pierson College. The interview was not only in specific deterrence and prosecution, but also public notice conducted on July 22, 2011.

[35]

Yale Undergraduate Law Review • Volume 2, Issue 1


Interview: Stephen W. Preston

YULR Interview:

Stephen W. Preston General Counsel, Central Intelligence Agency Alexander Porro

~

Stephen W. Preston is General Counsel of the Central Intelligence Agency (CIA). Appointed by President Obama with the advice and consent of the Senate, he was sworn in on July 1, 2009. Mr. Preston was previously a partner at the law firm of Wilmer Culter Pickering Hale and Dorr LLP in Washington, DC, where he was Co-Chair of the Defense and National Security Practice Group, as well as a member of the Regulatory and Litigation Departments. He joined the firm in 1986. Mr. Preston was Principal Deputy General Counsel of the Department of Defense from 1993 to 1995, during which time he served for an extended period as Acting General Counsel. From 1995 to 1998, Mr. Preston served as the Deputy Assistant Attorney General at the Department of Justice responsible for civil litigation in the courts of appeals on behalf of the United States before President Clinton appointed Mr. Preston as General Counsel of the Department of the Navy, a position he held until 2000. The numerous awards and distinctions Mr. Preston received include the Central Intelligence Agency Director’s Award, the Department of Defense Medal for Distinguished Public Service (with bronze palm in lieu of second award), and the Department of the Navy Distinguished Public Service Award. Mr. Preston received a B.A. from Yale University (’79) and a J.D. from Harvard University (’83).

ership team. The rest of the morning is usually consumed by internal meetings with my staff in the Office of General Counsel and with other Agency components and telephone calls. Lunch is an opportunity to catch up with colleagues elsewhere in the government, maintain contacts in the private sector, or entertain visiting counterparts at foreign liaison services – or is spent at the desk if the press of business requires it. A typical afternoon includes one or more meetings downtown, for example, representing the Agency at meetings with the National Security Staff at the White House. Only as the regular workday winds down and evening sets in does it become quiet enough to provide the sustained reflection that some matters require, get caught up on the day’s e-mail traffic, and prepare for the following day. There simply are not enough hours in the day to do everything, so one must manage one’s time carefully – concentrating on the crisis of the day or other top-priority projects, to be sure, but without ignoring the lesser and longer-term matters that also require attention – and one must delegate effectively.

3. Why did you decide to go to law school and did you 1. How does the law, in particular national security ever imagine that you would be working as the Genlaw, pertain specifically to what you do at the CIA? eral Counsel of the CIA? The General Counsel of the CIA is, by statute, the chief legal I went to law school because I did not know what I wanted to officer of the Agency. As such, I am the senior legal advisor to do and I thought law would provide the widest range of career the Director and a member of his leadership team. I also serve as opportunities, whether in government or the private sector. I head of the Office of General Counsel, which provides legal serhad come to college with a strong belief in the importance of vices to the various compogiving back to the communents of the Agency, in three “In the immediate aftermath of Osama bin Laden’s death, some ill-in- nity, which my years in New principal areas: the usual Haven only reinforced. By federal agency management formed critics speculated that the operation was somehow unlawful” the time I graduated, I functions such as contracts, expected to devote a subhuman resources, fiscal law, ethics, information management and stantial portion of my professional life to public service, and security; litigation and investigations (of which we have had no I moved to Washington after law school in hopes of someday shortage in recent years); and operations. All three areas are inserving in the federal government. I never dreamed I would be formed by national security law. Another role of the General General Counsel of the CIA, but, as luck would have it, my first Counsel is to represent the Agency with reference to law-related opportunity to serve was at the Department of Defense during matters at other Executive branch agencies, at the White House, the Clinton Administration. That experience ultimately led me before congressional oversight committees, and with foreign govto the Agency after President Obama took office. ernments. Here, again, national security law is key. 4. What is the biggest misconception about the CIA and 2. What is a general day in the life of Stephen Preston how do you and your office work to dispel those ideas? at the office? First, there may be a popular misconception that the Agency My day begins with a daily intelligence briefing at the crack of operates outside U.S. law. This is simply not so. All intellidawn, followed by the Director’s morning meeting with his leadgence activities of the CIA must be properly authorized pur-

Yale Undergraduate Law Review • Volume 2, Issue 1

[36]


Interviews suant to U.S. law and must be conducted in accordance with U.S. law, period. Even with respect to any “covert action,” the National Security Act of 1947, as amended, plainly states that the President “may not authorize any action that would violate the Constitution or statutes of the United States.” The statutes, executive orders, and Agency regulations under which the CIA operates are replete with limitations on intelligence activities and procedures for ensuring compliance, and a great deal of the management and legal functions within the operating components, as well as at the leadership level – not to mention congressional oversight – are devoted to making sure that the Agency does indeed operate within these strictures of U.S. law. 5. Can you comment on the changes that you observed in the law after September 11, 2001 and the death of Osama bin Laden? First, having served at the Pentagon and the Justice Department before 9/11, upon returning to government, I was immediately struck by the much greater levels of coordination and collabora-

“The best lawyers in this or any field are consummate problem-solvers.” tion between and among defense, intelligence, and law enforcement. The difference is night and day. It should come as no surprise, as the need for better information-sharing was one of the principal lessons learned from 9/11, and much of the change has been driven by post-9/11 legislation such as the Intelligence Reform and Terrorism Prevention Act of 2004. It is not all sweetness and light among the various agencies, of course, but there is a strong sense of common cause and national imperative that has people pulling in the same direction like never before. Second, in the immediate aftermath of Osama bin Laden’s death, some ill-informed critics speculated that the operation was somehow unlawful. To the contrary, both in terms of the authority to act and the manner in which it was carried out, the bin Laden operation was entirely lawful under both U.S. law and applicable principles of international law. The Department of State Legal Adviser, former Yale Law School Dean Harold Koh, put it this way: “Given bin Laden’s unquestioned leadership position within al Qaeda and his clear continuing operational role, there can be no question that he was the leader of an enemy force and a legitimate target in our armed conflict with al Qaeda. In addition, bin Laden continued to pose an imminent threat to the United States that engaged our right to use force, a threat that materials seized during the raid have only further documented. Under these circumstances, there is no question that he presented a lawful target for the use of lethal force. By enacting the AUMF [Authorization for the Use of Military Force], Congress expressly authorized the President to use military force “against…persons [such as bin Laden, whom the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001…in order to prevent any future acts of international terrorism against the United States by such…persons.” Moreover, the manner in

[37]

which the U.S. operation was conducted – taking great pains both to distinguish between legitimate military objectives and civilians and to avoid excessive incidental injury to the latter – followed the [law of armed conflict] principles of distinction and proportionality…and was designed specifically to preserve those principles, even if it meant putting U.S. forces in harm’s way. Finally, consistent with the laws of armed conflict and U.S. military doctrine, the U.S. forces were prepared to capture bin Laden if he had surrendered in a way that they could safely accept. The laws of armed conflict require acceptance of a genuine offer of surrender that is clearly communicated by the surrendering party and received by the opposing force, under circumstances where it is feasible for the opposing force to accept that offer of surrender. But where that is not the case, those laws authorize use of lethal force against an enemy belligerent, under the circumstances presented here. In sum, the United States acted lawfully in carrying out its mission against Osama bin Laden.” 6. What are the qualities that you feel that the best lawyers in the field possess and can you point to anyone who has inspired you by exhibiting these qualities? In my experience, the best lawyers in this or any field are consummate problem-solvers, with the strength of intellect to understand the competing interests better than anyone else, the experience and creativity to formulate the solution that has escaped everyone else, and the integrity and presence to present that solution as credible, even advantageous, to all. Among my mentors in the law – each a consummate problem-solver – are the late Arthur Mathews, a top practitioner in the area of federal securities law; the late Lloyd Cutler (Yale College ‘36, LAW ‘39), twice Counsel to the President; and Jamie Gorelick, former Deputy Attorney General and Department of Defense General Counsel. 7. Where do you see yourself in 5 or 10 years? As a Presidentially appointed, Senate-confirmed official, I serve “at the pleasure of the President,” which means I can remain General Counsel of the CIA no later than January 20, 2017. Actually, someone in my position would typically be gone by the end of the first term. As for where I will go, I suppose in a sense I am where I was in 1979: I do not know exactly, and that does not bother me. 8. What advice or encouragement do you have for the Yale undergraduate who is aspiring to be the next General Counsel? One thing I have learned about careers in the law and public service is that there is no one right way to do it, no single path to where you want to be. Circumstances, goals, and opportunities differ. If you are considering law school, think hard about whether you have an aptitude for and genuine interest in the law. In any event, think about a career in national security, whether in the military, in the intelligence community, or elsewhere. And consider the CIA in particular: I tell people I have the most interesting legal job in town, and there are countless intelligence officers all over the Agency equally excited about what they do. Alexander Porro is a junior in Morse College. The interview was conducted via email on August 17, 2011.

Yale Undergraduate Law Review • Volume 2, Issue 1


Interview: Robert M. Morgenthau

YULR Interview:

Robert M. Morgenthau Former New York County District Attorney (Manhattan) Jenny Bright

~

Robert M. Morgenthau was born in 1919 in New York City. Upon his graduation from Amherst in 1941, Mr. Morgenthau joined the Navy and served throughout World War II, rising to the rank of Lieutenant Commander. Mr. Morgenthau was the Executive Officer and Navigator aboard the USS Lansdale when that ship was torpedoed and sunk by German aircraft while protecting a convoy. After the war, Mr. Morgenthau attended Yale Law School. He entered private practice in Manhattan, working for Robert P. Patterson, a former Judge of the Second Circuit Court of Appeals. In 1961, he was appointed by President Kennedy to the position of United States Attorney for the Southern District of New York and continued in that role until 1970. Mr. Morgenthau successfully ran for District Attorney of Manhattan in November 1974. In his nine terms in office as the District Attorney, Mr. Morgenthau’s staff has conducted about 3.5 million criminal prosecutions. As of January 2010, Mr. Morgenthau is of counsel at the firm Wachtell, Lipton, Rosen & Katz. Mr. Morgenthau serves as the Chairman of New York City’s Police Athletic League and as Chairman of the Museum of Jewish Heritage. 1. What drew you to public service and what are the differences between working as the District Attorney and working for a corporate law firm? In a public office like the District Attorney’s Office, the young lawyers have a lot more responsibility than they do in a private firm. I used to tell applicants that the day that you walk in the door, you are not an employee, you are a partner. I think the training that is available in private practice is very valuable though. Young lawyers should see both sides of the street—they should get experience in private practice, they should get experience in the government, and they will do a better job in each one if they have been on the other side of the aisle, so to speak. I think it is important to be able to do both during a career. When I left law school, I was in private practice for 13 years and, then, I became a United States Attorney and I served there for 8 ½ years and, then, I spent the next 4½ years at a private practice and, then, I was at the District Attorney’s Office for 35 years and, now, I am back to private practice. I think you do a better job for clients, where the client is the government or private, if you have had experience on the other side of the aisle. 2. Can you walk us through the legal steps of one of the most interesting cases that you have handled? I think that one of the most interesting cases was when I brought action against the Chief Judge of the state, Judge Cooke, charging him with violating the laws and the Constitution of the State of New York and the way he appointed acting Supreme Court judges without getting the approval that we thought were required

by the Constitution and by state law. I argued that [case] in the Supreme Court, the lowest court of general jurisdiction of the Appellate Division, and the Court of Appeals, and it was pretty exciting to argue that case with his seat vacant. We got a unanimous decision by the six judges that in fact he had violated the laws of the State of New York. It is not something that I would recommend to people to do. The lawyers told me it was a quick way to be discredited if we lost the case. 3. You are remembered as District Attorney for your strong pursuit of white-collar crime in addition to street crime. Can you discuss your efforts to reduce both types of crime? When I took office in 1975, there was a very, very high level of violent crime. Manhattan was number one of the five boroughs in murders; we had 50% more murders than Brooklyn, which was the next highest. We put a lot of effort into prosecuting violent crime, particularly recidivists who committed multiple crimes and, by the time I left office, murders were down 90% in Manhattan and instead of being number one, we were number four. Of course, there are always a lot of reasons for that and I was always careful not to claim credit because I thought if I claimed credit and the figures went the other way, then I would have to take the blame. I think the role of our office was an important part, but certainly there were other factors. 4. What is the most important thing for a prosecutor to understand in pursuing a white-collar crime case? Get all the facts; make sure you have got all of the facts. All of those cases were very complicated. 5. You created the first Sex Crimes Prosecution Unit in 1974. Could you discuss it? I remember I had a group of women come in – they call themselves Women Against Rape – on February 6, 1975 and they were complaining about the way that rape victims were treated. One woman said, ‘When I was raped, I was interviewed by a couple of detectives and assistants, I testified in the Grand Jury and, then, the whole process was repeated a month later—I was interviewed again by different detectives.’ We made sure then that the one assistant who picked up the case would be responsible from beginning to end in what is known as vertical prosecution instead of horizontal. But under the law at that time, a woman could be questioned about her prior sexual history and we lobbied for that to be discontinued. In May or June 1975, the legislature passed

Yale Undergraduate Law Review • Volume 2, Issue 1

[38]


Interviews what was known as the Rape Shield Law: A woman could not be questioned about her prior sexual activity, and that made a big difference. But, of course, probably the biggest difference in the prosecution of sex crimes case was DNA. It not only enabled us to convict the guilty, but it also exonerated a lot of innocent people – something that was not generally recognized for a long time. 6. What is your most memorable moment as a lawyer? I do not know. I just want to say this: Just because the press plays a case up, does not mean that it is more important than the other case. I will always remember, there was a racetrack tout, a guy that was very well known on the tracks, and he pushed his girlfriend off a balcony in Manhattan, but her body was not recovered for a considerable period of time and then was found in a dump in the Bronx. The crime was committed in Manhattan, so Manhattan had jurisdiction, but the body was found in the Bronx, which meant that the Bronx had jurisdiction, too. I remember getting a call from the then Bronx DA saying ‘Wow I really want that case’ and I said, ‘Be my guest, take it.’ The reporters from the local press came up screaming at me saying ‘We wanted that case, we thought you would fight for it’ and I said, ‘I know you wanted it, that is why I did not want it.’ 7. Can you speak about some of the changes that occurred over the 35 years that you were in office as District Attorney and how they affected your practice of the law? When I came in, there was only one Detective Investigator and one Accountant Investigator on the staff of the DA and, when I left, there were 85 Detective Investigators and 25 Accountant Investigators, which meant that we had much greater capacity to initiate investigations. Generally, the DA’s Office had been in the position of having to react to investigations that were made by the police and [the police] were selecting the cases that they wanted to investigate. [The increase in staff] gave the DA’s Office the capacity to initiate investigations and carry them through. We would also bring other people in—the Department of Labor, the State Police, the Secret Service, the CIA and so on. We would get help wherever we could, and that made a big difference in our ability to investigate as well. 8. What are the most important legal challenges facing our society and what reform, if any, is necessary to improve the legal process? One of the things that I have been involved in since January 1, 1963 was the Police-Athletic League and we get thousands of boys and girls in our program, 5-18 years old, and then we also run some Head Start programs. A lot of these kids are latchkey kids who come home to no parents. If you give them something to do after school and in the summer, then you are going to cut down on crime. 99% of the young people who grow up in the city slide into crime; they are not looking to be criminals so you have got to help them stay out of it. 9. What are the qualities that the best lawyers in the field possess? Is there anyone in particular whom you view as exemplary? I think that there is no substitute for elbow grease, in other words

[39]

for working hard and being prepared, making sure you know all the facts in the applicable law. There are a lot of lawyers that get up and argue on the seat of their pants, so to speak, without doing their homework. So, certainly native talent is of some importance, but what is more important is willingness to really dig in and make sure you know all the facts. 81 of my former associates have become judges and they are all people who have good qualities; one of them, and of course the one of them that got most attention, was Sonya Sotomayor, who is a graduate of Princeton and Yale Law School. She is an interesting story because her parents were first-generation citizens and she was going to a parochial school in the Bronx and a nun said to her, ‘How would you like to go to Princeton?’ and she said, ‘What’s Princeton?’ and the nun explained and she said, ‘Do you think it would be good for me if I went?’ and she said, ‘Yes.’ She almost flunked out her freshman year because she did not have total command of the English language at that point in terms of writing. But she spent the summer with a family of an English professor and wrote an essay everyday and, then, ended up as the valedictorian of her class. She is an example of someone with a lot a native ability, but also hard work. 10. What advice do you have for the Yale undergraduate who is aspiring to be the next Manhattan District Attorney? Too much emphasis is put on getting into the right school and I do not think it is that important. The most important thing that I took away from law school was to read the statute. So many people get stemmed up about a case without knowing what the law is—I will give you one example and that was the Central Park Jogger case. There was a prisoner there off the Canadian border who told a prison guard that he had raped the Central Park Jogger and that he had done it alone. I did not believe him, but I said, “Let’s get a DNA test,” and the DNA came back 100% confirming his story. So we brought him down and a lot of people were saying ‘The guys that were convicted were guilty as hell.’ But the criminal law says that if there is newly discovered evidence which had been available at the trial and which would probably have resulted in a verdict more favorable for the defendant, then the verdict has got to be set aside. We would not have tried these other people if we had known, but if we had tried them and he was a defense witness saying ‘I did it,’ there would have been an acquittal. I told the defense lawyers, ‘Make a motion to set it aside and we would consent.’ I then went to see the judge and I told him that we were going to consent; there was no need for a hearing. What I had learned at the Yale Law School stood me in good stead, which was read the statute. It was amazing how many people would not read the statute. A columnist for the New York Times said that Morgenthau has obviously lost it, he should retire. If she had read the statute, she would have known that we did the only thing that we could do and it was not even a close question. 11. How would you like to be remembered as Manhattan District Attorney? Tough, but fair. Jenny Bright is a junior in Davenport College. She is related to Mr. Morgenthau. The interview was conducted on June 24, 2011.

Yale Undergraduate Law Review • Volume 1, Issue 2


Across a Great Wall: Censorship and the Experience of Cinema in the People’s Republic of China

Yale Undergraduate Law Review • Volume 2, Issue 1

[40]

Yale Undergraduate Law Review, Volume II, Issue I  

Yale Undergraduate Law Review, Volume II, Issue I

Read more
Read more
Similar to
Popular now
Just for you