In this Assignment, you analyze the complex administrative responsibilities in ensuring public freedom while protecting civil liberties. For this Discussion, read one of the articles highlighting the threat to civil liberties in the United States (Greenb

Discussion: Role of Public Administrators in Protecting Civil Liberties

More than many other professionals, public administrators face the daily challenge of balancing personal rights with the needs of society. To perform their functions and duties, public administrators may have to carry out administrative actions that invade privacy interests and violate civil liberties. What would your personal ethical code of conduct dictate in the face of political or organizational policies that threaten personal liberties? What might help you frame your responsibilities in terms of protecting civil liberties while protecting all members of society?

In this Assignment, you analyze the complex administrative responsibilities in ensuring public freedom while protecting civil liberties.

For this Discussion, read one of the articles highlighting the threat to civil liberties in the United States (Greenblatt, Inazu, McKelvey, or Wilke).

Post a (200 Word APA Format) your reaction to the article you selected. Then, explain how that article frames the responsibilities of public administrators who face ethical dilemmas in the attempt to ensure civil liberties while protecting all members of society. Multicultural and/or international examples are welcome but not required.

Free Speech at Risk

Will it survive government repression?

G
overnments around the globe have been weaken-

ing free-speech protections because of concerns

about security or offending religious believers.

After a phone-hacking scandal erupted in the

British press and Muslims worldwide violently protested images in

the Western media of the Prophet Muhammad, European nations

enacted new restrictions on hate speech, and Britain is considering

limiting press freedom. Autocratic regimes increasingly are jailing

journalists and political dissidents or simply buying media compa-

nies to use them for propaganda and to negate criticism. Muslim

countries are adopting and rigidly enforcing blasphemy laws,

some of which carry the death penalty. Meanwhile, some govern-

ments are blocking or monitoring social media and cybertraffic,

increasing the risk of arrest for those who freely express their

thoughts online and dashing hopes that new technologies would

allow unlimited distribution of information and opinion.

THE ISSUES ………………..379

BACKGROUND …………….386

CHRONOLOGY …………….387

CURRENT SITUATION ……..392

AT ISSUE……………………393

OUTLOOK………………….395

BIBLIOGRAPHY…………….398

THE NEXT STEP …………..399

THISREPORT

Russian police arrest a supporter of the punk rock
band Pussy Riot near a court building in Moscow on
Aug. 17, 2012. Three members of the all-female group
were convicted of hooliganism and sentenced to

prison after a performance in Moscow’s main cathedral
in which they ridiculed President Vladimir Putin.

CQResearcher
Published by CQ Press, an Imprint of SAGE Publications, Inc.

www.cqresearcher.com

CQ Researcher • April 26, 2013 • www.cqresearcher.com
Volume 23, Number 16 • Pages 377-400

RECIPIENT OF SOCIETY OF PROFESSIONAL JOURNALISTS AWARD FOR
EXCELLENCE � AMERICAN BAR ASSOCIATION SILVER GAVEL AWARD

90th
Anniversary

1923-2013

378 CQ Researcher

THE ISSUES

379 • Has technology madespeech freer?
• Should religious sensibil-
ities be allowed to limit
free expression?
• Should the U.S. pro-
mote free speech abroad?

BACKGROUND

386 Refusal to “Revoco”The struggle for free speech
has been a long story
about testing limits.

388 Controlling the PressIt remained heavily regulated
in the United Kingdom
and its American colonies.

390 Expanding RightsAfter World War II, the
sense that free speech was
an inalienable right took
deep hold in the country.

CURRENT SITUATION

392 Government SecretsThe case of Army Pfc.
Bradley Manning, who
leaked sensitive government
documents to WikiLeaks,
has made him a cause
célèbre in some circles.

392 Information ExplosionOnline databases have
complicated free-speech
legal issues.

394 Regulating the Press?A phone-hacking scandal in
Britain has led to concerns
about press freedom there.

394 Reporters Under AttackMore than 230 journalists
were imprisoned last year.

OUTLOOK

395 Shame, Not Laws?“Every new technology, by
its nature, is open to both
use and abuse.”

SIDEBARS AND GRAPHICS

380 Democracies Enjoy theMost

Press Freedom

Totalitarian regimes have

the least.

381 Number of JournalistsKilled on the Rise
Seventy journalists were
killed in 2012.

384 Blasphemy Laws ProliferateVideos and cartoons mock-
ing the Muslim prophet
Muhammad have led many
countries to enact anti-blasphe-
my laws.

387 ChronologyKey events since 1946.

388 Free Speech Can Be Deadly in Russi

“Many journalists end up
dead, assaulted or threatened.”

390 China Opens Up — ButJust a Crack
It still monitors journalists
and dissenters’ activities.

393 At Issue:Should journalists be regulated?

FOR FURTHER RESEARCH

397 For More InformationOrganizations to contact.

398 BibliographySelected sources used.

399 The Next StepAdditional articles.

399 Citing CQ ResearcherSample bibliography formats.

FREE SPEECH AT RISK

Cover: AFP/Getty Images/Andrei Smirnov

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April 26, 2013 379www.cqresearcher.com

Free Speech at Risk

THE ISSUES
I

t wasn’t an April Fool’s
joke. On April 1, “Daily
Show” host Jon Stewart

defended Egyptian political
satirist Bassem Youssef, who
had undergone police ques-
tioning for allegedly insult-
ing President Mohammed
Morsi and Islam.
“That’s illegal? Seriously?

That’s illegal in Egypt?” Stew-
art said on his Comedy Cen-
tral show. “Because if insult-
ing the president and Islam
were a jailable offense here,
Fox News go bye-bye.”
Stewart was kidding, but

Youssef’s case has drawn at-
tention from free-speech ad-
vocates who worry Egypt’s
nascent democracy is ac-
cording no more respect to-
ward freedom of expression
than the regime it replaced.
The U.S. Embassy in Cairo,

which had linked to Stew-
art’s broadcast on its Twitter
feed, temporarily shut down
the feed after Egyptian au-
thorities objected to it. Egypt’s
nascent government also has
filed charges against hundreds
of journalists, although Morsi
asked that they all be dropped
earlier this month.
Concerns are widespread that

commentators, journalists, bloggers —
and, yes, even comedians — are being
intimidated into silence. And not just
in Egypt.
Free speech, once seen as close to

an absolute right in some countries,
is beginning to conflict with other val-
ues, such as security, the protection of
children and the desire not to offend
religious sensibilities, not just in the
Middle East but in much of the world,
including Western Europe.

In many cases, freedom of speech
is losing. “Free speech is dying in the
Western world,” asserts Jonathan Tur-
ley, a George Washington University
law professor. “The decline of free
speech has come not from any single
blow but rather from thousands of paper
cuts of well-intentioned exceptions de-
signed to maintain social harmony.” 1

In an era when words and images
can be transmitted around the world
instantaneously by anyone with a cell
phone, even some American acade-
mics argue that an absolutist view of

First Amendment protections
couldn’t be expected to pre-
vail. Several made that case
after protests broke out in
several Muslim countries last
September over an American-
made video uploaded to
YouTube defamed the
Prophet Muhammad.
Even the administration of

President Obama, who de-
fended the nation’s free-speech
traditions at the United Na-
tions in the wake of video
backlash, supports a proposed
U.N. resolution to create an
international standard to re-
strict some anti-religious
speech. And, under Obama,
the Justice Department has
prosecuted a record number
of government employees
who have leaked sensitive doc-
uments, discouraging poten-
tial whistleblowers from ex-
posing government waste,
fraud or abuse. 2

“Wherever you look, you
see legislation or other mea-
sures seeking to reassert state
control over speech and the
means of speech,” says John
Kampfner, author of the 2010
book Freedom for Sale.
In the United Kingdom and

Australia, government minis-
ters last month proposed that
media outlets be governed by

new regulatory bodies with statutory
authority, although they ran into op-
position. Two years ago, a new media
law in Hungary created a regulatory
council with wide-ranging powers to
grant licenses to media outlets and as-
sess content in a way that Human
Rights Watch says compromises press
freedom. 3

“Not only is legislation such as this
bad in and of itself, but it is crucial
in sending a green light to authori-
tarians who use these kind of mea-

BY ALAN GREENBLATT

F
P
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tt
y
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a
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K
h
a
le
d
D
e
so
u
k
i

Egyptian political satirist Bassem Youssef arrives at the
public prosecutor’s office in Cairo on March 31. Police
questioned Youssef for allegedly insulting President
Mohammed Morsi and Islam. The government filed
charges against hundreds of Egyptian journalists but
dropped them earlier this month. Free-speech advocates

worry that journalists, bloggers and democracy
supporters worldwide are being intimidated into silence.

380 CQ Researcher

sures by Western states to say, when-
ever they are criticized by the West,
‘Hey, you guys do the same,’ ” says
Kampfner, former CEO of Index on
Censorship, a London-based nonprofit
group that fights censorship.
Some observers have hoped the

growth of social media and other
technologies that spread information
faster and more widely than previ-
ously thought possible could act as

an automatic bulwark protecting free-
dom of expression. “The best example
of the impact of technology on free
speech is to look at the Arab Spring,”
says Dan Wallach, a computer scientist
at Rice University, referring to the se-
ries of upheavals starting in 2011 that
led to the fall of autocratic leaders in
Tunisia, Egypt, Yemen and Libya. 4

But as studies by Wallach and
many others show, countries such as

China and Iran are building new fire-
walls to block sensitive information
and track dissidents. “The pattern seems
to be that governments that fear mass
movements on the street have real-
ized that they might want to be able
to shut off all Internet communica-
tions in the country and have started
building the infrastructure that en-
ables them to do that,” said Andrew
McLaughlin, a former White House

FREE SPEECH AT RISK

Democracies Enjoy the Most Press Freedom
Democracies such as Finland, Norway and the Netherlands have the most press freedom, while authori-
tarian regimes such as Turkmenistan, North Korea and Eritrea have the least, according to Reporters
Without Borders’ 2012 index of global press freedom. European and Islamic governments have enacted
or considered new press restrictions after a recent phone-hacking scandal in Britain and Western media
outlets’ irreverent images of the Prophet Muhammad triggered deadly protests by Muslims. Myanmar
(formerly Burma), which recently enacted democratic reforms, has reached its greatest level of press
freedom ever, the report said.

Source: “Freedom of the Press Worldwide in 2013,” Reporters Without Borders, http://fr.rsf.org/IMG/jpg/2013-carte-liberte-presse_1900

Press Freedom Worldwide, 2013

C A N A D A

U N I T E D S T A T E S O F

A M E R I C A

MEXICO

BELIZE

DOMINICAN
REPUBLICHAITI

PUERTO RICO
GUATEMALA

COSTA RICA

EL SALVADOR

PANAMA

COLOMBIA

VENEZUELA

TRINIDAD & TOBAGO

G
UY

AN
A

SU
RI

NA
M

FR
EN

CH
G

UI
AN

B R A Z I L
P E R U

B O L I V I A

PARAGUAY

A R G E N T I N A

URUGUAY

CHILE

FALKLAND/MALVINAS
ISLANDS

G R E E N L A N D

ICELAND

N O R WAY

SWEDEN
F I N L A N D

DENMARKUNITED
KINGDOM

IRELAND

FRANCE

BELGIUM

NETHERLANDS

LUXEMBOURG
GERMANY

ESTONIA
LATVIALITHUANIA

RUSSIA

P O L A N D
BELARUS

U K R A I N E

S PA I N

PORTUGAL

CZECH
REP.AUSTRIA

SWITZERLAND

SLOVENIA
ITALY

CRO
ATI

SLOVAKIA

HUNGARY
ROMANIA

MOLDOVA

ALB
ANI

GREECE
T U R K E Y

CYPRUS

MOROCCO

WESTERN
SAHARA

A L G E R I A
L I B Y A

TUNISIA

MAURITANIA

SENEGAL

GAMBIA
GUINEA-BISSAU

GUINEA

SIERRA LEONE

LIBERIA

M A L I

BURKINA
FASO

IVORY
COAST

TO
G

O
B

E
N

NIGERIA

N I G E R C H A D

E G Y P T

S U D A N

SOUTH
SUDAN

ERITREA

E T H I O P I A
CENTRAL
AFRICAN
REPUBLIC

CAMEROON

GABON RWANDA
BURUNDI

UGANDA
KENYA

SOMALIA

A N G O L A

NAMIBIA

Z A M B I A

TA N Z A N I A

MALAWI

ZIMBABWE

BOTSWANA

MOZAMBIQUE
MADAGASCAR

SWAZILAND

LESOTHO

S O U T H A F R I C A

MAURITIUS

RÉUNION

GEORGIA

LEBANON

ISRAEL
I R A Q

I R A N

S A U D I

A R A B I A

QATAR
UNITED
ARAB

EMIRATES

OMAN

YEMEN

I N D I A

AFGHANISTAN

PAKISTAN

TURKMENISTAN

UZBEKISTAN KYRGYZSTAN

TAJIKISTAN

K A Z A K H S T A N

SRI
LANKA

NEPAL BHUTAN

BANGLADESH

MYANMAR LAOS

THAILAND

CAMBODIA

VIETNAM

M A L A Y S I A

BRUNEI

TIMOR LESTE

PHILIPPINES

TAIWAN

I N D O N E S I A

PA P UA
N E W

G U I N E A

SOLOMON
ISLANDS

FIJI

VANUATU

NEW CALEDONIA
A U S T R A L I A

NEW
ZEALAND

R U S S I A

M O N G O L I A

NORTH KOREA

SOUTH
KOREA

J A P A N

C H I N A

HONG
KONG

ANDORRA

BOSNIA AND
HERZEGOVINA

BAHAMAS

GHANA

MACEDONIA

GALAPAGOS
ISLANDS

South Georgia

N o r w e g i a n

S e a

B l a c k S e a

R
e

S
e

S e a o f

O k h o t s k

G u l f
o f

A d
e n

M e d i t e
r r a n e a n S e a

P A C I F I C

O C E A N

N O R T H

A T L A N T I C

O C E A N

S O U T H

A T L A N T I C
O C E A N

I N D I A N

O C E A N
P A C I F I C

O C E A N
A r a b i a n

S e a

SYRIA

JORDAN

ARMENIAAZERBAIJAN

DEM. REP.
OF

CONGO

BULGARIA

Good

Satisfactory

Noticeable
problems

Difficult

Very serious

Press Freedom

SERBIA

MONTENEGRO

CONGO
EQUATORIAL GUINEA

NICARAGUA

HONDURAS

ECUADOR

CUBA

JAMAICA

April 26, 2013 381www.cqresearcher.com

adviser on technology. 5

In January, a French court ordered
Twitter to help identify people who had
tweeted racist or anti-Semitic remarks,
or face fines of 1,000 euros (about $1,300)
per day. The San Francisco-based com-
pany refused to comply, citing First
Amendment protections for free
speech. 6

But even as Twitter appeals the
French court order, the microblogging
site in October blocked the account
of a neo-Nazi group called Besseres
Hannover, or Better Hanover, which
had been charged with inciting racial
hatred. Twitter said it was the first
time it had used technology to mon-
itor and withhold content based on a
given country’s concerns and laws.
Meanwhile, government arrests of

journalists and mob attacks against
them are on the rise. Journalists are
being arrested more often than in pre-
vious years in countries such as Rus-
sia and Turkey, and in 2012, mobs at-
tacked journalists in Mali and Canada
— among other countries — for what
the protesters perceived as their blas-
phemous coverage of Islam. Blasphe-
my prosecutions have become more
common, especially in predominantly
Islamic countries such as Pakistan,
where blasphemy laws apply only to
comments about Islam or Muhammad,
not to derogatory comments about
Christianity, Judaism or other world
religions. 7

“There have been attempts to pass
so-called religious-sensibility laws,
which are, in fact, a way of curbing
press freedom and expression,” says
Robert Mahoney, director of the Com-
mittee to Protect Journalists, a New
York-based nonprofit group that pro-
motes press freedom.
In one widely covered case, three

members of the Russian punk rock
band Pussy Riot were found guilty of
hooliganism motivated by religious
hatred last year. They had been ar-
rested in March after a performance
in Moscow’s main cathedral, in which

they profanely called for the Virgin
Mary to protect Russia against Vladimir
Putin, who was returned to the pres-
idency soon after the performance. The
three were sentenced to two years in
a prison colony, but one member was
released on probation before being
sent to prison. 8 In more open soci-
eties, laws meant to protect against
hate speech, Holocaust denial and of-
fenses against religious sensibilities also
can end up limiting what people can
talk and write about.
Free-speech laws traditionally have

been about the protection of unpop-
ular and provocative expression. Pop-
ular and uncontroversial opinions usu-

ally need no protection. But in recent
years, free-speech protections have
been fading away.
“The new restrictions are forcing

people to meet the demands of the
lowest common denominator of ac-
cepted speech,” Turley contends.
As people monitor the health of free

expression around the globe, here are
some of the questions they’re debating:

Has technology made speech freer?
As Arab protesters took to the streets

— and the Internet — in 2011 in
countries such as Tunisia and Egypt,
everyone from commentators for se-
rious foreign-policy journals to “The

Number of Journalists Killed on the Rise

Seventy journalists were killed in 2012, nearly half of them mur-
dered, a 43 percent increase from 2011. A total of 232 journalists
were imprisoned in 2012, the highest number since the Committee
to Protect Journalists began keeping track in 1990. Experts say a
select group of countries has fueled the increase by cracking down
on criticism of government policies.

Source: “Attacks on the Press,” Committee to Protect Journalists, 2013, www.cpj.org/
attacks/

Journalist Deaths, by Cause, 2012*

36%
Crossfire/combat

17%
Dangerous assignment

46%
Murder

Imprisoned Journalists, 2000-2012

100

150

200

250

2012201120102009200820072006200520042003200220012000

* Figures do not total 100 because of rounding.

No. of Journalists

382 CQ Researcher

Daily Show” asked whether the world
was witnessing a “Twitter revolution.”
Social-media sites such as Twitter and

Facebook were used by activists both
as organizing tools and as a means of
communication with the outside world.
“Tunisians got an alternative picture

from Facebook, which remained un-
censored through the
protests, and they com-
municated events to
the rest of the world
by posting videos to
YouTube and Daily-
motion,” Ethan Zuck-
erman, a researcher at
Harvard University’s
Berkman Center for In-
ternet and Society,
wrote in 2011. “It’s like-
ly that news of demon-
strations in other parts
of the country dis-
seminated online
helped others conclude
that it was time to take
to the streets.” 9

Unquestionably, new-
media tools make it
easier for activists to
spread their messages
farther and faster than
was conceivable during
the days of the mimeo-
graph machine, or even
the fax. “What’s hap-
pening with new tech-
nology is that it’s mak-
ing publication of
these stories easier,
and they’re reaching a
bigger audience,” says
Mahoney, the Committee to Protect Jour-
nalists deputy director.
“Twenty years ago, you’d struggle

to get published in a local newspa-
per,” Mahoney says. “Now, as a jour-
nalist, you’ve got far more platforms
open to you, and you can get it out.”
And not just journalists. From Libya

and Iran to Syria and Myanmar, activists
and average citizens are able to dis-

seminate text, images and video all over
the world, ensuring that their voices can
be heard even at moments when regimes
are violently cracking down on them.
Social media and other technolog-

ical tools have become so omnipresent
that former Rep. Tom Perriello, D-Va.,
worries that people become addicted

to the online dialogue rather than reach-
ing out to broader populations. “My
pet peeve is that people think that so-
cial media can replace traditional or-
ganizing,” says Perriello, President of
the Center for American Progress Ac-
tion Fund, part of a liberal think tank
in Washington.
And even free-speech advocates

readily admit that, in a broader sense,

technology can be a two-edged sword.
“Suddenly, you have the ability to
reach people all over the world and
communicate in ways that you never
could before, and that’s wonderful,” says
Eva Galperin, global policy analyst with
the Electronic Frontier Foundation (EFF),
a San Francisco-based group that pro-

motes an unrestricted In-
ternet. “But it also allows
government surveillance on
a scale that was never be-
fore possible.”
Journalists find that their

e-mail accounts have been
hacked by “state-sponsored
attackers” in countries such
as China and Myanmar. 10

Mobile phones become
surveillance devices.
“Modern information

technologies such as the
Internet and mobile phones
. . . magnify the unique-
ness of individuals, further
enhancing the traditional
challenges to privacy,” ac-
cording to a recent study
by researchers from MIT
and other universities that
exposed the ease of track-
ing individual cellphone
users. “Mobility data con-
tains the approximate
whereabouts of individu-
als and can be used to re-
construct individuals’
movements across space
and time.” 11

Authoritarian regimes
also use technology to ac-
cess dissidents’ computers,

installing malware that tracks their
movements online, according to
Galperin. “It records all of their key-
strokes and can use the microphones
and cameras on the computers, cir-
cumventing all attempts to use en-
cryption,” she says.
It’s not just dictatorships. Galperin

notes that EFF’s longstanding lawsuit
against the National Security Agency

FREE SPEECH AT RISK

A free-speech activist in Budapest, Hungary, protests against a
new media law on March 15, 2011. The law set up a regulatory
council with wide control over media outlets and content, a

power that Human Rights Watch says compromises press freedom.
Pictured on the poster is the revered poet of Hungary’s

1848-1849 revolution, Sandor Petofi.

A
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April 26, 2013 383www.cqresearcher.com

for using warrantless wiretaps in the
United States is “now old enough to
go to school.” And many of the sur-
veillance tools used by authoritarian
regimes are made by U.S. companies,
she points out.
In the United Kingdom, in response

to a phone-hacking scandal that has
led to government investigations and
a national debate about press abuses,
a communications data bill has been
proposed by Home Secretary Theresa
May to require Internet service providers
and mobile phone services to collect
and retain data on user activity. The
measure is “designed to give the state
blanket rights to look at e-mails and
IMs [instant messages] and requires all
companies to retain the data for a year
and hand it over [to the government],”
says Kampfner, the former editor of
New Statesman magazine. “It was halt-
ed a few months ago, but will be rein-
troduced this year.”
Iran, which saw its own “Twitter

revolution” during a spasm of post-
election protests in 2009, has at-
tempted to keep a “Halal Internet,”
free of unclean influences and infor-
mation from the outside world.
In March, Iran’s Ministry of Infor-

mation and Communications Technol-
ogy blocked software used by millions
of Iranians to bypass the state’s elab-
orate Internet filtering system. “A col-
lection of illegal virtual private net-
works, or VPNs, was successfully closed
off by the ministry, making visits to
websites deemed immoral or politi-
cally dangerous — like Facebook and
Whitehouse.gov — nearly impossible,”
The New York Times reported. 12

Governments and Internet users are
engaged in an unending game of cat
and mouse, Kampfner says, with each
trying to advance technology in ways
that gives its side the upper hand.
“There’s something called Tor, an

open-source project that aims to break
through all those barriers, whether in
China or Iran or anywhere else,” says
Wallach, the computer scientist at Rice

University. “Tor keeps getting more
and more clever about hiding what
they’re doing, and regimes like Iran
get more and more clever about block-
ing them regardless.”
But as many commentators have

noted, free speech online depends not
only on government policies and court
rulings, but on private companies such
as Twitter, Facebook and Google. In-
creasingly, these companies are being
called on to block posts by terrorists and
unpopular or banned political parties.
“At the end of the day, the private

networks are not in any way ac-
countable if they choose to censor or
prevent individuals from accessing
services,” says Katherine Maher, direc-
tor of strategy and communications for
Access, a New York-based digital-
rights group.
“The Internet is not something dif-

ferent,” Maher says. “It is just an ex-
tension of the area in which we live.”

Should religious sensibilities be
allowed to limit free expression?
When an assassin’s bullet narrowly

missed the head of Lars Hedegaard,
suspicion immediately fell on Muslims,
since Hedegaard, a former newspaper
editor in Denmark, has been an anti-
Islam polemicist.
But a number of Danish Muslims

condemned the February attack and
rose to defend Hedegaard. “We Mus-
lims have to find a new way of react-
ing,” said Qaiser Najeeb, a Dane whose
father had emigrated from Afghanistan.
“We don’t defend Hedegaard’s views
but do defend his right to speak. He
can say what he wants.” 13

For free-speech advocates, it was a
refreshing reaction — particularly in a
country where Muslim sensitivities have
run high since the 2006 publication of
cartoons caricaturing the Prophet
Muhammad in a Danish newspaper.
“For those, like me, who look upon

free speech as a fundamental good,
no degree of cultural or religious dis-
comfort can be reason for censorship,”

writes British journalist and author
Kenan Malik. “There is no free speech
without the ability to offend religious
and cultural sensibilities.” 14

In recent years, a growing number
of people around the globe have been
prosecuted on charges of blasphemy
or offending cultural sensibilities
through hate speech. According to the
International Humanist and Ethical
Union (IHEU), only three people were
arrested for committing blasphemy via
social media between 2007 and 2011,
but more than a dozen such arrests
occurred in 10 countries last year. 15

Turkish pianist Fazil Say, for in-
stance, was given a suspended sen-
tence of 10 months in jail on April 15
for posting tweets considered blas-
phemous, while Gamal Abdou Mas-
soud, a 17-year-old Egyptian, was sen-
tenced to three years for posting
blasphemous cartoons on Facebook.
“When 21st-century technology col-

lides with medieval blasphemy laws,
it seems to be atheists who are get-
ting hurt, as more of them go to prison
for sharing their personal beliefs via
social media,” says Matt Cherry, editor
of the IHEU report.
In Pakistan, those accused of blas-

phemy often fall victim to violence —
before they even get their day in court.
— Dozens have been killed after being
charged with blasphemy over the past
20 years. Last November, a mob burned
Farooqi Girls’ High School in Lahore
after a teacher assigned homework
that supposedly contained derogatory
references to Muhammad.
“Repeating the blasphemy under

Pakistan law is seen as blasphemy in
itself,” says Padraig Reidy, news editor
for the Index on Censorship. “You
have these bizarre cases where evi-
dence is barely given but people are
sentenced to death.”
Even criticizing Pakistan’s blasphe-

my law can be dangerous. Sherry
Rehman, the Pakistani ambassador to
the United States, has received death
threats since calling for changes in the

384 CQ Researcher

law, while two like-minded politicians
have been assassinated. 16

In Pakistan, free speech is pretty
much limited to those hanging around
cafes and literary festivals, says Huma

Yusuf, a columnist for the Pakistani
newspaper Dawn. “The threat of blas-
phemy — a crime that carries the
death penalty — has stifled public dis-
course,” she writes. 17

YouTube has been blocked through-
out Pakistan since September, when
an anti-Muslim video was uploaded to
the site. Thousands of other websites
also have been blocked, allegedly for
containing pornographic or blasphe-
mous content. “In truth, most had pub-
lished material criticizing the state,” ac-
cording to Yusuf.
In counties such as Pakistan and

Egypt, the line between blasphemy
laws designed to protect against reli-
gious offense and those meant to pun-
ish minorities and stifle dissent is high-
ly porous. “There have been attempts
to protect religious sensibility which are
in fact a way of curbing press freedom
and expression,” says Mahoney, of the
Committee to Protect Journalists.
In the West, worries about offend-

ing religious and cultural sensibilities
have sometimes trumped free-speech
concerns. “Denigration of religious be-
liefs is never acceptable,” Australian
Prime Minister Julia Gillard stated be-
fore the United Nations in September.
“Our tolerance must never extend to
tolerating religious hatred.” 18

Gillard emphasized her disdain for
speech that incites hatred and violence,
which has become a common concern
among Western politicians. “Western gov-
ernments seem to be sending the mes-
sage that free-speech rights will not pro-
tect you” when it comes to hate speech,
writes Turley, the George Washington
University law professor. 19

Hate speech is intended to incite
discrimination or violence against
members of a particular national, racial
or ethnic group, writes Aryeh Neier,
a former top official with the Amer-
ican Civil Liberties Union, Human
Rights Watch and the Open Society
Institute.
But, Neier notes, “It is important to

differentiate blasphemy from hate
speech. The proclivity of some else-
where to react violently to what they
consider blasphemous cannot be the
criterion for imposing limits on free
expression in the U.S., the United

FREE SPEECH AT RISK

Blasphemy Laws Proliferate

Videos and cartoons mocking the Muslim Prophet Muhammad have
prompted many countries to enact strict anti-blasphemy laws.
Christians and Muslims have used the laws to prosecute people seen
as insulting religion. Blasphemy laws in Muslim countries usually
refer only to defaming Islam, and punishments can include the
death penalty. Many cases involve comments or videos posted on
social media such as Twitter and YouTube.

Examples of Recent Blasphemy Cases

Source: International Humanist and Ethical Union, December 2012

Country Law
Austria Prohibits disparaging a religious object, society or doctrine.

On Dec. 11, 2010, Helmut Griese, 63, was convicted for offending his Muslim neighbor
by yodeling while mowing his lawn; the neighbor claimed Griese was imitating the
Muslim call to prayer. On Jan. 22, 2009, politician Susanne Winter was fined $24,000
for saying Muhammad was a pedophile because he had a 9-year-old wife.

India Allows up to three years in prison for insulting religion or religious beliefs.

On April 21, 2012, the Catholic Church filed a complaint against Sanal Edama-
ruku, the founder of the reason-based organization Rationalist International, after
he exposed a “miracle” by showing water from a statue of Jesus was coming from a
leaky drain. On Nov. 19, 2012, college student Shaheen Dhada and a friend were
arrested for complaining on Facebook that Mumbai had been shut down for the
funeral of the leader of the Hindu nationalist party.

Iran Bars criticism of Islam or deviation from the ruling Islamic standards.

Web designer Saeed Malekpour, 35, a Canadian, served four years on death row in
Iran for “insulting Islam.” He was arrested while visiting his dying father in Iran in
2008 because a photo-sharing program he created while in Canada was used by
others to download pornography. The death sentence was suspended in 2012 after
Malekpour “repented.”

Netherlands Penalizes “scornful blasphemy” that insults religious feelings.

On March 19, 2008, Dutch cartoonist Gregorius Nekschot was arrested for insulting
Muslims in his drawings. On Jan. 21, 2009, politician Geert Wilders was put on
trial because his film “Fitna” compared Islam and Nazism. He was acquitted.

Pakistan Bans blasphemy, including defiling the Quran and making remarks
against the Prophet Muhammad.

In 2011 the governor of Punjab and the minister for minority affairs were assassi-
nated because they opposed the country’s blasphemy laws. On June 22, 2011,
29-year-old Larkana resident Abdul Sattar was sentenced to death and fined
$1,000 for sending text messages and blaspheming the Quran, Muhammad and
other Islamic figures during a phone conversation.

United Kingdom Prohibits “hate speech” against religious groups.

On March 4, 2010, philosophy tutor Harry Taylor was sentenced to six months in
prison, 100 hours of community service and fined €250 ($337 at the time) for
leaving anti-Christian and anti-Islam cartoons in an airport prayer room.

April 26, 2013 385www.cqresearcher.com

Kingdom, Denmark or the Netherlands
(or anywhere else).” 20

In recent months, the human rights
group American Freedom Defense Ini-
tiative (AFDI) has been running anti-
Muslim ads on public transportation
systems around the United States.
Posters that appeared on San Francis-
co buses last month, for example, in-
cluded a picture of Osama bin Laden
and a made-up
quote from “Hamas
MTV” that said,
“Killing Jews is wor-
ship that brings us
closer to Allah.”
After New York’s

Metropolitan Tran-
sit Authority tried
to block the ads
last summer, Feder-
al District Judge
Paul A. Engelmay-
er ruled that the
agency had violat-
ed AFDI’s First
Amendment rights.
“Not only did

[he] rule that the ads
should be ’afforded
the highest level of
protection under the
First Amendment,’ he
went on to offer
some eye-opening examples,” writes San
Francisco Chroniclecolumnist C. W. Nevius.
“Engelmayer said an ad could accuse a
private citizen of being a child abuser.
Or, he suggested, it could say, ’Fat peo-
ple are slobs’ or ’Blondes are bimbos’
and still be protected.” 21

Rather than put up a legal fight,
San Francisco’s Municipal Railway de-
cided to put up peace posters of its
own and donate the AFDI’s advertis-
ing fee to the city’s Human Rights
Commission.

Should the United States promote
free speech abroad?
Because of the First Amendment

and the history of its interpretation,

the United States has what comes
closest to absolute protection of free
speech of any country on Earth. And
many believe free expression is not
only essential to democracy but a
value Americans should help export
to other countries.
At a 2011 Internet freedom confer-

ence in The Hague, then-Secretary of
State Hillary Rodham Clinton said,

“The United States will be making the
case for an open Internet in our work
worldwide.
“The right to express one’s views,

practice one’s faith, peacefully assem-
ble with others to pursue political or
social change — these are all rights
to which all human beings are enti-
tled, whether they choose to exercise
them in a city square or an Internet
chat room,” Clinton said. “And just as
we have worked together since the
last century to secure these rights in
the material world, we must work to-
gether in this century to secure them
in cyberspace.” 22

But the right to free expression that
is taken for granted in the United

States is not shared around the world.
Some people — including some Amer-
icans — worry that the

United States

risks offending governments and citi-
zens in other nations by preserving
free-speech rights — including the right
to racist and blasphemous speech —
above nearly every other consideration.
Such voices have been prominent

when Americans have exercised their
free-speech rights in
ways that offend others.
Threats to burn the
Quran — as well as ac-
tual Quran burnings —
by Florida pastor Terry
Jones led to deadly riots
in the Muslim world in
2010 and 2011. Last fall,
video portions from an
anti-Muslim film called
“Innocence of Muslims”
triggered riots in several
predominantly Muslim
nations.
Speaking to the Unit-

ed Nations two weeks
later, President Obama
explained that the U.S.
government could not
ban such a video because
of free-speech rights en-
shrined in the U.S. Con-
stitution.

“Americans have fought and died
around the globe to protect the right
of all people to express their views,
even views that we profoundly dis-
agree with,” Obama said. “We do not
do so because we support hateful
speech, but because our founders un-
derstood that without such protections,
the capacity of each individual to ex-
press their own views and practice
their own faith may be threatened.” 23

But Obama noted that modern tech-
nology means “anyone with a cellphone
can spread offensive views around the
world with the click of a button.”
While reality, some commentators

said it was foolish to expect other na-
tions to understand the American right

Indians protest against the American-made anti-Muslim video
“Innocence of Muslims” in Kolkata on Oct. 5, 2012. The film incited a
wave of anti-U.S. violence in Libya, Egypt and other countries across
the Muslim world. Speaking at the United Nations after the protests,

President Obama explained that such films could not be banned in the
United States because of the U.S. Constitution’s free-speech rights.

A
F
P
/G
e
tt
y
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m
a
g
e
s/
D
ib
y
a
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sh
u
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a
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386 CQ Researcher

FREE SPEECH AT RISK

to unbridled speech. “While the First
Amendment right to free expression is
important, it is also important to re-
member that other countries and cul-
tures do not have to understand or re-
spect our right,” Anthea Butler, a
University of Pennsylvania religious
studies professor, wrote in USA Today. 24

Americans must remember that “our
First Amendment values are not uni-
versal,” cautioned Eric Posner, a Uni-
versity of Chicago law professor.
“Americans need to learn that the

rest of the world — and not just Mus-
lims — see no sense in the First
Amendment,” Posner wrote in Slate.
“Even other Western nations take a
more circumspect position on freedom
of expression than we do, realizing that
often free speech must yield to other
values and the need for order. Our
own history suggests that they might
have a point.” 25

Access’ Maher, who has consulted
on technology issues with the World
Bank and UNICEF, notes that even
other Western nations tend to hold
free-speech rights less dear, viewing
them within a context not of person-
al liberty but a framework where they
risk infringing on the rights of others.
“This often leads to robust debates
about incitement, hate speech, blas-
phemy and their role in the political
discourse, often in a manner more
open to possible circumscription than
would be acceptable in the United
States,” she says.
Even some who promote free ex-

pression worry about the United States
taking a leading role in its promotion,
because of the risk of it being seen
elsewhere as an American value being
imposed from without.
“The problem is freedom of ex-

pression has come to be seen as ei-
ther an American or Anglo-Saxon con-
struct, whereas we would all like to
see it as a universal principle,” says
Kampfner, the British journalist. “There
is a danger that if this value is seen
as proselytized primarily by the Unit-

ed States, it will reinforce those who
are suspicious of it.”
But it may be that America’s

staunch adherence to free speech
makes the United States uniquely well-
suited to promote and defend the idea.
“The United States values a free press

and should promote those values abroad,”
says Robert Mahoney, deputy director of
the Committee to Protect Journalists.
“No Western country wants to ap-

pear to be lecturing other countries to
uphold its values, but it’s not an Amer-
ican construct,” he says. “We have a
duty to remind them of that, and we
expect international bodies like the
U.N. and countries like the United King-
dom and the European Union to do
the same thing.”
During his first trip abroad as sec-

retary of State, John Kerry in Febru-
ary defended free speech — includ-
ing the “right to be stupid” — as a
virtue “worth fighting for.” 26

It’s important that individuals and
groups in foreign countries take the lead
in explaining free-speech rights, “so it’s
not seen as a Western concept,” says
Reidy, the Index on Censorship editor.
“Certain human rights are not West-

ern,” he says, “they’re universal. That’s
the whole point of human rights.”

BACKGROUND
Refusal to “Revoco”

T he struggle for free speech hasbeen a long story about testing
limits. Many of the most famous mo-
ments in the development of free
speech in the Western world involved
notable figures such as the French
philosopher Voltaire, the Biblical trans-
lator William Tyndale and the Italian
astronomer Galileo, who were vari-
ously exiled, executed or forced to re-
cant things they had said or written.

“Governments in all places in all
times have succumbed to the impulse
to exert control over speech and con-
science,” writes Rodney A. Smolla, pres-
ident of Furman University. 27

The first great flowering of democ-
racy and free speech occurred 500
years before the birth of Christ in the
Greek city-state of Athens. The city
pioneered the idea of government by
consent, allowing the people the free-
dom to choose their own rules.
“Free speech was an inseparable

part of the new Athenian order,”
Robert Hargreaves, who was a British
broadcaster, writes in his 2002 book
The First Freedom. “Never before had
ordinary citizens been given the right
to debate such vital matters as war
and peace, public finance or crime
and punishment.” 28

But although Athens embraced, off
and on, the concept of government
by consent, it did not yet accept the
idea of individual free speech that
might upset the prevailing order. Athens
now may be remembered less for pi-
oneering free speech than for trying
and executing the great philosopher
Socrates in 399 B.C., after he refused
to recant his teachings.
Demanding that critics and heretics

recant has been a persistent theme
throughout history. After Martin Luther
printed his Ninety-Five Theses in 1517,
which criticized clerical abuses, Cardi-
nal Thomas Cajetan, the papal legate
in Rome, asked him to say revoco, or
“I recant,” and all would be well.
Luther refused.
Cajetan wanted to turn Luther over

to Rome on charges of heresy, but
Frederick III, the elector of Saxony, al-
lowed him to stay. Luther’s works be-
came bestsellers. Not only was he a
celebrity, but his writings helped spark
the Protestant Reformation.
Eventually, Pope Leo X and the

Holy Roman Emperor Charles V also
asked Luther to recant his writings. He
argued that he was defending works

Continued on p. 388

April 26, 2013 387www.cqresearcher.com

Chronology
1940s-1980s
New laws, international entities
and court decisions expand
free-speech rights.

1946
French constitution upholds princi-
ple that “free communication of
thought and of opinion is one of
the most precious rights of man.”

1948
United Nations adopts Universal
Declaration of Human Rights, de-
claring “the right to freedom of
opinion and expression” for all.

1952
U.S. Supreme Court extends First
Amendment protections to movies.

1954
Congress effectively criminalizes
the Communist Party.

1961
British jury allows Penguin to
publish the novel Lady Chatterly’s
Lover, which had been on a list
of obscene material.

1964
In landmark New York Times v.
Sullivan decision, U.S. Supreme
Court rules that public officials
must prove “actual malice” on the
part of journalists in order to sue
for libel. . . . Free Speech Move-
ment at University of California,
Berkeley, insists that administrators
allow campus protests.

1968
U.K. abolishes 400-year-old laws
allowing for government censorship
of theater performances.

1971
In the first instance of prior re-
straint on the press in U.S. history,
a court blocks The New York
Times from publishing the Penta-

gon Papers, but the Supreme
Court OKs publication of the clas-
sified Vietnam War history.

1989
Iran’s Islamic government issues a
fatwa, or kill order, against Satanic
Verses author Salman Rushdie forc-
ing him into hiding for years. . . .
Supreme Court upholds the right
to burn the U.S. flag in protest.

•

2000s In response to
terrorist attacks, many Western
countries limit civil liberties.

2000
At the first meeting of the post-
Cold War Community of Democra-
cies, 106 countries pledge to up-
hold democratic principles,
including freedom of expression

2005
George W. Bush administration ul-
timately fails in its year-long cam-
paign to pressure New York Times
not to publish a story about war-
rantless wiretaps

2006
More than 200 people die in vio-
lent protests across the Muslim
world after the Danish newspaper
Jyllands-Posten publishes cartoons
satirizing the Prophet Muhammad.
. . . United Kingdom bans language
intended “to stir up religious hatred.”
. . . In response to July 2005 terrorist
bombings of bus and subway system
that killed more than 50 people,
U.K. enacts Prevention of Terrorism
Act, which curtails speech in the
name of security. . . . Crusading
Russian journalist Anna Politkovskaya,
known for her coverage of the
Chechen conflict, is assassinated.

2010s In an age of

new media, both rich and
developing countries restrict
speech that may offend.

2010
WikiLeaks publishes thousands of sen-
sitive documents related to U.S. diplo-
matic efforts in Iraq, Afghanistan and
elsewhere. . . . Google announces it is
pulling out of China due to govern-
ment censorship of its service.

2012
U.S. Supreme Court finds the Stolen
Valor Act unconstitutional; the 2006
law made it a crime to falsely claim
to have won military decorations. . . .
Members of the Russian punk band
Pussy Riot are convicted of hooli-
ganism for protesting President
Vladimir Putin’s policies in a
Moscow church. . . . “Innocence of
Muslims,” an anti-Muslim video post-
ed on YouTube, triggers riots in sev-
eral Middle Eastern and North African
countries. . . . Twitter blocks German
access to posts by a banned neo-
Nazi party, its first bow to “country-
withheld content” regulations. . . . In-
quiry on press abuses in Britain
spurred by telephone-hacking scandal
by media outlets calls for greater reg-
ulation. . . . Egyptian court sentences
to death in absentia Florida pastor
Terry Jones, who had offended Mus-
lims through Quran burnings and
promotion of an anti-Muslim film.

2013
Pfc. Bradley Manning pleads guilty
to 10 charges of giving government
secrets to WikiLeaks (Feb. 28). . . .
Due to lack of support, Australia’s
ruling party withdraws a proposal to
regulate the press (March 21). . . .
Privately owned newspapers are
distributed in Myanmar for the first
time in 50 years (April 1). . . .
Egyptian court drops charges against
popular comedian Bassem Youssef,
who had been accused of insulting
the president (April 6).

388 CQ Researcher

about the teachings of Christ and
therefore was not free to retract them.
He offered this famous defense: “Here
I stand; God help me; I can do

other.” 29 As a result, the pope ex-
communicated him, and the emperor
condemned him as an outlaw.

Controlling the Press

L uther’s writings were spread thanksto the advent of the printing press,
a new technology that governments
sought to control. The Star Chamber of
the British Parliament in 1586 strictly

limited the number of master printers,
apprentices and printing presses that
could operate in London. All books
were required to be licensed by the
archbishop of Canterbury or the bish-
op of London.
A few decades later, members of

Parliament won the ability to speak
and vote without royal restraint. This
led to a freer press, as London print-
ers began publishing journals that
were largely accounts of Parliament
but also contained news. By 1645, the
printers were putting out an average
of 14 separate weekly titles. 30

A year earlier, the English poet John
Milton had published his Aereopagitica,

remembered as one of the most elo-
quent pleas for a free press ever penned.
“Truth is strong next to the Almighty,
she needs no policies, no stratagems
nor licensing to make her victorious,”
Milton wrote in the treatise. “Give her
but room, and do not bind her.”
Although it grew out of ongoing de-

bates about press licensing and limiting
free speech, the Aereopagitica had little
influence in its day. The press remained
heavily regulated both in the United King-
dom and in its American colonies.
In 1734, a German-born printer in

New York named John Peter Zenger
published criticism of royalist Gov.
William Cosby, calling him “a governor

FREE SPEECH AT RISK

Continued from p. 386

A
leksei A. Navalny expects to go to jail. Last month, a
Russian court announced it would schedule a trial
against Navalny, who is accused of embezzling from a

timber company, even though the case was dismissed last year
for lack of evidence. Still, Navalny said, “Honestly, I am almost
certain I am going to prison.” 1

Many of Navalny’s supporters believe his real crimes were
organizing protests in Moscow in 2011 and 2012, blogging and
running a nonprofit group that operates websites that allow
citizens to report incidents of government corruption.
Navalny, who announced on April 4 that he will run for

president, is not the only activist to come under pressure from
Russia’s government. Since Vladimir Putin returned to the pres-
idency last May, new restrictions have been imposed on In-
ternet content, and fines of up to $32,000 have been imposed
for participating in protests deemed illegal.
International nonprofit groups such as Amnesty International,

Human Rights Watch and Transparency International have been
ordered to register as foreign agents. All have refused, and their
offices recently have been raided by government investigators.
Last month, Dmitry Gudkov, an opposition politician and

one of only two members of the Russian parliament to sup-
port public protests such as those organized by Navalny, was
accused of treason by some of his colleagues after he visited
the United States in March. Gudkov’s father was stripped of
his seat in parliament last fall.
While cracking down on opposition voices, Putin’s govern-

ment has been able to rely on friendly state-run media cover-
age, including from Channel One, the nation’s most widely
watched television station. During his U.S. visit, Gudkov noted

that Russian state-controlled media had accused him of trea-
son and selling secrets.
While some countries try to crack down on independent

media outlets through intimidation, Russia for the most part
controls communications directly, with the state or its friends
owning most of the major newspapers and broadcasters.
Arch Puddington, vice president for research at Freedom House,

a Washington-based watchdog group, says what he calls the “Putin
model” is widely practiced. “They buy television stations and turn
them into mouthpieces of the government,” he says.
It’s a case of, “If you can’t beat them, buy them,” says An-

thony Mills, deputy director of the International Press Institute
in Austria.
Russia is not alone. In some Central Asian and Latin Amer-

ican countries, government-owned media are commonly used
for propaganda and to negate foreign criticism.
In Turkey, most of the media are controlled by a few pri-

vate companies, which leads more to collusion than intimida-
tion, says former Rep. Tom Perriello, D-Va. “In Turkey, you have
less of the situation of people being shaken down [or threat-
ened] if they print this story,” he says. “Instead, many of the
TV companies are doing contracts with the government, so
there’s a financial interest in not wanting to irritate people in
the . . . government.”
In other countries, antagonism is the norm. According to

Freedom House, Ecuadoran President Rafael Correa has called
the press his “greatest political enemy,” which he says is “ig-
norant,” “mediocre,” “primitive,” “bloodthirsty” and “deceitful.” 2

“Ecuador under its president of the last five years, Rafael Cor-
rea, has become one of the world’s leading oppressors of free

Free Speech Can Be Deadly in Russia
“Many journalists end up dead, assaulted or threatened.”

April 26, 2013 389www.cqresearcher.com

turned rogue” who was undermining
the colony’s laws. At Zenger’s trial the
following year, attorney Andrew Hamil-
ton argued that the judge and jury
should not separately consider the ques-
tions of whether he had published the
material and whether it was libelous,
as was the practice at the time, but
rather simply determine whether it could
not be libel because it was true.
The jury’s verdict of not guilty was

considered an important precedent, but
it would be 70 years before New York
changed its libels laws so the question
of truth could be entered into evidence.
William Blackstone, in his Com-

mentaries on the Laws of England of

1769, laid the groundwork for the idea
that there should be no licensing or
prior restraint of the press, but that
publishers could still face punishment
after publication. This formed the basis
for the thinking of the American
Founders, who remained skeptical
about a completely free press.
“License of the press is no proof of

liberty,” John Adams wrote in his No-
vanglus Letters of 1774. “When a peo-
ple are corrupted, the press may be
made an engine to complete their ruin
. . . and the freedom of the press, in-
stead of promoting the cause of liber-
ty, will but hasten its destruction.”
As U.S. president, Adams signed the

Alien and Sedition Acts, which led to
multiple arrests and convictions of print-
ers and publicists (all Republicans, or
political opponents of Adams). The
law was overturned under Thomas Jef-
ferson, who had been skeptical about
the need for unbridled press but em-
braced it in his second inaugural, stat-
ing that the press needed no other
legal restraint than the truth.
The principle that there was a right

to disseminate facts in a democracy
was crystallized in British philosopher
John Stuart Mill’s On Liberty of 1859.
“News, independently gathered and
impartially conveyed, was seen to be
an indispensable commodity in a so-

speech,” Peter Hartcher, international
editor for The Sydney Morning Her-
ald, wrote last summer. “Correa has
appropriated, closed and intimidated
many media outlets critical of his gov-
ernment. He has sued journalists for
crippling damages.” 3

Analysts say the Venezuelan gov-
ernment tries to own or control near-
ly all media, while vilifying and jailing
independent journalists.
And in Russia, government ha-

rassment of independent voices is
common. Only a few independent
outlets operate, such as Novaya Gaze-
ta, a newspaper co-owned by for-
mer Soviet President Mikhail Gor-
bachev, but they aren’t widely read
or heard except by law enforcement
agencies that often arrest, beat and
— according to watchdog groups —
even kill journalists. 4

The 2006 killing of Anna Politkovskaya, a Novaya Gazeta
reporter noted for her coverage of the Chechen conflict, drew
international attention, although no one has been convicted of
her murder. “Russia is among the most dangerous countries in
which to be a journalist,” says Rajan Menon, a political scien-
tist at City College of New York. “Many journalists end up dead,
assaulted or threatened for looking into hot-button issues, es-
pecially corruption.”

In some countries, state-owned media
criticize their own governments, says
Robert Mahoney, deputy director of the
Committee to Protect Journalists, citing
the example of the BBC. But when near-
ly all media are owned by a few indi-
viduals or companies, it’s not “good in
the long term for a diverse and vibrant
free press,” he says.
Nor is it good when journalists fear

they might be killed for digging into sto-
ries. In Russia, for instance, journalists
are routinely killed with impunity. “There
are 17 cases where journalists were
killed in the last dozen years or so,” Ma-
honey says, “and there have been no
prosecutions.”

— Alan Greenblatt

1 Andrew E. Kramer, “With Trial Suddenly Loom-
ing, Russian Activist Expects the Worst,” The New York Times, March 28, 2013,
p. A4, www.nytimes.com/2013/03/28/world/europe/with-case-reopened-the-
russian-activist-aleksei-navalny-expects-the-worst.html.
2 “Freedom of the Press 2011: Ecuador,” Freedom House, Sept. 1, 2011, www.
freedomhouse.org/report/freedom-press/2011/ecuador.
3 Peter Hartcher, “Hypocrisy Ends Hero’s Freedom to Preach,” The Sydney
Morning Herald, Aug. 21, 2012, www.smh.com.au/opinion/politics/hypocrisy-
ends-heros-freedom-to-preach-20120820-24ijx.html.
4 Peter Preston, “Putin’s win is a hollow victory for a Russian free press,”
The Guardian, March 10, 2012, www.guardian.co.uk/media/2012/mar/11/putin-
win-russian-free-press.

Russian activist Aleksei Navalny, a
leading critic of President Vladimir
Putin, addresses an anti-Putin rally
in St. Petersburg on Feb. 12, 2012.

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390 CQ Researcher

ciety where the people ruled them-
selves,” Mill wrote.

Expanding Rights

T he U.S. Supreme Court seldom ex-amined the question of free speech
during the 19th century, but justices began
to expand its sense in the 20th century.
During World War I, more than 1,900

Americans were prosecuted under the
Espionage Act of 1917 and the Sedi-
tion Act of 1918, which banned print-
ing, writing and uttering of statements
deemed disloyal or abusive of the U.S.
government.

One case led to the famous formu-
lation of Justice Oliver Wendell Holmes.
“The most stringent protection of free
speech would not protect a man in false-
ly shouting ‘fire’ in a crowded theater
and creating a panic,” Holmes wrote in
his dissent in Schenck v. U.S. in 1919.
“The question in every case is whether
the words used are used in such cir-
cumstances and are of such a nature to
create a clear and present danger that
they will bring about the substantive evils
that Congress has a right to prevent.”
Although fewer dissenters were pros-

ecuted during World War II there were
still dozens. “The Roosevelt administra-
tion investigated suspects for their ‘un-

American’ associations and employed a
variety of legal devices to harass the
dissenters and suppress the dissent,”
writes historian Richard W. Steele. 31

During the 1940s and ’50s, Con-
gress did what it could to ban Com-
munist Party activities in the United
States, but after World War II, the sense
that free speech was an inalienable
right took deep hold in the country
and the courts. It was even included
in Article 19 of the Universal Decla-
ration of Human Rights, adopted by
the United Nations in 1948, which says:
“Everyone has the right to freedom of
opinion and expression; this right in-
cludes freedom to hold opinions with-

FREE SPEECH AT RISK

I
t’s been decades now since China opened up to the West.
But it’s still not completely open, especially with regard to
freedom of speech and the press.
In recent months, angered by coverage it viewed as hos-

tile, such as reports that the families of top government offi-
cials have enriched themselves while the officials have been in
power, China has denied entry visas to reporters from media
organizations such as The New York Times, Al-Jazeera English
and Reuters.
Since October, it has blocked access within China to The

Times’ website, while Chinese hackers have broken into email
accounts belonging to reporters from The Times and The Wall
Street Journal, possibly to determine the sources of stories crit-
ical of government officials.
China has long maintained a “Great Firewall,” blocking its

citizens from accessing critical content from foreign sources.
But the Chinese government is also at pains to block internal
criticism from its own citizens and media, as well.
In any given year, China typically ranks in the world’s top

two or three countries in terms of how many journalists it im-
prisons. 1 “There’s a certain level of very localized dissent al-
lowed, but it can never be expressed directly at the regime,”
says Padraig Reidy, news editor for Index on Censorship, a
free-speech advocacy group.
“You can say a local official is corrupt — maybe,” Reidy

says. “But you can’t say the party is corrupt. That’s the end
of you.”
Besides tracking journalists’ activities, China’s government

also monitors activists’ online postings. A recent study by com-
puter scientist Dan Wallach of Rice University and several col-

leagues found that China could be employing more than 4,000
censors to monitor the 70,000 posts per minute uploaded to
Weibo, the Chinese version of Twitter. 2

The censors tend to track known activists and use auto-
mated programs to hunt for forbidden phrases. “Certain words
you know are never going to get out of the gate,” Wallach
says. “Falun Gong” — a spiritual practice China has sought to
ban —“those three characters you can’t utter on any Chinese
website anywhere in the country.”
Weibo users are “incredibly clever” at coming up with mis-

spellings and neologisms to sneak past the censors, Wallach
says. For instance, a colloquial phrase for China, the Celestial
Temple, is sometimes rewritten as “celestial bastard,” using similar-
looking characters.
But once such usage becomes widespread, the censors are

quick to catch on and such terms also are quickly eradicated
from websites. “China is definitely the market leader in tech-
nical tools for clamping down on free expression,” says British
journalist John Kampfner.
Aside from imprisonment and hacking attacks, China uses

self-censorship to suppress criticism of the state, says Robert
Mahoney, deputy director of the New York-based Committee
to Protect Journalists. Reporters and others constantly worry
about what sort of statements could trigger a crackdown.
“With self-censoring, journalists tend to be more conserva-

tive,” Mahoney says. Such sensitivity to what censors will think
extends even to Hollywood movies. Given the growing im-
portance of the Chinese film market, the country’s censors now
review scripts and inspect sets of movies filmed in China to
make sure that nothing offends their sensibilities.

China Opens Up — But Just a Crack
Journalists’ and dissenters’ activities are still monitored.

April 26, 2013 391www.cqresearcher.com

out interference and to seek, receive
and impart information and ideas through
any media and regardless of frontiers.” 32

A series of lectures by American free-
speech advocate Alexander Meiklejohn
published in 1948 was hugely influen-
tial as a defense of the notion that free
speech and democracy are intertwined.
“The phrase ‘Congress shall make no
law . . . abridging the freedom of speech,’
is unqualified,” Meiklejohn wrote. “It ad-
mits of no exceptions. . . . That prohi-
bition holds good in war and peace,
in danger as in security.” 33

In the 1960s, the U.S. Supreme Court
protected racist speech, as well as speech
by advocates of integration. “A decision

protecting speech by a Ku Klux Klan
member cited a decision that protected
an African-American antiwar state legis-
lator, and the case of the klansman was,
in turn, cited [in 1989] to protect a rad-
ical who burned the American flag as
a political protest,” writes Wake Forest
law professor Michael Kent Curtis. 34

In 1964, the Supreme Court limit-
ed libel suits brought by public offi-
cials, finding that the First Amendment
required “actual malice” — that is,
knowledge that information published
was false. 35 Seven years later, a lower
court blocked The New York Times from
publish further portions of the Penta-
gon Papers, a government history of

the Vietnam War — the first example
in U.S. history of prior restraint.
The Supreme Court lifted the in-

junction. Justice Hugo Black wrote, “In
revealing the workings of government
that led to the Vietnam War, the news-
papers nobly did precisely that which
the Founders hoped and trusted they
would do.” 36

After a long period of expansion,
press freedoms and other civil liber-
ties were challenged following the ter-
rorist attacks of Sept. 11, 2001. Once
again, free speech was seen as possi-
bly undermining the government at a
time when security concerns had be-
come paramount. “Press freedoms are

“There were points where we were shooting with a crew
of 500 people,” said Rob Cohen, director of “The Mummy:
Tomb of the Dragon Emperor,” which kicked off a recent
wave of co-productions between Chinese companies and Amer-
ican studios. “I’m not sure who was who or what, but know-
ing the way the system works, it’s completely clear that had
we deviated from the script, it would not have gone unno-
ticed.” 3 The Academy Award-winning “Django Unchained”
was initially cut to delete scenes of extreme violence, but
censors blocked its scheduled April 12 release due to shots
of full-frontal nudity.
In addition to carefully inspecting Western content coming

into the country, China is seeking to export its model for rigid
media control to other countries. “It’s fascinating to look at Chi-
nese investment in Africa,” says Anthony Mills, deputy director
of the Austria-based International Press Institute. “They’ve
bought into a variety of media outlets in Africa.”
While China can’t impose censorship in Africa, its control

of media outlets there helps ensure favorable coverage. Bei-
jing is actively promoting its image abroad through news-
content deals with state-owned media in countries including
Zimbabwe, Nigeria, Cuba, Malaysia and Turkey, according to
the South African Institute of International Affairs. “Countries
that need Chinese trade, aid and recognition, and those with
tense relations with the U.S., are more likely to be influ-
enced by China’s soft power,” the institute concluded in a
report last year. 4

“China has this model in which the economic welfare and
the perceived welfare of the state as a whole trump individual
freedoms,” Mills says.

Some Western observers, such as Reidy, believe China will
eventually have to become more open, because capitalist in-
vestment demands a free flow of information.
But others wonder whether China’s more authoritarian ap-

proach represents a challenge to the transatlantic model that
has been fairly dominant around the globe since World War II,
with freedom of expression seen as essential to democracy and
economic growth.
Already, says former Rep. Tom Perriello, D-Va., residents of

countries such as Turkey complain less about individual freedoms
while the economy is growing.
“If you actually get to a point where China is associated with

economic prosperity more than Western countries are, then people
look differently at democracy and human rights,” he says. “I wish
they didn’t, but that’s part of the fear, that we can’t assume there’s
this natural march toward more liberalism.”

— Alan Greenblatt

1 Madeline Earp, “Disdain for Foreign Press Undercuts China’s Global Ambition,”
Committee to Protect Journalists, March 11, 2013, www.cpj.org/2013/02/attacks-
on-the-press-china-tightens-control.php.
2 “Computer Scientists Measure the Speed of Censorship on China’s Twitter,”
The Physics arXiv Blog, March 6, 2013, www.technologyreview.com/view/
512231/computer-scientists-measure-the-speed-of-censorship-on-chinas-twitter.
3 Michael Cieply and Brooks Barnes, “To Get Movies Into China, Holly-
wood Gives Censors a Preview,” The New York Times, Jan. 15, 2013, p. A1,
www.nytimes.com/2013/01/15/business/media/in-hollywood-movies-for-china-
bureaucrats-want-a-say.html.
4 Yu-Shan Wu, “The Rise of China’s State-Led Media Dynasty in Africa,”
South African Institute of International Affairs, June 2012, p. 11, www.
saiia.org.za/images/stories/pubs/occasional_papers_above_100/saia_sop_%20117_
wu_20120618 .

392 CQ Researcher

FREE SPEECH AT RISK

positively correlated with greater transna-
tional terrorism,” write University of Chica-
go law professor Posner and Harvard
University law professor Adrian Ver-
meule. “Nations with a free press are
more likely to be targets of such ter-
rorism.” 37

For example, they
cited a 2005 New
York Times story on
the so-called war-
rantless wiretapping
program at the Na-
tional Security
Agency, which they
argue alerted terror-
ists that the United
States was monitor-
ing communications
the terrorists believed
were secure. 38 The
Bush administration
made similar argu-
ments to The Times,
which held the story
until after the 2004
presidential election.
Worried that the

administration would seek a federal
court injunction to block publication,
The Times first published the story on
its website. “In the new digital world of
publishing, there were no printing press-
es to stop,” notes Samuel Walker, a Uni-
versity of Nebraska law professor. 39

CURRENT
SITUATION

Government Secrets

W ith so much speech, commerce— and terrorist activity — tak-
ing place online, Congress is struggling
to find an appropriate balance between
security on the one hand and privacy
and free-speech concerns on the other.

On April 18, the House passed the
Cyber Intelligence Sharing and Pro-
tection Act, known by the acryonym
CISPA. The bill would give military
and security agencies greater access to
Americans’ online activity by making

it easier for private companies to share
cyberthreat information with the gov-
ernment, allowing government and
businesses to help each other out when
they get hacked.
The nation’s networks are already

under attack from countries such as
Iran and Russia, Texas GOP Rep.
Michael McCaul, chair of the House
Homeland Security Committee, told
his colleagues during floor debate. 40

“I think if anything, the recent events
in Boston demonstrate that we have to
come together to get this done,” Mc-
Caul said, referring to the bombs that
exploded near the finish line of the
Boston Marathon three days earlier. “In
the case of Boston, they were real bombs.
In this case, they’re digital bombs.” 41

But the bill’s opponents said it rep-
resented a violation of privacy and
free-speech rights, giving government
agencies such as the FBI and CIA easy
access to online accounts without war-

rants, chilling free expression. On April
16, the Obama administration threat-
ened to veto the bill, if it were to
reach the president’s desk. 42

The bill would allow Internet com-
panies “to ship the whole kit and ca-

boodle” of personal in-
formation to the
government, including
that which does not per-
tain directly to cyberthreats
and “is none of the gov-
ernment’s business,” said
California Rep. Nancy
Pelosi, Democratic leader
of the House. 43

“I am disappointed
. . . we did not address
the concerns of the White
House about personal
information,” Pelosi said.
“It offers no policies and
did not allow any amend-
ments and no real solu-
tions to uphold Ameri-
cans’ right to privacy.”
The measure now goes

to the U.S. Senate. A sim-
ilar bill was unable to muster enough Sen-
ate votes last year to overcome a filibuster,
and this year’s outcome is uncertain.

Information Explosion

T he explosion of information onthe Internet and in online data-
bases has made legal concerns about
free speech more complicated, says
Randall Bezanson, a law professor at
the University of Iowa. For most of
U.S. history, such concerns turned large-
ly on the question of whether the gov-
ernment had the power to censor speech.
Now, he says, regulating speech involves
the government not just quashing the
speech of individuals but in protecting
documents and databases — its own,
and others — from disclosure.
The Obama administration has

learned that lesson well, he says, and
Continued on p. 394

Ku Klux Klan members in Pulaski, Tenn., participate in a march
honoring Nathan Bedford Forrest, a Confederate general who helped
found the Klan, on July 11, 2009. The U.S. Supreme Court has ruled

that even hate groups like the Klan have a constitutional right to
express their racist views publicly.

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April 26, 2013 393www.cqresearcher.com

At Issue:
Should journalists be regulated?yes

yes
STEVEN BARNETT
PROFESSOR OF COMMUNICATIONS,
UNIVERSITY OF WESTMINSTER,
LONDON, ENGLAND

WRITTEN FOR CQ RESEARCHER, APRIL 2013

i n an ideal world, a free press should not be constrainedany more than free speech. Unfortunately, this is not anideal world. Would-be terrorists seek to recruit supporters,
grossly offensive material can reap huge financial rewards and
some publications try to boost circulation and scoop competitors
using immoral and even downright malicious methods.
Some methods, such as hacking into voicemails, are illegal in

Britain. Others are not. Public outrage was sparked by atro-
cious behaviour that some British newspapers have sanctioned
in the name of “journalism,” such as splashing on the front
page the private and intimate diaries of Kate McCann after the
disappearance of her daughter Madeleine. Although Mrs.
McCann begged the News of the World not to publish the di-
aries, the newspaper ignored her pleas. Such callous indiffer-
ence to people’s feelings had become institutionalized in some
of Britain’s best-selling newspapers.
What is required is not state control or statutory regulation.

But the press must be held accountable for egregious abuses
of its own privileged position within a democracy.
In the United Kingdom, Sir Brian Leveson, who chaired a

judicial inquiry into press practices and ethics as a result of
the phone-hacking scandal, recommended the moderate solu-
tion of voluntary self-regulation overseen by an autonomous
body that would assess whether self-regulation was effective
and independent. If so, news organizations choosing to belong
would be entitled to financial incentives such as lower court
costs and exemption from exemplary damages if sued. It is, I
repeat, a voluntary incentive-based system, which is needed to
protect ordinary people from amoral and sometimes vindictive
practices that have no place in journalism.
Such proposals might feel uncomfortable in the land of the

First Amendment, but it is exceptionally mild by European
standards. In Finland, a Freedom of Expression Act mandates,
among other things, that aggrieved parties have a right of
reply or correction without undue delay. In Germany, news-
papers are required to print corrections with the same promi-
nence as the original report. Scandinavian countries have
passed legislation on press ethics.
These countries are not rampant dictatorships. But they all,

as will Britain, find a proper balance between unconstrained
journalism and the rights of ordinary people not to have their
misery peddled for corporate profit.no

ANTHONY MILLS
DEPUTY DIRECTOR, INTERNATIONAL
PRESS INSTITUTE, VIENNA, AUSTRIA

WRITTEN FOR CQ RESEARCHER, APRIL 2013

i n any healthy democracy, the media play a watchdogrole, holding elected officials accountable and serving thepublic interest by satisfying citizens’ right to know what is
being done in their name in the often not-so-transparent corridors
of power. In the United States, for instance, the Watergate
scandal was unearthed and covered, at not inconsiderable risk,
by two young Washington Post reporters.
Not surprisingly, there are those in office for whom such

media scrutiny is, to put it mildly, unwelcome. And, lo and
behold, they become advocates for state regulation of the
media. They may very well point to one or more examples of
egregious, even criminal, journalist behavior as evidence of the
need to exert greater control.
No one suggests that journalists are above the law. But

when they engage in criminal behavior, they should be held
accountable in criminal courts. The profession must not be
overseen by the very elected officials whom it is supposed to
hold to account. Surely, from the perspective of the politicians,
that would be a conflict of interest.
The answer is self-regulation. That could be accomplished

through independent regulatory bodies with the teeth to hold
journalists ethically accountable or through ethical standards
rigorously and systematically imposed by media outlets them-
selves as is the case in the United States, where the First
Amendment right to freedom of the press is fiercely guarded.
Professional peers must lead by example.
In the absence of self-regulation, or where it is not effectively

implemented, the path is easily paved for statutory regulation,
whether direct, or roundabout, in form. The aftermath of the
News of the World phone-hacking scandal in the U.K., and
the ensuing inquiry by Lord Justice Leveson, have amply
demonstrated this. The U.K. press is set to be bound by statu-
tory legislation for the first time in hundreds of years. That
cannot be healthy for democracy, and other countries tend to
follow the lead of their democratic “peers.”
So it is incumbent upon everyone in the profession to re-

sist any efforts to impose statutory regulation of the press by
those upon whom the press is supposed to be keeping its
watchful eye. But it falls upon the press to ensure that the
standards it embraces are of the highest order of professional-
ism and integrity. Anything less offers cannon fodder for those
targeting a free media.

394 CQ Researcher

is doing its best to keep state secrets
secret. “Eric Holder, attorney general
under President Barack Obama, has
prosecuted more government officials
for alleged leaks under the World War I-
era Espionage Act than all his prede-
cessors combined,” Bloomberg News
reported last fall. 44

The administration was disturbed
by the leak of thousands of diplomatic
cables, which were published in 2010
by the whistleblower website Wiki-
Leaks, founded by former Australian
computer hacker Julian Assange. 45

“The Julian Assange episode and
those disclosures of pretty well unfil-
tered information, I think, scared peo-
ple in government and raised a whole
different specter of what could be done
and what the consequences are, and
that has probably triggered a more ag-
gressive approach in the Justice De-
partment,” Bezanson says.
On Feb. 28, Army Pfc. Bradley Man-

ning, who leaked thousands of diplo-
matic, military and intelligence cables
to WikiLeaks, pleaded guilty to 10
charges of illegally acquiring and trans-
ferring government secrets, agreeing to
spend 20 years in prison. Manning
pleaded not guilty, however, to 12 ad-
ditional counts — including espionage
— and faces a general court-martial
in June.
Manning’s case has made him a cause

célèbre among some on the left who
see him as being unduly persecuted.
A similar dynamic is playing out in
memory of American online activist
and pioneer Aaron Swartz, who com-
mitted suicide in January while facing
charges that could carry a 35-year
prison sentence in a case involving
his downloading of copyrighted aca-
demic journals.
In March, the entire editorial board

of the Journal of Library Administra-
tion resigned over what one member
described as “a crisis of conscience”
over the 26-year-old Swartz’s death. 46

The librarians were concerned not

only about the Swartz case but the
larger issue of access to journal arti-
cles, feeling that publishers were be-
coming entirely too restrictive in their
terms of use.
In general, Bezanson says, courts

are becoming less accepting of the
idea that “information wants to be free,”
as the Internet-era slogan has it. The
courts are not only more supportive
of copyright holders but seemingly
more skeptical about free speech in
general, with the Supreme Court in
recent cases having curbed some of
the free-speech rights it had afford-
ed to students and hate groups in
previous decisions.
“The doctrine of the First Amend-

ment is going to be more forgiving of
regulated speech,” Bezanson says.

Regulating the Press?

I n other countries, concern is grow-ing that freedom of speech and of
the press have been badly abused in
recent years. A phone-hacking scan-
dal involving the News of the World,
a British tabloid, shocked the United
Kingdom in 2011 and has led to more
than 30 arrests, as well as a high-
profile inquiry chaired by Sir Brian
Leveson, then Britain’s senior appeals
judge. Leveson’s report, released in
November, called for a new, inde-
pendent body to replace the Press
Complaints Commission, the news in-
dustry’s self-regulating agency. The
recommendations triggered difficult ne-
gotiations among leaders of the Unit-
ed Kingdom’s coalition government,
which announced a compromise deal
in March. (See “At Issue,” p. 393.)
“While Lord Leveson was quite cor-

rect to call for a regulator with more
muscle that can impose substantial fines
for future misconduct, [Prime Minister]
David Cameron pledged that he would
resist the clamor for such measures to
be backed by law,” the Yorkshire Post
editorialized. “Given that to do so would

be to take the first step on the slippery
slope toward censorship of the press,
a weapon that has been employed by
many a corrupt dictatorship around the
globe, he was right to do so.” 47

The U.K. is not the only country
considering new media regulations. In
March, Australia’s government proposed
tighter regulation of media ownership
and a new media overseer with statu-
tory authority. “Australians want the
press to be as accountable as they
want politicians, sports people and
business people,” said Stephen Conroy,
Australia’s communications minister. 48

Media executives argued that the
proposals were draconian and amount-
ed to the government’s revenge for hos-
tile coverage. “For the first time in Aus-
tralian history outside wartime, there will
be political oversight over the conduct
of journalism in this country,” said Greg
Hywood, the CEO of Fairfax Media. 49

In response to such criticisms, Aus-
tralia’s government quickly withdrew
the proposals.

Reporters Under Attack

I f journalists, commentators, artistsand writers are feeling embattled
in the English-speaking world, they
face worse fates elsewhere. According
to the Committee to Protect Journal-
ists, 232 journalists around the world
were imprisoned as of Dec. 1 — the
highest total since the group began its
survey work in 1990. And 70 journal-
ists were killed while doing their jobs
in 2012 — a 43 percent increase from
the year before. 50

According to the group, 49 jour-
nalists were imprisoned in Turkey alone
in 2012, a record high, and more than
were in jail in either Iran or China.
Francis J. Ricciardone, the U.S. am-
bassador to Turkey, has been openly
critical about the country’s approach
to free speech. “The responsibility of
Turkey’s friends and allies is to . . .
to point out, with due respect, the

FREE SPEECH AT RISK

Continued from p. 392

April 26, 2013 395www.cqresearcher.com

importance of progress in the protec-
tion of freedom of expression for jour-
nalists and blog writers,” State Depart-
ment spokeswoman Victoria Nuland said
at a news conference in February. 51

In India freedom of expression is
enshrined in the constitution, but with
many provisos. And lately, India’s ju-
diciary has appeared to show little
concern when the government has ar-
rested people over their Facebook posts
and remarks made at literary festivals.
“Writers and artists of all kinds are
being harassed, sued and arrested for
what they say or write or create,”
writes Suketu Mehta, a journalism pro-
fessor at New York University. “The
government either stands by and does
nothing to protect freedom of speech,
or it actively abets its suppression.” 52

India — the world’s most populous
democracy — has slipped below Qatar
and Afghanistan in Reporters Without
Borders’ press freedom index. 53

In emerging economic powerhous-
es such as Turkey and India, along
with Brazil, Mexico, South Africa and
Indonesia, governments are “kind of
floating” between two different mod-
els, says Kampfner, the Freedom for
Sale author: the open-society approach
favored by transatlantic democracies
and a more authoritarian approach.
“I slightly fear it’s going in the wrong

direction in all of them,” Kampfner says.
But there also have been signs

recently that things may be improving
in places for free-speech advocates.
On April 1, for the first time in half
a century, privately owned daily news-
papers hit newsstands in Myanmar. 54

In Syria, new newspapers have
emerged to cover the civil war, coun-
tering bias from both government-
controlled media and opposition-
friendlysatellite channels based in Qatar
and Saudi Arabia.
“We need to get out of this Face-

book phase, where all we do is whine
and complain about the regime,” said
Absi Smesem, editor-in-chief of Sham,
a new weekly newspaper. 55

OUTLOOK
Shame, Not Laws?

I t’s always impossible to predict thefuture, but it’s especially difficult
when discussing free speech, which is
now inextricably bound up with con-
stantly changing technologies.
“I don’t know what’s next,” says

Reidy, the Index on Censorship news
editor. “None of us five years ago
thought we would be spending our
lives on Twitter.” Still, Reidy says, the
fact that so many people are con-
versing online makes them likely to
equate blocking the Internet with
more venerable forms of censorship,
such as book burning.
“Within the next five years, you will

have a lot of adults in the Western
world who literally don’t know what
life is like without the Internet,” he says.
“That is bound to change attitudes and
cultures.”
Information technology is penetrat-

ing deeper into the developing world,
says Kampfner, the British journalist
and author. For instance, thanks to
mobile technology African farmers can
access more information they need about
crop yields and prices. And with cell
phones, everyone has better access to
information on disasters.
However, “In terms of changing the

political discourse, the jury is out,”
Kampfner says. “Every new technolo-
gy, by its nature, is open to both use
and abuse.”
Activists wanting to use technology

to spread information and governments
trying to stop them play an ongoing
“cat and mouse game,” says Galperin,
of the Electronic Frontier Foundation.
Given how easily commercial appli-

cations can track individuals’ specific in-
terests and movements online, it’s not
difficult to imagine that political speech
will be tracked as well, Belarus-born

writer and researcher Evgeny Morozov,
a contributing editor at The New Re-
public and a columnist for Slate, con-
tends in his 2011 book The Net Delu-
sion. It’s not the case, as some have
argued, he says, that the need to keep
the Internet open for commercial pur-
poses will prevent regimes from stamp-
ing out other forms of online discourse.
“In the not so distant future, a banker

perusing nothing but Reuters and Fi-
nancial Times, and with other bankers
as her online friends, would be left
alone to do anything she wants, even
browse Wikipedia pages about human-
rights violations,” he writes. “In con-
trast, a person of unknown occupa-
tion, who is occasionally reading Fi-
nancial Times but is also connected
to five well-known political activists
through Facebook and who has writ-
ten blog comments that included words
like ‘democracy’ and ‘freedom,’ would
only be allowed to visit government-
run websites, or . . . to surf but be
carefully monitored.” 56

In democratic nations, concerns
about security and offending reli-
gious believers could lead to more
restrictions — although not neces-
sarily in terms of new laws, says
Arch Puddington, vice president for
research at Freedom House, but
through shaming and “other infor-
mal methods” of disciplining un-
popular ways of speaking.
“What you could have over the next

10 years in the U.S. and abroad is a
distinction between rights and norms,”
says former Rep. Perriello, at the Cen-
ter for American Progress Action Fund.
“Having a legal right to say certain things
does not actually mean one should say
certain things.”
Anthony Mills, the deputy director

of the International Press Institute in
Austria, suggests that the more things
change, the more they will stay rec-
ognizably the same. “Unfortunately, in
10 years we’ll still be having similar
conversations about efforts by every-
one from criminals to militants and

396 CQ Researcher

government operatives to target the
media and silence them,” Mills says.
“But at the same time, . . . a vari-

ety of media platforms — of journal-
ists and of media practitioners — will
continue to defy that trend,” he says.
“I have no doubt that in the grand
scheme of things, the truth will always
come out. The dynamic of the flow
of information is unstoppable.”
Wallach, the Rice University com-

puter scientist, is equally certain that de-
spite all legal, political and technologi-
cal ferment, the basic underlying tension
between free expression and repressive
tendencies will remain firmly in place.
“There will always be people with

something to say and ways for them
to say it,” Wallach says. Likewise, “There
will also always be people who want
to stop them.”

Notes

1 Jonathan Turley, “Shut Up and Play Nice,”
The Washington Post, Oct. 14, 2012, p. B1,
http://articles.washingtonpost.com/2012-10-
12/opinions/35499274_1_free-speech-defeat-
jihad-muslim-man.
2 For background, see Peter Katel, “Protecting
Whistleblowers,” CQ Researcher, March 31,2006,
pp. 265-288.
3 “Memorandum to the European Union on
Media Freedom in Hungary,” Human Rights
Watch, Feb. 16, 2012, www.hrw.org/node/105200.
4 For background, see Kenneth Jost, “Unrest
in the Arab World,” CQ Researcher, Feb. 1,

2013, pp. 105-132; and Roland Flamini, “Tur-
moil in the Arab World,” CQ Global Researcher,
May 3, 2011, pp. 209-236.
5 Tom Gjelten, “Shutdowns Counter the Idea
of a World-Wide Web,” NPR, Dec. 1, 2012, www.
npr.org/2012/12/01/166286596/shutdowns-
raise-issue-of-who-controls-the-internet.
6 Jessica Chasmar, “French Jewish Group Sues
Twitter Over Racist, Anti-Semitic Tweets,” The
Washington Times, March 24, 2013, www.wash
ingtontimes.com/news/2013/mar/24/french-
jewish-group-sues-twitter-over-racist-anti-.
7 Jean-Paul Marthoz, “Extremists Are Censor-
ing the Story of Religion,” Committee to Pro-
tect Journalists, Feb. 14, 2013, www.cpj.org/
2013/02/attacks-on-the-press-journalism-and-
religion.php. See also, Frank Greve, “Combat
Journalism,” CQ Researcher, April 12, 2013,
pp. 329-352.
8 Chris York, “Pussy Riot Member Yekaterina
Samutsevich Freed on Probation by Moscow
Court,” The Huffington Post UK, Oct. 10, 2012,
www.huffingtonpost.co.uk/2012/10/10/pussy-
riot-member-yekaterina-samutsevich-frees-pro
bation-moscow-court_n_1953725.html.
9 Ethan Zuckerman, “The First Twitter Revo-
lution?” Foreign Policy, Jan. 14, 2011, www.for
eignpolicy.com/articles/2011/01/14/the_first_
twitter_revolution.
10 Thomas Fuller, “E-mails of Reporters in
Myanmar Are Hacked,” The New York Times,
Feb. 10, 2013, www.nytimes.com/2013/02/11/
world/asia/journalists-e-mail-accounts-targeted-
in-myanmar.html.
11Yves Alexandre de Mountjoye, et al., “Unique
in the Crowd: The Privacy Bounds of Human
Mobility,” Nature, March 25, 2013, www.nature.
com/srep/2013/130325/srep01376/full/srep013
76.html.
12 Thomas Erdbrink, “Iran Blocks Way to By-
pass Internet Filtering System,” The New York
Times, March 11, 2013, www.nytimes.com/2013/

03/12/world/middleeast/iran-blocks-software-
used-to-bypass-internet-filtering-system.html.
13 Andrew Higgins, “Danish Opponent of
Islam Is Attacked, and Muslims Defend His
Right to Speak,” The New York Times, Feb. 28,
2013, p. A8, www.nytimes.com/2013/02/28/world/
europe/lars-hedegaard-anti-islamic-provocateur-
receives-support-from-danish-muslims.html.
14 Kenan Malik and Nada Shabout, “Should
Religious or Cultural Sensibilities Ever Limit
Free Expression?” Index on Censorship,
March 25, 2013, www.indexoncensorship.org/
2013/03/should-religious-or-cultural-sensibili
ties-ever-limit-free-expression/.
15 “Freedom of Thought 2012: A Global Re-
port on Discrimination Against Humanists,
Atheists and the Nonreligious,” International
Humanist and Ethical Union, Dec. 10, 2012,
p. 11, http://iheu.org/files/IHEU%20Freedom%
20of%20Thought%202012 .
16 Asim Tanveer, “Pakistani Man Accuses Am-
bassador to U.S. of Blasphemy,” Reuters, Feb. 21,
2013, http://news.yahoo.com/pakistan-accuses-
ambassador-u-blasphemy-124213305.html.
17 Huma Yusuf, “The Censors’ Salon,” Latitude,
March 14, 2013, http://latitude.blogs.nytimes.
com/2013/03/14/in-lahore-pakistan-the-censors-
salon/.
18 See “Speech to the United Nations Gen-
eral Assembly —“Practical progress towards
realising those ideals in the world,” Sept. 26,
2012, www.pm.gov.au/press-office/speech-
united-nations-general-assembly-%E2%80%9
Cpractical-progress-towards-realising-those-idea.
19 Turley, op. cit.
20 Aryeh Neier, “Freedom, Blasphemy and
Violence,” Project Syndicate, Sept. 16, 2012,
www.project-syndicate.org/commentary/free
dom–blasphemy–and-violence-by-aryeh-neier.
21 C. W. Nevius, “Free Speech Protects Offen-
sive Ads on Muni,” The San Francisco Chron-
icle, March 14, 2013, p. D1, www.sfgate.com/
bayarea/nevius/article/Offensive-ads-on-Muni-
protected-speech-4352829.php.
22 Clinton’s remarks are available at www.state.
gov/secretary/rm/2011/12/178511.htm.
23 Obama’s remarks are available at www.
whitehouse.gov/the-press-office/2012/09/25/
remarks-president-un-general-assembly.
24 Anthea Butler, “Opposing View: Why ’Sam
Bacile’ Deserves Arrest,” USA Today, Sept. 13,
2012, http://usatoday30.usatoday.com/news/
opinion/story/2012-09-12/Sam-Bacile-Anthea-
Butler/57769732/1.
25 Eric Posner, “The World Doesn’t Love the
First Amendment,” Slate, Sept. 25, 2012, www.
slate.com/articles/news_and_politics/jurispru

FREE SPEECH AT RISK

About the Author
Alan Greenblatt covers foreign affairs for National Public
Radio. He was previously a staff writer at Governing mag-
azine and CQ Weekly, where he won the National Press
Club’s Sandy Hume Award for political journalism. He
graduated from San Francisco State University in 1986 and
received a master’s degree in English literature from the
University of Virginia in 1988. For the CQ Researcher, he
wrote “Confronting Warming,” “Future of the GOP” and “Im-
migration Debate.” His most recent CQ Global Researcher re-
ports were “Rewriting History” and “International Adoption.”

April 26, 2013 397www.cqresearcher.com

dence/2012/09/the_vile_anti_muslim_video_and_
the_first_amendment_does_the_u_s_overvalue_
free_speech_.single.html.
26 Eyder Peralta, “John Kerry to German Stu-
dents: Americans Have ’Right to Be Stupid,’ ”
NPR, Feb. 26, 2013, www.npr.org/blogs/the
two-way/2013/02/26/172980860/john-kerry-to-ger
man-students-americans-have-right-to-be-stupid.
27 Rodney A. Smolla, Free Speech in an Open
Society (1992), p. 4.
28 Robert Hargreaves, The First Freedom (2002),
p. 5.
29 Ibid., p. 51.
30 Ibid., p. 95.
31 Richard W. Steele, Free Speech in the Good
War (1999), p. 1.
32 See “The Universal Declaration of Human
Rights,” United Nations, www.un.org/en/docu
ments/udhr/index.shtml#a19.
33 Alexander Meiklejohn, Free Speech and Its
Relation to Self-Government (1948), p. 17.
34 Michael Kent Curtis, Free Speech, ’The People’s
Darling Privilege’: Struggles for Freedom of Ex-
pression in American History (2000), p. 406.
35 David W. Rabban, Free Speech in Its For-
gotten Years (1997), p. 372.
36 “Supreme Court, 6-3, Upholds Newspapers
on Publication of Pentagon Report,” The New
York Times, July 1, 1971, www.nytimes.com/
books/97/04/13/reviews/papers-final.html.
37 Eric A. Posner and Adrian Vermeule, Terror
in the Balance: Security, Liberty and the Courts
(2007), p. 26.
38 James Risen and Eric Lichtblau, “Bush Lets
U.S. Spy on Callers Without Courts,” The New
York Times, Dec. 16, 2005, www.nytimes.com/
2005/12/16/politics/16program.html.
39 Samuel Walker, Presidents and Civil Lib-
erties From Wilson to Obama: A Story of Poor
Custodians (2012), p. 468.
40 For background, see Roland Flamini, “Im-
proving Cybersecurity,” CQ Researcher, Feb. 15,
2013, pp. 157-180.
41 Karen McVeigh and Dominic Rushe, “House
Passes CISPA Cybersecurity Bill Despite Warn-
ings From White House,” The Guardian, April
18, 2013, www.guardian.co.uk/technology/
2013/apr/18/house-representatives-cispa-cyber-
security-white-house-warning.
42 See the “Statement of Administration Policy”
at www.whitehouse.gov/sites/default/files/
omb/legislative/sap/113/saphr624r_20130416 .
43 McVeigh and Rushe, op. cit.
44 Phil Mattingly and Hans Nichols, “Obama
Pursuing Leakers Sends Warning to Whistle-
Blowers,” Bloomberg News, Oct. 17, 2012, www.
bloomberg.com/news/2012-10-18/obama-

pursuing-leakers-sends-warning-to-whistle-
blowers.html.
45 For background, see Alex Kingsbury, “Gov-
ernment Secrecy,” CQ Researcher, Feb. 11, 2011,
pp. 121-144.
46 Russell Brandom, “Entire Library Journal
Editorial Board Resigns,” The Verge, March 26,
2013, www.theverge.com/2013/3/26/41497
52/library-journal-resigns-for-open-access-
citing-aaron-swartz.
47 “A Vital Test for Democracy,” Yorkshire Press,
March 19, 2013, www.yorkshirepost.co.uk/
news/debate/yp-comment/a-vital-test-for-our-
democracy-1-5505331.
48 Sabra Lane, “Stephen Conroy Defends Media
Change Package,” Australian Broadcasting
Company, March 13, 2013, www.abc.net.au/
am/content/2013/s3714163.htm.
49 Nick Bryant, “Storm Over Australia’s Press
Reform Proposals,” BBC, March 19, 2013,
www.bbc.co.uk/news/world-asia-21840076.
50 Rick Gladstone, “Report Sees Journalists
Increasingly Under Attack,” The New York Times,
Feb. 15, 2013, p. A10, www.nytimes.
com/2013/02/15/world/attacks-on-journalists-

rose-in-2012-group-finds.html.
51 “U.S.: American Ambassador to Turkey Re-
iterating What Clinton Previously Said,” Today’s
Zaman, Feb. 7, 2013, www.todayszaman.com/
news-306435-us-american-ambassador-to-turkey-
reiterating-what-clinton-previously-said.html.
52 Suketu Mehta, “India’s Speech Impedi-
ments,” The New York Times, Feb. 6, 2013,
www.nytimes.com/2013/02/06/opinion/indias-
limited-freedom-of-speech.html.
53 “Press Freedom Index 2013,” Reporters
Without Borders, fr.rsf.org/IMG/pdf/classe-
ment_2013_gb-bd .
54 Aye Aye Win, “Privately Owned Daily News-
papers Return to Myanmar,” The Associated
Press, April 1, 2013, www.huffingtonpost.com/
huff-wires/20130401/as-myanmar-new-news
papers/.
55Neil MacFarquhar, “Syrian Newspapers Emerge
to Fill Out War Reporting,” The New York Times,
April 2, 2013, p. A4, www.nytimes.com/2013/
04/02/world/middleeast/syrian-newspapers-
emerge-to-fill-out-war-reporting.html.
56 Eugeny Morozov, The Net Delusion (2011),
p. 97.

FOR MORE INFORMATION

Access, P.O. Box 115, New York, NY 10113; 888-414-0100; www.accessnow.org.
A digital-rights group, founded after protests against Iran’s disputed 2009 presidential
election, that fosters open communications.

Article 19, Free Word Centre, 60 Farringdon Road, London, United Kingdom,
EC1R 3GA; +44 20 7324 2500; www.article19.org. A group named for a section of
the Universal Declaration of Human Rights that designs laws and policies promot-
ing freedom of expression.

Committee to Protect Journalists, 330 7th Ave., 11th Floor, New York, NY 10001;
212-465-1004; www.cpj.org. Documents attacks on journalists; publishes its findings
and works to promote press freedom.

Freedom House, 1301 Connecticut Ave., N.W., 6th Floor, Washington, DC 20036;
202-296-5101; www.freedomhouse.org. An independent watchdog group founded
in 1941 that advocates greater political and civil liberties.

Index on Censorship, Free Word Centre, 60 Farringdon Rd., London, United
Kingdom, EC1R 3GA; +44 20 7324 2522; www.indexoncensorship.org. Founded in
1972 to publish stories of communist dissidents in Eastern Europe; promotes
global free speech through journalistic reports and advocacy.

International Press Institute, Spielgasse 2, A-1010, Vienna, Austria; +43 1 412
90 11; www.freemedia.at. A global network of media executives and journalists
founded in 1950, dedicated to promoting and safeguarding press freedoms.

Reporters Committee for Freedom of the Press, 1101 Wilson Blvd., Suite 1100,
Arlington, VA 22209; 703-807-2100; www.rcfp.org. Provides free legal advice and
other resources to journalists on First Amendment issues.

FOR MORE INFORMATION

398 CQ Researcher

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Wilson, Scott, and Anne Gearan, “At U.N., Obama Issues
a Challenge,” The Washington Post, Sept. 26, 2012, p. A1,
articles.washingtonpost.com/2012-09-25/politics/354966
19_1_nuclear-weapon-world-leaders-nuclear-program.
Arab countries should not sacrifice values such as free
speech despite the challenges being faced in the information
age, says President Obama.

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1353

NOTES

Due Process Rights and the
Targeted Killing of Suspected
Terrorists: The Unconstitutional
Scope of Executive Killing Power

ABSTRACT

The Central Intelligence Agency (CIA), with the approval of
the Obama Administration, conducts targeted killings of
individual suspected terrorists. These killings have significantly
increased since the Iraq war and are now a central component
of U.S. counterterrorism strategy. The targeted killing program
consists mainly of missile strikes from Predator drones, which
are unmanned aerial vehicles operated by the CIA. In May
2010, President Obama’s National Security Council approved
the targeted killing of Anwar al-Aulaqi, a U.S. citizen and
suspected al-Qaeda senior leader believed to be hiding in
Yemen. As the first American targeted for extrajudicial lethal
force, Aulaqi’s situation quickly became a source of great
controversy and concern. His father challenged this decision in
federal court in December 2010, but the court ruled in favor of
executive authority and awarded summary judgment to the
government. Aulaqi was subsequently killed by a drone strike in
September 2011. This Note challenges the asserted statutory
and constitutional basis for the president’s authority to order
the targeted killing of an American citizen. As the case of Anwar
al-Aulaqi demonstrates, the constitutionality of targeted killing
is highly suspect. To clarify the state of the law, Congress
should pass legislation that either prohibits targeted killing or
establishes judicial oversight.

1354 Vanderbilt Journal of Transnational Law [Vol. 44:1353

TABLE OF CONTENTS

I. INTRODUCTION …………………………………………………….. 1355
II. AN OVERVIEW OF TARGETED KILLING AND THE

CASE OF ANWAR AL-AULAQI …………………………………… 1357
A. Defining Targeted Killing as a Concept
and Practice ……………………………………………….. 1357
B. The Aulaqi Case in Federal Court ………………… 1359
C. The Aulaqi Opinion Reveals a Judicial
Impasse ………………………………………………………. 1361

III. CHALLENGING THE ASSERTED GROUNDS OF
AUTHORITY FOR THE TARGETED KILLING OF
AMERICANS ………………………………………………………….. 1363
A. The Scope of the AUMF Is Not a Political
Question …………………………………………………….. 1363
B. The Constitutionality of Targeted Killing
Is Not a Political Question …………………………… 1366

IV. CHALLENGING THE CONSTITUTIONALITY OF
TARGETED KILLING: A CLEAR VIOLATION OF
DUE PROCESS ………………………………………………………. 1368
A. How Due Process Rights Are Determined ………. 1369
B. A Comparative Perspective: The Due Process
Rights of Detainees ……………………………………… 1370

V. CHALLENGING THE EXECUTIVE BRANCH DEFENSE
OF TARGETED KILLING ………………………………………….. 1373
A. The Obama Administration’s Reassurances
Are Circular and Unsatisfactory ………………….. 1373
B. A Record of Error and Abuse of Authority …….. 1375
C. The Need for a Resolution ……………………………. 1376

VI. THE RESPONSIBLE WAY FORWARD: CONGRESS
SHOULD EITHER PROHIBIT THE TARGETED KILLING
OF AMERICANS OR ESTABLISH OVERSIGHT ……………….. 1377
A. Option One: Congress Could Pass Legislation

to Establish Screening and Oversight of
Targeted Killing ………………………………………….. 1378
i. FISA as an Applicable Model …………………. 1379
ii. CIPA: An Alternative Model ………………….. 1381

B. Option Two: Congress Could Pass
Legislation Prohibiting the Targeted
Killing of Americans ……………………………………. 1382

VI. CONCLUSION ………………………………………………………… 1383

2011] Due Process Rights and Targeted Killing 1355

I. INTRODUCTION

In September 2011, the Obama Administration killed Anwar al-
Aulaqi, an American citizen, through a covert counterterrorism
program known as targeted killing.1 The Department of Justice
(DOJ) claims that Aulaqi was a senior leader of al-Qaeda in the
Arabian Peninsula and that he represented an imminent threat to
national security.2 Although the government would not produce
specific evidence against Aulaqi,3 there is a large body of publicly
available evidence that linked Aulaqi to jihadist, anti-American views
and to several terrorist plots.4 However, Aulaqi was never detained in
connection with terrorist activity or convicted of plotting or aiding a
terrorist attack.5 Aulaqi was eventually killed by a drone missile
strike in Yemen.6
In August 2010, Aulaqi’s father, Nasser al-Aulaqi, filed suit
against the federal government and requested an injunction against
the targeted killing of his son.7 The complaint alleged that a targeted
killing would violate Anwar al-Aulaqi’s Fifth Amendment right to due
process of law before a deprivation of life.8 In response, the DOJ
argued that the decision to target Aulaqi for extrajudicial killing was
purely within executive branch authority and that to litigate this
matter would require judicial infringement on executive power.9
Nasser al-Aulaqi asserted that the Executive Branch claimed the

1. Complaint for Declaratory and Injunctive Relief ¶ 3, Al-Aulaqi v. Obama,
727 F. Supp. 2d 1 (D.C.C. 2010) (No. 10-CV-1469) [hereinafter Al-Aulaqi Complaint].
2. Brief in Opposition to Plaintiff’s Motion for Preliminary Injunction and
Memorandmum in Support of Defendants’ Motion to Dismiss at 5, Al-Aulaqi, 727 F.
Supp. 2d 1 (No. 10-CV-1469) [hereinafter Al-Aulaqi Response].
3. Id. at 2–3 (arguing that the complaint is based on unconfirmed speculation
and raises nonjusticiable claims beyond the purview of the judiciary).
4. For a detailed overview of the publicly available information on Aulaqi’s
radical teachings, beliefs, and associations, including connections to known terrorists
such as Nidal Malik Hassan (the “Fort Hood Shooter”), Umar Farouk Abdulmutalleb
(the “Christmas Day Bomber”), Faisal Shahzad (the “Times Square Bomber”), and
many others, see Profile: Anwar al-Awlaki, ANTI-DEFAMATION LEAGUE (Nov. 24, 2009),
http://www.adl.org/main_Terrorism/anwar_al-awlaki.htm?Multi_page_sections=sHeading_
2. Aulaqi had an infamous reputation in the general media and had been called “the
bin Laden of the internet” and “the world’s most dangerous man.” See, e.g., Aamer
Madhani, Cleric Al-Awlaki Dubbed “Bin Laden of the Internet,” USA TODAY , Aug. 25,
2010, at A1; Andrew Malcolm, Editorial, Awlaki Strikes Again, INVESTOR’S BUS. DAILY
(May 10, 2010), http://www.investors.com/NewsAndAnalysis/Article/532892/2010051
01836/Awlaki-Strikes-FI7Again.aspx.
5. See Al-Aulaqi Response, supra note 2 (making no specific allegation of
criminality).
6. Mark Mazzetti et al., C.I.A. Strike Kills U.S.-Born Militant in a Car in
Yemen, N.Y. TIMES, Oct. 1, 2011, at A1.
7. Al-Aulaqi Complaint, supra note 1, ¶ 6.
8. Id. ¶ 5.
9. Al-Aulaqi Response, supra note 2, at 3.

1356 Vanderbilt Journal of Transnational Law [Vol. 44:1353

power to kill an American without producing any justification.10 The
government’s response essentially suggested that, in fact, it had this
power in the context of counterterrorism and that this power was not
subject to judicial review.11
In December 2010, the District Court for the District of Columbia
rejected Nasser al-Aulaqi’s claims and granted summary judgment to
the government.12 While acknowledging the profound and troubling
nature of the issues at stake in the case,13 the court deferred to the
assertion of executive authority and declined to review the evidence
against Aulaqi.14 The court held that these issues were nonjusticiable
and that Aulaqi’s father did not have standing to bring this claim on
behalf of his son.15
This Note challenges the statutory and constitutional basis for
the government’s authority to conduct the targeted killing of
Americans and attempts to resolve important legal questions left
unanswered by the controversial outcome of Al-Aulaqi v. Obama.
Applied broadly, the practical effect of the Aulaqi holding suggests
that the president has the unchecked authority to kill Americans
accused of terrorism without providing the accused with some
minimum form of due process.16 According to the defendants’
reasoning in Aulaqi, the government’s use of lethal force, even
against its own citizens, is shielded from judicial review merely on
the assertion that lethal force was necessary to respond to the threat
of terrorism.17 Although the use of force in the specific case of Aulaqi
may be justifiable, the precedent established by this case creates a
broader and more unnerving form of executive power than is
permissible under the constitution.18
While targeted killing is utilized much more frequently against
foreign suspected terrorists, which is itself a subject of controversy in
international law, this Note focuses on the constitutional and

10. Al-Aulaqi Complaint, supra note 1, ¶ 16.
11. Al-Aulaqi Response, supra note 2, at 4–5.
12. See Al-Aulaqi v. Obama, 727 F. Supp. 2d 1 (D.D.C. 2010) (granting
summary judgment on all four of the plaintiff’s claims).
13. Id. at 51.
14. Id. at 47.
15. Id. at 54.
16. John C. Dehn & Kevin J. Heller, Debate, Targeted Killing: The Case of
Anwar al-Aulaqi, 159 U. PA. L. REV. PENNUMBRA 175, 186 (2011),
http://www.pennumbra.com/debates/pdfs/Targeted_Killing (Heller, Rebuttal) (“This
statement––and there are many more like it in the [Aulaqi] opinion––would seem to
preclude any U.S. citizen overseas from ever challenging her inclusion on the JSOC kill
list.”).
17. Al-Aulaqi Response, supra note 2, at 4–5.
18. See supra note 4 (providing an overview of a large body of publicly available
evidence linking Aulaqi to known terrorists and anti-American propaganda).

2011] Due Process Rights and Targeted Killing 1357

prudential objections to the targeted killing of Americans.19 Part II
provides an overview of the concept of targeted killing and analyzes
the court’s reasoning in the Aulaqi opinion to provide a framework for
analysis. Part III challenges the court’s conclusion that targeted
killing represents a nonjusticiable political question, reasoning that a
premeditated killing does not satisfy the imminence standard for the
use of defensive force as a matter of law. Part IV expands on the
constitutional criticism of targeted killing by arguing that a
deprivation of life without notice or opportunity to protest is a clear
violation of minimum due process rights. Part V raises a number of
historical and prudential grounds for distrusting the president’s
exclusive authority over targeted killing. Finally, Part VI proposes
that congress either prohibit targeted killing or establish independent
oversight of this controversial program.

II. AN OVERVIEW OF TARGETED KILLING AND THE CASE OF
ANWAR AL-AULAQI

A. Defining Targeted Killing as a Concept and Practice

Targeted killing is an “extra-judicial, premeditated killing by a
state of a specifically identified person not in its custody.”20 The CIA
conducts the majority of U.S. targeted killings using missile strikes
from unmanned aerial vehicles, more commonly known as Predator
drones.21 According to John Rizzo, the CIA’s former acting general
counsel, the targeted killing program is “basically a hit list” in which
the “Predator is the weapon of choice, but it could also be someone
putting a bullet in your head.”22 These covert drone strikes are an
integral part of U.S. counterterrorism strategy and have increased
significantly during the Obama Administration.23
The government has neither confirmed nor denied the existence
of an official targeted killing program.24 However, media outlets have

19. There are moral and legal objections to the premeditated killing of any
person by any government, regardless of nationality. However, this Note focuses on the
targeted killing of Americans because this is an issue of first impression that raises
profoundly difficult questions of constitutional law. For an analysis of targeted killing
in the context of International Humanitarian Law (IHL), see David Kretzmer, Targeted
Killing of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of
Defense?, 16 EUR. J. INT’L. L. 171, 202 (2005).
20. Richard Murphy & Afsheen John Radsan, Due Process and

Targeted Killing

of Terrorists, 31 CARDOZO L. REV. 405, 405 (2009).
21. Tara McKelvey, Inside the Killing Machine, NEWSWEEK, Feb. 21, 2011, at
34 .
22. Id.
23. Id.
24. See, e.g., Al-Aulaqi v. Obama, 727 F. Supp. 2d 1, 11 (D.D.C. 2010) (neither
confirming nor denying issuing an order to kill the plaintiff’s son).

1358 Vanderbilt Journal of Transnational Law [Vol. 44:1353

reported extensively on the existence and nature of the U.S. targeted
killing program.25 The New York Times reported that because Aulaqi
is an American citizen, President Obama’s National Security Council
had to approve the order to pursue him with lethal force.26 It is
unclear why the National Security Council’s approval was necessary
or constitutionally satisfactory.27 This ambiguity raises a
fundamental problem with the current targeted killing program:
what are the procedures for determining the targets of lethal force
and how is the program managed? Understanding the procedural
mechanisms that determine this process is an essential step in
evaluating the legitimacy of targeted killing safeguards and
oversight.
Rizzo has called the process by which suspected terrorists are
identified and targeted for lethal force as “punctilious.”28 Bruce
Reidel, a former CIA officer, claims there is a “well-established
protocol.”29 Within the CIA’s Counterterrorist Center, a team of
roughly ten agency attorneys reviews the evidence against suspected
terrorists and prepares memos arguing whether or not the collected
evidence merits an order for targeted killing.30 Memos that
recommend targeted killing are sent to the General Counsel for
approval.31 Rizzo described the subordinate lawyers as “very picky”
and the memos as “carefully argued.”32 He also described situations
in which flimsy cases were rejected for lack of persuasive evidence.33
However, beyond official descriptions of a rigorous and methodical
process, few specific details are known about the evaluation of
evidence against suspected terrorists or the standard of proof.34 How
is evidence collected by field agents in foreign countries verified by
American attorneys for authenticity and veracity? Are there
minimum standards for the quantity and quality of evidence required
for a targeted killing order? Is the evidence evaluated under the
criminal “beyond a reasonable doubt” standard, or under something
less strict, such as the “preponderance of the evidence” standard?
These are critical questions, but as the case of Anwar al-Aulaqi

25. See, e.g., McKelvey, supra note 21; supra note 4.
26. Scott Shane, U.S. Approves Targeted Killing of American Cleric, N.Y.
TIMES, Apr. 7, 2010, at A12.
27. Cf. id. (failing to explain why the approval of the National Security Council
was necessary).
28. McKelvey, supra note 21.
29. Id.
30. Id.
31. Id.
32. Id.
33. Id.
34. Id. Beyond a general description of the process, the Newsweek article does
not offer any specifics on the legal guidelines or standards used by the CIA lawyers.

2011] Due Process Rights and Targeted Killing 1359

demonstrates, the legal standards for targeted killing are unknown, a
chilling thought given the extraordinary power involved.35

B. The Aulaqi Case in Federal Court

In August 2010, Nasser al-Aulaqi, Anwar’s father, filed suit in
the District Court for the District of Columbia requesting an
injunction against the targeted killing of his son.36 Represented by
the American Civil Liberties Union (ACLU), Nasser al-Aulaqi claimed
that outside of the zone of armed conflict, the targeted killing of an
American citizen represents an extrajudicial killing without due
process of law.37 The claim stated that under customary international
law, the only circumstances allowing an exception to this general rule
are those presenting a “concrete, specific, and imminent threat of
death or serious physical injury.”38 The targeted killing of an
American citizen outside of these circumstances is a violation of the
Fourth and Fifth Amendments.39
The complaint asserted three constitutional challenges to the
targeted killing program.40 By targeting an American for an
extrajudicial killing outside of circumstances that present concrete,
specific, and imminent threats of harm, the government had violated
Aulaqi’s Fourth Amendment right to be free from unreasonable
seizure and his Fifth Amendment right not to be deprived of life
without due process of law.41 In addition, by refusing to disclose the
standards used in determining that Aulaqi should be targeted for
extrajudicial killing, the government violated the Fifth Amendment’s
notice requirement.42 The complaint further asserted that by
claiming this broad and unreviewable power, the Executive Branch
permitted itself to conduct at-will extrajudicial killings of Americans,
in secret, without any notice.43
In the suit—filed against President Obama, then-Defense
Secretary Robert Gates, and then-Director of the CIA Leon
Panetta44—Nasser al-Aulaqi requested several forms of relief to

35. See discussion infra Part II.C.
36. Al-Aulaqi Complaint, supra note 1, ¶ 3.
37. Id. ¶ 4.
38. Id.
39. Id. ¶¶ 4, 27–28.
40. Id. ¶¶ 27–28, 30. The complaint also listed a fourth claim, a violation of the
Alien Tort Statute, 28 U.S.C. § 1350 (2006). Al-Aulaqi Complaint, supra note 1, ¶ 29.
This Note focuses on the constitutional claims raised in this case. The Alien Tort
Statute claim was dismissed along with the other constitutional claims by the district
court. Al-Aulaqi v. Obama, 727 F. Supp. 2d 1 (D.D.C. 2010).
41. Id. ¶¶ 27–28.
42. Id. ¶ 30.
43. Id. ¶¶ 1, 22.
44. See id. ¶¶ 10–12.

1360 Vanderbilt Journal of Transnational Law [Vol. 44:1353

prevent the targeted killing of his son.45 He requested a preliminary
injunction against the order to pursue Anwar al-Aulaqi with lethal
force, and declaratory relief requiring the government to disclose the
standards used for placing people on the targeted killing list.46
In its brief in response, the DOJ moved for summary judgment
on several alternative grounds, with emphasis on standing, the
political question doctrine, and the state secrets privilege.47 The DOJ
argued that Nasser al-Aulaqi did not meet the requirements for next-
friend standing for two reasons.48 First, Aulaqi was not denied access
to the courts.49 Rather, Aulaqi seemed to be hiding in Yemen of his
own accord.50 Second, there was no evidence that Aulaqi desired to
raise these claims in court to challenge the government’s authority to
conduct an extrajudicial killing against him.51 Therefore, Nasser al-
Aulaqi did not demonstrate that he was representing his son’s
interests or purpose.52
The DOJ also challenged Nasser al-Aulaqi’s complaint on
grounds of executive authority, arguing that litigating this matter
would violate established boundaries in the separation of judicial and
executive power.53 First, the government asserted that the decision to
target Anwar al-Aulaqi was a nonjusticiable political question, and
that conducting judicial review of this decision would require an
infringement on textually committed executive authority.54 Second,
the government invoked the state secrets privilege, a rarely used but
mostly successfully employed doctrine claiming that certain issues
cannot be litigated because litigating them would require the
disclosure of classified intelligence.55 According to the state secrets
doctrine, classified information cannot be disclosed through discovery
and public trial because it would threaten national security and
disrupt the Executive’s ability to discharge its constitutional
obligations.56
The district court granted the defendant’s motion to dismiss in
December 2010.57 The court held that Nasser al-Aulaqi did not have

45. Id. ¶ 6.
46. Id.
47. Al-Aulaqi Response, supra note 2, at 10, 19, 39, 43. The brief also
responded to the plaintiff’s claim under the Alien Tort Statute. Id. at 39–42.
48. Id. at 11, 15.
49. Id. at 11.
50. Id.
51. Id.
52. Id.
53. Id. at 19.
54. Id.
55. Id. at 43.
56. Id.
57. Al-Aulaqi v. Obama, 727 F. Supp. 2d 1, 54 (D.D.C. 2010) (dismissing all
four of plaintiff’s claims due to lack of standing and nonjusticiability).

2011] Due Process Rights and Targeted Killing 1361

standing to raise these constitutional claims on his son’s behalf.58 By
ruling on standing grounds the court focused on a narrow legal
doctrine and avoided confrontation with the larger, more
controversial issues in the suit.59 However, the court also expressed
discomfort with the outcome and its potential implications on due
process rights and executive power.60

C. The Aulaqi Opinion Reveals a Judicial Impasse

A more thorough overview of the Aulaqi opinion reveals an
irreconcilable conflict between due process rights and the CIA
targeted killing program.61 Moreover, the opinion demonstrates the
many obstacles, if not the utter futility, of attempting to resolve this
critical problem in federal court.62 Although the court expressed
serious concern over the extraordinary nature of Aulaqi’s claims and
the circumstances of the case, it also hesitated to infringe on
executive military power or on decisions regarding national security,
especially in the absence of any judicially manageable standard.63
The court’s ruling is technically sound in terms of the standing
analysis, but it nonetheless resulted in an American citizen targeted
for lethal force without any due process of law.64

58. Id. at 49.
59. Id. at 9 (declining to evaluate the case on other grounds “because plaintiff
lacks standing and his claims are non-justiciable”); see Charlie Savage, Suit over
Targeted Killing Is Thrown Out, N.Y. TIMES, Dec. 7, 2010, at A12 (claiming that the
court “sidestepped several issues”).
60. See Al-Aulaqi, 727 F. Supp. 2d at 8 (calling the nature of the case “stark,”
“perplexing,” and “extraordinary”).
61. See id. at 51 (acknowledging the difficulty in reconciling the political
question doctrine with questions of citizens’ constitutional rights). Although the court
recognized the “extraordinary” and “unsettling” nature of the case and its outcome, the
court also expressed great deference to the executive interests at stake and the
compelling grounds for dismissal.
62. See id. at 9 (noting that constitutional elements of jurisdiction may seem
“less significant” than the questions posed by the merits of the case, but that they serve
an essential part of ensuring separation of powers).
63. See id. at 46–47 (“[T]here are no judicially manageable standards by which
courts can endeavor to assess the President’s interpretation of military intelligence and
his resulting decision . . . whether to use military force against a terrorist target
overseas.”).
64. See id. The court based its dismissal of the case on a reasonable analysis of
standing, concluding that Nasser al-Aulaqi did not meet the requirements for filing a
claim on the basis of next-friend standing. Id. at 35. First, the court found that there
was no adequate explanation for Anwar al-Aulaqi’s inability to file the claim on his
own behalf, which the court observed is fatal to next friend standing. Id. at 17. The
court stated that all available evidence suggested that Aulaqi is incommunicado as a
matter of personal choice and philosophy, not coercion. Id. at 21. Also, Nasser al-Aulaqi
had not provided adequate evidence that his claims represented his son’s actual
interests. Id. at 20. There was no basis for the assumption that Anwar al-Aulaqi
wished to challenge the constitutionality of the government’s decision in federal court.
Id. at 21. In fact, the court inferred that the opposite was more likely. Id. Finally,

1362 Vanderbilt Journal of Transnational Law [Vol. 44:1353

The district court went further, however, and agreed with the
government that the claims and requested relief represented a
“quintessential” political question and were therefore
nonjusticiable.65 The court analyzed the specifics of the Aulaqi
scenario to determine whether it encompassed a form of authority
reserved for the Executive Branch.66 The court determined that the
Aulaqi scenario encompassed exactly the sort of complex military,
intelligence, and policy judgments that are the province of the
Executive Branch.67 The court also emphasized several times that the
fundamental reason why this issue was nonjusticiable was the lack of
judicially manageable standards for reviewing the judgment of the
National Security Council.68 Because the court did not have the
necessary expertise for evaluating the merits of this decision, this
claim could not be settled in court.69
The court’s ruling rests firmly on standing grounds, but its
conclusion that the issue in the case was a nonjusticiable political
question amplified the dangerous scope of the holding.70 Even if the
court had granted standing in this case, the claims likely still would
not have proceeded past the summary judgment stage.71 Further
contributing to this concern is the fact that the court declined to
address the state secrets doctrine, a formidable barrier to litigation in
its own right.72
Despite ruling on a technicality, the court did acknowledge the
troubling and unsettling nature of the outcome, as well as the
extraordinary circumstances of the case.73 Yet, the court also rejected
the plaintiff’s assertion that allowing the Executive to proceed in this
manner amounted to a grant of unchecked and unreviewable killing
power.74 But a major question remains: after Aulaqi, does the
government owe an American citizen any form of due process if he or

although the plaintiff claimed that the order of targeted killing prevented Anwar al-
Aulaqi from emerging in public, the court observed that, under domestic and
international law, the government could not kill Aulaqi if he attempted peaceful
surrender. Id. at 31.
65. Id. at 45.
66. See id. at 46 (noting the “particular questions” the court would have to
decide, including Aulaqi’s affiliation with al-Qaeda in the Arabian Peninsula , the link
between that organazation and al-Qaeda, whether Aulaqi is a “concrete, specific, and
imminent threat to life or physical safety,” and whether there are other means the
United States could reasonably employ).
67. Id. at 45.
68. Id. at 47.
69. Id.
70. Id.
71. Id. (finding in the alternative the claims nonjusticiable).
72. Id. at 54; see also discussion infra Part V.B (arguing that the state secrets
privilege is “problematic” and should be “met with skepticism”).
73. Al-Aulaqi, 727 F. Supp. 2d at 51 (recognizing the “unsettling nature” of the
conclusion.).
74. Id. at 52.

2011] Due Process Rights and Targeted Killing 1363

she is suspected of terrorism and selected for targeted killing?75 The
court’s opinion does not directly answer this question, but it suggests
that in practical terms, the answer is no.76

III. CHALLENGING THE ASSERTED GROUNDS OF AUTHORITY
FOR THE TARGETED KILLING OF AMERICANS

In its brief in response, the DOJ argued that the President’s
power to conduct the targeted killing of Aulaqi comes from two
sources of authority.77 First, and more narrowly, the DOJ argued that
the Authorization for the Use of Military Force (AUMF) serves as a
statutory grant of authority to retaliate against threats of terrorism
from al-Qaeda.78 Second, and much more broadly, the DOJ argued
that the authority to use defensive force against imminent threats of
terrorism is inherent in the President’s Article II military power.79
Both arguments turn on the theory that targeted killing decisions are
nonjusticiable political questions beyond judicial review.80 As the
following analysis demonstrates, this is a dubious assertion based on
overbroad and inaccurate interpretations of the AUMF and the
President’s constitutional war powers.

A. The Scope of the AUMF Is Not a Political Question

In Aulaqi, the DOJ asserted that the President has the authority
to conduct targeted killing pursuant to congressionally granted war
power,81 but this argument relies on an overbroad interpretation of
the AUMF. It is debatable whether the scope of the AUMF and the
powers it grants the Executive Branch encompass the circumstances
of the Aulaqi case. Furthermore, the scope of a congressional
authorization for the use of military force is certainly an appropriate
subject for judicial review, particularly where powers under the
authorization may infringe on due process rights.82 As a matter of
law, courts may properly review this issue.
Congress passed the AUMF in response to the terrorist attacks
of September 11, but the actual text of the Authorization casts doubt

75. See id.
76. See id. at 46 (“Viewed through these prisms, it becomes clear that plaintiff’s
claims pose precisely the types of complex policy questions that the D.C. Circuit has
historically held non-justiciable under the political question doctrine.”).
77. Al-Aulaqi Response, supra note 2, at 23–24.
78. Id. at 24.
79. Id. at 23–24.
80. Id. at 3–4.
81. Id. at 4.
82. See infra note 92 (citing the jurisdiction of federal courts regarding the
scope of congressionally authorized war power).

1364 Vanderbilt Journal of Transnational Law [Vol. 44:1353

on whether this authority extends to all suspected terrorists or only
those responsible for the September 11 attacks.83 The AUMF
authorizes the President to use “all necessary and proper force”
against those “he determines planned, authorized, committed, or
aided the terrorist attacks that occurred on September 11, 2001.”84
The purpose of this authorization is to “prevent any future acts of
international terrorism against the United States by such nations,
organizations, or persons.”85 Although the goal of the Authorization is
the prevention of more terrorist attacks, the designated authority
appears to rest on a September 11 predicate.86 In other words, those
involved in the September 11 terrorist attacks are legal targets, but
do all suspected terrorists fall within this construction?
In its brief in response, the DOJ never alleged that Aulaqi was
connected to the September 11 attacks.87 However, the DOJ did
assert that Aulaqi had emerged as a senior leader in al-Qaeda in the
Arabian Peninsula.88 So, while it appears that Aulaqi did not
personally satisfy the September 11 predicate of the AUMF, it can be
argued that membership or affiliation with al-Qaeda is enough to
satisfy the AUMF.89 Al-Qaeda planned and executed the terrorist
attacks of September 11, and the AUMF authorizes lethal force
against al-Qaeda.90 Yet, the scope of the AUMF is unclear, as is the
conclusion that Aulaqi fit within this scope.91
More importantly, the argument that the AUMF grants the
President authority to conduct targeted killings of Americans is itself
likely subject to judicial review. Contrary to the DOJ’s assertion,
there is ample precedent to suggest that the scope of congressionally
authorized war power is a matter subject to judicial review and not
an exclusively political question.92 Whether Anwar al-Aulaqi satisfies

83. See Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat.
224 (2001) (codified at 50 U.S.C. § 1541 note (2006)) (delegating broad authority to the
President to make determinations as to whether a person fits within the scope of the
resolution).
84. Id. § 2(a).
85. Id.
86. William C. Banks & Peter Raven-Hansen, Targeted Killing and
Assassination: The U.S. Legal Framework, 37 U. RICH. L. REV. 667, 737 (2002).
87. See Al-Aulaqi Response, supra note 2, at 6 (alleging that Aulaqi held a
senior leadership role in current al-Qaeda operations, but no September 11
relationship).
88. Id.
89. See Banks & Raven-Hansen, supra note 86, at 737.
90. See id. (discussing the scope of the AUMF to include the organizations
involved in the terrorist attacks of September 11).
91. See id.
92. See Dehn & Heller, supra note 16, at 178 (“The jurisdiction of federal courts
extends to the review of executive war measures in appropriate cases . . . This
jurisdiction has traditionally included the ability to review whether the Executive has
properly identified specific individuals or objects as being within the scope of
congressionally authorized hostilities.”).

2011] Due Process Rights and Targeted Killing 1365

the September 11 predicate in specific circumstances may be a
political question, but the targeted killing of Americans without due
process is a matter of law subject to judicial review.93 The court in
Aulaqi should have focused on this broader question of law and
probably erred in declining to do so.94
If a court were to decide whether the AUMF permits the targeted
killing of Americans, it would likely exercise restraint so that the
AUMF does not operate to permit total global military power.95 An
unrestrained interpretation would allow the Executive to use lethal
force against any person, anywhere in the world, simply by accusing
that person of a relationship to terrorist organizations that were
involved in the September 11 attacks.96 A more balanced
interpretation would not go as far while still enabling the Executive
to effectively confront the threat of global terrorism.97 A
demonstration of specific evidence that Aulaqi was a senior leader
with al-Qaeda would have gone a long way toward establishing the
AUMF as the proper source of authority in this situation.98 However,
the DOJ argued that no such demonstration of evidence or
independent review was even required.99 This position supports an
unrestrained interpretation of the AUMF in which the Executive can
use lethal force against any person in any location simply on the basis
of an unsubstantiated accusation. This is arguably an improper
interpretation of the congressional purpose and intent behind the
passage of the AUMF.100

93. See id. at 187 (arguing that there is an important distinction in the Aulaqi
case between ruling on a specific finding of fact and the broader question of law at
issue).
94. See id. (arguing that the court failed to recognize this distinction despite
the fact that Nasser al-Aulaqi’s pleadings asked for relief in the form of declarations of
law, not the specific findings of fact held nonjusticiable by the court).
95. See Banks & Raven-Hansen, supra note 86, at 737 (discussing the AUMF’s
limitations and noting the role of 18 U.S.C. § 1116 (2006) in restricting targeted
killing).
96. See id. at 736–37 (“All persons are permissible targets provided that they
planned, authorized, committed, or aided the September 11 attacks or harbored those
who did.”).
97. See id. at 737.
98. See id. (noting that certain figures, such as Osama bin Laden, are
implicated under the AUMF because there is causal evidence linking them to the
September 11 attacks). The possibility of in camera review of the government’s
evidence against Aulaqi was never raised, though it might have resolved many of the
concerns over verifying the government’s accusations. See Al-Aulaqi v. Obama, 727 F.
Supp. 2d 1, 46 (D.D.C. 2010) (noting that judicial resolution of plaintiff’s claims would
require the court to determine many of the factual issues involving Aulaqi’s association
with al-Qaeda and his potential as a threat to the United States).
99. See Al-Aulaqi Response, supra note 2, at 4–5 (noting that the new DOJ
guidelines for states secret privilege would bar the disclosure of necessary evidence to
establish standing for suit).
100. There is clear precedent for judicial review of the scope of congressional
intent in the AUMF. For example, in Hamdan v. Rumsfeld, the Supreme Court rejected

1366 Vanderbilt Journal of Transnational Law [Vol. 44:1353

B. The Constitutionality of Targeted Killing Is Not
a Political Question

In the alternative, and far more broadly, the DOJ argued that
executive authority to conduct targeted killings is constitutionally
committed power.101 Under this interpretation, the President has the
authority to defend the nation against imminent threats of attack.102
This argument is not limited by statutory parameters or
congressional authorization, such as that under the AUMF.103
Rather, the duty to defend the nation is inherent in the President’s
constitutional powers and is not subject to judicial interference or
review.104
The DOJ is correct in arguing that the President is
constitutionally empowered to use military force to protect the nation
from imminent attack.105 As the DOJ noted in its brief in response,
the Supreme Court has held that the president has the authority to
protect the nation from “imminent attack” and to decide the level of
necessary force.106 The same is true in the international context.
Even though Yemen is not a warzone and al-Qaeda is not a state
actor, international law accepts the position that countries may
respond to specific, imminent threats of harm with lethal force.107

the government’s argument that the AUMF authorized the President to convene
military tribunals under the circumstances of the case, observing that congressional
intent did not support this interpretation of statutory authorization. 548 U.S. 557, 734
(2006) (finding nothing in the AUMF text or its legislative history to even hint that
Congress intended to expand the President’s authority to convene military
commissions).
101. Al-Aulaqi Response, supra note 2, at 23–24.
102. Id.
103. Id.
104. See id. (contrasting the President’s constitutional authority to protect the
nation from imminent attack and the lack of constitutional authority for the Judicial
Branch to engage in policymaking for national security).
105. Id. at 24; see infra notes 107–08 (discussing the use of defensive force to
address an imminent threat to the nation).
106. Al-Aulaqi Response, supra note 2, at 24. In addition, the Supreme Court
has held that domestic law enforcement may use lethal force against those who pose an
imminent threat of violence or harm to others. See Tennessee v. Garner, 471 U.S. 1, 4
(1985) (“[Deadly] force may not be used unless . . . the officer has probable cause to
believe that the suspect poses a significant threat of death or serious physical injury to
the officer or others.”).
107. This is a fundamental principle in international law derived from the
“Caroline incident.” See Dale Stephens, Rules of Engagement and the Concept of Unit
Self Defense, 45 NAVAL L. REV. 126, 135 (1998) (“The right of unit of self defense exists
as a matter of customary international law and it is the ‘Caroline’ principles which
provide the legal basis for the contours of the right . . .”). The UN Charter also permits
the use of defensive force by a nation when attacked by another nation. See U.N.
Charter art. 51 (“Nothing in the present Charter shall impair the inherent right of
individual or collective self-defense if an armed attack occurs against a Member of the
United Nations . . . .”).

2011] Due Process Rights and Targeted Killing 1367

Under these doctrines of domestic and international law, the use of
lethal force against Aulaqi was valid if he presented a concrete,
specific, and imminent threat of harm to the United States.108
Therefore, the President was justified in using lethal force to
protect the nation against Aulaqi, or any other American, if that
individual presented a concrete threat that satisfied the “imminence”
standard.109 However, the judiciary may, as a matter of law, review
the use of military force to ensure that it conforms with the
limitations and conditions of statutory and constitional grants of
authority.110 In the context of targeted killing, a federal court could
evaluate the targeted killing program to determine whether it
satisfies the constitutional standard for the use of defensive force by
the Executive Branch. Targeted killing, by its very name, suggests an
entirely premeditated and offensive form of military force.111
Moreover, the overview of the CIA’s targeted killing program revealed
a rigorous process involving an enormous amount of advance
research, planning, and approval.112 While the President has
exclusive authority over determining whether a specific situation or
individual presents an imminent threat to the nation, the judiciary
has the authority to define “imminence” as a legal standard.113 These

108. Stephens, supra note 107, at 136–37 (discussing the justification of unit
self-defense “in the most pressing of circumstances” where “the imminence of attack is
so clear and the danger so great that defensive action is absolutely necessary”).
However, the notion of defining and ascertaining an imminent threat is particularly
difficult in the context of international terrorism. Modern-day terrorist attacks often
involve extensive planning, training, and other forms of preparation, as well as
cooperation among individuals in different geographical locations carrying out
disparate responsibilities. See Eight Years After 9/11: Confronting the Terrorist Threat
to the Homeland: Hearing Before the S. Comm. on Homeland Sec. & Governmental
Affairs, 111th Cong. (2009) (statement of Robert S. Mueller III, Dir. of the Fed. Bureau
of Investigation) (acknowledging the “many different directions” from which modern-
day terrorism threatens our country).
109. See supra notes 106–07 (discussing the use of defensive force to address an
imminent threat to the nation).
110. Dehn & Heller, supra note 16, at 178 (observing that the jurisdiction of
federal courts “has traditionally included the ability to review whether the executive
has properly identified specific individuals or objects as being within the scope of
congressionally authorized hostilities”); see also Ex parte Quirin, 317 U.S. 1, 24 (1942)
(reviewing whether the President has constitional authority to order the petitioners
tried by military tribunal).
111. See Dehn & Heller, supra note 16, at 183 (“Perhaps the premeditated
targeting of a U.S. citizen deserves a higher standard.”).
112. See supra Part II.A (discussing the nature and protocol of the U.S. targeted
killing program).
113. See Al-Aulaqi Response, supra note 2, at 24 (“[T]he President may act to
protect the Nation from imminent attack and ‘determine what degree of force [a] crisis
demands.’” (alteration in original) (quoting The Brig Amy Warwick (The Prize Cases),
67 U.S. (2 Black) 670 (1863))); Dehn & Heller, supra note 16, at 179, 187 (criticizing Al-
Aulaqi for failing to indicate whether “the case involved an extant armed conflict or a
separate, discrete act of self-defense” and arguing that the courts should make a legal
determination as to the standard for targeted killing).

1368 Vanderbilt Journal of Transnational Law [Vol. 44:1353

are general concepts of law, not political questions, and they are
subject to judicial review.114
Under judicial review, a court would likely determine that
targeted killing does not satisfy the imminence standard for the
president’s authority to use force in defense of the nation. Targeted
killing is a premeditated assassination and the culmination of months
of intelligence gathering, planning, and coordination.115 “Imminence”
would have no meaning as a standard if it were stretched to
encompass such an elaborate and exhaustive process.116 Similarly,
the concept of “defensive” force is eviscerated and useless if it
includes entirely premeditated and offensive forms of military action
against a perceived threat.117 Under judicial review, a court could
easily and properly determine that targeted killing does not satisfy
the imminence standard for the constitutional use of defensive
force.118

IV. CHALLENGING THE CONSTITUTIONALITY OF TARGETED
KILLING: A CLEAR VIOLATION OF DUE PROCESS

The President’s supposed authority to conduct targeted killings
of Americans is highly questionable.119 Moreover, the DOJ’s
argument that targeted killing is a political question within executive
discretion inaccurately portrays the judiciary’s power to review
broader questions of law.120 Yet in addition to these compelling
objections to the legal underpinnings of targeted killing authority,
targeted killing likely violates existing law as well.121 Targeted
killing is a unilateral government execution that completely

114. Al-Aulaqi Response, supra note 2, at 24–25 (acknowledging its authority to
define “imminence” yet declining to do so because it would require the court to
determine “ex ante the permissible scope of particular tactical decisions”); Dehn &
Heller, supra note 16, at 179 (referring to the government’s motion to dismiss on the
basis that it “involv[es] an executive-branch decision to target an individual in the
context of a congressionally authorized, armed conflict”); id. at 187 (noting Aulaqi’s
request for the court to make a legal determination of the correct standard for the
targeted killing of a U.S. citizen).
115. See supra Part II.A.
116. See supra note 111 (suggesting that a premeditated killing requires a
higher standard than the use of defensive force).
117. See supra note 108 and accompanying text (explaining the current
understanding of the imminence standard).
118. See Al-Aulaqi Response, supra note 2, at 31 (noting that the judiciary has a
long and established history of reviewing the scope of congressionally authorized war
power).
119. See discussion supra Part III.
120. See supra note 118.
121. See discussion infra Part IV.A–C.

2011] Due Process Rights and Targeted Killing 1369

circumvents traditional notions of law enforcement and violates even
minimum notions of established due process.122

A. How Due Process Rights Are Determined

Despite the fact that Aulaqi was hiding in Yemen, the Fifth
Amendment still protected him. The Supreme Court has held that
Americans enjoy the same constitutional protections abroad as in
American territory, unless the application of the Bill of Rights would
prove “impracticable and anomalous.”123 The rationale for this
principle is that although Americans are not completely without
constitutional protections abroad, it may not always be feasible to
ensure all of these protections.124 The application of the Bill of Rights
abroad must take into account “the particular circumstances, the
practical necessities, and the possible alternatives” of the situation at
hand.125 Analyzing Aulaqi’s Fifth Amendment rights is especially
complex given the many political, economic, and security problems in
Yemen at the time of his killing.126
The Fifth Amendment provides, in part, that no American may
be “deprived of life, liberty, or property, without due process of
law.”127 The case of Anwar al-Aulaqi implicates procedural due
process because the plaintiff’s complaint alleges that the government
is attempting to deprive Aulaqi of life without any formal
presentation of the charges against him or an opportunity to protest
these charges at a hearing before an impartial judge.128 The Supreme

122. Id.
123. See Reid v. Covert, 354 U.S. 1, 74 (1957) (Harlan, J., concurring) (asserting
that the protections of the Constitution apply overseas, but that special circumstances
may limit the application of these protections).
124. Id.
125. Id.
126. Yemen has teetered on the edge of “failed state” status in recent years. For
an assessment of the critical political conditions on the ground in Yemen, see The
Failed States Index 2011, FOREIGN POL’Y, http://www.foreignpolicy.com/failedstates
(last visited Nov. 1, 2011). These conditions would implicate the particularized analysis
described in Reid v. Covert. See id.
127. U.S. CONST. amend. V.
128. Al-Aulaqi Complaint, supra note 1, ¶¶ 4−6. Due process has both
procedural and substantive meanings. Substantive due process refers to an evolving set
of fundamental rights recognized by the Supreme Court that have “for the most part
been accorded to matters relating to marriage, family, procreation, and the right to
bodily integrity.” Albright v. Oliver, 510 U.S. 266, 272 (1994). The Supreme Court has
described substantive due process as “all fundamental rights comprised within the
term liberty [that] are protected by the federal Constitution by invasion from the
states.” Whitney v. California, 274 U.S. 357, 373 (1927) (Brandeis, J., concurring)
(applying the due process clause of the Fourteenth Amendment). Procedural due
process, on the other hand, refers to the minimum level of procedures that must be
satisfied before the government may complete any deprivations of life, liberty, or
property. Mathews v. Eldridge, 424 U.S. 319, 334–35 (1976).

1370 Vanderbilt Journal of Transnational Law [Vol. 44:1353

Court uses a balancing test for determining the level of due process in
different contexts.129 This balancing test has three factors: the
private interest that will be affected by a deprivation, the risk of an
erroneous deprivation by the procedural method in question, and the
government interests involved.130
Aulaqi’s case represents a collision of the first and third
factors.131 The deprivation in question was Aulaqi’s life, the most
serious deprivation in law.132 In the case of judicial error or
procedural shortfall, property can be returned and liberty can be
restored, but the deprivation of life is permanent. However, the
government’s interest in protecting American citizens from the
unrelenting threat of terrorism is also compelling.133 The exigencies
involved in combating terrorism require decisive action and
safeguards for intelligence sources that help identify threats.134
Under such extraordinary circumstances, the time and resources
involved in satisfying procedural due process rights might also serve
to inadvertently amplify specific threats of terrorism.135
The purpose of the Fifth Amendment, however, is to provide
protections for citizens, not to increase the power of government or to
ease the burden of government agencies under exigent
circumstances.136 Given this constitutional purpose and the unique
importance of life as a civil liberty, it is clear that Aulaqi is owed at
least the minimum form of due process protection.

B. A Comparative Perspective: The Due Process Rights of Detainees

The position that minimum due process protections are required
in Aulaqi is a natural extension of the holding in Hamdi v. Rumsfeld.
In Hamdi, the Supreme Court held that the government may not
indefinitely detain a citizen without providing some form of

129. See Mathews, 424 U.S. at 334–35 (establishing the procedural due process
balancing test).
130. Id.
131. See id.; Al-Aulaqi Complaint, supra note 1, ¶¶ 4−6.
132. Al-Aulaqi Complaint, supra note 1, ¶¶ 4−6.
133. Al-Aulaqi Response, supra note 2, at 43−46 (“The state secrets privilege
should be invoked only rarely, but its assertion in this case is proper and entirely
consistent with the Attorney General’s Policy. Without admitting or denying plaintiff’s
allegations (and indeed regardless of whether any particular allegations are true), the
Complaint puts directly at issue the existence and operational details of alleged
military and intelligence activities directed at combating the terrorist threat to the
United States.”).
134. Id.
135. Id.
136. See Mathews, 424 U.S. at 332 (“Procedural due process imposes constraints
on governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests
within the meaning of the Due Process Clause of the Fifth or Fourteenth
Amendment.”).

2011] Due Process Rights and Targeted Killing 1371

procedural due process.137 Yaser Hamdi was an American captured in
Afghanistan in 2001 and turned over to U.S. authorities during the
invasion of Afghanistan.138 He was initially held at the detention
facility in Guantanamo Bay, but was transferred to military holding
brigs in Virginia and South Carolina after the military learned that
he was an American.139 Originally, President George W. Bush
claimed the authority to hold Hamdi as an enemy combatant caught
within a theatre of war.140 As an enemy combatant, Hamdi was not
entitled to any procedural rights such as the right to an attorney or
access to a federal court.141 However, the Eastern District of Virginia
granted next-friend standing to his father, and that court
subsequently found the evidence against Hamdi insufficient to
support his detention.142 The Fourth Circuit reversed, citing the
broad wartime powers designated to the president under Article II of
the Constitution and the infringement on executive power that would
occur if judicial review proceeded in this case.143 Hamdi’s father
appealed the reversal of the Fourth Circuit and the Supreme Court
granted certiori.144
Although the Court did not reach a majority opinion in its
decision, a plurality of Justices agreed that the Executive Branch
does not have the power to detain an American citizen indefinitely
without providing some basic due process protections.145 A majority of
Justices agreed that Hamdi had the right to challenge his
detention.146 Because it is a plurality opinion, the extent of the due
process protections required in a federal detention scenario is
unclear.147 But the basic principle of Hamdi is that the Executive
does not have the authority to detain an American citizen without
some form of due process.148
If elements of due process are required when the government
deprives an American of liberty, is it not logical to conclude that the
government must also satisfy due process when depriving an
American of life? This is a natural extension of the Hamdi holding,

137. Hamdi v. Rumsfeld, 542 U.S. 507, 535 (2004).
138. Id. at 510.
139. Id.
140. Id. at 512.
141. Id. at 513.
142. Hamdi v. Rumsfeld, 316 F.3d 450, 476 (2003).
143. Hamdi, 542 U.S. at 514–15.
144. Id. at 516.
145. Id. at 521.
146. Id. at 539–40.
147. Id. at 538−39.
148. Id. at 521.

1372 Vanderbilt Journal of Transnational Law [Vol. 44:1353

especially because a deprivation of life must be treated more seriously
and carefully than a deprivation of liberty.149
Not only is the Hamdi holding a natural theoretical cousin of
Aulaqi, but the legal analysis is also similar. In its brief in response
to the Aulaqi complaint, the DOJ made several arguments that echo
the overturned Fourth Circuit’s arguments in Hamdi: judicial review
represents an infringement on textually committed executive
authority and litigating this issue would involve the disclosure of
sensitive intelligence that would threaten national security.150 Hamdi
was an American citizen, and the government detained him due to
allegations that he was fighting for the Taliban in Afghanistan.151
Similarly, Aulaqi was an American citizen accused of providing
leadership and spiritual counsel to al-Qaeda terrorists.152 He was
therefore considered a high-risk threat to national security, and the
DOJ claims that the authority to kill Aulaqi is a nonjusticiable
political question protected by the state secrets privilege.153 Because
the Supreme Court held that Hamdi’s deprivation of liberty merited
due process, it is a natural extension of this holding to find that the
government also owes Aulaqi basic due process.
However, there are important factual distinctions between
Hamdi and Aulaqi to balance against the similarities. Although both
cases fit the general category of due process rights in the context of
national security concerns, the circumstances of the Hamdi holding
limit its application to Aulaqi.154 Hamdi was captured in a theatre of
war and originally accused of aiding the Taliban in hostilities against
the United States.155 But once he was moved to holding brigs within
the United States, Hamdi was fully secured under government
control.156 Therefore, at the time of the Supreme Court’s decision,
Hamdi was not an imminent threat to national security and was
completely subject to government authority.157
The same cannot be said of Aulaqi. As an alleged high-value
terrorist target hiding in Yemen, a known staging ground for al-

149. Id. at 529. Expanding on the Court’s reasoning in Hamdi, which applies
Mathews to detention cases, citizens the U.S. government targets and kills may be
entitled to notice and a hearing. Id. at 597; Mike Dreyfuss, Note, My Fellow Americans,
We Are Going to Kill You: The Legality of Targeting and Killing U.S. Citizens
Abroad, 65 VAND. L. REV. (forthcoming Jan. 2012).
150. Al-Aulaqi Response, supra note 2, at 43−47.
151. Hamdi, 542 U.S. at 510.
152. Al-Aulaqi Response, supra note 2, at 5.
153. Id. at 5, 7.
154. Hamdi, 542 U.S. at 510.
155. Id.
156. Id. at 510, 512.
157. Id. At the time of the Hamdi holding, the government asserted that his
alleged ties to the Taliban rendered him an ongoing threat to national security.
Contrary to the Aulaqi scenario, however, if Hamdi did have anti-American goals, his
detainment sufficiently neutralized that threat.

2011] Due Process Rights and Targeted Killing 1373

Qaeda operations, Aulaqi was not under government control.158
Assuming that the government’s allegations against him were true,
Aulaqi posed an imminent threat to national security.159 These are
important factual distinctions that may render the Hamdi opinion
inapplicable to the Aulaqi case. The lack of government control over
Aulaqi and the potential for an imminent threat to national security
may serve as government interests that trump Aulaqi’s due process
rights. The exigencies of the Aulaqi situation are important
distinctions that may render the Hamdi analysis inapplicable.
However, even if the Hamdi holding is not directly controlling in
the Aulaqi context, it is still highly relevant to the analysis. After
Hamdi, it is clear that very serious constitutional rights are
implicated, and perhaps violated, when the president authorizes the
targeted killing of an American without any independent judicial
review of that decision or of the criteria involved.160 As demonstrated
in Aulaqi, it is equally clear that litigating this issue in federal court
is an ineffective ex post mechanism for ensuring basic due process
protections.161 Yet the result in Aulaqi is unsatisfactory and
potentially very dangerous. Given the constitutional protections
guaranteed by the Supreme Court in Hamdi, it is important to clarify
the law of targeted killing and ensure basic safeguards against the
abuse of this power.

V. CHALLENGING THE EXECUTIVE BRANCH DEFENSE
OF TARGETED KILLING

A. The Obama Administration’s Reassurances Are
Circular and Unsatisfactory

The Obama Administration has addressed the controversy over
targeted killing in an effort to assuage concerns over the program’s
constitutionality, including concerns over due process protections.162
However, the Administration’s explanations do little but reiterate the
gaping hole in guaranteed due process protections if Americans are

158. Al-Aulaqi Response, supra note 2, at 6.
159. See id. (describing Aulaqi’s leadership role and involvement with al-Qaeda
in the Arabian Peninsula).
160. Hamdi, 542 U.S. at 516.
161. See Al-Aulaqi v. Obama , 727 F. Supp. 2d 1, 9 (D.D.C. 2010) (observing the
unsettling nature of the case but also deference owed the Executive Branch under the
circumstances).
162. Harold Hongju Koh, Legal Adviser, U.S. Dep’t of State, Remarks at Annual
Meeting of the American Society of International Law: The Obama Administration and
International Law (Mar. 25, 2010), available at http://www.state.gov/s/l/releases/
remarks/139119.htm.

1374 Vanderbilt Journal of Transnational Law [Vol. 44:1353

targeted with lethal force.163 In fact, the Administration’s attempts to
justify the current response emphasize the desperate need for a clear
articulation of the law and a mechanism for constitutional
safeguards.164 Harold Koh, the Legal Adviser to the Department of
State, addressed the criticisms of targeted killing in a speech at the
Annual Meeting of the American Society of International Law in
March 2010.165 Koh addressed the concern that “the use of lethal
force against specific individuals fails to provide adequate process
and thus constitutes unlawful extrajudicial killing.”166 First, he
asserted that a state engaged in armed conflict is not required to
provide legal process to military targets.167 Koh then attempted to
reassure the critics of targeted killing that the program was
conducted responsibly and with precision.168 He said that the
procedures for identifying targets for the use of lethal force are
“extremely robust,” without providing any explanation or details to
substantiate this claim.169 He then argued that “[i]n my experience,
the principles of proportionality and distinction . . . are implemented
rigorously throughout the planning and execution of lethal operations
to ensure that such operations are conducted in accordance with
international law.”170 Koh dismissed constitutional claims over
targeted killing by simply suggesting that the program is legal and
responsible.171 But this response only begs the question over targeted
killing: what mechanisms are in place to prevent the unsafe and
irresponsible use of this extraordinary power? Asserting that the
program is legal and responsible without substantiating this
assertion rests on notions of blind faith in executive prudence and
responsibility, and provides no grounds for reassurance.172
The Obama Administration’s assurances regarding the targeted
killing program are unsatisfactory because they fail to address the
primary concern at issue: the possibility that an unchecked targeted
killing power within the Executive Branch is an invitation for
abuse.173 Without some form of independent oversight, there is no
mechanism for ensuring the accurate and legitimate use of targeted
killings in narrowly tailored circumstances.174

163. Id.
164. Id.
165. Id.
166. Id.
167. Id.
168. Id.
169. Id.
170. Id.
171. Id.
172. See id.
173. See id.
174. See infra notes 188–99 and accompanying text (arguing that the Obama
Administration’s justification amounts to an insufficient due process guarantee).

2011] Due Process Rights and Targeted Killing 1375

B. A Record of Error and Abuse of Authority

Currently, there is no specific evidence that the targeted killing
program has been used for illegitimate purposes other than national
defense and security. However, the Executive’s exercise of authority
in identifying and pursuing threats of terror has produced a
worrisome error rate.175 According to an analysis of Predator drone
strikes in Pakistan conducted by the New America Foundation, since
2004, the non-militant fatality rate has been roughly 20 percent.176 In
other words, about one-fifth of those killed by Predator drone strikes
have been non-military targets, including innocent civilians.177 In
June of 2010, it was reported that the government lost nearly 75
percent of the cases involving habeas petitions filed by detainees at
Guantanamo Bay.178 This suggests that for the majority of detained
enemy combatants, the government has had insufficient evidence for
the assertion that the detained individuals were involved in
hostilities against the United States.179 The rate of error in these
instances only adds to the concern over the procedural guarantees of
the targeted killing process and the need for a more standardized
process with a robust system of screening and oversight.
There is also historical precedent for cautiously evaluating the
legitimacy and constitutionality of unreviewable executive authority
in matters of espionage and national security. In 1976, President
Ford issued an executive order outlawing political assassination.180
The order was a response to revelations after the Watergate scandal
that the CIA had attempted to assassinate Cuban President Fidel
Castro multiple times.181 Every U.S. president since Ford has upheld
the ban on political assassinations in subsequent executive orders.182
This is an example of classified CIA activity that, once publicly
known, was deemed unacceptable as a matter of law and policy.183
The current targeted killing program conducted in executive secrecy
raises concerns similar to those of political assassination.

175. See infra notes 195–97.
176. The Year of the Drone: An Analysis of U.S. Drone Strikes in Pakistan, 2004–
2011, NEW AM. FOUND., http://counterterrorism.newamerica.net/drones (last visited
Nov. 1, 2011).
177. Id.
178. Carol Rosenberg, U.S. Has Now Lost 75 Percent of Guantanamo Habeas
Cases, Guantanamo: Beyond the Law, MCCLATCHY (July 8, 2010),
http://www.mcclatchydc.com/2010/07/08/97211/federal-judge-order-release-of.html.
179. See id.
180. Exec. Order No. 11,905, 3 C.F.R. 90 (1976).
181. U.S. Policy on Assassinations, CNN JUST., Nov. 4, 2002,
http://articles.cnn.com/2002-11-04/justice/us.assassination.policy_1_assassination-
prohibition-cia-lawyers?_s=PM:LAW.
182. Id.
183. Id.

1376 Vanderbilt Journal of Transnational Law [Vol. 44:1353

The state secrets privilege is another form of unreviewable
executive power that ought to be met with skepticism. In Aulaqi, the
DOJ raised the state secrets privilege as alternative grounds for
summary judgment, claiming that litigating the issues before the
court would require the disclosure of sensitive classified intelligence
and would endanger national security.184 Originally, the state secrets
privilege was a rarely-used but formidable evidentiary objection.185
Since the terrorist attacks of September 11, however, it has been used
much more frequently and as grounds for the dismissal of entire
cases.186
Not only is the expanded use of the state secrets privilege
problematic, so too is the privilege itself.187 The Supreme Court
formally recognized the privilege in United States v. Reynolds.188
However, the validity of even this first use of the privilege has been
called into question, raising concerns over the potential for
government abuse.189 In Reynolds, the government argued that
certain accident reports containing state secrets should be kept out of
trial.190 Although the Court agreed, the merits of this decision have
since been cast in doubt.191 When the accident reports in Reynolds
later became public, they were shown to contain no sensitive state
secrets.192 Instead, the reports contained potentially embarrassing
evidence of negligent government conduct.193 As long as targeted
killing is conducted under the cloak of the state secrets privilege,
there is no guarantee that the program will be free of government
misconduct.

C. The Need for a Resolution

Concerns over targeted killing error rates and historical abuses
of executive power cast extraordinary doubt over the adequacy of the
Obama Administration’s legal justification of targeted killing, as

184. Al-Aulaqi Response, supra note 2, at 6.
185. 154 CONG. REC. 198, 199 (2008) (statement of Sen. Kennedy) (introducing
the State Secrets Protection Act, S. 2533, 110th Cong. 154 (2008)).
186. Id. at 200.
187. See id. (stating that the privilege’s limitation on judicial review has led to
further litigation and public skepticism).
188. Id. (citing United States v. Reynolds, 345 U.S. 1 (1953)).
189. See id. (“When the documents finally became public just a few years ago, it
became clear that the government had lied. The papers contained information
embarrassing to the government but nothing to warrant top secret treatment or
denying American citizens honest adjudication of their lawsuit.”).
190. Reynolds, 345 U.S. at 11.
191. See 154 CONG. REC. 2008 (stating that the privilege’s limitation on judicial
review ultimately led to further litigation and public skepticism when the accident
from the Reynolds case was later declassified).
192. Id.
193. Id.

2011] Due Process Rights and Targeted Killing 1377

articulated by the Department of State.194 The government’s
argument is that it should be taken at its word when it assures the
public that the process for identifying and targeting suspected
terrorists with lethal force is careful, rigorous, and legal.195 This is
not an adequate explanation of targeted killing law for two reasons.
First, this explanation leaves unanswered the question of how the
targeted killing program is careful, rigorous, and legal.196 Second,
there is ample historical evidence that suggests that executive
guarantees of authority and privilege ought to be met with
skepticism.197 Without some form of independent oversight or review,
taking the Executive Branch at its word is not an adequate form of
due process and provides no minimum constitutional guarantee.198

VI. THE RESPONSIBLE WAY FORWARD: CONGRESS SHOULD
EITHER PROHIBIT THE TARGETED KILLING OF

AMERICANS OR ESTABLISH OVERSIGHT

The targeted killing of Americans, as demonstrated by the
Aulaqi case, presents complex questions of constitutional law that are
not easily answered or resolved.199 This is more than an academic
debate; the stakes are high, as targeted killing in its current form
provides the Executive Branch with a power over American lives that
is chillingly broad in scope.200 It is concerning that the President’s
grounds for claiming this extraordinary authority are tenuous and
subject to compelling challenges.201 Furthermore, the absence of basic
due process protection in Aulaqi appears unconstitutional after
Hamdi.202 But the Aulaqi case shows that the constitutional
objections to targeted killing cannot be resolved in federal court.203
For these reasons, Congress should intervene by passing legislation
with the goal of establishing clear principles that safeguard
fundamental due process liberties from potential executive overreach.

194. Koh, supra note 162 .
195. See id. (“Our procedures and practices for identifying lawful targets are
extremely robust, and advanced technologies have helped to make our targeting even
more precise.”).
196. Contra id. (offering no actual evidence to support this claim).
197. See supra notes 191–96.
198. Al-Aulaqi Complaint, supra note 1, ¶ 5; see also Murphy & Radsan, supra
note 20, at 437 (asserting that in the context of targeted killing, due process requires
at least a minimum level of judicial control).
199. See supra Part II.B–C.
200. See Dehn & Heller, supra note 16, at 187 (“Judge Bates’s opinion [in Al-
Aulaqi], in short, makes it impossible for an American citizen to challenge her
inclusion on the JSOC kill list.”).
201. See supra Part III.
202. See supra Part IV.B.
203. See supra Part II.B–C.

1378 Vanderbilt Journal of Transnational Law [Vol. 44:1353

A. Option One: Congress Could Pass Legislation to
Establish Screening and Oversight of

Targeted Killing

As the Aulaqi case demonstrates, any resolution to the problem
of targeted killing would require a delicate balance between due
process protections and executive power.204 In order to accomplish
this delicate balance, Congress can pass legislation modeled on the
Foreign Intelligence Surveillance Act (FISA) that establishes a
federal court with jurisdiction over targeted killing orders, similar to
the wiretapping court established by FISA.205 There are several
advantages to a legislative solution. First, FISA provides a working
model for the judicial oversight of real-time intelligence and national
security decisions that have the potential to violate civil liberties.206
FISA also effectively balances the legitimate but competing claims at
issue in Aulaqi: the sensitive nature of classified intelligence and
national security decisions versus the civil liberties protections of the
Constitution.207 A legislative solution can provide judicial
enforcement of due process while also respecting the seriousness and
sensitivity of executive counterterrorism duties.208 In this way,
congress can alleviate fears over the abuse of targeted killing without
interfering with executive duties and authority.
Perhaps most importantly, a legislative solution would provide
the branches of government and the American public with a clear
articulation of the law of targeted killing.209 The court in Aulaqi
began its opinion by explaining that the existence of a targeted killing
program is no more than media speculation, as the government has
neither confirmed nor denied the existence of the program.210
Congress can acknowledge targeted killing in the light of day while
ensuring that it is only used against Americans out of absolute

204. Al-Aulaqi v. Obama, 727 F. Supp. 2d 1, 51 (D.D.C. 2010) (noting the
complex and disconcerting conflict between constitutional claims at issue in the case).
205. Foreign Intelligence Surveillance Act, 50 U.S.C. §§ 1801–1862 (2006).
206. Id.
207. See id.
208. See id.
209. Rise of the Drones: Unmanned Systems and the Future of War, Hearing
Before the Subcomm. on Nat’l Sec. & Foreign Affairs of the H. Comm. on Oversight &
Gov’t Reform, 110th Cong. 2 (2010) (written testimony of Professor Kenneth Anderson)
(arguing that Congress must clearly establish the authority for targeted killing of
suspected terrorists).
210. Al-Aulaqi v. Obama, 727 F. Supp. 2d 1, 11 (D.D.C. 2010).

2011] Due Process Rights and Targeted Killing 1379

necessity.211 Independent oversight would promote the use of all
peaceful measures before lethal force is pursued.212

i. FISA as an Applicable Model

FISA is an existing legislative model that is applicable both in
substance and structure.213 FISA was passed to resolve concerns over
civil liberties in the context of executive counterintelligence.214 It is
therefore a legislative response to a set of issues analogous to the
constitutional problems of targeted killing.215 FISA also provides a
structural model that could help solve the targeted killing
dilemma.216 The FISA court is an example of a congressionally
created federal court with special jurisdiction over a sensitive
national security issue.217 Most importantly, FISA works. Over the
years, the FISA court has proven itself capable of handling a large
volume of warrant requests in a way that provides judicial screening
without diminishing executive authority.218 Contrary to the DOJ’s
claims in Aulaqi, the FISA court proves that independent judicial
oversight is institutionally capable of managing real-time executive
decisions that affect national security.219
The motivation for passing FISA makes this an obvious choice
for a legislative model to address targeted killing. With FISA,
Congress established independent safeguards and a form of oversight
in response to President Nixon’s abusive wiretapping practices.220
The constitutional concern in FISA involved the violation of Fourth
Amendment privacy protections by excessive, unregulated executive

211. See Kretzmer, supra note 19, at 202 (“Under ordinary human rights
principles, based on a law-enforcement model with its guarantees of due process, use of
lethal force to defend persons against unlawful violence is justified only when
absolutely necessary.”).
212. See Banks & Raven-Hansen, supra note 86, at 678–79 (concluding that the
Constitution does not prohibit the targeted killing abroad of foreign nationals, at least
in anticipatory self-defense when other more peaceful means of defense have been
exhausted).
213. Foreign Intelligence Surveillance Act, 50 U.S.C. §§ 1801–1862 (2006).
214. See Larry Abramson, The Secret Court of Terror Investigations, NPR, Dec.
13, 2005, http://www.npr.org/templates/story/story.php?storyId=5049679 (noting that
FISA was enacted to end the practice of placing wiretaps on enemies of President
Nixon).
215. See id.
216. 50 U.S.C. §§ 1801–1862.
217. Id. § 1803.
218. See Ellen Yaroshefsky, Secret Evidence Is Slowly Eroding the Adversary
System: CIPA and FISA in the Courts, 34 HOFSTRA L. REV. 1063, 1081 (2006).
219. See id.
220. See Abramson, supra note 214 (“The Foreign Intelligence Surveillance
Court was supposed to put an end to the kinds of wiretaps that were placed on the
phones of enemies of President Nixon, such as Morton Halperin.”).

1380 Vanderbilt Journal of Transnational Law [Vol. 44:1353

power.221 Similarly, the current state of targeted killing law allows
for executive infringement on Fifth Amendment due process rights.
Although there is no evidence of abusive or negligent practices of
targeted killing, the main purpose of congressional intervention is to
ensure that targeted killing is conducted only in lawful circumstances
after a demonstration of sufficient evidence.
Finally, a FISA-style court is a potentially effective possibility
because it would provide ex ante review of targeted killing orders,
and the pre-killing stage is the only stage during which judicial
review would be meaningful.222 In the context of targeted killing, due
process is not effective after the decision to deprive an American of
life has already been carried out. Pre-screening targeted killing
orders is a critical component of judicial oversight. Currently, this
screening is conducted by a team of attorneys at the CIA.223 Despite
assurances that review of the evidence against potential targets is
rigorous and careful, due process is best accomplished through
independent judicial review.224 The FISA court provides a working
model for judicial review of real-time requests related to national
security.225 FISA also established the requisite level of probable cause
for clandestine wiretapping and guidelines for the execution and
lifetime of the warrant, whereas the legal standards used by the
CIA’s attorneys are unknown.226 The only meaningful way to ensure
that Americans are not wrongfully targeted with lethal force is to
screen the evidence for the decision and to give ultimate authority to
an impartial judge with no institutional connection to the CIA.

221. See id. (acknowledging the tension between FBI agents who try to obtain
warrants and the Justice Department that refuses to take the cases to the Foreign
Intelligence Surveillance Court for privacy concerns).
222. See Murphy & Radsan, supra note 20, at 438 (stating that the pre-killing
review could increase the accuracy of target selection, reducing the danger of mistaken
or illegal destruction of lives, limbs and property).
223. See supra Part II.A (describing CIA procedural process for targeted killing
program).
224. See Murphy & Radsan, supra note 20, at 437 (arguing that courts are
capable of applying duly deferential standards and determining the legality of attacks
after they occur); supra Part III.B (arguing that under judicial review, a court could
easily and properly determine that targeted killing does not satisfy the imminence
standard for the constitutional use of defensive force).
225. Foreign Intelligence Surveillance Act, 50 U.S.C. §§ 1801–1862 (2006).
226. Id. § 1805(a); see supra Part II.A (describing how few specific details are
known about the evaluation of evidence against suspected terrorists or the standard of
proof).

2011] Due Process Rights and Targeted Killing 1381

ii. CIPA: An Alternative Model

The Classified Intelligence Procedures Act (CIPA) provides
another blueprint for a possible legislative solution.227 CIPA was
passed to protect against the practice of “graymailing,” in which
defendants accused of crimes by the government would cause the
release of classified information through discovery if prosecuted.228
This left the government with a difficult choice: either drop the
charges or continue the case and risk the exposure of sensitive
information.229 CIPA responded to this problem by providing
unclassified substitutes to privileged information that allow the
litigation to proceed.230 During discovery, security-cleared defendants
and defense counsel are allowed to review classified evidence.231 Also,
defendants in possession of classified evidence for use at trial are
allowed to utilize this evidence using a similar procedure that
protects against public release.232
Legislation modeled on CIPA and applied to the context of
targeted killing would allow a case like Aulaqi to proceed in federal
court. Rather than dismiss the entire suit out of deference to the state
secrets privilege, a CIPA-style procedure would allow a court and the
defendant to review the government charges without endangering
sensitive intelligence sources. If the government reveals compelling
evidence that confirms the specific and imminent nature of a threat
from a suspected terrorist, as it claimed in Aulaqi, then a court can at
least review this evidence before granting summary judgment.
A legislative solution modeled on CIPA also creates a less
invasive procedure for the review of privileged information. This has
the added advantage of avoiding the delicate balance of constitutional
powers that a FISA-style remedy would involve.233 FISA responded to
evidence of executive abuse by creating a direct form of judicial
supervision.234 Because there is no such charge of misconduct in the
case of targeted killing, perhaps a less intrusive remedy is

227. Classified Intelligence Procedures Act, Pub. L. No. 96-456, 94 Stat. 2025
(1980) (codified as amended at 18 U.S.C. §§ 1−16 (2006)).
228. Yaroshefsky, supra note 218, at 1067.
229. Timothy J. Shea, CIPA Under Siege: The Use and Abuse of Classified
Information in Criminal Trials, 27 AM. CRIM. L. REV. 657, 658 (1990).
230. Classified Intelligence Procedures Act § 4.
231. Yaroshefsky, supra note 218, at 1067–68.
232. Id.
233. See Banks & Raven-Hansen, supra note 86, at 678–79 (“The President’s
authority [to order a targeted killing], like the constitutional authority for self-defense
itself, may well depend on the necessity for action and the gravity of risk, but
depending on those factors would leave room for Congress to ban or regulate targeted
killings except in the extreme case of an otherwise unavoidable catastrophic attack.”
(footnote omitted)).
234. Abramson, supra note 214.

1382 Vanderbilt Journal of Transnational Law [Vol. 44:1353

sufficient.235 Rather than creating a new judicial institution and
altering the Executive’s chain of decision making, a CIPA-style
procedure would allow for litigation in this extraordinary context
without altering the balance of power between the Executive and the
judiciary. This alternative solution is less complicated to design and
easier to implement. Although it would not allow for ex ante review of
targeted killing orders, a solution modeled on CIPA might be a more
practical and realistic solution given the bureaucratic hurdles of a
FISA-style solution.

B. Option Two: Congress Could Pass Legislation Prohibiting
the Targeted Killing of Americans

Alternatively, Congress could pass legislation that explicitly
prohibits the targeted killing of Americans unless the circumstances
present a concrete threat of imminent danger.236 As the analysis in
Part II.A indicates, targeted killing is a premeditated offensive
military strategy, not a defensive practice.237 Congress could exercise
its own constitutional powers as the war-making body of government
to ensure that no American may be targeted for extrajudicial lethal
force by the Executive Branch.238
Similarly, Congress could amend the AUMF to include a
prohibition of the targeted killing of Americans.239 Although this has
the potential to limit the military in counterterrorism measures in
circumstances such as the Aulaqi case, it would emphasize
congressional commitment to fundamental constitutional rights even
in the face of terrorist threats.240 The irony of the Aulaqi case is that
based on the publicly available evidence, there is good reason to
believe the DOJ’s assertion that Anwar al-Aulaqi presented
significant danger to the country.241 But allowing the president to
target Aulaqi for extrajudicial killing presents its own danger, as it
establishes a broad and unreviewable killing power with potential for

235. See Al-Aulaqi Complaint, supra note 1 (no allegation of government
misconduct).
236. See supra notes 107–08 (noting that the notion of defining and ascertaining
an imminent threat is particularly difficult in the context of international terrorism).
Although this is simply a reiteration of the existing standard and therefore appears
redundant, legislation of this kind has two important benefits. First, it reaffirms
legislative commitment to the defense of individual liberties. Second, it provides a
statutory basis for judicial review of challenges to targeted killing.
237. See discussion supra Part II.A.
238. U.S. CONST. art. I, § 8, cl. 11 (Congress’s war-making power).
239. Al-Aulaqi Response, supra note 2, at 24 (citing the AUMF as congressional
authority for the targeted killing of Aulaqi).
240. Id. at 4 (arguing that the judiciary should not interfere with the
complexities of military and national security decisions).
241. See supra note 4 (providing an overview of the publicly available evidence
linking Aulaqi to known terrorists).

2011] Due Process Rights and Targeted Killing 1383

error and abuse.242 Americans must have more reassurance that the
powers of the Executive Branch are limited and reasonable.
Although a legislative solution is appealing given the success of
the analogous FISA court, a statutory ban on the targeted killings of
Americans is certainly the preferable option. When a government
unilaterally assassinates one of its own citizens in circumvention of
civil liberties, this raises profound questions about the legitimacy of
that government, especially in a representative democracy. It also
stands in contradiction to the American constitutional legacy, in
which separate but coequal branches of government were created
primarily to limit the possibility of tyranny and other government
abuses of power. A congressional ban on the targeted killing of
Americans would represent a legislative rebuke of executive excesses
in protection of fundamental civil liberties.
Congressional action of any kind, however, faces a very serious
hurdle: as the DOJ made clear in the Aulaqi case, the executive
branch position is that any infringement on the President’s targeted
killing authority is simply unconstitutional. Yet if congress were to
prohibit targeted killing and a court found that such a law is an
unconstitutional infringement on executive authority, there is still
another and perhaps final option. In the event that a federal court
interprets the constitution to actually permit the targeted killing of
Americans by the Executive Branch, then it would be necessary to fix
this constitutional flaw. A constitutional amendment prohibiting the
practice of targeted killing would thus permanently extinguish the
concerns over targeted killing.243

VI. CONCLUSION

The targeted killing of Americans raises serious due process
concerns. But the law and protocol for targeted killing are unclear.
Currently there is no independent enforcement of due process rights
when the Executive targets Americans with lethal force on the basis
of unsubstantiated accusations. As the Aulaqi case makes clear, the
threat of international terrorism is very real, but so is the risk of an
unchecked killing power with the potential for error and abuse.
Congress should respond to this problem by clarifying the law and
procedure of targeted killing in a way that enforces fundamental due
process rights and keeps this power in check. The Executive owes due
process rights in detainment scenarios and must request a warrant

242. See supra Part V.B.
243. I credit Professor Michael Newton of Vanderbilt University Law School for
advocating this solution during a discussion about targeted killing.

1384 Vanderbilt Journal of Transnational Law [Vol. 44:1353

before wiretapping. The law of targeted killing should be updated to
reflect similar minimum commitments to civil liberties.

Benjamin McKelvey*

* Benjamin McKelvey serves as Executive Development Editor on the Editorial
Board of the Vanderbilt Journal of Transnational Law. He is a member of the Class of
2012 at Vanderbilt University Law School.

Law and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright

holder’s express written permission. However, users may print, download, or email articles for individual use.

10.1177/0032329205280926POLITICS & SOCIETY

CHRISTIANE WILKE

War v. Justice:
Terrorism Cases, Enemy Combatants, and

Political Justice in U.S. Courts

CHRISTIANE WILKE

What mechanisms led to the intractable legal situation of “enemy combatants”
detained by the U.S. government in Guantánamo Bay and elsewhere? And what
does the role of the judiciary in the enemy combatants cases suggest about politi-
cally contentious court cases in general? This article develops a two-stage theory of
political justice that is based on the U.S. post-9/11 terrorism cases. It demonstrates
mechanisms by which politically contentious cases turn into political justice. Politi-
cal justice in these cases is mainly the result of violations of the separation of powers
that are legitimized by portraying the defendants/detainees as enemies beyond the
law.

Keywords: political justice; enemy combatants; terrorism trials; U.S. courts;
Guantánamo Bay

This nation’s enemies may not enlist America’s courts to divert efforts and attention from
the military offensive abroad to the legal defensive at home.

—Former U.S. Attorney General John Ashcroft

I. INTRODUCTION

After the attacks of September 11, 2001, the United States government vowed
“to fight back, to summon all our strength and all our resources and devote our-
selves to better ways to identify, disrupt, and dismantle terrorist networks.”1

Under the heading of the “war on terrorism,” the U.S. government conducted mil-
itary campaigns in Afghanistan and elsewhere. U.S. personnel engaged in “tar-

POLITICS & SOCIETY, Vol. 33 No. 4, December 2005

637

geted assassinations” of presumed terrorists. A significant number of persons
were detained by U.S. personnel in various places on the suspicion of having
committed terrorist acts or being members or supporters of terrorist organiza-
tions. These persons were quickly labeled “unlawful enemy combatants.” Their
number is unknown, and their fates were diverse: very few of them were tried and
convicted in U.S. federal courts. The majority of the detainees were kept incom-
municado in places like Guantánamo Bay (Cuba) or Bagram Air Base (Afghani-
stan)—or in the United States, if they were U.S. citizens. Reports about mistreat-
ment and torture in these detention facilities surfaced soon but caused little public
outrage in the United States.2 Other persons were detained—or abducted—by
U.S. personnel abroad, and then handed on to other states known to mistreat or
torture prisoners. This practice was called “extraordinary rendition.”3 A number
of the detainees held in Guantánamo and elsewhere have been released, often in
response to diplomatic pressures rather than legal requirements. The fates of the
detainees suspected of being or becoming terrorists differed, but the wide major-
ity of them were subject to a unique form of detention. These detentions were not
based on the detainees’ alleged past wrongdoing, but on assessments of their dan-
gerousness as “enemy combatants” who might engage in terrorist acts when
released. This detention rationale allows for a potentially indefinite detention.

This article examines U.S. court cases arising from the “war on terror” with
two purposes: first, the article aims to offer an assessment of these cases in light of
the debates about human rights and terrorism. Second, the U.S. post-9/11 cases
provide an occasion for the development of a theory of political justice. However,
the cases examined here concern only a subsection of the “enemy combatant”
detainees. Most detainees have no access to lawyers or courts. The litigation
examined here accordingly concerns comparatively privileged detainees but
sheds light on the larger mechanisms by which the legal-political figure of the
“enemy combatant” extinguishes public concern for the rights and well-being of
the detainees. In fact, one central problem about the court cases is that the detain-
ees are too often not viewed as persons with rights, but as enemies who lack the
attributes of persons. The U.S. legal approach in the “war on terror” has, to a large
degree, shifted from what criminal law theorists have called a “criminal law for
citizens” to a “criminal law for enemies.”4 While the “criminal law for citizens”
treats its addressees as law-abiding persons, the “criminal law for enemies” treats
its subjects as “dangerous individuals” who cannot be convinced but only forced
into submission to the law.5 The U.S. approach to the “war on terror,” however,
ventures beyond the “criminal law for enemies” period by placing the “enemy

638 POLITICS & SOCIETY

Previous versions of this article were presented at the conference on the United States and Global
Human Rights at the Rothermere American Institute of the University of Oxford in November 2004,
at Carleton University in December 2004, and at the Jacob Landynski Memorial Conference on
Constitutionalism and Social Justice at the Graduate Faculty of the New School for Social Research in
February 2005. The author thanks those who provided comments and suggestions at various stages,
especially David Plotke, Andrew Arato, Michael Goodhart, Amy Bartholomew, and Nehal Bhuta.

combatants” beyond the law: criminal law becomes a moot point where detention
is solely based on a person’s alleged dangerousness. In this process, the “enemy
combatants” are stripped not only of rights, but also of their legal personality that
is the basis for having rights. Insofar as the detainees are accorded procedural
rights by the courts, these rights are understood in relation to the separation of
powers within government—which branch may decide what and how—and not
as a matter of the detainees’ human or civil rights. This approach stands in a
marked contrast to the decision of the British House of Lords on the similar sub-
ject of indefinite detentions of non-U.K. citizens who cannot be deported.6 This
decision was largely based on international human rights treaties and their
domestic incorporation.

What can these terrorism-related cases teach us about political justice? These
cases demonstrate one prominent mechanism whereby court cases that are politi-
cally contentious turn from “normal” justice—as imperfect as it might be—into
instances of political justice. I am proposing a two-stage model of political jus-
tice. First, there are—always—some court cases that are politically contentious:
they differ from standard cases in that significant political hopes and arguments
are attached to their outcome. These politically contentious cases can, but need
not, develop two dimensions that transform them into instances of problematic
political justice. First, the judicial process in these cases might violate the norms
of the separation of powers, usually through executive intrusions into the judicial
process. And second, the public vilification of one party to the trial heightens the
stakes and shapes the outcome of the case. The portrayal of one party as an
“enemy”—regardless of whether this exact term is used—is significant insofar as
it implies the suggestion that “enemies” are not to be treated like “friends” or, as
Jakobs wants to call them, “citizens.”7 To be sure, war—and enmity in war—are
not lawless. But in some legal and political imaginaries, lawless and ruthless ene-
mies have to be fought without the constraints of the law. These enemies are
placed beyond the law. Their treatment becomes a matter of ethics and policy, thus
it is not lawless. Still, the treatment of these enemies is dictated by policy con-
cerns, and not by their rights as persons. They are accordingly beyond the law:
they are governed by the law without being constituted by the law as persons with
rights. This article will argue that both dimensions of problematic political justice
occurred in the post-9/11 terrorism trials.

Examining the two dimensions of political justice—violations of the separa-
tion of powers rules and the vilification of one party—separately, I will argue that
the courts were more assertive in rejecting the executive branch’s reinterpreta-
tions of the separation of powers than they were in questioning the assessments of
the detainees’ and defendants’ status as enemies beyond the law. The courts’
eagerness to dispute executive assertions of unchecked authority over detainees
coincides with the courts’ institutional self-interest in reserving a role for the judi-
ciary in the determination of the fate of enemy combatants and presumed
terrorists.

CHRISTIANE WILKE 639

Three groups of court cases that arose as part of the “war on terrorism” form
the basis for this article. In the first group of cases, there are the criminal trials for
terrorism or siding with the enemy: the cases of John Walker Lindh, Zacarias
Moussaoui, and Richard Reid. Second, there are cases in which the U.S. govern-
ment detains U.S. citizens as “enemy combatants” within the United States: the
cases of José Padilla and Yaser Hamdi. Third, there are cases of “enemy combat-
ants” who are not U.S. citizens, and who were detained outside the U.S. In June
2004, the U.S. Supreme Court ruled on aspects of the cases of Padillia and Hamdi
as well as on the third group of cases: detainees held in Guantánamo Bay, a place
where the United States has jurisdiction but no complete sovereignty. The analy-
sis will ask how the cases unfolded, which arguments were used by the parties,
and how the courts reacted to these arguments. I first introduce the cases and the
main issues they raised. In a next step, I develop my theory of political trials and
utilize it for explaining the deficits in the proceedings as well as the arguments
used by the courts in the analyzed cases.

II. THE CASES

2.1. The Criminal Cases

Zacarias Moussaoui, a French citizen, was arrested on August 17, 2001, on
immigration charges. He had aroused the suspicion of teachers at his flight school
when he only wanted to learn how to fly but not how to start or land a plane. He is
the only defendant in a U.S. criminal case who is suspected of having been part of
the conspiracy that led to the 9/11 attacks. It is alleged that he would have been the
“twentieth hijacker” on the plane that crashed in Pennsylvania. On December 11,
2001, the government announced that Moussaoui would be tried in a federal
court, not in one of the military tribunals that had been established by executive
order a month earlier.8 Even though Moussaoui’s case was left in the civilian court
system, the specter of a military tribunal resurfaced later when the trial moved into
impasses.

The pretrial proceedings were marked by a high degree of antagonism between
Moussaoui—who insisted on acting without a lawyer—and the prosecution.9

Moussaoui proudly admits to being an Al Qaeda member and views the court and
his lawyers as part of a government conspiracy to have him executed.10 His court
filings and speeches were saturated with slurs to the point that his sanity was in
doubt.11 Moussaoui’s insistence that the trial was a mockery was reinforced by the
government’s intransigent stance on defendants’ rights in relation to security con-
cerns.12 The main point of contention was Moussaoui’s request to interview wit-
nesses who are being held incommunicado as enemy combatants in Guantánamo
Bay and elsewhere. As a result of these disputes, the proceedings were widely
perceived as a “circus,” and Moussaoui was blamed for this undignified process.
Soon critics began wondering whether a military tribunal would not have been

640 POLITICS & SOCIETY

more appropriate: there Moussaoui would not get an audience for his political
views, and he would not get the access to the witnesses he requested. Moussaoui’s
latest guilty plea of April 2005 contains detailed statements about his connections
to Al Qaeda and Osama bin Laden.13 If the plea is eventually accepted despite the
doubts about Moussaoui’s mental health, this means that this terrorism case does
not have to be argued out in court. Thus the law, the access to evidence, and the
interrogation methods remain legally largely uncontested.

John Walker Lindh was captured in Afghanistan after the Taliban prisoner
uprising in Mazar-i-Sharif in late November 2001. While he was awaiting medi-
cal attention, he told a CNN journalist and military interrogators that he enjoyed
his experience in Afghanistan and identified with jihad. Already at the time of
Lindh’s interrogation and incommunicado detention in Afghanistan, the U.S.
public discussed his apparent treason.14 It was widely thought that by joining the
Taliban, he had become an enemy of the United States and thereby morally—or
even legally—forfeited his U.S. citizenship.15 Lindh’s case accustomed the public
to the idea that enemies of the United States might carry a U.S. passport that they
don’t “deserve”: the enemy status was made more important than the citizenship
status, paving the way for the later treatment of José Padilla and Yaser Hamdi that
only few people objected to.

John Lindh claims that he was interrogated while being held under inhumane
conditions and being denied proper medical treatment and access to a lawyer.16

U.S. authorities denied any mistreatment and maintained that Lindh did not need
or could not get a lawyer because he was held as a wartime captive, not as a crimi-
nal suspect.17 The interrogations were aimed at gathering vital intelligence about
the enemy and were legally part of the battlefield actions, so the Miranda rights
did not have to be read. Yet the criminal case against Lindh rested on statements
from these interrogations.

During the trial, the government tried to connect Lindh to the death of CIA
officer Michael Spann during the prisoners’ uprising in Mazar-i-Sharif. The con-
nection between the “hero” Spann and the “traitor” Lindh galvanized public sup-
port for the legally weak case against Lindh.18 Treason could not legally be
proved, but administration officials suggested that when Lindh was interviewed
shortly before the uprising and remained silent, he had chosen sides by failing to
warn his fellow countrymen of the imminent uprising that would bring about the
death of Michael Spann.19 Given the uncertainties of a jury trial in an atmosphere
in which many potential jurors saw him as a radical enemy and wanted to strip him
of his citizenship, Lindh entered a plea arrangement. On July 12, 2002, he pleaded
guilty to two minor charges and was sentenced to twenty years in prison. The gov-
ernment did not need to argue out the case and did not have to disprove the
allegations of mistreatment.

Richard Reid, a U.K. citizen, tried to ignite his explosives-filled sneakers on an
American Airlines flight from Paris to Miami on December 22, 2001. He was sub-
dued by passengers and crew members. Although then–Attorney General John

CHRISTIANE WILKE 641

Ashcroft repeatedly announced that Reid was charged as an Al Qaeda–trained ter-
rorist,20 the indictment was not based on any Al Qaeda link. Reid decided to plead
guilty, and was sentenced to life in prison. In his guilty plea, he rejected the
authority of U.S. law and confirmed the Justice Department’s designation as a
public enemy: Reid stated that he used a destructive device in an act of war.21 The
judge rejected Reid’s self-proclaimed warrior status, saying that he did not con-
sider Reid an enemy combatant but a terrorist. Calling Reid a soldier, the judge
reasoned, would give him too much of a standing.22 Both sides grasped the politi-
cal importance of distinguishing between criminals (who supposedly accept the
authority of domestic law) and warriors (who reject the enemy’s domestic law but
are possibly subject to international legal norms). Reid squarely attacked the
authority of the U.S. law in order to pose as a captive warrior who is illegitimately
subjected to the enemy’s law. The judge, in turn, defended the authority of the
court and—in contrast to the government’s stance in the Padilla and Hamdi
cases—rejected the rhetoric of war and enemy. The stress on the absence of war
and the depiction of Reid as a criminal was meant to enhance the legitimacy of the
court decision as an impartial judgment rather than a case of wartime victor’s jus-
tice. This is the only politically contentious U.S. terrorism case examined here
that did not turn into a case of political justice.

2.2. U.S. Citizens as Enemy Combatants

José Padilla, a U.S. citizen, was arrested at Chicago O’Hare Airport on May 8,
2002. He was first detained as a material witness in a “dirty bomb” plot until, a
month later, the government suddenly changed the rationale for his detention:
speaking from Moscow, John Ashcroft ordered José Padilla’s detention as an
“enemy combatant,” adding that the arrest “disrupted an unfolding terrorist plot to
attack the United States.”23 The government soon acknowledged that the alleged
plot had not advanced beyond the initial planning stages.24 Padilla was suddenly
detained as an enemy combatant and not as a criminal suspect because the govern-
ment could not construct a criminal case against him. Therefore, the detention
rationale was based not on what he had done but on what he might do if released.
In addition, his “intelligence value” should justify his continued detention:

Our interest really in this case is not law enforcement, it is not punishment because he was a
terrorist or working with the terrorists. Our interest at the moment is to try and find out
everything he knows so that hopefully we can stop other terrorist acts.25

Within days of the detention, an administration advisor on terrorism trials and
two former government anti-terrorism lawyers took to the op-ed pages to justify
the detention. Administration advisor Ruth Wedgwood assures that habeas cor-
pus review would still be available.26 Victoria Toensing, who established the ter-
rorism unit in the Justice Department under President Ronald Reagan, states less

642 POLITICS & SOCIETY

soothingly that the criminal justice system is not the proper place for fighting ene-
mies, and that keeping Padilla there would be a threat to national security.27

Douglas Kmiec, former counsel to George Bush Sr. and Reagan, reminds the
readers that the country is at war. This, he continues, is key to understanding and
approving the military detention of Yaser Hamdi and José Padilla.28

What were the intended legal consequences of designating Padilla an “en-
emy”? The government’s position was that, being an enemy combatant, Padilla
has no right to meet his lawyer, Donna Newman, or to challenge his status as an
enemy combatant. Even habeas corpus review should be unavailable because
Padilla is not held as a criminal suspect but as an enemy: a habeas petition would
“interject this court into the president’s conduct of ongoing hostilities.”29 This
assertion is based on the logically prior and irrefutable designation of Padilla as a
public enemy. Indeed, the government’s position is that this designation is virtu-
ally a “decision” in the Schmittian sense: not reducible to a subsumption of a case
under a general rule, and beyond the possibility of independent rational review.30

This decision moves Padilla into an exceptional status beyond the normal law:
legal recourse should not be available to him because he was not accused of break-
ing the law, but of being a threat to the law who needs to be kept beyond the law. If
Padilla’s case were still in the area of criminal law, it would be in the field of
Jakobs’s “criminal law for enemies”: there, “punishment serves as a prevention
of future crimes, not as a retribution for past ones.”31 But the case is not a case of
“criminal law for enemies” because there are no significant references to criminal
conduct. All we are told is that Padilla is dangerous. Therefore, he is placed in a
legal situation in which he ceases to exist as a person with rights.

The courts were partially at unease when they were asked to certify their own
abdication of authority in this case. The U.S. District Court agreed that the gov-
ernment possesses the authority to detain Padilla under the given circumstances,
but the U.S. Court of Appeals reversed the decision. In the U.S. Supreme Court
decision of June 28, 2004, the material question of whether the government has
the authority to detain Padilla was not resolved because the Supreme Court held
that the habeas petition was filed in the wrong jurisdiction. The Court did, how-
ever, address the question of possible government justifications for detaining
Padilla indirectly in its related decision in the case of Yaser Hamdi.32

Yaser Esam Hamdi was arrested in Afghanistan in late November 2001 during
the Mazar-i-Sharif prison uprising, and subsequently brought to the Guantánamo
Bay detention center. In early April 2002, U.S. authorities found out that Hamdi,
who was born in Louisiana, holds U.S. citizenship. He was still considered an
enemy combatant, but the newly discovered facts about his citizenship led to his
transfer to a military prison in the continental United States: like Padilla and Lind,
he is both a citizen and an enemy. Unlike Lindh, however, Hamdi did not enjoy the
benefits of criminal procedure. On May 10, 2002, Hamdi’s court-appointed law-
yer, Frank Dunham, filed a writ of habeas corpus. A district judge initially

CHRISTIANE WILKE 643

allowed Dunham to meet his client in private.33 The government appealed this rul-
ing to a panel of the Fourth Circuit Court, which remanded the case to the district
court because the latter did not properly “consider what effect petitioner’s un-
monitored access to counsel might have on the government’s ongoing gathering
of intelligence.”34

The publicized factual basis for Hamdi’s enemy combatant status was thin:
the prosecution only produced a declaration of six pages written by Michael
Mobbs, a special advisor to Defense Department Undersecretary Douglas Feith,
which is based on third-party information. In the document, Mobbs admits that
“some information provided by the sources remains uncorroborated and may be
part of an effort to mislead or confuse U.S. officials.”35 These doubts notwith-
standing, the appellate court unanimously held that “asking the executive to pro-
vide more detailed factual assertions would be to wade further into the conduct of
war then [sic] we consider appropriate” and rejected the lawyer’s petition.36 The
court accepted a thinly substantiated “enemy combatant” designation by the gov-
ernment on the grounds that in wartime, the courts’ deference to the executive
authority gains in importance and “the Constitution does not specifically contem-
plate any role for courts in the conduct of war, or in foreign policy generally.”37

The designation of Yaser Hamdi as a dangerous public enemy thus leads an appel-
late court to assume that the detention of a U.S. citizen on U.S. territory is a matter
of “foreign policy.” Is such a conclusion possible because in this political logic,
enemies—even those who are nominally citizens—become foreigners? In any
case, the “enemy” designation makes the difference between the treatment that
Hamdi was accorded and the treatment that a criminal suspect in the United States
is normally accorded.

In the Supreme Court, the Hamdi case raised separation of powers issues more
directly than the Padilla case because if a habeas petition was allowed at all, it was
filed in the correct jurisdiction. The two central questions both concerned the
scope of presidential and judicial powers: first, is there a constitutional or con-
gressional authorization for the executive to detain an American citizen under the
conditions and circumstances in which Hamdi was detained? And, second, which
procedure is someone who is detained under these powers entitled to in order to
challenge the factual or legal basis for their detention? The Supreme Court plural-
ity of three justices argued that Congress’s resolution authorizing the president to
use “necessary and appropriate force” to counter the attacks of 9/11 was sufficient
as an authorization of the detention of enemy combatants defined as persons who
are “part of or supporting forces hostile to the United States or coalition partners.”
Hamdi is, however, entitled to a “fair opportunity” to rebut the facts on which his
detention is based in front of a “neutral decisionmaker.”38

This balancing act did not command widespread agreement. Justice Clarence
Thomas argues that this compromise is an unjustified intrusion into executive
power, while Justice Antonin Scalia proposes that Hamdi is entitled to a full crim-

644 POLITICS & SOCIETY

inal trial as long as Congress does not suspend habeas corpus. The case was pri-
marily framed and argued as a dispute about the separation of powers rules—and
not, for example, about Hamdi’s human rights. The most extreme attempt by the
U.S. government to assert unchecked authority over detainees, however, was the
establishment of detention centers in Guantánamo Bay and other places outside
the U.S. sovereign territory in the hope to enter a jurisdictional void.

2.3. The Guantánamo Bay Detainees

The U.S. detainees in Guantánamo Bay were arrested over the course of the
U.S. military action in Afghanistan. The first detention facilities opened in Janu-
ary 2002, and the area has been redesigned for long-term detention. Up to 600
detainees were held there at the same time; the numbers are gradually declining.39

The Guantánamo detainees were not meant to have access to the U.S. judicial sys-
tem because of their personal status (as enemy combatants) and the place of their
detention: they are not U.S. citizens and, moreover, are presumed unlawful enemy
combatants; and the United States has jurisdiction but no full sovereignty in
Guantánamo Bay. This has previously been interpreted to preclude the jurisdic-
tion of U.S. federal courts—at least as far as non-U.S. citizens are concerned. In
fact, the location was chosen for the detention facility precisely because of this
unique legal status. While the “war on terror” provides one rationale for creating
exceptions from the rule of law for an indeterminate period of time, the status of
Guantánamo Bay legitimizes a spatial exception from the rights normally accord-
ed to detainees under U.S. control.40 However, since the “war on terrorism” pro-
vides for a potentially indefinite temporal exception, the war-induced state of
exception is becoming permanent—though confined to Guantánamo Bay and
other marginal “permanent spaces of exception.”41

Habeas corpus petitions brought on behalf of Guantánamo detainees were ini-
tially rejected by courts in California and the District of Columbia.42 Although
courts have thought that the detainees “have some form of rights under interna-
tional law,”43 they did not review the petitions. “Some form of rights” was simply
not sufficient for noncitizen enemy combatants detained by the United States out-
side U.S. sovereign territory. According to the government, the detainees should
eventually be tried in military tribunals. The tribunals would offer a minimum of
process, but their decisions cannot be appealed to any U.S., foreign, or interna-
tional court. The complaint of the detainees was, however, that they had not even
been accorded a military tribunals procedure to determine the legality of their
detentions after 2-1/2 years in Guantánamo Bay.44 About 150 detainees were
released over time, but the releases are due as much to diplomatic pressure from
their home countries as to executive determinations that they did not pose a threat
anymore.45

The Supreme Court had to decide whether federal courts have jurisdiction to
review habeas petitions brought on behalf of Guantánamo detainees, or whether

CHRISTIANE WILKE 645

the personal status of the detainees or of their place of detention precludes juris-
diction. The majority argued that the decision widely thought to be a precedent,
Johnson v. Eisentrager (1950), does not apply.46 First, the detainees are not clearly
enemy combatants or enemy aliens because they are not nationals of countries
with which the United States is formally at war.47 Thus, they do not fit the classic
definition of “enemy alien.”48 Second, they dispute having been engaged in illicit
warfare against the U.S. And finally, they have not been accorded a judicial or
other procedure to determine the veracity of their claims, or have even been for-
mally charged with any wrongdoing.49 In addition, the Court argues that the case
at hand posed the danger of creating an “unconstitutional gap” in the authority of
federal courts with regard to jurisdiction over habeas claims: no single court
clearly has statutory jurisdiction, but the detainees have a constitutional right to
have their petitions heard.50 The Court fills the gap by resorting to “constitutional
fundamentals,” arguing that a legal vacuum depriving persons in U.S. custody of
access to the U.S. court system cannot be tolerated, and by construing the habeas
statute to confer federal courts jurisdiction over the petitions brought from the
Guantánamo detainees.51 The Court did not, however, detail the procedures due to
the detainees trying to challenge their status. The Supreme Court thus enlarged
the scope of judicial power against the explicit claims of the executive that wanted
to keep Guantánamo Bay beyond the reach of civilian courts—without, however,
providing immediate juridical benefits to the detainees. In order to comply with
the Supreme Court decision, the military created “Combatant Status Review Tri-
bunals” (CSRT). Detainees have to argue their cases for themselves and cannot
see the complete evidence against them. One-third of the detainees have declined
to attend their hearings; their cases were decided in absentia. The CSRT’s have
found that all except for thirty-three detainees were held properly as unlawful
enemy combatants.52 This miniscule chance of release on the basis of a procedure
in which the detainees have little chance to effectively rebut the evidence against
them suggests that while the government might have been unsuccessful at devis-
ing military commissions to try and convict or acquit enemy combatants, there
is less judicial resistance to the detentions of prisoners as “enemy combatants”
without charges for an indeterminate period of time.

What lessons can be drawn from these cases? How are they different from
other court cases? First, the criminal cases against John Walker Lindh, Richard
Reid, and Zacarias Moussaoui were very public, and were publicly connected to
political agendas. The courts were portrayed as arms of the government engaged
in the war on terror. The introduction of the war logic in the criminal cases led to a
low tolerance for acquittals: once a case is promoted as part of the war on terror,
the government cannot afford to lose it. In this logic, the courts represent a poten-
tial obstacle to a deserved prison sentence for a proven terrorist rather than a
forum for testing the evidence.53 If a case may not be lost because it is part of a war,
the government takes further steps to challenge the authority of the court: In the

646 POLITICS & SOCIETY

Moussaoui case, for example, the government repeatedly raised the specter of
transferring Moussaoui to a military tribunal where procedures are shorter, defen-
dants’ rights are fewer, and judges as well as prosecutors are under military com-
mand. The case against Richard Reid was so clear-cut that not even the war rheto-
ric by government officials and the defendant could damage the trial. And in the
case of John Walker Lindh, accusations of torture and misinterpreted evidence
linger long after he decided to plead guilty to lesser charges. The government por-
trayed all three trials as part of the war on terrorism and emphasized the alleged or
admitted links between the defendants and Al Qaeda.

The enemy combatant cases, in contrast, started in relative political silence. In
these cases, the executive branch did not want to use the courts as part in an all-
embracing strategy in the war on terror. Instead, the courts were portrayed as
obstacles in this war. By connecting these detentions to the “war on terror,” the
government tried to convince the courts that they could not “second-guess” exec-
utive determinations and military decisions because courts have no role in fight-
ing a war. The Supreme Court decisions established some limits to executive
power over the detainees. Still, the limited role of the courts in the enemy combat-
ant cases suggests that the government has succeeded in carving out a space of
exception for its designated enemies.

Second, the judicial component of the war on terror has shifted its emphasis
away from the criminal trials of the initial post-9/11 period and toward the legal
figure of executive detention of unlawful enemy combatants. Thus, criminal law,
whether “criminal law for citizens” or “criminal law for enemies,” has declined in
importance for U.S. counterterrorism policy. The executive detention policies
pose as preventive measures. They are not designed to adjudicate responsibility
for past wrongdoing, or even for the preparation stages of future acts of terrorism.
Instead, the “unlawful enemy combatants” are held for as long as they are deemed
dangerous.

Third, in the criminal cases and the challenges to executive detentions, the gov-
ernment and—to a limited degree—the courts agreed that the defendants and
detainees are not merely criminals. But they could not agree on the legal and polit-
ical significance of the enemy status. The government was especially vocal in the
introduction of the “war” and “enemy” terminology into the courtrooms. The pur-
pose of this terminology is to suggest that the persons concerned should not enjoy
the standard procedural rights. At the extreme, the designated enemies become
“non-persons” who have no rights or legal personality to be reckoned with.54 Only
the discursive force of the enemy designation can explain how, for example, the
detention of U.S. citizen Yaser Hamdi on U.S. territory becomes a matter of U.S.
foreign policy.

These groups of cases—the criminal cases as well as the enemy combatant
cases—were unusual in their political dimension, in the frequent usage of “war”
and “enemy” language, and in their implications for the separation of powers. The

CHRISTIANE WILKE 647

political stakes of the cases call for a closer analysis. In the next section I will
argue that the cases surveyed above suggest a powerful mechanism by which
politically contentious cases develop into cases of political justice.

III. THE CONCEPT OF POLITICAL JUSTICE

Which types of trials are political trials? I argue for a two-step model. First, any
open court system will confront a number of cases that are politically contentious
because they raise politically salient issues. Some of these politically contentious
cases reach stage two as they develop two problematic dimensions: first, the care-
ful separation of roles between the executive and the judiciary might collapse if
the executive values winning the case higher than judicial independence; and, sec-
ond, in many politically contentious cases, one party is declared a “public enemy”
with the understanding that this person does not deserve full rights in court. At
the extreme, the “public enemy” is treated as a “non-person” (Jakobs). Thus, the
question is no longer which rights enemies should enjoy, but whether enemies are
persons capable of having rights at all.

These two dimensions of political justice signal the problems that are often
referred to by the term “political justice.” Benjamin Constant, for example, com-
plains about the changes in the judicial system caused by Napoleon’s wars, such
as the improper influence of the military, for whom opposition is “disorder . . . the
courts councils of war, the judges soldiers under orders, the accused enemies and
the trials battles”;55 the addition of “representatives of the government” to local
courts; and the introduction of special military courts.56 Constant objects to mili-
tary courts because they see defendants as enemies, and protests the decline
of judicial independence that arises from the militarization and executive domi-
nation of the judicial system. These are the primary reasons why, according to
Constant, political trials are objectionable.

Before further explaining the two prevalent dimensions of political justice, I
want to distinguish my use of the term from three frequent usages in order to avoid
misunderstandings. These accounts differ most importantly in their understand-
ing of what the “political” in “political justice” refers to. Political trials are often
defined (1) by the bias or unwitting partiality of the judiciary in certain cases, (2)
in reference to a specified “political” area of law and state activity that the trials
touch upon, or (3) by the presence of a political adversary in court whose actions
are being incriminated.

1. The political bias model maintains that political justice is defined by the way a
judicial decision is arrived at. In the radical version of this model, judges con-
sciously decide cases in accordance with their own political views.57 More sub-
tle and sociologically founded accounts stress that judges are often recruited
from a particular social background, and that this background and the training
they receive make them systematically more receptive to certain claims than to

648 POLITICS & SOCIETY

others. The political bias model has two important problems. First, it cannot
delimit the area of political justice. If political trials were different because
their decisions manifest explicit or implicit judicial bias, which trials would
not be political trials? At the extreme, the political bias theory only states the
obvious: that the judiciary is never insulated from the political and social con-
text. Though valuable as a corrective to a purely legalistic understanding, this
model cannot point to a theory of political justice. Second, the political bias
model tends to be a rationalization for lost trials rather than an analytical
model. Friedrich Wolff, an East German lawyer with the rare distinction of first
defending scores of political defendants in the GDR and then defending the
former East German head of state Erich Honecker in court, accordingly states
in his book, titled Lost Trials 1953-1998: My Defenses in Political Cases, “All
cases that I thought were political trials were seen as unpolitical trials by the
prosecution and the judges. . . . My political trials are thus political trials
according to my interpretation.”58 If only lost trials are political trials, cases
will be “political” according to one party and “unpolitical” according to the
other party; and the model has little analytical value.

2. The political core model identifies political trials according to the area of law
and state activity they touch upon. It presumes that there is a “core” of state
activity that is “political” and thus the object of “political” trials.59 This center
of state activity is “immediately concerned with the conflicts about the type of
political system,”60 with the “protection of the state, the political order, its insti-
tutions and representatives, its symbols, and the political process of forming
opinions and majorities.”61 Political justice according to the “political core”
model takes place when the judiciary “takes on the task of defending the exist-
ing power structures in an unmediated way and thereby becomes a part of the
conflict about the political order.”62 This concept also raises serious problems.
First, the “political core” model views intense political conflict as a challenge
to the “core” of the polity. A concept of politics that centers on the preservation
of the state makes it harder to carve out a space for political arguments that are
not perceived as threats, and thus not liable to be criminalized. The nongovern-
mental party to a conflict is easily criminalized or vilified because conflict is
viewed as a threat to the state, and not just to a particular policy. In this model,
the “political core” of state activity is vigorously protected, even with means
that include the partial breakdown of the separation of powers and the vilifica-
tion of the perceived challenger to the state. Thus, the “political core” model
tends to condone the instances of political justice that it can identify. Second,
the approach not only adopts the perspective (though not always the point of
view) of the prosecuting party, but also tends to accept the existence of the two
problematic dimensions of political justice as necessary for warding off chal-
lenges against the state. If a conflict is portrayed as a threat to the state, the
challenger turns into an enemy of the state, and the standard procedural safe-
guards are thus more easily cast aside. Critics of political trials who adopt this
model therefore often feel the need to point out that the challengers on trial
were in fact no credible or imminent threat to the state.63 Finally, the “political
core” model operates with a too narrow and state-centered concept of politics.

CHRISTIANE WILKE 649

Politically contentious cases need not challenge the political system, and they
need not arise under laws designed to protect the state. Instead, political con-
flicts can concern important principles that do not challenge the political sys-
tem. For example, cases like Brown v. Board of Education (1954) or Roe v.
Wade (1973) concerned fundamental political issues, but not the continued
existence of the political system. So why should they not be viewed as poten-
tially political cases? It is obvious that a concept of politics that centers on the
preservation of the state is too narrowly concerned with some areas of law, at
the risk of neglecting other fields in which different political views are adjudi-
cated. The “political core” model is thus problematic because it views political
conflicts as challenges to the present political order in a way that gives too
much deference to the evaluation of the executive.

3. The political conflict model maintains that political justice describes trials in
which political adversaries use the court in order to have their claims legiti-
mized, and to change the distribution of political power.64 Political justice
according to this model is “a political conflict argued out with legal means.”65

The political conflict model presumes that the other party in court is a political
adversary and that the presence of this political adversary transforms the trial
into a “political” one. Some political trials follow this pattern, but others don’t.
In many political cases, the characters involved in the courtroom drama are
secondary because the dominant political aspect of the case is an issue, and not
a person. Moreover, the courtroom adversary might not be a competitor for
social or political power at all. Some defendants might have committed crimes
for political reasons but are not part of a sizable and coherent political group
that the state might take the trouble to delegitimize through legal proceedings;
such is the case with terrorists like Timothy McVeigh and the current slate of
Al Qaeda suspects. In these cases, the government does not want to criminalize
a political party through judicial action but wants public approval for the cho-
sen strategy in dealing with a perceived threat. The issue is certainly political,
but the persons in court are not political adversaries.

In sum, the three alternative definitions of political justice are not sufficient
because they implicitly take sides with either the state party (political core model)
or challengers who lost a case (the political bias model), or they narrow down the
number of potential political cases in accordance with a too narrow concept of
politics. In contrast to these three definitions, I propose a two-stage model: some
trials are politically contentious because they deal with politically salient issues.
Some of these trials, in turn, become instances of political justice because they
violate the separation of powers rules or vilify one party to the case. This defini-
tion does not place restrictions on the area of law under which the cases arise, and
it does not suppose that a case under the sedition laws is any more “political” than
a case about equal opportunity in education. This definition also does not adopt an
evaluation of actions as “political” or “unpolitical” by either party. And, finally,
this definition allows us to tell which trials are political trials regardless of which

650 POLITICS & SOCIETY

party has “won” and irrespective of whether the claims of the prosecution, of the
defense, or of certain political groups have been upheld.

In this model, political trials occur when at least one of two dimensions is pres-
ent: the violations of the separation of powers norms, and the construction of one
party to the case as a public enemy. However, this model is primarily based on the
U.S. post-9/11 cases. What are the limitations that arise from these sources? First,
the interlocking mechanisms of vilification and abridgment of the separation of
powers might be specific to terrorism cases—although this need not be the case.
Thus, it is possible to imagine other political-legal mechanisms that steer trials
away from the normal mode of interaction between the judiciary, the political
branches, and the public. Second, the U.S. cases arise in a context in which a
stated adherence to the rule of law, separation of powers, and nonvilification of
defendants is the norm. Political justice appears as an exception to that norm—an
exception that is triggered predominantly by the convergence of executive inter-
ference and vilification of the defendants or detainees. This model of political jus-
tice thus presupposes that the administration of justice normally operates in a dif-
ferent mode, and that political justice is the exception that needs a political
legitimation. Where show trials are the norm, this model of political justice has
only limited analytical purchase.

I will now introduce the idea of politically contentious cases and the two prob-
lematic dimensions of political trials, explain the dynamics arising from them,
and examine the U.S. post-9/11 trials in light of this model of political justice.

3.1. Politically Contentious Cases

Some cases raise politically salient issues. But how can we know which issues
are salient at any given time and place? I propose that a case is politically conten-
tious if one party credibly claims that the issues at stake are of central importance
to the political life of the jurisdiction in which the case arises. This criterion does
not rely on a consensus about whether any given case is “political.” It might
falsely identify some trials as “politically contentious” on the basis of fraudulent
claims about the political dimensions of a case. Still, since “politically conten-
tious” is not a reproach but an analytical category, it is better to scrutinize more
cases for the potential presence of the two troubling dimensions of political jus-
tice than to ignore some politically contentious cases altogether.

Why are the U.S. post-9/11 terrorism cases politically contentious? The gov-
ernment and the defense lawyers raised fundamental questions and suggested
answers to the courts. The government portrayed the cases as part of the “war
against terrorism.” It asked the courts to confirm the incommunicado detention
of citizens and foreigners as enemy combatants, and publicly questioned whether
the courts were up to the task of defending the country against terrorists. More
importantly, the government asked the courts to confirm their version of the politi-
cal reality—an open-ended war on a transnational terrorist network—against

CHRISTIANE WILKE 651

alternative interpretations. The lawyers for the detainees and defendants stressed
related questions: is the president authorized to declare persons enemy combat-
ants in a war undeclared by Congress and without review by the courts? How does
the law change when there is a war? Who can properly recognize “enemies,” and
how? Can information obtained from interrogations “on the battlefield” without
the presence of a lawyer be used in court?

The courts’ early answers to these questions often confirmed the administra-
tion’s outlook on the situation. The Supreme Court justices, though disagreeing
on the legal evaluations of the cases, repeatedly stressed the fundamental political
questions involved: the minority in Rasul v. Bush, for example, accuses the major-
ity of “an irresponsible overturning of settled law in a matter of extreme impor-
tance to our forces currently in the field.”66 In making this change, the minority in
Rumsfeld v. Padilla agrees, with the majority that the case is politically important.
Yet the majority disagrees with the minority’s account of the nature of the political
stakes.

At stake in this case is nothing less than the essence of a free society. Even more important
than the method of selecting the people’s rulers and their successors is the character of the
constraints imposed on the Executive by the Rule of Law. Unconstrained executive deten-
tion for the purpose of investigating and preventing subversive activity is the hallmark of
the Star Chamber. Access to counsel for the purpose of protecting the citizen from official
mistakes and mistreatment is the hallmark of due process.67

The plurality opinion in Hamdi v. Rumsfeld starts its attempt to strike a com-
promise between the interests involved by noting that “at this difficult time in our
Nation’s history, we are called upon to consider the legality of the government’s
detention of a United States citizen on United States soil.”68 The courts and the
Supreme Court justices were keenly aware of the political importance of these
cases. Their disagreements mainly stem from diverging evaluations of the rights
and interests at stake, not from a refusal to recognize the political significance of
their decisions. The political salience of cases raises the stakes, but it does not turn
them into instances of political justice. Still, these politically contentious cases
have the potential of turning into political justice. In the post-9/11 world, the pri-
mary mechanism by which politically contentious cases became instances of
political justice was the convergence of vilification and executive interference.

3.2. Political Justice I:
Overstepping the Boundaries of the Separation of Powers

The separation of powers imposes limits on the executive interference in the
ongoing judicial business. The institutional aspects of a court case can affect the
balance of powers between the three branches of government: which branch may
decide what, and in which procedure? In political trials, the most common viola-
tion of the rules establishing the separation of powers is the executive interference

652 POLITICS & SOCIETY

in judicial proceedings. The interference can be so extreme that the executive vir-
tually delivers the “script” of the trial in which the prosecution and the judges are
merely acting in their assigned roles.69 But not only totalitarian and authoritarian
regimes are liable to violating separation of powers rules in cases that are dear to
the government. The problem regularly appears—though to a lesser degree—in
constitutional democracies. In order to see why governments are tempted to over-
step the boundaries of the separation of powers, and why they nonetheless usually
refrain from it, it is necessary to consider the role that the separation of powers
plays with regard to judicial decisions.

Courts legitimize and authorize actions of the other, “political,” branches.
They can fulfill this task because they operate according to preestablished rules
and maintain their independence from the executive and the legislative. The
courts’ independence and the legality of the proceedings thus give the court deci-
sions their public legitimacy.70 And because the courts are relatively well insu-
lated against the claims of political power, they can also decide against the current
power holders. The legal and political ramifications of a politically contentious
case can be “almost as uncertain as the outcome of an election campaign.”71 In
order to reduce this uncertainty, those in positions of political power sometimes
try to take shortcuts when they insist that they cannot afford to lose the case. The
only way to secure a favorable outcome, of course, is by disregarding some of the
boundaries set by the separation of powers. The price to be paid for this transgres-
sion will be a lower political surplus value of the court decision. Court decisions
that seemed predetermined will not legitimize government action or convince
people to change their views on an issue.72

Governments face the dilemma of either being sure to win a case or being cer-
tain that the decision with an uncertain outcome will command public legitimacy.
Constitutions order governments to choose the second alternative, but govern-
ments sometimes find seemingly compelling reasons for why they cannot lose a
certain case even at the price of violating ordinary separation of powers rules. In
these cases, it is justified to speak of political justice. In the post-9/11 cases specif-
ically, the violation of the separation of powers was linked to a prior vilification
of the defendants or petitioners. The asserted dangerousness of a defendant or
detainee is one of the most convincing arguments to this effect. Indeed, the poten-
tial damage that could be inflicted by someone who was let free because of lack of
evidence or because he was “only planning” to commit terrorist acts would be
immense. And in times of public fear of further terrorist attacks, even a minimal
risk of another attack committed by one of the designated “enemy combatants”
can suffice to legitimize the detention policy in the eyes of a wary public. Ruth
Wedgwood, an advisor to the government, states that traditionally, the criminal
justice system is based on the assumption that cases might be lost and criminals
might wrongly be released. It might happen that a rapist goes free and assaults
more women. Yet the calculus is different, Wedgwood implores the readers, if you
are dealing with persons who might kill 100,000 people if they are not detained.73

CHRISTIANE WILKE 653

Such risk assessments, whether exaggerated or not, seem to introduce the “pre-
ventive strike” doctrine into criminal and administrative law. How would you
know that a defendant would be “going to do something to cause 100,000 casual-
ties,” and how justified could these beliefs be if judge and jury dismiss the evi-
dence? From this perspective, counterterrorism becomes an epistemological
problem. In the end, concurrence with presidential threat assessments might be
rooted in the simple fear of incurring a small risk of a large-scale attack by ques-
tioning executive authority.

In the U.S. post-9/11 terrorism cases, the government undermined the separa-
tion of powers rules mainly by two interlocking strategies. First, the administra-
tion consistently argued that courts should play no role in the conduct of warfare
and hence not challenge executive determinations in the context of the “war on
terrorism.” And, second, the establishment of military tribunals, or the threat
thereof, squarely challenged the jurisdiction of civilian courts. In addition, there
were restrictions on the defense—justified with regard to security concerns—in
the criminal cases, and lack of access to lawyers in the enemy combatant cases.
These restrictions also serve to either hinder the defense or prevent court cases
altogether, but they will not be discussed here. Instead I will concentrate on the
direct challenges to the courts’ authority.

First, the government argued that the courts are not entitled to review gov-
ernment determinations of who is an enemy combatant and which witnesses in
Pentagon custody can be interviewed. In the case of José Padilla, judges were
warned not to second-guess the military’s enemy combatant determination.
Doing this, the prosecution argued, would interfere with the constitutional pre-
rogatives of the commander in chief.74 Even a writ of habeas corpus would “inter-
ject this court into the president’s conduct of ongoing hostilities.”75 This strategy
could only succeed because the government could convince the courts that the
detentions and the interrogations in Afghanistan, South Carolina, and Guantán-
amo are part of an ongoing war, so that any procedural hurdles or judicial review
would move the battlefield into the courtroom.76 The enemy appears not as a
person, but as a danger to be contained.

In Hamdi v. Rumsfeld, the separation of powers perspective shaped the jus-
tices’ responses to the question of whether there was a congressional authoriza-
tion for the detention. To be legal, the detention of Hamdi needed to be part of the
military campaign that was authorized by Congress, as the plurality holds. The
opinions by Justice David Souter (concurring in part and dissenting in part) and
Justice Scalia (dissenting) argue that the presumed authorization is too vague to
allow such grave deprivations of liberty like the potentially indefinite detention of
citizens as enemy combatants.77 Both opinions explicitly argue that finding an
authorization in a vague congressional resolution would give the executive pow-
ers that jeopardize the separation of powers—in relation to both Congress and the
judiciary.

654 POLITICS & SOCIETY

The separation of powers perspective controls not only the issue of an alleged
authorization of the detention, but also the decision on what procedure Hamdi is
entitled to in order to challenge his status. The more procedural rights Hamdi is
accorded, the less will the government’s determination be taken at face value, and
the more will the government have to give public and substantiated reasons for his
continued detention. According to the view of the administration, any judicial
inquiry into the enemy combatant designations would be a challenge to executive
authority. Yet any measure of procedure accorded to Hamdi could strengthen the
legitimacy of the detention by subjecting it to added independent scrutiny. To be
sure, judicial inquiries into the grounds of the detention could also reveal that the
detention was unjustified.

In the Guantánamo case (Rasul v. Bush), the justices again stress the implica-
tion of the decision for the separation of powers. While the majority rules on very
narrow grounds by comparing the facts in the case with the facts in the alleged
precedent of Eisentrager, the concurring opinion by Justice Anthony Kennedy
explicitly stresses the separation of powers aspect. Granting that Eisentrager
“indicates that there is a realm of political authority over military affairs where the
judicial power may not enter,” he stresses, “a necessary corollary of Eisentrager is
that there are circumstances in which the courts maintain the power and the
responsibility to protect persons from unlawful detention even where military
affairs are implicated.”78 The dissenters also view the scope of executive power as
the primary issue at stake, but they disagree with the majority on how the interest
of the executive in its own unchallenged power should be balanced against the
interest of the detainees in challenging their status: “The Commander in Chief and
his subordinates had every reason to expect that the internment of combatants at
Guantanamo Bay would not have the consequence of bringing the cumbersome
machinery of our domestic courts into military affairs.”79 In sum, the Guantánamo
Supreme Court decision clearly justified the expansion of judicial authority
against the strongly voiced claims of the executive by the need to safeguard
detainees against potentially illegal detention—against a dissenting opinion that
finds greater virtue in heightened deference to the executive in wartime.

Second, in the terrorism trials the civilian courts were reminded that military
tribunals constitute another available option in the “war on terrorism.” The gov-
ernment asked the courts to play their part by allowing the incapacitation of
enemy combatants through continued detention and without concrete charges by
privileging the military over the juridical logic.80 Courts were expected to justify
the government’s treatment of enemy combatants and terrorism suspects and to
satisfy the public’s wish for the legitimacy of legality. Courts were hailed as long
as they fulfilled these expectations. When John Walker Lindh pleaded guilty, a
government attorney interpreted this as a victory for the American people, adding
that the case shows that the criminal justice system is suitable for combating ter-
rorism.81 On the other hand, when the prosecution and the judge had diverging

CHRISTIANE WILKE 655

assessments about the conditions needed for a fair trial, the idea of military tribu-
nals reemerged. Suddenly, what is at stake in the Moussaoui case is whether the
courts can still be an option in the war on terror.82 The cases were pictured as
challenges to the courts, and the courts might fail.

Normally the government cannot remove cases from civilian courts unless it
wishes to drop the indictment. In the post-9/11 cases, however, the government
has carved out a novel legal space where the cases can be transferred to military
tribunals. These tribunals emanate from a presidential order issued on November
13, 2001. As of July 2005, only 4 of about 560 detainees have formally been
charged. Moreover, the legality of the entire procedure is in doubt.83 Still, the
option of switching to military tribunals was consistently part of the discussions
in the cases. “Given the danger to the safety of the United States and the nature of
international terrorism,” declares the executive order, “it is not practicable to
apply in military commissions under this order the principles of law and the rules
of evidence generally recognized in the trial of criminal cases in the United States
district courts.”84 Military tribunals differ from federal courts not only in the pro-
cedures and laws that are applied. Military tribunals are established under the aus-
pices of the executive power and are not independent courts. Both the prosecutors
and the commissioners in military tribunals are military officers and “are ulti-
mately answerable to the Secretary of Defense and the President.”85 Moreover, the
rules according to which the detainees might be tried are also devised by the exec-
utive branch. The tribunals’ decisions are beyond judicial review, as the Military
Tribunals Order states: persons convicted by a military tribunal “shall not be priv-
ileged to seek any remedy” in any court of the United States, any foreign court, or
any international tribunal.86 Once a case is in the military tribunals system, it will
never again be subject to normal independent judicial review.

Decisions issued by these military tribunals would not carry the legitimacy that
the federal court decisions still have in spite of executive incursions into the pro-
ceedings. This might be a reason why the government in practice preferred federal
criminal courts to military tribunals. Yet, since the tribunals are established while
the federal courts are working, the prosecution can at least threaten to move the
case to a “safer” venue in case the courts do not accept the government claims.
The criminal trials were influenced by the background threat of a “streamlined”
procedure in military tribunals for cases which civilian courts could not handle.
The detainees who lodged habeas petitions, however, complained that they had
not even had the benefit of a military tribunal procedure. Given the legal dispute
on the military commissions, it is not likely that these commissions will be used to
a significant degree. For the Guantánamo detainees, the most likely path to being
released is a determination by an “administrative review board” that they do not
pose a threat anymore—that they ceased to be enemies, irrespective of whether
they have committed war crimes.

656 POLITICS & SOCIETY

In sum, the post-9/11 terrorism cases were explicitly viewed through the lens
of the separation of powers. The executive wanted the war powers expanded to
include detentions of enemy combatants at home and abroad. Based on assess-
ments of the risks of letting terrorism suspects go free, some federal courts ini-
tially acquiesced to the stipulations of the executive. The Supreme Court, how-
ever, strongly asserts that courts have to play a role in these policy areas: “[I]t does
not infringe on the core role of the military for the courts to exercise their own
time-honored and constitutionally mandated roles of reviewing and resolving
claims like those presented here.”87 Yet it took the courts more than two years to
develop a consistent and independent position on these urgent matters, and the
actual improvement of the legal status of the designated enemy combatants is still
limited as the litigation over the scope and depth of the procedure accorded to the
detainees is ongoing.88

3.3. Political Justice II:
Constructing Public Enemies

The second problematic dimension of political justice is the construction of
one party as a public enemy. At a minimum, the allusions to “war” and “enemies”
suggest the plausibility of relaxed standards. At the extreme, the enemy designa-
tion denies the other’s legal and moral personality. Public vilification can there-
fore legitimize infringements on defendants’ rights and violations of the separa-
tion of powers rules. In a constitutional democracy, the sustained exercise of
political justice in violation of procedural standards and the separation of powers
needs a legitimation.89 The construction of a “clear and present danger” posed by
a dangerous enemy is a frequent rationale for such a slighting of the rule of law
standards. The “enemy” in these cases is not the traditional belligerent who shares
notions of the laws and customs of war with the adversary. Rather, the enemy fig-
ure used in the “enemy combatant” designations is at the intersection of a tradition
in Western thought about the laws of war that excludes certain enemies from the
law, and a concept of the enemy proposed by Carl Schmitt.

Within the codified international law of armed conflict as well as within politi-
cal thought on war, we find at least two different ideas of the enemy. Some ene-
mies are defined and recognized by the law, and other enemies are recognized by
the law only insofar as they are placed beyond it. Articles 4 and 5 of the Third
Geneva Convention, for example, define those participants in war who are enti-
tled to the protected prisoner of war status when they are captured. They can be
tried for war crimes, and their enemy status is legally bounded and regulated.
Those who fall outside the definition of these articles, in contrast, are enemies
beyond the specific scope of the convention. This bifurcation of the enemy status
in the Geneva Conventions—which is often assumed to be no longer operative—
is a reflection of a much older distinction in Western thought about international
norms: for many thinkers, these norms primarily apply to what they call Christian

CHRISTIANE WILKE 657

or civilized states; and the rules for fighting Christian enemies and fighting those
who are outside the scope of these norms are very different. For example, the 1912
edition of Lassa Oppenheim’s seminal international law treatise states that inter-
national law is the “body of customary and conventional rules which are consid-
ered legally binding by civilized States in their intercourse with each other.”90 The
scope of the application of these rules is determined by the “facts of the present
international life.”91 There are states—Oppenheim lists “Persia, Siam, China,
Morocco, Abyssinia, and the like”—where “civilization has not yet reached that
condition which is necessary to enable their governments and their population in
every respect to understand and carry out the command and rules of International
Law.”92 Reciprocity demands that the rules of international law can only be
applied in relation to actors who can equally be expected to observe them: “[I]t is
discretion, and not International Law, according to which the members of the
Family of Nations deal with such states as still remain outside that family.”93 Out-
side of the “family of nations” there is no law, but only ethics and policy. This dis-
tinction is based on the assumption that some actors do not merely violate interna-
tional law, but they don’t recognize it even in its violation. Because international
law needs to rely on reciprocity, it cannot be applied in relation to those who can-
not be expected to apply it. The others presumed lawlessness thus turns into a jus-
tification for placing them beyond the law. The reciprocity-based idea of interna-
tional law has, as far as basic norms on the treatment of persons are concerned,
largely been superseded by the universalizing logic of human rights. These rights
are thought to be universal regardless of express consent. If the treatment of
detainees was based on the human rights framework, the reciprocity-based argu-
ment would therefore have no purchase. The relatively wide acceptance of the
reciprocity-based argument about the Geneva Conventions in the “war on terror”
indicates, however, that the older limited and reciprocity-based view of the law of
war has not completely lost its traction. The “discretion” in the treatment of
enemies beyond the law allowed by the reciprocity concept of international
obligation is filled with other, related notions of the enemy.

In the post-9/11 cases, the enemy beyond the law resembles the Schmittian
enemy:94 the enemy is not a competitor for political power but “existentially
something different and alien.” He “intends to negate his opponent’s way of life
and therefore must be repulsed or fought in order to preserve one’s own form of
existence.”95 This is an extreme characterization of an ideal-type enemy from
which the U.S. government has borrowed in this and other occasions. Enemies
can be created and shaped in political discourse. The terrorist, for example, “could
be made to take on all characteristics that the accusing party decided upon.”96 The
image of the terrorist enemy draws on real-world events but interprets them to suit
preconceptions about the moral character of the specific enemy: rational and cal-
lous, ruthless, or irrational and fanatic. There is a long history of Western societies
imagining different groups of Muslims and Arabs as existential enemies.97 Carl
Schmitt himself uses such an example to illustrate the apparent plausibility of his

658 POLITICS & SOCIETY

enemy model that does not allow for compromise: “Never in the thousand-year
struggle between Christians and Moslems did it occur to a Christian to surrender
rather than defend Europe.”98 If the conflict is pictured as existential, there are no
independent third parties or legal rules common to both adversaries. The sover-
eign “decides” on the “enemy.” In this stark view of the “enemy,” neither law nor
independent judgment nor the idea of a justiciable offense have a place. This stark
portrayal of the “existential enemy” helps to identify the elements from which the
Bush administration’s rhetoric borrowed.

At first, the administration tried to argue that the Guantánamo detainees (and
those detained in undisclosed locations abroad as well as some of the detainees in
the continental U.S.) are prisoners of war—traditional belligerents bound by the
common laws of war. But the administration backtracked from this designation
insofar as it would have implied according the detainees the protections of the
Geneva Conventions. The administration thus created a novel legal category that
resonated with the war language without imposing legal obligations on the gov-
ernment. The categories of “illegal combatant,” “enemy combatant,” and “unlaw-
ful enemy combatant” are poorly defined.99 They have the effect of placing the
designated enemy outside the law and beyond justice. According to President
George W. Bush, Padilla is “a bad guy” who is “where he needs to be, detained.”100

The “enemy combatant” cases highlight another crucial element of the desig-
nation of persons as “enemies” as distinct from criminals. Criminals are judged
on what they could be shown to have done. “Enemies,” in contrast, are judged by
their stipulated hostile commitment that constitutes them as an abstract threat. For
dealing with enemies, prevention rather than punishment is the rule. The intro-
duction of the “preventive strike” doctrine into criminal and administrative law is
based on the logically prior designation of the detainees as dangerous and unpre-
dictable public enemies by the president.

Where there are enemies, war is not far behind.101 The almost unanimous
description of the situation as a war, even after major fighting in Afghanistan
ended and before the war in Iraq started, is noteworthy.102 The state of war inten-
sifies the political friend/enemy distinction, legitimizes heightened executive
power, and paves the way for the detention of enemies during wartime. Given the
description of the task of the war, there is no foreseeable end to the regime of
exceptionalism. The war language implies that the courtroom case was not the
United States versus Zacarias Moussaoui, but the United States versus the Enemy.
Far from affirming the value of adversarial proceedings, the war language of the
administration suggests a strict friend/foe distinction. And how could a court rule
against the United States in such a context? Can a court even be “independent” in
adjudicating between the U.S. and an enemy? It is the state, according to Carl
Schmitt, which decides on who is an enemy; and conflicts among enemies “can
neither be decided by a previously determined general norm nor by the judgment
of a disinterested and therefore neutral third party.”103 The U.S. government is not
following a purely Schmittian line. Yet by portraying the defendants or petitioners

CHRISTIANE WILKE 659

as enemies against whom the U.S. needs to be defended, the government suggests
that they are beyond the law, and that any legal process they are accorded is a mat-
ter of policy or grace, but not of rights: “This nation’s enemies may not enlist
America’s courts to divert efforts and attention from the military offensive abroad
to the legal defensive at home,” as Attorney General John Ashcroft put it.104 Thus,
if enemies are not criminals but are a danger beyond guilt and innocence, and
civilian courts might interfere with the conduct of warfare, the prospect of mili-
tary tribunals or prolonged detention without access to the judicial system seems
acceptable.

With the exception of Justice Thomas in his dissent in Hamdi v. Rumsfeld, none
of the Supreme Court justices subscribe to the view that enemy combatant desig-
nations cannot be subject to review. But are the other justices convinced that
Hamdi, Padilla, and the Guantánamo detainees are not really the enemies they
were portrayed as? The decisions suggest that the Supreme Court justices have no
doubt that at least some of the detainees might warrant a designation as public
enemies. Yet in their view, judicial procedures are capable of finding the enemies
among the detainees. “Indefinite detention without trial or other proceeding,”
argues Justice Kennedy, concurring in the Guantánamo decision, “allows friends
and foes alike to remain in detention.”105 He does not object to “foes” being in
detention, but trusts in the ability of judicial procedures to tell friends from foes.
This reasoning applies to the Guantánamo detainees, who are not U.S. citizens. In
the case of U.S. citizen Yaser Hamdi, however, both Justice Souter and Justice
Scalia dispute that an enemy combatant status distinct from the status of a crimi-
nal is necessary or legal. In reviewing the presumed congressional authorization
for the enemy combatants designations, Justice Souter argues,

There is no reason to think Congress might have perceived any need to augment Executive
power to deal with dangerous citizens within the United States, given the well-stocked stat-
utory arsenal of defined criminal offenses covering the gamut of actions that a citizen sym-
pathetic to terrorists might commit.106

Justice Scalia, pointing to previous wars in U.S. history, argues that “where the
Government accuses a citizen of waging war against it, our constitutional tradi-
tion has been to prosecute him in federal court for treason or some other crime” as
long as habeas corpus is not suspended by Congress.107 The idea that there could
be a status of an enemy that is distinct from that of a criminal by being outside the
categories of criminal guilt and innocence raised more objections when it was
applied to U.S. citizens than when it was applied to other persons. Still, the plural-
ity opinion holds that “there is no bar to this Nation’s holding one of its own citi-
zens as an enemy combatant.”108 Eventually, we are led to believe, the enemy
status trumps the citizenship status.

The Court opposed the government’s infringements of separation of powers
rules more than it opposed the idea that some of the persons involved in the cases

660 POLITICS & SOCIETY

are public enemies. However, by requiring some procedure to review the enemy
combatant designations, the Supreme Court changed the nature of these designa-
tions: they are no longer decisions beyond review and appeal based on few or no
publicized facts—quasi-Schmittian sovereign decisions. Instead, the designation
of someone as an enemy combatant under the Supreme Court guidelines would
get closer to a rational administrative decision for which reasons have to be given,
and which might be tested in court according to preexisting general standards.
The enemy status is almost converted from a Schmittian “political” decision into a
“liberal” legal determination; it is hedged within the confines of the law. Still, the
Supreme Court leaves the purpose of this enemy designation—the enemy, once
properly designated, is beyond the law—intact.

The Supreme Court uses similar arguments for answering the question of
whether there is an ongoing war that might be complicated by adding legal
requirements for executive actions. The question was answered in the affirmative:
“Active combat operations against Taliban fighters apparently are ongoing in
Afghanistan.”109 Yet the existence of a war does not mandate the silence of the
courts, as both the plurality and a dissenting opinion point out: “We have long
since made clear that a state of war is not a blank check for the President when it
comes to the rights of the Nation’s citizens.”110 Justice Scalia argues explicitly that
the Constitution is no stranger to the state of war:

Whatever the general merits of the view that war silences law or modulates its voice, that
view has no place in the interpretation and application of a Constitution designed precisely
to confront war and, in a manner that accords with democratic principles, to accommo-
date it.111

War does not appear as an extralegal event unforeseen by an old Constitution,
but it is hedged within the constitutional rules and precedents. Thus both the pub-
lic vilification of detainees with their designation as “enemy combatants” and the
description of the political context as a “war on terrorism” are curtailed but largely
accepted by the Supreme Court. Yet the Court undermines the traction of the
“enemy” and “war” language by nevertheless requiring some form of judicial
proceedings for the detainees. Had the government’s claims about the “enemies”
found less acceptance, the Court might have accorded the detainees more robust
procedural rights. Now an enemy combatant who is a U.S. citizen is merely enti-
tled to “notice of the factual basis for his classification, and a fair opportunity to
rebut the government’s factual assertions before a neutral decisionmaker.” In the
proceeding, hearsay evidence can be admitted, and “the Constitution would not
be offended by a presumption in favor of the government’s evidence, so long as
that presumption remained a rebuttable one and fair opportunity for rebuttal were
provided.”112 If the current implementation of this standard is approved by the
judiciary, Guantánamo Bay and other places will remain a “permanent space of
exception” (Agamben). These spaces are not outside of the law—the applicable

CHRISTIANE WILKE 661

legal regulations are too dense to allow such a claim. Rather, the situation is pecu-
liar in that the detainees are in a place of rightlessness in a context that is not law-
less. The law, however, fails to recognize them as full persons that become
subjects, and not mere objects, of the law.

In sum, the language of enemies and war helped to suggest that the detainees
and defendants in the post-9/11 cases do not have the same rights as other persons
would have. Enemies are not guilty of specific acts, but they are abstractly danger-
ous. According to the administration’s views, the status of an “enemy” is not sub-
ject to review. This view was largely upheld by the lower courts but was only par-
tially shared by the Supreme Court. Although the Supreme Court accepted the
suggestion that there are enemy combatants who are not criminals and yet need to
be detained, the Court subjects the decision about the enemy combatant status to a
limited form of judicial process.

IV. CONCLUDING EVALUATIONS

The post-9/11 terrorism trials in the U.S. inevitably stirred emotions and
prompted discussions about the responsibility for the attacks, the status of Al
Qaeda and the Taliban, and the reasonable scope of civil liberties. The cases that
found their way to the courts were bound to be politically contentious. It was not
inevitable, however, that the administration would turn most of these cases into
political justice by interfering with judicial proceedings, portraying the defen-
dants as enemies beyond the law, and literally trying to enlist the courts in the war
against terrorism. This executive-dominated political justice even jeopardized the
“image-creating capacity” (Kirchheimer) of the trials. Over time, the importance
of the strict criminal justice framework in the “war on terror” declined. The
administration went beyond even the “criminal law for enemies” and used means
of executive detention entirely unconnected to any reproach of past wrongdoing.
As of July 2005, only 4 out of more than 560 detainees at Guantánamo Bay have
been charged with any crimes.113 This shift from criminal law to detention is based
not only on practical but also on ideological considerations: during the 2004 pres-
idential election campaign, Vice President Dick Cheney warned that a Demo-
cratic administration would pose a danger to national security because it would
fall back into the pre-9/11 mindset of assuming that terrorist attacks are criminal
acts, and that there is no war.114

The post-9/11 trials demonstrate the attractions and dangers of highly politi-
cized cases in times of public fear. The omnipresent language of enemies and war
was clearly meant to legitimize the abrogation of defendants’ rights and limits on
courts’ autonomy. In the cases concerning the detention of enemy combatants, the
war talk was effectively used for introducing the “preventive strike” doctrine into
criminal law—or for going beyond criminal law altogether. Accordingly, the
problems with political trials are not limited to issues that can be neatly described
as “human rights” or “rule of law issues.” The violation of the separation of pow-

662 POLITICS & SOCIETY

ers rules is predicated upon a political designation of persons as enemies beyond
the law. This designation diminishes or denies the detainees’ legal personality. In
order to reverse the legal surface of the situation exemplified by Guantánamo Bay,
these underlying vilifications need to be addressed. Only when the detainees are
publicly imagined as persons whose pain, fear, hopes, and rights have to be taken
into account by others will they be able to gain standing as full legal and moral
persons. Yet only little information about the detainees and their experiences is
available. A letter written by Moazzam Begg, a UK citizen detained by U.S. and
Pakistani authorities on January 31, 2002, and since held as Bagram Air Base and
then Guantánamo Bay, sheds a bit more light on the experiences of persons who,
for example, had not seen daylight or fresh food for a year, and who had been sub-
jected to psychological and physical mistreatment. Any statements he made,
writes Begg, “were signed and initialed under duress”:

The said interviews were conducted in an environment of generated fear, resonant with ter-
rifying screams of fellow detainees facing similar methods. In this atmosphere of severe
antipathy toward detainees was the compounded use of racially and religiously prejudiced
taunts. This culminated, in my opinion, with the deaths of two fellow detainees, at the
hands of US military personnel, to which I myself was partially witness.115

In spite of this treatment and his almost complete isolation, Begg continues,
“I have maintained a compliant and amicable manner with my captors, and a co-
operative attitude.”116 Moazzam Begg and three other UK citizens were released
from Guantánamo Bay in January 2005.117 After a brief questioning by the British
police, they were released without charges.118 Their release was not obtained on
the level of law alone: being citizens of a key U.S. ally in the war on terror, they
had a government that could (and finally did) press for their release. From the
point of view of the UK public, the four were primarily citizens, and maybe sec-
ondarily criminal suspects. They were not released from Guantánamo Bay for
being nonenemies, or human beings, but for being citizens of a close ally. For the
purpose of achieving their release, their humanity was mediated through their
citizenship.

What are the potential and limit of litigation in these cases? U.S. courts have
taken different positions on the rights of detainees and the scope of executive
power to detain or try them. There is no clear tendency to raise the evidential and
procedural thresholds for detention in favor of the detainees. The most recent
decisions in the case of Salih Ahmed Hamdan demonstrate that the detainees
should not pin their hopes on the judiciary: while a district court found the “mili-
tary commissions” for trying Guantánamo detainees in violation of standing
law,119 an appeals court reversed this decision,120 allowing the commissions with
curtailed procedure to continue. Courts seem indeed more vigorous at rejecting
one dimension of political justice (the violation of the separation of powers rules)
than the other dimension (the vilification of the defendants and detainees). When

CHRISTIANE WILKE 663

courts counter unreasonable claims of authority from the executive, their action
coincides with their institutional self-interest in having a role in an important area
of U.S. policies. The de-vilification of the detainees and defendants, it seems, will
not primarily be achieved in the courts.

NOTES

1. Former U.S. Attorney General John Ashcroft, statement before the Senate Judi-
ciary Committee, quoted from “U.S. Detention of Aliens in Aftermath of September 11
Attacks,” American Journal of International Law 96, no. 2 (2002): 473.

2. See Joseph Lelyveld, “Interrogating Ourselves,” New York Times Magazine, June 12,
2005.

3. See, for example, Scott Shane, “Detainee’s Suit Gains Support from Jet’s Log,” New
York Times, March 29, 2005, on the case of Maher Arar, a Canadian “rendered” by U.S.
authorities to Syria.

4. See Günther Jakobs, “Bürgerstrafrecht und Feindstrafrecht,” Höchstricherliche
Rechtsprechung Strafrecht (2004): 88-95.

5. Ibid.
6. Lords of Appeal, Judgment in the Cause A and Others v. Secretary of State for the

Home Department, and X and Another v. Secretary of State for the Home Department, 2004
UKHL 56. Decision of December 16, 2004.

7. Jakobs, “Bürgerstrafrecht und Feindstrafrecht,” 88. Jakobs treats “enemies” and “cit-
izens” as opposites. Thereby he alludes to the more common opposites associated with
these terms: “enemies” are opposed to “friends,” and “citizens” to “foreigners.” The con-
clusion that “citizens” are “friends” and “enemies” are “foreigners” (or “foreigners” are
“enemies”) is not suggested by Jakobs. Still, Jakobs’s odd opposition calls for a closer
examination of the connection between citizenship and the enemy status. This issue also
appeared directly in the U.S. cases. See, for example, George Fletcher, “Citizenship and
Personhood in the Jurisprudence of War,” Journal of International Criminal Justice 2, no. 4
(2004): 953-66.

8. On the criteria for the military tribunals, see Presidential Military Tribunals Order,
November 13, 2001, available at http://www.whitehouse.gov/news/releases/2001/11/
print/20011113-27.html (accessed July 19, 2005). Senator Joseph Lieberman (D-CT)
immediately suggested trying Moussaoui in one of these tribunals; see Don van Natta with
Benjamin Weiser, “Compromise Settles Debate over Tribunal,” New York Times, Decem-
ber 12, 2001; and Robert Jackson, “Pentagon Argues Case for Military Tribunals System,”
Los Angeles Times, December 13, 2001.

9. See Philip Shenon, “Terror Suspect Says He Wants U.S. Destroyed,” New York Times,
April 23, 2002.

10. See Neil Lewis, “Defendant in Sept. 11 Plot Accuses Judge of Trickery,” New York
Times, June 26, 2002.

11. See Philip Shenon, “Terror Suspect Says He Wants U.S. Destroyed,” New York
Times, April 23, 2002; and Brooke Masters, “Defiance Could Delay Terror Trial:
Moussaoui Refuses to Meet Psychiatrist,” Washington Post, May 16, 2002.

13. See Philip Shenon, “Lawyers Seek Information behind Theory on Hijacking,” New
York Times, April 25, 2003; and “Crime and Justice,” editorial, Washington Post, March
27,2003.

13. See Richard Serrano, “Moussaoui Pleads Guilty to Terror Plot,” Los Angeles Times,
April 23, 2005.

664 POLITICS & SOCIETY

14. There was consensus that Lindh had voluntarily chosen to be an enemy. Some criti-
cized the president’s military tribunals order for not including citizens: “[O]ne’s status of
fighting for the enemy, not one’s status as a noncitizen,” should be decisive, according to
law professor David Cole; see Brooke Masters and Edward Walsh, “U.S. Taliban Fighter to
Have His Rights, Rumsfeld Says,” Washington Post, December 5, 2001; also see Edward
Epstein, “Boxer Says Marin Taliban Should Face Court-Martial,” San Francisco Chroni-
cle, December 19, 2001.

15. See, for example, Jim Wooten, “Trials Would Give Enemies an Advantage,” Atlanta
Journal—Atlanta Constitution, December 16, 2001.

16. For a defense statement, see Richard Serrano, “Lindh Team Offers List of Abuses,”
Los Angeles Times, March 23, 2002. The descriptions seemed rather unlikely at the time,
but seem much more plausible now after similar forms of abuse have been reported from
Iraq and other detention centers in Afghanistan.

17. See Edward Epstein, “Prosecutors Belittle Lindh’s Brutality Claim,” San Francisco
Chronicle, July 2, 2002.

18. Legal commentators frequently remarked that the charges were weak and changing,
so the prosecution had to rely on the symbolic meaning of Lindh’s actions and statements
in addition to the scattered evidence; see Leon Friedman, “It Won’t Be Easy to Convict
John Walker,” New York Times, December 29, 2001; and Naftali Bendavid, “Analysts See
Trouble Spots in Legal Case against Lindh,” Chicago Tribune, February 10, 2002.

19. David Pace, “Lindh Torture Claims Disputed; Government Fights Bid to Exclude
His Statements from Trial,” Houston Chronicle, July 3, 2002.

20. Wayne Washington, “Suspect in Bomb Attempt Indicted,” Boston Globe, January
17, 2002.

21. Shelley Murphy, “Defiant Reid Pleads Guilty,” Boston Globe, October 5, 2002.
22. Pam Belluck, “Unrepentant Shoe Bomber Sentenced to Life,” New York Times,

January 31, 2003.
23. Dan Eggen and Susan Schmidt, “‘Dirty Bomb’ Plot Uncovered, U.S. Says,” Wash-

ington Post, June 11, 2002.
24. Patrick Tyler, “A Message in An Arrest,” New York Times, June 11, 2002.
25. News briefing by Secretary of Defense Donald Rumsfeld. Quoted from U.S.

Supreme Court, Rumsfeld v. Padilla, No. 03-1027. Decision of June 28, 2004. Justice John
Paul Stevens, dissenting, 11.

26. Ruth Wedgwood, “The Enemy Within,” Wall Street Journal, June 14, 2002.
27. Victoria Toensing, “Citizenship Doesn’t Matter,” USA Today, June 14, 2002.
28. Douglas Kmiec, “This Is War, and Military Justice Is Appropriate,” Los Angeles

Times, June 14, 2002.
29. Padilla v. Rumsfeld, No. 4445, Motion to Dismiss Amended Writ of Habeas Corpus

in the U.S. District Court for the Southern District of New York, June 26, 2002, 7.
30. See Carl Schmitt, The Concept of the Political, trans. George Schwab (1932; reprint,

Chicago: University of Chicago Press, 1996), 27.
31. Jakobs, “Bürgerstrafrecht und Feindstrafrecht,” 92.
32. Hamdi v. Rumsfeld, Decision of June 28, 2004, No. 03-6696.
33. Brooke Masters, “Access to Lawyers Ordered for Detainee,” Washington Post,

May 30, 2002.
34. U.S. 4th Circuit Court of Appeals, Hamdi v. Rumsfeld, No. 02-6895. Decision of

July 12, 2002. Also see Philip Shenon, “Appeals Court Keeps American Detainee and His
Lawyer Apart,” New York Times, July 13, 2002.

35. Michael Mobbs, “Declaration”, August 27, 2002, 2.

CHRISTIANE WILKE 665

36. U.S. 4th Circuit Court of Appeals, Hamdi v. Rumsfeld, No. 02-7338. Decision of
January 8, 2003, p. 37.

37. Ibid., 38.
38. Hamdi v. Rumsfeld, Justice Sandra Day O’Connor, plurality opinion, at 9, 10.
39. See Tim Golden, “After Terror, a Secret Rewriting of Military Law,” New York

Times, October 24, 2004.
40. The creation of spatial exceptions in areas of de facto control is not new; see the

Supreme Court decision in Johnson v. Eisentrager, 339 U.S. 763 (1950).
41. Giorgio Agamben, Means without Ends: Notes on Politics (Minneapolis: Univer-

sity of Minnesota Press, 2000), 44.
42. On the decisions of the trial courts and the appeals courts, see “Ability of Detainees

in Cuba to Obtain Federal Habeas Corpus Review,” American Journal of International
Law 96, no. 2, 481-82; Neely Tucker, “Judge Denies Detainees in Cuba Access to U.S.
Courts,” Washington Post, August 1, 2002; Henry Weinstein, “Suit on Behalf of Prisoners
Blocked,” Los Angeles Times, November 19, 2002; and Neil Lewis, “Bush Administration
Wins Court Victory on Guantánamo Detentions,” New York Times, March 12, 2003.

43. U.S. District Court for the District of Columbia, Rasul v. Bush, No. 02-299. Deci-
sion of July 31, 2002, 30.

44. The recent District Court decision invalidating the Military Commission process for
different reasons does not increase the likelihood that the “enemy combatants” will be
charged with any war crimes: it seems easier for the government to continue the detention
under the enemy combatant rationale than to comply with the demanded changes in the
Military Commission procedure. See U.S. District Court for the District of Columbia,
Hamdan v. Rumsfeld, No. 04-1519. Decision of November 8, 2004.

45. See Tim Golden, “Tough Justice: Administration Officials Split over Stalled Mili-
tary Tribunals,” New York Times, October 25, 2004; and Neil Lewis, “Guantánamo Prison-
ers Getting Their Day, but Hardly in Court,” New York Times, November 8, 2004.

46. Rasul v. Bush, No. 03-334. Decision of June 28, 2004.
47. The petitioners in the Rasul et al. and Odah et al. cases that were joined by the

Supreme Court were Kuwaitis and Australians. The Court did not indicate whether this
reasoning would apply to citizens of Afghanistan as well. However, since citizenship is
only one of many criteria, it may be assumed that the decision also applies to Afghan
citizens.

48. Also see Fletcher, “Citizenship and Personhood,” 963.
49. Rasul v. Bush, Justice Stevens, majority opinion, 7-8.
50. Ibid., 9.
51. Ibid., 16-17.
52. See Neil Lewis, “Ruling Lets U.S. Restart Trials at Guantánamo,” New York Times,

July 16, 2005.
53. The initial hard line of the prosecution in terrorism-related cases seems to have

relaxed after more than two years. Recently, prosecutors in a Detroit case against a sus-
pected “sleeper cell” asked the judge for a reversal of a conviction and a retrial after dis-
covering misconduct by the prosecutor in the original case. Evidence contrary to the prose-
cution’s theory had been ignored, and the court, the jury, and the defense had been misled
about evidence. The first prosecutor is being investigated for misconduct. See Danny
Hakim, “Judge Reverses Conviction in Detroit ‘Terrorism’ Case,” New York Times,
September 3, 2004.

54. See Günther Jakobs, “Das Selbstverständnis der Strafrechtswissenschaft vor den
Herausforderungen der Gegenwart,” in Die Deutsche Strafrechtswissenschaft vor der

666 POLITICS & SOCIETY

Jahrtausendwende, ed. Albin Eser, Winfried Hassemer, and Björn Burkhardt (Munich:
C. H. Beck, 2000), 53.

55. Benjamin Constant, “The Spirit of Conquest and Usurpation and Their Relation
to European Civilization,” in Benjamin Constant: Political Writings, ed. Biancamaria
Fontana (Cambridge: Cambridge University Press, 1988), 61.

56. Editorial footnote in Constant, “The Spirit of Conquest,” 61.
57. This is Ernst Fraenkel’s definition of political justice as distinct from his analysis

of class justice; see Ernst Fraenkel, Zur Soziologie der Klassenjustiz (1931; reprint,
Darmstadt, Germany: Wissenschaftliche Buchgesellschaft, 1968), 26.

58. Friedrich Wolff, Verlorene Prozesse 1953-1998: Meine Verteidigungen in
politischen Verfahren, 2nd ed. (Baden-Baden, Germany: Nomos Verlag, 1999), 7.

59. This model has often been used in analyses of German postwar political trials.
See, for example, Alexander von Brünneck, Politische Justiz gegen Kommunisten in der
Bundesrepublik Deutschland 1949-1968 (Frankfurt am Main: Suhrkamp, 1978), where the
political core model is part of a more elaborate theory; Dieter Sterzel, “Funktionen der
politischen Justiz,” in Politische Justiz, ed. Axel Görlitz (Baden-Baden, Germany: Nomos,
1996); and Herwig Roggemann, Systemunrecht und Strafrecht (Berlin: Berlin-Verlag,
1993).

60. Von Brünneck, Politische Justiz, 12.
61. Roggemann, Systemunrecht und Strafrecht, 17.
62. Sterzel, “Funktionen der politischen Justiz,” 116.
63. See, for example, von Brünneck, Politische Justiz.
64. See Otto Kirchheimer, Political Justice: The Use of Legal Procedure for Political

Ends (Princeton, N.J.: Princeton University Press, 1961); and Alexander von Brünneck,
Politische Justiz.

65. Von Brünneck, Politische Justiz, 335.
66. Rasul v. Bush, Justice Scalia, dissenting opinion, 1.
67. Rumsfeld v. Padilla, Justice Stevens, dissenting opinion, 11.
68. Hamdi v. Rumsfeld, Justice O’Connor, plurality opinion, 1.
69. For an analysis of two trials belonging to this species, see Clemens Vollnhals, Der

Fall Havemann: Ein Lehrstück politischer Justiz, 2nd ed. (Berlin: Ch. Links Verlag, 2000).
70. See von Brünneck, Politische Justiz, 365.
71. Kirchheimer, Political Justice, 117.
72. See von Brünneck, Politische Justiz, 13.
73. Karen Branch-Brioso, “Quality of Evidence Colors How U.S. Handles Suspects,”

St. Louis Post-Dispatch, June 16, 2002.
74. Tom Jackman and Dan Eggen, “‘Combatants’ Lack Rights, U.S. Argues,” Washing-

ton Post, June 20, 2002.
75. Padilla v. Rumsfeld, No. 4445, Motion to Dismiss Amended Petition for Habeas

Corpus in the U.S. District Court for the Southern Circuit of New York, June 26, 2002, 1.
76. An appellate court judge suggested that this would be the immediate conse-

quence of a further inquiry into the circumstances of Yaser Hamdi’s arrest, quoted from
Tom Jackman, “Judges Wary of Interference in Hamdi Case,” Washington Post, October
29, 2002.

77. Hamdi v. Rumsfeld, Justice Souter, concurring in part and dissenting in part, 3; and
Justice Scalia, dissenting, 22.

78. Rasul v. Bush, Justice Kennedy, concurring, 3.
79. Rasul v. Bush, Justice Scalia, dissenting, 19.
80. Katharine Q. Seelye, “War on Terror Makes for Odd Twists in Justice System,”

New York Times, June 23, 2002.

CHRISTIANE WILKE 667

81. Richard Serrano, “Lindh Pleads Guilty, Agrees to Aid Inquiry,” Los Angeles
Times, July 16, 2002.

82. Jerry Markon, “Much Rides on Terror Case,” Washington Post, February 19, 2003.
83. Tim Golden, “After Terror, a Secret Rewriting of Military Law,” New York Times,

October 24, 2004.
84. Military Tribunals Order, November 13, 2001.
85. Harold Hongju Koh, “The Case against Military Commissions,” American Jour-

nal of International Law 96, no. 2 (2002): 339.
86. Military Tribunals Order, November 13, 2001, sec. 4(b).
87. Hamdi v. Rumsfeld, Justice O’Connor, plurality opinion, 28.
88. See Neil Lewis, “Ruling Lets U.S. Restart Trials at Guantánamo,” New York Times,

July 16, 2005.
89. Von Brünneck, Politische Justiz, 336.
90. Lassa Oppenheim, International Law, vol. 1, 2nd ed. (New York: Longmans,

Green, 1912), 3.
91. Ibid., 30.
92. Ibid., 33.
93. Ibid., 34-35.
94. Schmitt makes a rather large point of the distinction between foe and enemy. Fol-

lowing common contemporary usage, I am collapsing his not altogether clear distinctions
into different models of “enemies,” not “foes.”

95. Schmitt, The Concept of the Political, 27.
96. Lon Troyer, “Counterterrorism: Sovereignty, Law, Sovereignty,” Critical Asian

Studies 35, no. 2 (2003): 260.
97. See Gil Anidjar, The Jew, the Arab: A History of the Enemy (Stanford, Calif.: Stan-

ford University Press, 2003).
98. Schmitt, The Concept of the Political, 29.
99. The term “unlawful combatant” seems lifted from the Supreme Court decision in

Ex Parte Quirin, 317 U.S. 1 (1942), while the “enemy combatant” terminology is strikingly
similar to the “enemy alien” language in Johnson v. Eisentrager, 339 U.S. 763 (1950).

100. Stephen Hedges, “U.S. Flouts Legal Rights, Lawyer Says,” Chicago Tribune,
June 12, 2002.

101. War is not strictly required for the existence of enemies, but in the 9/11 cases, the
administration constantly emphasized the existence of a war even when courts could not
see it.

102. See Troyer, “Counterterrorism,” 269.
103. Schmitt, The Concept of the Political, 27.
104. Lyle Denniston, “Court Gives No Rights to Detained: Military’s Prisoners Can’t

Appeal,” Boston Globe, March 12, 2003. Ashcroft is, whether intentionally or not, para-
phrasing the Eisentrager decision:
It would be difficult to devise more effective fettering of a field commander than to allow
the very enemies he is ordered to reduce to submission to call him to account in his own
civil courts and divert his efforts and attention from the military offensive abroad to the
legal defensive at home. (Johnson v. Eisentrager, 339 U.S. 763 [1950], at 779)

105. Rasul v. Bush, Justice Kennedy, concurring, 4.
106. Hamdi v. Rumsfeld, Justice Souter, concurring in part and dissenting in part, 9-10.
107. Hamdi v. Rumsfeld, Justice Scalia, dissenting, 1.
108. Hamdi v. Rumsfeld, Justice O’Connor, plurality opinion, 11.
109. Ibid., 13.
110. Ibid., 29.

668 POLITICS & SOCIETY

111. Hamdi v. Rumsfeld, Justice Scalia, dissenting, 27.
112. Hamdi v. Rumsfeld, Justice O’Connor, plurality opinion, 26-27.
113. See Neil Lewis, “Detainee Trials to Resume Soon,” New York Times, July 19, 2005.
114. “Edwards Demands Action on Remark,” New York Times, September 9, 2004.
115. Moazzam Begg, letter, July 12, 2004, http://image.guardian.co.uk/sys-files/

Guardian/documents/2004/10/01/guan_letters (accessed July 19, 2005).
116. Ibid.
117. See Associated Press, “Last Four Britons Let Go from Guantánamo,” January 25,

2005.
118. See Associated Press, “British Police Release Former Gitmo Inmates,” January

26, 2005.
119. U.S. District Court for the District of Columbia, Hamdan v. Rumsfeld, No. 04-

1519. Decision of November 8, 2004.
120. U.S. Court of Appeals for the District of Columbia Circuit, Hamdan v. Rumsfeld,

No. 04-5393. Decision of July 15, 2005.

Christiane Wilke (cwilke@connect.carleton.ca) is assistant professor in the De-
partment of Law at Carleton University, Ottawa. Her research interests are at the
intersection of political theory, international law, and criminal law, currently with a
focus on concepts of the enemy. She is completing a book manuscript on criminal tri-
als for massive human rights violations in Argentina, Germany, and South Africa.

CHRISTIANE WILKE 669

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