Civil Liberties and Constitutional Rights

U.S. National Archives / Ben Balter (background)

Too often, national security and personal liberties are portrayed as inversely related. This is simplistic, and also clearly wrong. After all, in the absence of security, it would be impossible to enjoy our freedoms at all. Nevertheless, some of the hardest national security choices are inevitably those that involve tradeoffs with civil liberties. The need to gather information on our enemies rubs up against expectations of privacy. The eroding line between war and law enforcement endangers principles of due process. And the need to keep secrets increasingly leads to tension with a robust free press.

 

Latest in Civil Liberties and Constitutional Rights

Civil Liberties and Constitutional Rights

Summary: Government’s Management of the Terrorist Screening Database Violates Citizens’ Constitutional Rights, Court Rules

On Sept. 4, the U.S. District Court for the Eastern District of Virginia issued a decision in Elhady v. Kable—a case that challenges how the federal government manages the Terrorist Screening Database (TSDB), colloquially known as the “watchlist.” Judge Anthony Trenga’s opinion granted the plaintiffs’ motion for summary judgment and found that U.S.

Documents

Procedures for Terrorist ‘Watchlist’ Unconstitutional, Court Rules

The U.S. District Court for the Eastern District of Virginia ruled that the federal government's Terrorist Screening Database program, commonly referred to as the terrorist "watchlist," does not provide "constitutionally adequate" process for Americans included in the database. The Court instructed both sides to submit briefs about what they each view as the appropriate relief. The ruling can be found here.

Foreign Sovereign Immunities Act

Personal Jurisdiction Over Foreign States and State-Owned Enterprises

Conventional wisdom and many lower court cases hold that foreign states are not entitled to constitutionally based personal jurisdiction protections in federal courts because they are not “persons” protected by the Fifth Amendment. That reasoning is incorrect as a matter of constitutional text and history, and it leads to poor results as a matter of policy for reasons explored at length in a forthcoming article and summarized here.

Intelligence Oversight

In Praise of Alex Joel

It’s recently been announced that Alex Joel, who has served as the civil liberties protection officer in the Office of the Director of National Intelligence (ODNI) for 14 years, is leaving the ODNI. I had the privilege of working closely with Alex, and learning from him, during some turbulent times for the intelligence community. At a time when the intelligence community is under attack, it is appropriate to honor Alex as an exemplar of the dedicated public servants who work in U.S. intelligence agencies.

Civil Liberties and Constitutional Rights

The Role of Deference in Adjudicating the Military Transgender Policy, DACA and the Census

On March 9, the U.S. Court of Appeals for the D.C. Circuit issued two concurring opinions in an earlier per curiam ruling that had vacated a district court injunction against the military’s restrictions on service of transgender persons. As Judge Robert Wilkins’s concurrence observed, neither the D.C.

Civil Liberties and Constitutional Rights

New York Lawsuit Challenges Replacement of Immigration Court Hearings with Video Technology

In the latest salvo in a long debate over the use of video teleconferencing (VTC) technology in immigration courts, several legal aid organizations filed a class-action lawsuit on Feb. 12 in New York challenging the U.S. Immigration and Customs Enforcement (ICE) practice of denying in-person hearings to immigrants.

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