David Cole is the Honorable George J. Mitchell Professor in Law and Public Policy at the Georgetown University Law Center. His new book, Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law, is published this month. (April 2016)
Down these mean streets a man must go who is not himself mean, who is neither tarnished nor afraid…. He is the hero; he is everything. He must be a complete man and a common man and yet an unusual man. He must be, to use a rather weathered phrase, …
On Saturday, the US used drones to drop precision bombs on Somalia, reportedly killing about 150 al-Shabab militants who were said to be preparing for an imminent attack on American and African Union forces. Eye in the Sky, a remarkably timely and important new film about a fictional drone strike against al-Shabab, offers a hypothetical window into such decision-making. The picture it paints is deeply disturbing, and raises fundamental questions about when, if ever, such attacks are justified.
President Barack Obama’s plan for closing Guantánamo, delivered to Congress on Tuesday, reaffirms his admirable desire to end before he leaves office one of the most problematic legacies of the US response to September 11. But he has yet to adequately address his own more lasting legacy in the “war on terror”: the secret killing of suspected terrorists with armed drones.
Justice Antonin Scalia’s vision of a Constitution that was somehow immune from the contending forces that shape—and indeed, constitute—us as an evolving nation was an illusion. And it has never been more dramatically refuted than by the political battles that have already broken out in the days since his death.
After weeks of student protest about racial inequality on campus, Yale President Peter Salovey announced on November 17 that the university would be making significant changes to address “longstanding inequities.” The announcement came just five days after a group of Yale students delivered a list of demands to Salovey, and …
The evidence that race still matters in twenty-first century America is overwhelming. At the Supreme Court, however, there is growing ambivalence about whether race may even be taken into account to redress these problems. That question was front and center on Wednesday, when the Court once again considered the constitutionality of affirmative action.
Most of what has transpired at Yale and other colleges reflects the best traditions of the First Amendment: students of color and others have been organizing politically and speaking out in packed rallies. They are using the First Amendment to stand up, communicate their experiences, and demand equal justice. That’s exactly how the First Amendment should work.
As Burt Neuborne puts it in his important and timely book on the First Amendment, the super-rich, the wealthiest one to two percent, “set the national political agenda, select the candidates, bankroll the campaigns…, and enjoy privileged postelection access to government officials.” The rest of us are left to “navigate among the choices made available” by the super-rich.
Since the rapid expansion of high-security prisons in the 1980s, solitary confinement has become pervasive across the United States in both state and federal prisons, involving, according to recent estimates, more than 75,000 inmates at any given time. It is imposed by prison officials for security and disciplinary reasons, but often with little oversight and on the basis of minor infractions. So far, many of the reforms voluntarily adopted by prison officials involve cutting back on, not eliminating, solitary confinement. A recent settlement in California might provide a way forward.
On June 2, 2015, after a Senate cliffhanger that featured a lengthy filibuster by Rand Paul and a resounding defeat for Senate Majority Leader Mitch McConnell, Congress enacted the USA Freedom Act. The act, whose name echoes the USA Patriot Act, does not exactly mark the restoration of freedom. But …
In the Supreme Court term that ended Monday, the liberal justices won twice as many closely divided cases as they lost. Does this amount to a shift to the left by the Roberts Court? Part of the reason this year’s results seem so remarkable is that the Court’s conservatism has often been exaggerated. But it is also possible that it has proved less conservative than many feared because the country is less conservative.
If Edward Snowden had not revealed the NSA’s sweeping surveillance of Americans, Congress would have simply renewed Section 215, the USA Patriot Act provision that the NSA relied on—as it had done on seven previous occasions since 2001. Instead the Senate has passed the USA Freedom Act, which will bring an end to the National Security Agency’s bulk collection of Americans’ phone records.
Twenty-five years ago, same-sex marriage was for all practical purposes unthinkable. Today, it seems close to inevitable. This remarkable shift highlights the particular difficulty of the marriage equality case that came before the Supreme Court on Tuesday—but also points to the right result. The Court has only two choices: to vindicate the demands of equality and liberty, or to validate discrimination.
At the end of June, the Supreme Court will likely declare that the Constitution requires states to recognize same-sex marriages on the same terms that they recognize marriages between a man and a woman. If it does, the decision will mark a radical transformation in both constitutional law and public …
To kill or capture? That is the chilling question that US officials—and even members of Congress—reportedly ask behind closed doors these days. Revelations in a Brooklyn terrorism case show that parts of our government wanted to kill, without a trial, a citizen who, even if convicted, will now face a maximum of fifteen years in prison.
Who bears ultimate responsibility for the US torture program? In a largely overlooked trove of newly declassified documents, the CIA leadership comes across as so skittish about the program that had anyone had the temerity to say no, they almost certainly would have halted it.
Never underestimate the persistence of opponents of President Barack Obama’s signature legislative achievement, the Patient Protection and Affordable Care Act. Since the law was enacted in 2010, Republicans have introduced countless bills to repeal it, but have never had the votes to make their efforts anything but symbolic. Now they are back before the Supreme Court again, advancing another challenge that, if successful, could spell the end of the ACA.
The most harmful effect of the Supreme Court’s decision in Citizens United may have been to free up super PACs from any meaningful constraints on spending money in politics. Over the five years since Citizens United and a related decision by a federal appeals court, super PACs have spent more than one billion dollars on federal election campaigns. About 60 percent of that billion dollars has come from just 195 people.
How did a constitutional law professor, vocal critic of President George W. Bush’s war on terror, and Nobel Peace Prize winner come to oversee an unprecedented campaign of secret targeted killing with drones, as well as the most extensive dragnet surveillance that the world has ever seen?
Bryan Stevenson’s Just Mercy demonstrates, as powerfully as any book on criminal justice that I’ve ever read, the extent to which brutality, unfairness, and racial bias continue to infect criminal law in the United States. But at the same time that Stevenson tells an utterly damning story of deep-seated and widespread injustice, he also recounts instances of human compassion, understanding, mercy, and justice that offer hope.
In their extraordinary revelations about what the NSA and its secret programs have been doing, Edward Snowden’s leaks have shown the precariousness of privacy in the digital age. But Laura Poitras’s documentary Citizenfour also demonstrates, unwittingly, that we are part of the problem. We have chosen to broadcast our lives.
To the surprise of virtually everyone, on Monday morning the Supreme Court denied review in all of the marriage equality cases pending before it. The decision not to intervene is a huge win for marriage equality, and a prudent if unusual act of judicial statesmanship.
In his address to the nation, Obama made the case for a large-scale, long-term military offensive to “destroy” a group that now holds significant territory in two countries. Such a lengthy military intervention amounts to war, the very sort of engagement that the framers felt should be undertaken only if approved by the legislative branch.
Zephyr Teachout’s important new book reminds us that corruption—in its more expansive sense of excessive private interest undermining public virtue—poses very real risks to a functioning democracy, risks that were foreseen at the founding, and that have preoccupied politicians, statesmen, and jurists for the entire course of our nation’s history.
On Tuesday, Senator Patrick Leahy introduced the revised USA Freedom Act, a bipartisan bill to rein in the National Security Agency’s collection of telephone and Internet records. Leahy’s bill comes not a moment too soon. Two reports issued on Monday bring into full view the dramatic costs to journalists, lawyers, and US businesses of dragnet surveillance without specific suspicions of wrongdoing.
The Warren Court viewed the courts’ highest calling in a constitutional democracy as safeguarding those who cannot protect themselves through the political process. The Roberts Court, by contrast, prefers that courts have a much smaller part in regulating American life.
Make no mistake about it. This is a conservative Court. Only a small handful of cases this term could be characterized as reaching liberal outcomes. But in each of the cases where litigants asked the Court to pursue the more radical course of reversing prior precedents, the Court declined, and instead resolved the cases more narrowly. In some cases, the Court may have planted the seeds for future reversals of disfavored doctrine, but for now, the Court’s approach is incremental rather than radical. Conservative, to be sure—but with a small “c.”
Now that we can finally see the memo authorizing the killing of a US Citizen in Yemen, the biggest question is why the Obama administration kept it secret. It offers a closely reasoned, thorough, and, most important, carefully limited defense of the killing. Had it been made public at the outset, the administration might have avoided much controversy about the drone program.