The Fourth Amendment Overseas, a brief summary

In the past few months, I have written extensively on which parts of the constitution apply to non-citizens outside the territorial jurisdiction of the United States.  As I await official publication on my Miranda and Habeas articles, I wrote a brief explanation of the Fourth Amendment to share with a class.  Rather than keep it to myself, I decided to post it online and share it here.

Verdugo after Boumediene: Why the Guantanamo Litigation is Not Limited to Obscure Habeas Corpus Issues, and Should Matter to Everyone Who Works With Non-Citizens

Note: This is the same United States v. Verdugo-Urquidez that Professor Vladeck and I debated in Blog Cross-Pollination.

Miranda Overseas - Introduction

One of the arguments justifying indefinate detention of detainees without charge in Guanatamo Bay was the constitutional right to habeas corpus did not apply to non-citizens overseas.  In June 2008, the Supreme Court repudiated this reasoning in Boumediene v. Bush, holding that non-citizens in American custody in Guantanamo Bay are indeed entitled to the constitutional right of habeas corpus.  But the question remains as to whether Boumediene was a narrow or a wide decision; the question of other constitutional rights overseas remains ambiguous.  In particular,  the Supreme Court has not ruled on the overseas application of other constitutional rights including the Fifth Amendment right against self-incrimination, as interpreted in Miranda v. Arizona.

Miranda is more than just a forty-six year old Supreme court case on legal and social policy; it has become part of American culture.  Unlike the much of the minutia of law and legal procedure that only lawyers deal with, even the average layperson has heard of Miranda.  But this widespread knowledge of Miranda makes it ripe for political posturing, especially on whether Miranda should apply to non-citizens overseas.  One Democratic congressman proclaimed "[t]here's not a single member of this Congress that believes that Miranda warnings should be given to terrorists."  Similarly, one law professor noted that after September 11, "the notion that terror suspects would be given Miranda warnings seems almost quaint."  The political edge of this issue seems to be citizenship status: the former presidential candidate John McCain was criticized from right and left alike when he suggested the accused Times Square bomber, an American citizen, should not have been given Miranda warnings.  [For an analysis of the merits of this argument, see a forthcoming article Miranda Overseas - Defining Miranda.]

But these are political questions for the politicians and pundits to debate; a debate which will have little, if any, effect on the law.  Miranda is a constitutional right, and the constitution applies to everyone within the borders of the United States.  Without a doubt, American citizens arrested in the United States are entitled to the same rights regardless of the crime of which they are accused.  As the law currently stands, documented and undocumented non-citizens arrested in the United States are also entitled to the same right Miranda rights as citizens.

Those who are frequent readers of this blog will know that the answers to the questions posed in Miranda Overseas will not be based on a political analysis.  Indeed, while a definitive answer on this issue would upset one side of the aisle, it could also shift the winds to help that side of the aisle on the related issue of military tribunals.  [Because of the significant lack of history on which to base my analysis, I do not take an opinion on whether Miranda could apply in the military tribunals.]

Rather, the question of Miranda Overseas is a metaphor for how far the the constitution, and the domestic case-law analyzing those constitutional rights like Miranda, follow us when we travel abroad, or when our government decides to charge a non-citizen captured overseas with a crime in American civilian courts.  While  the analysis of these issues will focus primarily on terrorism and drug cases, these issues are far from limited to these two issues.  As Supreme Court Justice Felix Frankfurter noted, "the safeguards of liberty have frequently been forged in controversies involving not very nice people."

Google Scholar - Law: One small step that changed the world

With little fanfare, Google today took a big swing at the legal establishment, by giving the world free access to its own database of case law.  This is very big news.  In fact, it is so massively big I'm not sure we can quite appreciate it just yet, but I will certainly try. 

Yesterday, there were three major methods of reading a case.  You could look at a printed court reporter at a law library, or search through the online database of rivals Westlaw and Lexis-Nexis.  As you might imagine, using the online databases is significantly easier, but they came with a price.  As a current law student, I am paying for unlimited access to Westlaw and Lexis as a part of my tuition, but it is very expensive for lawyers or the common citizen (Lexis rates; Westlaw's lack of advertised rates).  This means that even if a common citizen had the knowledge to interpret the law, he could not afford timely access to it.  These factors together made it unlikely that a common citizen could represent himself pro ce in court in any reasonable manner.  That changed today.  The current stories are focusing on this, as it was the general gist of Google's press release.

But this change is just as significant, if not more significant, for lawyers and their clients.  Because together Westlaw and Lexis-Nexis have a monopoly, they could charge lawyers exorbitant amounts to access these databases.  These charges were passed onto the clients, increasing the cost of legal counsel.  This also means that pro-bono (public interest; no charge to client) legal work suffered.  The only way for a lawyer or a law firm to conduct pro-bono work was to pay Westlaw or Lexis out of pocket, or to go to the library and use books - an unappetizing prospect for any busy lawyer.  Because of these two reasons, pro-bono work has been limited in the past.  That changed today as well.

But without comparative analysis, this is all just speculation.  As an example, I was recently assigned to research a false imprisonment case in New York.  (example used with permission).  The case hinged upon whether the detention was done in a "reasonable manner" or a "reasonable time." If you do a search in New York jurisdiction for - "false imprisonment" "reasonable manner" and "reasonable time" - you get 15 results, all cases that I had previously read in Lexis-Nexis or Westlaw as a part of my research.  However, at present there are at least three ways in which Google Scholar - Law is currently inferior to Westlaw and Lexis.  It does not currently contain state or federal statutes, it does not contain summaries of the cases, and it does not say if the case has been overruled (although it does give links to all the cases that cited it so that you could do the work yourself).  I imagine that these oversights will be amended by the time that it is removed from "beta" status, hopefully by the time I join the job market as a lawyer. 

Today Google changed the way that Americans will practice law.  Even if Google Scholar - Law is currently somewhat inferior to its rivals, its low price will mean that it will be swiftly adopted, which will likely force Westlaw and Lexis-Nexis to push down their own prices, or become obsolete.  Today is a good day for the public, for lawyers and for our democracy.  And on a more personal note, I am very happy to say that my summer pro-bono work just got much easier.

What an honest American really thinks

I recently received a chain letter from a close family member, with the subject line "What an honest American really thinks" purporting to be by Andy Rooney.  It is hard to resist that title, isn't it?  Full disclosure, I am Hispanic and this particular family member is white.  I decided that rather than having a long discussion again, which I know would make the family member feel singled out, it makes more sense to make it a post, hopefully making it into one of those "teachable moments."  Anyway, the email itself is too long to do a full point by point debate, and it's laced with truisms such as "Guns don't make you a killer. I think killing makes you a killer," which few would disagree with.  Still, there are three important points that I would like to make.

First, a simple google search will show that this is a seven year old chain letter which Andy Rooney has disavowed. So at the very least, the author is not an "honest american;" he's not even honest about his identity. In fact, Andy Rooney want's to sue him for defamation. 

Second - one that hits a little closer to home - I disagree with the racial views especially as implicitly targeted at Hispanics with the language issue.  In an ideal world, would everyone speak the same language? Of course, mistranslation can be a big problem in international politics as well as daily life. However the phrase "[i]f you want to be an American citizen you should have to speak English" takes it a few steps further - it is pretty direct anti-immigrant rabble rousing. It is the logical equivilent to say if you don't speak English (implicitly if you speak Spanish), you're not worthy of citizenship. This rabble rousing has a negative effect on everyone who is Hispanic, be it for speaking Spanish, having a Spanish accent, looking Hispanic, or having a Hispanic name. I fit this category, and heck even my ethnically white spouse fits into this category too. The more anti-Hispanic sentiment increases, the harder it is for us to find jobs... there's no way to hide the second word in our resumes has to be a Hispanic surname.  In fact, I've even been in a job interview where the interviewer said "you don't sound Hispanic." This proves to me that in the new environment where job applications are just online, a Hispanic surname is an obvious obstacle.  But my spouse and I have discussed it, and we refuse to bow to external pressure and change our name.  Linking this back to my preferred field of international politics, changing our surname would be little different than a country conceding to a terrorist's demands - in a word, unthinkable.

Finally, everyone has the right to say and believe whatever they want. The author is correct that he "[has] the right NOT to be tolerant of others because they are different, weird or tick him off" ... although the author does not have the right to defame Andy Rooney. Regardless, it is important to note that many - if not most - members of a racial group don't seek out to be lumped into a race. Instead, we have race thrust upon us by bigots such as this author - be it by skin color, accent or name. While it is obvious that the author "really thinks" these things, every time I receive an email like this I am disappointed to see that some members of my family believe in them enough to forward them to their friends and family.

It would be nice if everyone in the world was tolerant of each other, but being a student of realism, I doubt it will ever happen.  At the very least, these family members should realize that this rabble rousing has an effect on members of their own family, often even the ones that they are emailing. Maybe that realization will help grow a little more tolerance.

For my part, I hereby pledge not to let casual bigotry from my family pass without a confrontation, and I welcome others in my family to do the same. 

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Non Sequitur Post Script:  Seriously, and this goes to everyone out there - fact check your stories.  You can read wikipedia, and blogs and chain emails, but if it doesn't sound real then it probably isn't.  I personally limit my reading to articles have links to news sources - CNN, Fox News, Wall Street Journal, New York Times, NPR, BBC, Times Online - you know the news sources you've heard of before.  For the newer political claims, try the non-partizan Factcheck.org, they write articles exclusively on this sort of thing, and - like me - they vigorously cite all of their sources.  As their articles prove, they aren't a pawn of the Democrats or the Republicans.

A New Era - A New IRWatch

Well a lot has happened since my last post.  To make a long story short, I'm now a law student at one of America's top law schools for international law The American University - Washington College of Law in Washington, DC.  Because of this, I'm going to open IRWatch to issues of domestic law and politics.  I'm even considering slightly modifying the title - though I want to keep the abbreviation IRWatch and the irwatch.blogspot domain because I like brevity.  Any ideas?

International Law - Law Schools

I have been applying to enter the Foreign Service for some time now, but I've come to realize that I can't place all of my hopes on that one goal. Instead, I have begun to put some effort into my backup plan: to become an international lawyer. I've already begun studying for the law school application exam, but admissions deadline for many law schools is February 1st.

In order to decide which law schools I would like to apply, I found a list of International Law journals and crossreferenced it with US News & World Report's list of the Top 100 Law Schools (and the US News' International Law Speciality list). This left thirty-eight possible options, which was a little more than I was expecting. Of course I can't apply to them all so I made a spreadsheet and tried to give additional pros and cons to each of them, and then sorted them by total number of "stars" and by their admission deadlines.

Does anyone have any ideas about other good law schools in international law or think I should reconsider any of these? My spreadsheet of schools can be found online here.

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Update:
I started school at one of my top choices, American University - Washington College of Law!  Hurray!  The paid version of USNews rankings (which I recommend) ranks it as:

#2 in Clinical Training
#5 in International Law
#9 in Trial Advocacy
#21 in Intellectual Property Law
#39 in Legal Writing
#46 overall ("Tier 1")

What it doesn't take into account is location. Washington DC and New York are really the only two locations that should be considered for anyone interested in International Law... and DC is also a top location for anyone interested in working for a government agency. 

Of these five programs, as a first year student, I've only had the chance to participate in the Legal Writing program, but so far it has been excellent.  As it turns out, I really like Legal Writing, in its best form it's well researched, logical and concise... which I'll grant you aren't exactly new concepts to me, but it's nice to have prospective employment where I will get to use these skills on a regular basis.  I'm really looking forward to putting them into practice in a mock court setting next semester, I think that will be even more fun.