Bush Admin Internal Critique of Torture Memos Released

At the National Security Archive:

Washington, DC, April 3, 2012 – The State Department today released a February 2006 internal memo from the Department's then-counselor opposing Justice Department authorization for "enhanced interrogation techniques" by the CIA. All copies of the memo (Document 1), which reflect strong internal disagreement within the George W. Bush administration over the constitutionality of such techniques, were thought to have been destroyed. But the State Department located a copy and declassified it in response to a Freedom of Information Act request by the National Security Archive.

The author of the memo, Philip D. Zelikow, counselor to then-Secretary of State Condoleezza Rice, described the context of the memo in congressional testimony on May 13, 2009, and in an article he had previously published on foreignpolicy.com site on April 21, 2009.

"At the time, in 2005 [and 2006]," he wrote, "I circulated an opposing view of the legal reasoning. My bureaucratic position, as counselor to the secretary of state, didn't entitle me to offer a legal opinion. But I felt obliged to put an alternative view in front of my colleagues at other agencies, warning them that other lawyers (and judges) might find the OLC views unsustainable."

OLC refers to the Justice Department's Office of Legal Counsel.

"My colleagues were entitled to ignore my views," he continued. "They did more than that: The White House attempted to collect and destroy all copies of my memo. I expect that one or two are still at least in the State Department's archives."

More here.  The memo is discussed here.

Chesney on the Military-Intelligence Convergence

To understand law and security in the post-9/11 years, historians will need to move beyond broad questions of the impact of war and security on domestic law, and to unpack the labyrinth of the intersection between domestic law and the law of armed conflict.  In doing so, Robert Chesney, University of Texas School of Law, is a very helpful guide.  In his new paper:  Military-Intelligence Convergence and the Law of the Title 10/Title 50 Debate,  Journal of National Security Law and Policy, 2011, Chesney sets the origins of a convergence in military and intelligence operations in the context of Truman administration efforts to reshape American national security during the early Cold War years.  In that respect, the paper reinforces the importance for legal history of Truman-era national security policy, a point raised in Stephen Griffin's recent paper.  Here's Chesney's abstract:

One of the most striking features of the post-9/11 era has been the convergence of military and intelligence operations. Nothing illustrates the trend better than the CIA‟s emergence as a veritable combatant command in the conflict with al Qaeda, though it manifests as well through the expansion of clandestine special forces activities, joint CIA-special forces operations, and cyber activities that defy conventional categorization. All of which obviously is important from a policy perspective. Less obviously, it also has significant legal implications.

I do not refer to questions such as who lawfully may be targeted or what computer network operations amount to “armed attack,” though those are of course important matters. Rather, I am concerned here with America‟s domestic legal architecture for military and intelligence operations. That architecture is a half-baked affair consisting of a somewhat haphazard blend of decision-making rules, congressional notification requirements, and standing authorizations and constraints relevant to particular agencies. Convergence has a disruptive impact on key elements in that framework, especially those that rely on categorical distinctions that convergence confounds (like the notion of crisp delineations among collection, covert action, and military activity).

My first aim in this article is to map that impact as thoroughly as can be done through the public record, drawing attention to and disaggregating issues that have bedeviled government lawyers behind closed doors for some time. My second aim is normative, as I suggest a modest set of changes to the existing legal framework meant to improve democratic accountability and compliance with the rule of law in such operations, while preserving the benefits convergence generates.

Donohue on Biodefense and Constitutional Constraints in History

Legal historians don't usually think about disease as a driving force in history, although Michael Willrich makes a major contribution in his new book Pox:  An American History. Laura Donohue, Georgetown, looks at the intersection of disease and defense in a new paper that draws from her graduate work at Cambridge University.  I recently heard Donohue give an excellent talk based on this work.  The paper is Biodefense and Constitutional Constraints.  It is forthcoming in the National Security and Armed Conflict Law Review.  Here's the abstract:

image source

The United States and United Kingdom each frame the threat posed by pandemic disease and biological weapons as a national security concern. In both countries, moreover, identifying and responding to the threat posed by, on the one hand, naturally-occurring disease and, on the other, man-made biological agents, are linked. Where the two countries part ways is in what they see as the role of the central government and most effective response to the twin threats. U.S. federal law and policy anticipates the federal imposition of quarantine and isolation. The United Kingdom does not. This article offers a novel explanation for why the two countries have assumed such different approaches. It suggests that the answer is deeply historical, shaped by each country’s unique experiences with disease, as well as each country’s constitutional framework. The two countries have followed distinct - and essentially reverse - trajectories, which continue to influence the manner in which current law and policy has evolved in respect to pandemic disease and biological weapons.

In the United States, what started during the colonial period as a decidedly local authority evolved to be a local and state authority. For more than a century, the federal government proved reluctant to interfere. It was not that disease did not pose a severe threat - or, indeed, that it was never used as a weapon. To the contrary, the colonies and, later, the states, had significant concerns about the effects of disease and, even during the Revolutionary War, there was evidence and widespread belief that the British used smallpox as a weapon. During the Civil War there were several reported efforts by the Confederates to use biological weapons against Union forces. But the federal government did not adopt quarantine authorities. Quarantine was widely regarded as a central tenet of state police powers. It was so decidedly local, that many states explicitly gave towns the authority to exclude any persons or goods believed to carry sickness - even if they traveled or were transported from other U.S. cities or states.

During the late nineteenth century, the balance of power subtly shifted. The federal government avoided a direct Commerce Clause assertion and, instead, began to use the power of the purse to buy up local and state ports, transferring their operation to federal control. Federal statutory and regulatory authorities followed. By the end of the twentieth century, federal quarantine law - at least in respect to inter-state travelers and those entering or leaving the country - had become firmly established. By the early 21st century, policy documents had begun to refer to the potential use of quarantine to respond either to pandemic or targeted attacks, shifting the discussion to Article II and foreign affairs. National security demanded a federal, not a state, response. Post-Hurricane Katrina, an even more visible discussion emerged, tied to the precise role of the military in enforcing domestic provisions.

The United Kingdom, in contrast, developed in the opposite direction. The first recorded quarantine orders, issued under Henry VIII, demonstrate a monarch willing to use the military to exercise his Royal Prerogative. As the constitutional structure of the country changed, the manner in which quarantine was accomplished altered. With the Stuarts’ realization that quarantine could be wielded as a powerful political tool, use of the provisions led to greater friction with Parliament. The Privy Council reformed its approach, seeking statutory authorization prior to issuing orders. The demise of the Council and transfer of public health authorities to Parliament led to the abandonment of broad quarantine power. Commercial interests lobbied it out of existence. Aided by medical treatises, the 19th century sanitation movement, and the growth of a professional bureaucracy, local port authorities and public health provisions took their place. Accordingly, by the early twenty-first century, no broad quarantine laws existed, and such policy documents as were issued to outline the government’s response in the event of biological weapons or pandemic disease specifically noted that quarantine would not be used.

Threading through each account is the importance of the type of threat faced. The specific diseases each country confronted, which differed, played a key role in shaping subsequent measures. The United States struggled with yellow fever, smallpox, and cholera. The United Kingdom developed its law primarily in response to plague. This influenced the contours of the measures and the groups most impacted by quarantine, leading to a tolerance of such provisions on the American side of the Atlantic, and a rejection of the same on British shores.

The Dennis Case at the Taminent Library

An earlier post provided the schedule for the Cold War History Seminar at the Tamiment Library this semester. Now comes news of an additional session. On Thursday, April 1, 2010, from 5:00 to 6:30 (with reception to follow), Barbara Falk, Canadian Forces College/Royal Military College of Canada will present "Dennis Revisited: The Trial That Made the Domestic Cold War Possible." The Tamiment Library is located in New York City at 70 Washington Square South (between LaGuardia and Green), the 10th floor. For a copy of the paper or to RSVP please email Zuzanna Kobrzynski, zk3@nyu.edu

Caption and image credit: William Z. Foster, Benjamin Davis, Eugene Dennis, Henry Winston, John Williamson and Jacob Stachel leaving the courthouse in New York (July 21, 1948) (Spartacus Educational)

FOIA in a Nutshell

Unredacted, the blog of the National Security Archive, has a recent post on the Freedom of Information Act in a Nutshell -- useful for the uninitiated. I've added the blog to the sidebar, so that readers can easily follow news about new document releases and litigation over government secrecy.

A history of the NSA, 1989, Thelonius Monk and more in the book reviews

A quick round-up from the book pages:

The Secret Sentry: The Untold History of the National Security Agency by Matthew M. Aid is reviewed in the New York Review of Books. James Bamford writes:

Matthew M. Aid has been after the NSA's secrets for a very long time. As a sergeant and Russian linguist in the NSA's Air Force branch, he was arrested and convicted in a court-martial, thrown into prison, and slapped with a bad conduct discharge for impersonating an officer and making off with a stash of NSA documents stamped Top Secret Codeword. He now prefers to obtain the NSA's secrets legally, through the front door of the National Archives. The result is The Secret Sentry: The Untold History of the National Security Agency , a footnote-heavy history told largely through declassified but heavily redacted NSA reports that have been slowly trickling out of the agency over the years. They are most informative in the World War II period but quickly taper off in substance during the cold war....

While much of the terrain Aid covers has been explored before, the most original areas in The Secret Sentry deal with the ground wars in Afghanistan and Iraq, where the NSA was forced to marry, largely unsuccessfully, its super-high-tech strategic capabilities in space with its tactical forces on the ground. Before the September 11 attacks, the agency's coverage of Afghanistan was even worse than that of Iraq....

Disappointingly, the weakest section of the book, mostly summaries of old news clips, deals with what may be the most important subject: the NSA's warrantless eavesdropping and its targeting of American communications.

Links to Aid's documents are posted at the National Security Archive.

Also in the NYRB, Timothy Garton Ash takes up several books about 1989, including 1989: The Struggle to Create Post–Cold War Europe by Mary Elise Sarotte, and Uncivil Society: 1989 and the Implosion of the Communist Establishment by Stephen Kotkin, with a contribution by Jan T. Gross.

WHEN EVERYTHING CHANGED: The Amazing Journey of American Women From 1960 to the Present by Gail Collins is reviewed in the New York times by Amy Bloom, who find it a "smart, thorough, often droll and extremely readable account of women’s recent history in America."

Also in the NYT are reviews of WORSE THAN WAR: Genocide, Eliminationism, and the Ongoing Assault on Humanity by Daniel Jonah Goldhagen, and STRIPPING BARE THE BODY: Politics Violence War, which collects essays from the last two decades by Mark Danner.

And THELONIOUS MONK: The Life and Times of an American Original by my USC colleague Robin D. G. Kelley is reviewed in the New York Times.

Fisher on The Constitution and 9/11

The Constitution and 9/11: Recurring Threats to America's Freedoms, a new book by Louis Fisher, a leading scholar of executive power at the Congressional Research Service, has just been published by the University Press of Kansas. Here's the book description:

The announced purpose of U.S. antiterrorist policies after 9/11 was to bring democracy and the rule of law to the Middle East. At home, those values were regularly threatened by illegal, unconstitutional, secret, and unaccountable programs. The Bush administration claimed that terrorists hate America for its freedoms, yet its actions jeopardized those freedoms and brought the reputation of the United States lower in the eyes of the world.

Government surveillance. Suspension of habeas corpus. Secret tribunals. Most Americans would recognize these controversial topics from today’s headlines. Unfortunately, as Louis Fisher reminds us, such violations of freedom have been with us throughout our history—and continue to threaten the Constitution and the rights that it protects.

Distilling more than two centuries of history into a panoramic and compelling narrative, Fisher chronicles the longstanding tension between protecting our constitutional rights and safeguarding national security, from the Whiskey Rebellion to the McCarthy hearings to George W. Bush’s “War on Terror.” Along the way, he raises crucial questions regarding our democracy’s ongoing tug-of-war between secrecy and transparency, between expediency and morality, and between legal double-talk and the true rule of law.

Fisher focuses especially on how the Bush administration’s responses to 9/11 have damaged our constitutional culture and values, threatened individual liberties, and challenged the essential nature of our government’s system of checks and balances. His close analysis of five topics—the resurrection of military tribunals, the Guantánamo detainees, the state secrets privilege, NSA surveillance, and extraordinary rendition—places into sharp relief the gradual but relentless erosion of fundamental rights along with an enormous expansion and concentration of presidential power in the post-9/11 era.

For Fisher, the Constitution’s strength as a guarantor of freedom and rights is only as sound and reliable as our own commitment to the values it describes. Each generation of Americans is asked in essence: do you want a republic or a monarchy? Benjamin Franklin, of course, famously responded: “A republic, if you can keep it.” Fisher’s book reminds us of the political principles we need to rediscover to keep our nation free.

LOUIS FISHER is the author of more than a dozen books, including Presidential War Power, Military Tribunals and Presidential Power, In the Name of National Security, and Constitutional Conflicts between Congress and the President, now in its fifth edition.

And here are the blurbs:

“Fisher brilliantly illuminates our predicament, explaining how we abandoned cherished principles of law and human dignity, and how we might yet live up to our own ideals.”—Steven Aftergood, Project on Government Secrecy, Federation of American Scientists

“Demonstrates in chilling detail how American law and the courts have failed repeatedly to protect our liberties. . . . A treasure house of information and an invaluable guide for scholars, students, and citizens.”—Aziz Huq, coauthor of Unchecked and Unbalanced: Presidential Power in a Time of Terror

“A comprehensive, striking, and disturbing analysis of executive misuse of power that is made all the more compelling by placing it in a rich and fascinating historical context.”—William G. Weaver, coauthor of Presidential Secrecy and the Law

Farber, Security v. Liberty: Conflicts Between Civil Liberties and National Security in American History

SECURITY V. LIBERTY: CONFLICTS BETWEEN CIVIL LIBERTIES AND NATIONAL SECURITY IN AMERICAN HISTORY, edited by Daniel Farber, U.C. Berkeley -- Boalt School of Law, has just been published by the Russell Sage Foundation. Farber has posted this abstract on SSRN:

Threats to national security generally prompt incursions on civil liberties. The relationship has existed since the presidency of John Adams and has continued through two World Wars, the Cold War, Vietnam, and to the present day. Though this historical phenomenon is commonplace, the implications of that history for our post-9/11 world are less clear.

In the long run, if we are to cope with present and future crises, we must think deeply about how our historical experience bears on a changing world. This book, published by the Russell Sage Foundation, addresses the past and present relationship between civil liberties and national crises, with contributions from leading legal scholars and historians. They seek both to draw historical lessons and to explore how the present situation poses unique issues. The contributors include Alan Brinkley, Daniel Farber, Stephen Holmes, Ronald D. Lee, Jan Ellen Lewis, L.A. Powe, Jr., Ellen Schrecker, Paul M. Schwartz, Geoffrey R. Stone, and John Yoo.

Russell Sage has a more extensive book description, including this description of some chapters:

Security v. Liberty focuses on periods of national emergency in the twentieth century—from World War I through the Vietnam War—to explore how past episodes might bear upon today’s dilemma. Distinguished historian Alan Brinkley shows that during World War I the government targeted vulnerable groups—including socialists, anarchists, and labor leaders—not because of a real threat to the nation, but because it was politically expedient to scapegoat unpopular groups. Nonetheless, within ten years the Supreme Court had rolled back the most egregious of the World War I restrictions on civil liberties. Legal scholar John Yoo argues for the legitimacy of the Bush administration’s War on Terror policies—such as the detainment and trials of suspected al Qaeda members—by citing historical precedent in the Roosevelt administration’s prosecution of World War II. Yoo contends that, compared to Roosevelt’s sweeping use of executive orders, Bush has exercised relative restraint in curtailing civil liberties. Law professor Geoffrey Stone describes how J. Edgar Hoover used domestic surveillance to harass anti-war protestors and civil rights groups throughout the 1960s and early 1970s. Congress later enacted legislation to prevent a recurrence of the Hoover era excesses, but Stone notes that the Bush administration has argued for the right to circumvent some of these restrictions in its campaign against terrorism. Historian Jan Ellen Lewis looks at early U.S. history to show how an individual’s civil liberties often depended on the extent to which he or she fit the definition of “American” as the country’s borders expanded. Legal experts Paul Schwartz and Ronald Lee examine the national security implications of rapid advances in information technology, which is increasingly driven by a highly globalized private sector, rather than by the U.S. government.

Kedar on David Ben-Gurion, the Israeli Army and the Law

Nir Kedar, Bar-Ilan University, has posted another new paper, A Civilian Commander in Chief: David Ben-Gurion, the Israeli Army and the Law. The paper draws upon primary sources in the Ben-Gurion Archives. Here's the abstract:

David Ben-Gurion, Israel's first prime-minister, is regarded more of a `security-minded leader' than a `civilian leader'. Nevertheless, as premier of a fledgling state, he played a major role in shaping Israel's civil institutions and establishing democracy and the rule of law. Even his attitude toward the army and security matters derived from a solidly-constructed civil-legal weltanschauung. This paper demonstrates the civil roots of his concept of army by analyzing his insistent demand for the enactment of a comprehensive and efficient military criminal code (known in Israel as the Military Justice Law).

Photo credit.

Weaver on Origins of the State Secrets Privilege

William G. Weaver, University of Texas at El Paso, has posted a new paper, Origins of the State Secrets Privilege. Here's the abstract:

The state secrets privilege is the most powerful secrecy privilege available to the president. In recent decades it has been used more frequently and the executive branch has successfully sought to expand the scope of the privilege beyond what constitutional limits should bear. Despite the importance of the privilege to the modern presidency and claims that it hails from ancient common law origins, there has never been a detailed account of the beginnings and development of the privilege. This article seeks to explain the origins and development of the privilege and how the privilege was adapted to U.S. law. This adaptation was infelicitous in a number of respects, and courts, accountability, and the people of the United States have suffered needlessly because the law is now a servant to executive claims of national security.

Davenport, Moore and Armstrong on Torture and Democracy: The Puzzle of Abu Ghraib

The Puzzle of Abu Ghraib: Are Democratic Institutions a Palliative or Panacea? is a new essay by Christian Davenport, Department of Government and Politics, University of Maryland, Will H. Moore, Florida State University - Department of Political Science, and Dave Armstrong, University of Oxford - Nuffield College. Here's the abstract:

The events of Abu Ghraib exposed politicians, journalists, military and law enforcement personnel, NGOs, activists and ordinary citizens to the potential brutality of state repression. Many were left stunned that the agents of a liberal democracy would perpetrate such horrific acts against individuals in the state's control. Such shock makes sense if one believes that liberal democratic institutions constrain leaders from acting on the utilitarian incentive to employ torture during interrogations. While such a belief is apparently widespread, is it consistent with the recent historical record? Extant theories of repression and global evidence about torture suggest that it is not. We distinguish among three mechanisms that might constrain the use of torture in liberal democracies: voice, veto, and freedom of expression. We then argue that voice is unlikely to have a strong effect when the state is faced with violent dissent, and that the effect of veto and freedom of expression will be substantially reduced when the state is faced with a violent challenge. To test our hypotheses we use data from 146 countries covering the years 1980-1999 and investigate the extent to which voice, veto, or freedom of expression inhibit countries' use of torture both in times of quiescence and in times when dissidents challenge the state with violence. We find that rather than being aberrant, state-sponsored torture like that in Abu Ghraib is perfectly consistent with both theory and previous experience. More specifically, democratic institutions reduce the probability that a state uses torture in only limited circumstances.

Just published: Muller, American Inquisition

American Inquisition: The Hunt for Japanese American Disloyalty in World War II by Eric Muller has just been published by the University of North Carolina Press. Here's the book description:

When the U.S. government forced 70,000 American citizens of Japanese ancestry into internment camps in 1942, it created administrative tribunals to pass judgment on who was loyal and who was disloyal. In American Inquisition, Eric Muller relates the untold story of exactly how military and civilian bureaucrats judged these tens of thousands of American citizens during wartime.

Some citizens were deemed loyal and were freed, but one in four was declared disloyal to America and condemned to repressive segregation in the camps or barred from war-related jobs. Using cultural and religious affiliations as indicators of Americans' loyalties, the far-reaching bureaucratic decisions often reflected the agendas of the agencies that performed them rather than the actual allegiances or threats posed by the citizens being judged, Muller explains.

American Inquisition is the only study of the Japanese American internment to examine the complex inner workings of the most draconian system of loyalty screening that the American government has ever deployed against its own citizens. At a time when our nation again finds itself beset by worries about an "enemy within" considered identifiable by race or religion, this volume offers crucial lessons from a recent and disastrous history.

And the blurbs:

“At last, Eric Muller shines new light on the U.S. government's failed attempt to define ‘loyalty’ among a supposed ‘enemy race’ during wartime. His detailed examination of the judgment of tens of thousands of those of Japanese ancestry, including my family, incarcerated during World War II, is an important historical lesson we must never forget and an injustice we must never repeat."--Norman Y. Mineta

"In this fascinating account, Eric Muller relates the forgotten story of how a U.S. government agency worked with the military and intelligence communities to determine who was in fact a 'true' American. That some of our best and brightest tried to establish an acid test for loyalty--and failed--should give us pause today."--Lane Ryo Hirabayashi, George & Sakaye Aratani Professor of Japanese American Internment, Redress, and Community, University of California, Los Angeles

"Combining intensive archival research and brilliant analysis, Eric Muller gives us another example of bad news from the good war. He shows how military and civilian government lawyers pioneered large-scale loyalty testing on incarcerated Japanese Americans, establishing precedents used in defining subversives during the Cold War."--Roger Daniels, Emeritus, University of Cincinnati, and author of Prisoners Without Trial: Japanese Americans in World War II

Muller is also the author of Free to Die for Their Country: The Story of the Japanese American Draft Resisters in World War II. He blogs about the new book here and here.

Perez on The International Atomic Energy Agency -- A Cold War Institution Facing an Age of Terror

Antonio F. Perez, Catholic University, has posted a new article, The International Atomic Energy Agency in the Changing Structure of International Organization Law: A Cold War Institution Facing an Age of Terror. It appeared in CURSO DE DERECHO INTERNACIONAL. Here's the abstract:

This paper, which originated in lectures given at the Annual Course of the Inter-American Juridical Committee of the Organization of American State at Rio de Janeiro, Brazil in August 2005, reviews the origins, history, and future of the International Atomic Energy Agency (the IAEA). It describes the IAEA as the child of the Cold War, which now having grown to adulthood, faces the rigors and challenges of adulthood in a less hierarchical world, yet one filled with the possibilities and fears that now characterize a post-Cold War world in an age of terror. The analysis locates the study of the IAEA as an international organization in terms of its significance for the law of international organizations. Part I addresses the origins of the IAEA as a organization related to the UN, though not strictly one of its specialized organizations, but chiefly in terms of the rise of the Cold War international system during which states possessing nuclear weapons exercised hegemony not only through political, military and economic supremacy. The Atoms for Peace policy represented the grand strategy and political economy underlying the Statute of the IAEA during this period. Part II of the paper addresses how, with the fall of the Cold War system and the rise of new transnational threats and opportunities, the IAEA became more deeply enmeshed in the multilateral system, more deeply and actively cooperating with the UN, yet acquiring its own voice and, to a certain extent, autonomy as an international organization. In brief, therefore, one can view the evolution of the IAEA as a mirror the international system, including evidence that regional and global organizations for the control of nuclear materials and technology are in substantial competition, much as they are in other areas of international governance, such as private international law and trade.

Chiesa on Outsiders Looking In: The American Legal Discourse of Exclusion

Luis E. Chiesa, Pace University School of Law, takes up security and the rights of non-citizens in a new SSRN paper, Outsiders Looking In: The American Legal Discourse of Exclusion. The (new) abstract is here:

This article examines and critiques the American government's use of discourses of exclusion during times of crisis to legitimate the adoption of measures that target certain groups of people primarily on the basis of their status as members of a particular class. The article consists of four parts.

In Part I, I discuss the political philosophy of various prominent European and American thinkers in order to explain why discourses of exclusion seem to lie at the heart of social contract theories of the State. This might explicate why governments have always been seduced by the idea that it might be legitimate to safeguard the rights of some (the non-excluded) at the expense of the rights of others (the excluded).

The next part briefly recounts several instances in which the government of the United States has placed unfair burdens on some groups of people in order to guarantee the safety of the rest of the population. I focus on four cases, namely: the curtailing of the free speech rights of aliens during the Quasi-War of 1798, the persecution of political dissidents after both world wars, the branding of Japanese Americans as an “enemy race” that needed to be contained in order to avoid another Pearl Harbor, and the recurrent attempt to treat suspected terrorists differently depending on whether or not they are American citizens. This historical inquiry will reveal that the United States government has continuously engaged in the practice of inequitably burdening certain groups of people during times of actual or perceived emergency.

In Part III I attempt to demonstrate that the State cannot legitimate the use of an official discourse of exclusion by pointing to the existence of a state of emergency. Even if one accepts that the government can justifiably impose significant burdens on the population during times of emergency, it does not follow that it can do so in an inequitable manner. Besides the fact that enacting measures that target certain groups of people is constitutionally suspect on various grounds, the benefits of making use of such measures do not outweigh the costs. The short-term profits seem to be offset by the fact that trading their liberties for our wellbeing will render us less safe in the long run. Even though these types of measures might help prevent attacks against our nation in the near future, they may also undermine our legitimacy both here and abroad. Ultimately this has the potential of increasing our vulnerability because it will most likely diminish cooperation from those who will probably be in a better position to furnish us with valuable information about possible attacks against our nation.

Finally, in Part IV, I discuss the potential perils of attempting to inequitably target certain groups during times of emergency by examining and critiquing the recent enactment of a statute that authorizes the construction of a wall along the U.S.-Mexico border. Contrary to what its proponents have suggested, this measure, which asymmetrically requires Mexicans to assume a burden that is not imposed on our neighbors to the north, will likely augment the risks of a future terrorist attack, not reduce them.