Targeted Killing and Judicial Review
Stephen I. Vladeck · January 2014
82 GEO. WASH. L. REV. ARGUENDO 11 (2014)
In Drones: The Power to Kill, former Attorney General Alberto Gonzales argues for increased oversight and accountability for targeted killing operations undertaken by the U.S. Government against its own citizens. Modeled on the procedures adopted by the government for the detention of terrorism suspects after, and in light of, the Supreme Court’s decision in Hamdi v. Rumsfeld, these mechanisms would include at least some form of limited ex ante judicial review. This Response offers a detailed series of critiques of the means by which Judge Gonzales proposes to achieve increased oversight and accountability. More fundamentally, though, it argues that the buried lede of Judge Gonzales’s article is the view that U.S. courts are not categorically incompetent to review the legality of uses of military force. Thus, Judge Gonzales has penned a defense of judicial review of targeted killings that is far more robust than it might appear at first blush, because it both underscores why the target’s citizenship is irrelevant to the underlying judicial competency question and clarifies that debates over the scope and timing of such judicial review should take place on policy—rather than constitutional—terms. To that end, the Response closes by offering an alternative proposal to maximize vigorous and efficient judicial oversight of targeted killing operations.
Stops and Frisks, Race, and the Constitution
Paul J. Larkin, Jr. · September 2013
82 GEO. WASH. L. REV. ARGUENDO 1 (2013)
For more than a decade, the New York City Police Department (“NYPD”) has pursued an aggressive strategy to reduce street crime. Among the steps that the NYPD has taken is to stop and frisk anyone suspected of having committed, committing, or being about to commit a crime, such as the illegal possession of a firearm. New York City Mayor Michael Bloomberg and NYPD Police Commissioner Ray Kelly have touted the NYPD’s stop-and-frisk practice as being responsible for the reduction in crime, particularly homicides, that New York City has witnessed over the past decade. The practice is controversial, however, because the vast majority of individuals stopped are African American or Hispanic. This controversy eventually made its way into court. Nineteen parties who had been stopped by the NYPD brought suit against the City in Floyd v. City of New York. After a trial, the federal district court ruled that the NYPD’s stop-and-frisk practice violated the Fourth Amendment and the Equal Protection Clause of the Fourteenth Amendment. The court, however, applied the wrong legal analysis to the plaintiffs’ Fourth Amendment claims. The court relied on a statistical analysis of the NYPD’s stop-and-frisk practice as a whole, but the Fourth Amendment requires each stop or frisk to be examined individually. By contrast, the district court may have been correct in its equal protection ruling. The court was troubled by evidence in the record that the NYPD cared only about the number of stops, not their legality, as well as evidence of bigotry. That evidence may be sufficient to support the court’s ruling.
Justice John Marshall Harlan: Lectures on Constitutional Law, 1897–98
Brian L. Frye, Josh Blackman & Michael McCloskey · July 2013
81 GEO. WASH. L. REV. ARGUENDO 12 (2013)
From 1889 to 1910, while serving on the United States Supreme Court, the first Justice John Marshall Harlan taught at the Columbian College of Law, which later became The George Washington School of Law. During the 1897–1898 academic year, one of Harlan’s students, George Johannes, along with a classmate, transcribed verbatim the twenty-seven lectures Justice Harlan delivered on constitutional law. In 1955, Johannes sent his copy of the transcripts to the second Justice Harlan, who eventually deposited them in the Library of Congress.
To create this annotated transcript of Justice Harlan’s lectures, Professor Frye purchased a microfilm copy of Johannes’s transcription, made a PDF copy, and transcribed it verbatim by hand. The lectures were edited to preserve all of Harlan’s words as transcribed, except in cases of clear transcription error. Paragraph breaks and punctuation were added as necessary, in order to reflect the cadence of Harlan’s speech. References are provided for all quotations, and citations are provided for all cases and publications discussed by Harlan. Additional annotations are provided when supplemental information will help the reader better understand Harlan’s commentary.
The editors dedicate this transcript to George Johannes, whose diligent note taking in Justice Harlan’s class secured these lectures to “ourselves and our Posterity.”
The Harlan Papers
(on file with the Library of Congress, Manuscript Division, The John Marshall Harlan Papers, 1810-1971)
This set of images displays documents from the Library of Congress’s John Marshall Harlan Papers Collection. These images were taken and graciously provided to the George Washington Law Review by Professor Josh Blackman, and are being posted on Arguendo in conjunction with Issue 81:4 to improve access to these sources for our readers.
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