Disappearing Legal Black Holes and Converging Domains: Changing Individual Rights Protection in National Security and Foreign Affairs

Disappearing Legal Black Holes and Converging Domains: Changing Individual Rights Protection in National Security and Foreign Affairs

This Essay attempts to describe what is distinctive about the way the protection of individual rights in the areas of national security and foreign affairs has been occurring in recent decades. Historically, the right to protection under the U.S. Constitution and courts has been sharply limited by categorical distinctions based on geography, war, and, to some extent, citizenship. These categorical rules carved out domains where the courts and Constitution provided protections and those where they did not. The institutional design and operating rules of the national security state tracked these formal, categorical rules about the bounda­ries of protection. There have been many “legal black holes” historically, domains where legal protections did not exist for certain people. Foreign affairs and national security have historically been areas defined by their legal black holes.

In recent years, legal black holes are disappearing, and previously distinct domains are converging. The importance of U.S. citizenship to protection under the Constitution and courts is decreasing, formal barri­ers to legal protection and judicial review based on geography and war are dissolving, and the dissolution of these categorical boundaries is changing the design and operation of the national security state. National security and foreign affairs law is being domesticated and nor­malized, as rights protections available in ordinary, domestic, peace­time contexts are extended into what were previously legal black holes. The jurisprudence of categorization and boundary-marking is fading away.

The core of this Essay identifies, names, and discusses these trends, seeking to give a vocabulary and conceptual and historical coherence to current discussions of individual rights protection in national security and foreign affairs contexts. Secondarily, this Essay suggests some fac­tors that might be driving convergence and closing of legal black holes today. Because most of these potential causal drivers are still exerting their force on the shape of the law, this Essay concludes that the future of national security law will likely see more convergence and fewer black legal holes and then off‌‌‌‌‌ers several specific predictions.


It has been quite common in the last decade, when difficult legal questions were raised about individual rights and judicial review—the rights, for example, of noncitizen military detainees at Guantanamo, or of U.S. citizens targeted with drone strikes in Yemen or elsewhere—to hear lawyers assert that centuries-old understandings, precedents, and practices support their arguments. For instance, in the Rasul 1 Rasul v. Bush, 542 U.S. 466, 470–73 (2004) (concerning habeas corpus review of U.S. military detentions of suspected al Qaeda and Taliban supporters at military base in Guantanamo Bay, Cuba).‌‌‌‌‌‌‌‌ and then the Boumediene 2 Boumediene v. Bush, 553 U.S. 723, 732–33 (2008) (same). litigation, lawyers and law professors supporting the detainees confidently asserted that common law and constitutional principles and practices dating back to the eighteenth century and even earlier clearly mandated that the detainees had a right to habeas review, while lawyers and law professors on the other side just as confidently asserted the opposite. 3 Compare Brief for Professors of Constitutional Law and Federal Jurisdiction as Amici Curiae Supporting Petitioners at 5–25, Boumediene, 553 U.S. 723 (Nos. 06-1195), 2007 WL 2441580 (arguing historical case law and practice show persons such as detainees have long been protected by habeas corpus and Suspension Clause), with Brief for the Foundation for Defense of Democracies et al. as Amici Curiae Supporting Respondents at 5–12, Boumediene, 553 U.S. 723 (No. 06-1195), 2007 WL 2972242 (arguing there is no historical precedent of habeas corpus protection of persons such as detainees). Supporters of rights for detainees and others affected by post–9/11 security actions contended that the Bush‌‌‌‌‌‌‌‌‌‌ Administration’s claims that,‌‌‌ under traditional understandings, the Constitution did not protect certain persons or places, were attempts to create “legal black holes,” 4 Kate Zernike, McCain and Obama Split on Justices’ Guantanamo Ruling, N.Y. Times (June ‌‌‌‌‌‌‌‌‌‌13, 2008), http://www.nytimes.com/2008/06/13/us/politics/‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌13candidates‌‌‌‌‌‌‌‌‌‌‌‌‌
.html (on file with the Columbia Law Review) (quoting Senator Barack Obama). The term seems to have been coined by Johan Steyn. See Johan Steyn, Guantanamo Bay: The Legal Black Hole, 53 Int’l & Comp. L.Q. 1, 1 (2004) (“The most powerful democracy is detaining hundreds of suspected foot soldiers of the Taliban in a legal black hole at the United States naval base at Guantanamo Bay, where they await trial on capital charges by military tribunals.”).
some‌‌‌‌‌‌‌‌‌‌‌thing which was said to be shocking and even un-American. 5 See Countdown with Keith Olbermann (MSNBC television broadcast June 22, 2007) (statement of Prof. Neal Katyal, Salim Hamdan’s attorney), transcript available at http://www.nbcnews.com/id/19415786/ns/msnbc-countdown_with_keith_olbermann‌/t/‌‌‌‌‌
countdown-keith-olbermann-june/#.VNVdS1PF_lQ (on file with the Columbia Law Review) (“[T]he administration’s argument is that Guantanamo is an [sic] legal black hole where they can do whatever they want . . . . [T]hat is . . . fundamentally un-American to say, These people have no rights whatsoever.”).

The effect of all this has been to suggest a kind of continuity in legal thought about how people are protected from overreaching by the U.S. government. But any suggestion of continuity is mistaken. Rather than continuity, there has been enormous change. Research about the Founding period, 6 See generally Philip Hamburger, Beyond Protection, 109 Colum. L. Rev. 1823, 1826 (2009) (showing in Founding era, persons who did not owe allegiance received no legal protection); J. Andrew Kent, A Textual and Historical Case Against a Global Constitution, 95 Geo. L.J. 463, 464–65 (2007) [hereinafter Kent, Global Constitution] (finding no evidence Founding generation thought U.S. Constitution provided extra­territorial protections but finding much evidence it did not). the Civil War, 7 See generally Andrew Kent, The Constitution and the Laws of War During the Civil War, 85 Notre Dame L. Rev. 1839, 1845–52 (2010) [hereinafter Kent, Civil War] (showing during Civil War, persons resident in enemy territory and members of enemy’s armed forces lacked protection of Constitution and laws). the age of imperialism at the turn of the twentieth century, 8 See generally Andrew Kent, Boumediene, Munaf, and the Supreme Court’s Misreading of the Insular Cases, 97 Iowa L. Rev. 101, 103, 112–13 (2011) [hereinafter Kent, Insular Cases] (showing Insular Cases held or assumed Constitution did not protect persons outside sovereign territory of United States, military enemies wherever located, and persons within newly-acquired sovereign territory in which congressional civil government had not yet been established); Andrew Kent, Habeas Corpus, Protection, and Extraterritorial Constitutional Rights: A Reply to Stephen Vladeck’s “Insular Thinking About Habeas,” 97 Iowa L. Rev. Bull. 34, 37–40 (2012) (showing in two little-known Insular Cases, Supreme Court apparently assumed noncitizens located in Panama Canal Zone and in newly-annexed Puerto Rico, which was still governed by U.S. military, were not protected by the Constitution’s Suspension Clause or other procedural rights). and the period spanning the two World Wars and early Cold War, 9 See generally Andrew Kent, Do Boumediene Rights Expire?, 161 U. Pa. L. Rev. PENNumbra 20, 33–34 (2012) [hereinafter Kent, Boumediene Rights], available at http://
scholarship.law.upenn.edu/penn_law_review_online/vol161/iss1/6/ (on file with the Columbia Law Review) (contrasting approaches mid-nineteenth-century Court applied to court access for enemy aliens); Andrew Kent, Judicial Review for Enemy Fighters: The Court’s Fateful Turn in Ex parte Quirin, the Nazi Saboteur Case, 66 Vand. L. Rev. 153, 156–57 (2013) [hereinafter Kent, Enemy Fighters] (arguing until 1942 Quirin case, enemy fighters had never been thought to be entitled to access U.S. courts during wartime to claim protections from Constitution or other municipal laws).
reveals that historical understandings about the protec­tion of individual rights in national security and foreign affairs contexts 10 This refers to contexts where the United States is involved in warfare, relations with foreign countries, or extraterritorial intelligence gathering, covert action, or law enforcement. were profoundly different than modern understandings.

During these earlier eras, there was a stable and identifiable form or structure to the legal thought about individual rights and judicial review in foreign affairs. 11 See infra Part I (discussing how entitlement to individual rights was understood to be delimited by territorial location, enemy status during wartime, and citizenship). In the last few decades, however, it has begun to change, and this change has recently accelerated. 12 See infra Part III (discussing recent changes to individual rights in foreign affairs and national security contexts). The longstanding form or structure of rights protection was based on categorical rules and boundary-drawing. The primary axes along which the protections of the Constitution and domestic laws and courts were delimited were territo­rial location, citizenship, and enemy status during wartime. 13 See infra Part I (summarizing historical evidence that these categorical distinc­tions prevailed). For instance, enemy aliens (citizens or subjects of a nation at war with the United States) were barred from accessing U.S. courts during wartime unless they resided in America and had refrained from taking hostile actions against the United States. 14 See infra notes 36–41 and accompanying text (discussing historical treatment of enemy aliens). And all aliens who were outside the United States lacked any rights under the U.S. Constitution. 15 See infra notes 29–33 and accompanying text (discussing importance of geography in constitutional protection); see also Kent, Global Constitution, supra note 6, at 485–505 (identifying “background assumptions and conceptions” of legal status of aliens outside United States at Founding). Even if present in the United States (say, as prisoners of war), enemy fighters lacked any right to access U.S. courts and any individual rights under the Constitution. 16 See infra Part I (summarizing historical evidence); see also Kent, Enemy Fighters, supra note 9, at 180–88, 193–96, 198–99, 202–05 (discussing treatment of enemy fighters in England and during early American wars and Civil War). And even citizens could lose protection from the Constitution and courts during wartime when present at sites of actual battles. 17 See infra Part I (summarizing historical evidence); see also Andrew Kent, Are Damages Different?: Bivens and National Security, 87 S. Cal. L. Rev. 1123, 1165 (2014) [hereinafter Kent, Damages] (summarizing rules of common law and law of nations).

The domain of protection was therefore based on formal, categori­cal distinctions between U.S. territory and abroad, war and peace, resi­dent and nonresident, citizen and noncitizen, enemy fighter and not, and zone of battle and elsewhere. Many legal black holes existed where persons, places, or contexts were on the wrong side of the categorical divide and were outside the protection of the law. This is not a claim that inter arma enim silent leges—in times of war, the laws are silent 18 The phrase dates back to Cicero and is frequently used today to describe, and criticize, the way courts are said to become much more deferential to political branches’ responses to emergencies than ordinary legal rules should allow. See Richard H. Pildes, Law and the President, 125 Harv. L. Rev. 1381, 1385 & n.19 (2012) (reviewing Eric A. Posner & Adrian Vermeule, The Executive Unbound: After the Madisonian Republic (2010)) (noting origin of phrase and modern usage). —that is, that existing legal restraints tend to disappear in practice during wartime as government stretches the boundaries of the permissible. The claim is that the accepted boundaries of legal protection were limited by categori­cal distinctions as to place, person, and context.

Importantly, these categorical limitations on the domain of protec­tion from the Constitution and courts in the national security area were instantiated by structural doctrines and institutional design choices by Constitution drafters, Congress, and the executive branch. 19 See infra Part I (summarizing categorical distinctions established in Founding period). The sharp point of the spear of the national security state was aimed outside the United States. The U.S. military and, when they developed later in American history, foreign-intelligence organizations like the Central Intelligence Agency and National Security Agency, were generally deployed outward against noncitizens abroad, while internally it was law enforcement agencies like the Federal Bureau of Investigation that took the lead. 20 See infra Part II.B (describing formation of modern national security system and division of responsibility).

In recent years, the older understandings and practices have started to break down. The distinctions between domestic and foreign, enemy and friend, peace and war, and citizen and noncitizen are breaking down, both in the real world and in the law determining the domain of rights and the right to access the courts. Formal barriers to legal protec­tion and judicial review based on categorical distinctions about citizen­ship, geography, or war are dissolving, and the dissolution of these categorical boundaries is also reflected in changes to the design and operation of the national security state. I call this process “conver­gence”—previously distinct boundaries are softening and previously distinct spheres are becoming more alike. National security is becoming less an exceptional zone of limited or nonexistent legal protection and instead more like the domestic sphere where robust judicial review pro­vides significant protections from government overreaching. Legal black holes are shrinking or closing entirely.

This Essay aims first to identify and describe these trends, seeking to give a vocabulary as well as a conceptual and historical coherence to cur­rent discussions of individual rights protection in national security and foreign affairs contexts. Second, as a kind of research agenda for further inquiry, it suggests some possible causal factors that might be driving these changes and, in light of this, makes some predictions about the future.

Legal black holes in contemporary law have been examined by other scholars. David Dyzenhaus, in advocating that a robust, substantive ver­sion of the rule of law should prevail even when government is respond­ing to contemporary security emergencies, decries legal black holes as “lawless void[s]” where the executive can act without legal constraint, either because the substantive law does not cover the situation or judicial review is unavailable. 21 David Dyzenhaus, The Constitution of Law: Legality in a Time of Emergency 1–3 (2006). Dyzenhaus, who focuses primarily on the United Kingdom, Canada, and Australia, sees evidence that courts are gradually closing legal black holes in those countries by “put[ting] a rule-of-law spine into the adjudication of national security.” 22 Id. at 174. His account is thus broadly congruent with my description of the trend in U.S. law and practice. 23 Dyzenhaus also coined the term “legal grey holes” to describe “disguised black holes,” that is, situations where “there are some legal constraints on executive action—it is not a lawless void—but the constraints are so insubstantial that they pretty well permit government to do as it pleases.” Id. at 3, 42. Adrian Vermeule has argued that contemporary U.S. administrative law is full of legal grey holes and even a few black holes, because of the standards for judicial review under the Administrative Procedure Act, 5 U.S.C. §§ 551–559, 701–706 (2012). Adrian Vermeule, Our Schmittian Administrative Law, 122 Harv. L. Rev. 1095, 1096–97 (2009). According to Vermeule, the large body of legal rules and practices that govern review of administrative agencies is pervasively founded upon “open-ended standards or adjustable parameters—for example, what counts as ‘arbitrary’ or ‘unreasonable’ . . . .” Id. at 1097. Vermeule argues “that courts can and do adjust” these open-ended standards “during perceived emergencies to increase deference to administrative agencies,” often in practice being so deferential as to represent only “a sham” of legal constraint. Id. Unlike Dyzenhaus, Vermeule thinks that legal grey holes are inevitable and, it appears, often have benefits as well as drawbacks. Id. at 1033, 1136; cf. Evan J. Criddle, Mending Holes in the Rule of (Administrative) Law, 104 Nw. U. L. Rev. 1271, passim (2010) (questioning Vermeule’s descriptive account); Joseph Landau, Chevron Meets Youngstown: National Security and the Administrative State, 92 B.U. L. Rev. 1917, 1974–77 (2012) (same).

With his co-author Eric Posner, Vermeule has also argued that the modern U.S. President is, in practice, “unbound” by law: The “law does little to constrain the modern executive.” Posner & Vermeule, supra note 18, at 15. In both ordinary domestic and national security contexts, and during both peacetime and emergencies, Posner and Vermeule suggest that legal constraints such as statutes and constitutional rules are typically vague enough, and courts are sufficiently deferential when law is invoked against executive action, that the executive in practice exists almost entirely in a legal grey hole. See, e.g., id. at 15, 52–58, 84–112. This Essay is not concerned with whether lax enforce­ment of legal constraints renders them merely nominal (legal grey holes); it focuses instead on well-accepted categorical rules and structures embodying those rules that, for much of American history, made certain persons, places, and contexts legal black holes. And, in any event, I join those critics who think that the suggestion that the modern U.S. executive operates in a pervasive legal grey hole is significantly overstated as an empirical matter. See, e.g., Jack Goldsmith, Power and Constraint (2012) (describing how national security actions of modern executive are restrained and made accountable by various mechanisms and institutions); Curtis A. Bradley & Trevor W. Morrison, Presidential Power, Historical Practice, and Legal Constraint, 113 Colum. L. Rev. 1097, 1149–52 (2013) (calling for additional empirical research on presidential legal constraints); Pildes, supra note 18, at 1392–403 (reviewing Posner & Vermeule and noting evidence that executive is restrained by law). This Essay suggests instead that the clear historical trend is toward greater legal constraint enforced by courts on the executive in the areas of foreign affairs and national security.

Other scholars writing about national security and foreign affairs have recently noted the blending and converging of previously distinct domains, akin to the processes I will describe. Robert Chesney has shown how the U.S. legal authorities and operating rules governing military ver­sus intelligence operations have been converging. 24 See Robert Chesney, Military-Intelligence Convergence and the Law of the Title 10/Title 50 Debate, 5 J. Nat’l Security L. & Pol’y 539, 544–83 (2012). Chesney and Jack Goldsmith have argued that the substantive and procedural law govern­ing detention in military versus law enforcement contexts have been con­verging. 25 See Robert Chesney & Jack Goldsmith, Terrorism and the Convergence of Criminal and Military Detention Models, 60 Stan. L. Rev. 1079, 1100–20 (2008) (discussing convergence in era of post–9/11 military detention). Joseph Landau has written about how the due process revolution in domestic law, primarily in the “new property” area, was assimilated into both immigration and national security law, helping spur greatly increased judicial protection for noncitizens in those areas. 26 See Joseph Landau, Due Process and the Non-Citizen: A Revolution Reconsidered, 47 Conn. L. Rev. 879, 894–911 (2015) [hereinafter Landau, Due Process] (highlighting influence of Matthews v. Eldridge on due process in contexts of immigration and national security). And Richard Pildes and Samuel Issacharoff have shown how changes in law, political culture, and military technology are putting increasing pressure on the military to “individuate,” that is, to apply force in a surgical man­ner so that it only impacts individuals who have been deemed targetable or guilty in some fashion through fair procedures. 27 Samuel Issacharoff & Richard H. Pildes, Targeted Warfare: Individuating Enemy Responsibility, 88 N.Y.U. L. Rev. 1521, 1596 (2013) [hereinafter Issacharoff & Pildes, Targeted Warfare] (arguing changes are part of “profound but partial transformation regarding the legitimate use of military force”). All of these insights provide context for the convergence in rights protection and the disap­pearance of legal black holes that I describe below.

Parts I–III are the core of this Essay. Part I sketches the historical structure of legal protections in national security and foreign affairs domains, characterized by categorization, boundary-drawing, and legal black holes. Part II shows how demarcations of the Constitution’s and courts’ domain for protecting individual rights based on geography, war, and citizenship were mirrored by the institutional design choices and operating rules at the heart of the national security state. Part III docu­ments the convergence that has been taking place recently in rights protection and the closing of legal black holes. Part IV, the more specula­tive section, offers some thoughts about the reasons for convergence and closing of legal black holes, suggests areas for future research, and predicts that convergence is likely to continue if not accelerate.

I. The Historical Domain of the Constitution and Right to Access the Courts

People can be protected from government overreaching in a num­ber of ways. In the U.S. system, they may or may not have rights under the Constitution, international law, the common law, or statutory or regulatory law. They may be able to access U.S. courts to seek protection, or they may not. Government institutions may or may not be structured in ways that provide legal or practical protection. Historically, the tradi­tional rules determining who had what kind of protections from the laws, courts, and other institutions in the national security domain have been based on a series of sharp, categorical distinctions.

This Part summarizes the traditional, categorical rules about protec­tion from the laws and courts. I am generalizing a great deal here because the supporting research is presented in detail in other places 28 See Hamburger, supra note 6, at 1834–44, 1955–73 (documenting relationship between allegiance and protection in colonial and Founding periods); Kent, Damages, supra note 17, at 1163–67 (analyzing historical and other reasons for Supreme Court’s reticence to extend Bivens to national security sphere); Kent, Insular Cases, supra note 8, at 103–18 (disputing that Insular Cases provide support for Boumediene’s extension of constitutional habeas corpus to alleged enemy fighters held outside United States); Andrew Kent, Citizenship and Protection, 82 Fordham L. Rev. 2115, 2118–23 (2014) [hereinafter Kent, Citizenship] (exploring role traditionally played by territorial location, domicile, enemy status, and citizenship in determining scope of constitutional protections); Kent, Civil War, supra note 7, at 1872–1911 (discussing reconceptualization of legal rights during Civil War era); Kent, Boumediene Rights, supra note 9, at 28–32 (assessing scope of enemy combatants’ rights under Boumediene and prior law); Kent, Enemy Fighters, supra note 9, at 169–213 (analyzing inability of enemy fighters to access courts via habeas corpus or otherwise); Kent, Global Constitution, supra note 6, at 485–505 (analyzing extraterritorial rights of noncitizens at time of Founding). and, in any event, this Essay is focused on big themes that span historical epochs rather than doctrinal nuance at a given point in time.

Geography or territorial location has historically been a crucial determinant of protection from the Constitution and the courts. Gener­ally speaking, both citizens and noncitizens within the United States were protected by the Constitution and could access the courts to claim protection. 29 See Kent, Citizenship, supra note 28, at 2118–20. But, before the twenty-first century, noncitizens outside the sovereign territory of the United States were held to lack any constitu­tional rights. 30 See Kent, Insular Cases, supra note 8, at 123–32; Kent, Global Constitution, supra note 6, passim; see also Boumediene v. Bush, 553 U.S. 723, 770 (2008) (“It is true that before today the Court has never held that noncitizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution.”). On the other hand, U.S. citizenship or lawful permanent residence in the United States did at times provide some extraterritorial rights protection. Most of the controversial and coercive national security activities of the U.S. government occur outside the United States, and hence the expansion and use of U.S. power around the globe in the late twentieth and early twenty-first centuries have generated recurring controversies about extraterritorial constitutional rights. 31 See, e.g., Boumediene, 553 U.S. at 732–39 (concerning constitutional challenge to Congress’s stripping of habeas jurisdiction to review military detentions of non-U.S. citizens at U.S. military enclave at Guantanamo Bay); Hamdan v. Rumsfeld, 548 U.S. 557, 566–69 (2006) (concerning constitutional and statutory challenges to military commission trial of non-U.S. citizen at Guantanamo Bay); United States v. Verdugo-Urquidez, 494 U.S. 259, 262–63 (1990) (concerning application of Fourth Amendment to search of Mexican residence conducted by U.S. and Mexican law enforcement while Mexican property owner was in custody of U.S. law enforcement); In re Terrorist Bombings of U.S. Embassies in E. Afr. (Fifth Amendment Challenges), 552 F.3d 93, 103–05, 108, 115 (2d Cir. 2008) (concerning application of Fifth Amendment to interrogation by U.S. law enforcement of foreign nationals held by Kenyan law enforcement).

In earlier centuries, this general approach to determining the domain of rights was described as a reciprocal relationship between alle­giance and protection. Those who owed and gave allegiance—all citizens and any noncitizens who were peacefully resident or traveling within the United States—were generally within the protection of the domestic laws, courts, and government of the United States. 32 See Kent, Civil War, supra note 7, at 1853–55 (discussing legal rights of and availability of judicial review to individuals present in and pledging their allegiance to United States). In contrast, persons who owed no allegiance received no protection. 33 See Hamburger, supra note 6, passim; Kent, Enemy Fighters, supra note 9, at 176–211; Kent, Global Constitution, supra note 6, at 503–05.

Wartime also exposed a domestic–international law divide in protec­tion. Both U.S. citizens and aliens on the home front remained protected by constitutional and other domestic law rights during war, 34 See Ex parte Milligan, 71 U.S. (4 Wall.) 2, 118–31 (1866) (holding unconstitutional military trial of noncombatant in Union state not under martial law); Kent, Damages, supra note 17, at 1163–65 (summarizing relevant legal authorities). but all per­sons resident in an enemy nation, enrolled in an enemy’s armed forces (enemy fighters), or present at the site of actual combat were out of the protection of the Constitution. 35 See Milligan, 71 U.S. at 118, 123, 131 (suggesting persons in those contexts lacked protection from constitutional rules announced by Court); Kent, Civil War, supra note 7, passim (documenting nearly universal belief and practice persons in those categories lack protection from Constitution and laws); Kent, Enemy Fighters, supra note 9, at 176–211 (same).

Wartime used to be understood as an exceptional state during which all ordinary civil intercourse between persons of warring nations was, in theory if not in practice, interdicted. 36 See, e.g., Matthews v. McStea, 91 U.S. 7, 9–10 (1875) (“It must also be conceded, as a general rule, to be one of the immediate consequences of a declaration of war and the effect of a state of war, even when not declared, that all commercial intercourse and dealing between . . . the contending powers is unlawful, and is interdicted.”). Since the first decade under the Constitution, Congress has empowered the President to detain or expel enemy aliens during declared wars or invasions of the United States. 37 See Alien Enemies Act, ch. 66, 1 Stat. 577 (1798) (codified at 50 U.S.C. § 21 (2012)) (giving President such power with respect to “all natives, citizens, or subjects of the hostile nations or government, being of the age of fourteen years and upward”). In previous nation-to-nation wars, large numbers of civilian enemy aliens were excluded from the United States, detained in the United States, or repatriated. 38 See, e.g., Kent, Enemy Fighters, supra note 9, at 208–09 (noting during First World War, United States interned several thousand enemy civilians); J. Gregory Sidak, War, Liberty, and Enemy Aliens, 67 N.Y.U. L. Rev. 1402, 1418 (1992) (enumerating enemy aliens interned and repatriated during and immediately after World War II). Under both the common law and the law of nations, all commercial intercourse, including contracts, between civilian residents of warring nations was illegal during wartime. 39 See Hanger v. Abbott, 73 U.S. (6 Wall.) 532, 535 (1867) (“[A]s soon as war is commenced all trading, negotiation, communication and intercourse between the citizens of one of the belligerents with those of the other, without the permission of the government, is unlawful.”). And ancient rules allowed the military and, in some circumstances, even private citizens to seize the private property of enemy aliens during war.

Thus, according to Chancellor James Kent:

[W]hen the sovereign of a state declares war against another sovereign, it implies that the whole nation declares war, and that all the subjects of the one are enemies to all the subjects of the other . . . . When hostilities have commenced, the first objects that naturally present themselves for detention and capture are the persons and property of the enemy, found within the territory at the breaking out of the war. According to strict authority, a state has a right to deal as an enemy with persons and property so found within its power, and to confiscate the property, and detain the persons as prisoners of war. 40 James Kent, Commentaries on American Law 56 (1826).

The Supreme Court colorfully summarized these traditional under­standings:

In the state of war, nation is known to nation only by their armed exterior; each threatening the other with conquest or annihilation. The individuals who compose the belligerent states, exist, as to each other, in a state of utter occlusion. If they meet, it is only in combat. 41 The Rapid, 12 U.S. (8 Cranch) 155, 160–61 (1814). See generally Richard R. Baxter, So-Called ‘Unprivileged Belligerency’: Spies, Guerrillas, and Saboteurs, 28 Brit. Y.B. Int’l L. 323, 325 (1951) (“The courts of the United States have been particularly prone to start from the premiss that all inhabitants of the enemy state and all persons adhering to it are enemies, notably in connexion with property rights, treasonable conduct, and commercial intercourse with the enemy at common law.”).

Wartime was thus an exceptional state of greatly diminished or even nonexistent legal rights for residents and citizens of the enemy nation.

Prior to the twentieth century, the common law and international law were as or more frequently invoked than the U.S. Constitution to provide protections against the U.S. government. 42 David Sloss, Polymorphous Public Law Litigation: The Forgotten History of Nineteenth Century Public Law Litigation, 71 Wash. & Lee L. Rev. 1757, 1760 (2014) (documenting “forgotten history of nineteenth century public law litigation” and noting “federal courts routinely applied a mix of international law, statutes, and common law to protect fundamental rights and restrain government action” rather than Constitution as done today); see also Kent, Damages, supra note 17, at 1163–67 (noting same effect). Therefore, questions of domain and how it has changed over time cannot only examine entitlement to constitutional protection. Because common law and international law often functioned as effective substitutes for constitu­tional protection, 43 See Kent, Damages, supra note 17, at 1163–67 (recounting historical use of common law tort suits instead of federal law or Constitution by U.S. citizens against government officials). it should not be surprising that the availability of those protections also depended on war, geography, and citizenship. Access to protection under common law or international law was con­trolled both procedurally and substantively—by both procedural and standing doctrines about who could access the courts to seek legal protection and substantive doctrines about the scope of rights. 44 See id. Civilian enemy aliens (nationals of a country at war with the United States) domi­ciled abroad did not have the right to access U.S. courts during war­time. 45 Kent, Enemy Fighters, supra note 9, at 188–93, 196–98, 207–09, 212. Enemy fighters, no matter their nationality, domicile, or actual location, could not access U.S. courts during wartime. 46 Id. at 193–96, 198–99, 204, 206, 209. Even U.S. citi­zens domiciled in an enemy nation during wartime lacked the right to access U.S. courts. 47 See Kent, Civil War, supra note 7, at 1905–07. Moreover, it was generally held that “[l]east of all[] will the common law undertake to re-judge acts done flagrante bello in the face of the enemy.” 48 Tyler v. Pomeroy, 90 Mass. (8 Allen) 480, 484–85 (Mass. 1864). And complying with the laws of war was a complete defense to a common law tort suit. See, e.g., Terrill v. Rankin, 65 Ky. (2 Bush) 453, 457 (Ky. Ct. App. 1867) (“Unless the order was authorized by the laws of war, it conferred on the appellee no legal authority and, consequently, his act was illegal.”).

International law was also a realm of categorical distinctions and legal black holes where no protection was available. Until the mid-twentieth century, international law provided very little and often no pro­tection to a country’s own nationals, concerned as it was with state-to-state relations and treatment of foreign nationals. 49 See Curtis A. Bradley & Jack L. Goldsmith, Customary International Law As Federal Common Law: A Critique of the Modern Position, 110 Harv. L. Rev. 815, 818 (1997) (“Historically, CIL [customary international law] primarily governed relations among nations, such as the treatment of diplomats and the rules of war. Today, however, CIL also regulates the relationship between a nation and its own citizens, particularly in the area of human rights.”). In earlier eras, even within the domains where international law applied, there were categori­cal exclusions from protection. It was generally thought that interna­tional law bound only “civilized” nations in the mutual relations 50 See, e.g., Henry Wheaton, Elements of International Law 17–18 (Richard Henry Dana ed., 8th ed. 1866) (“Is there a uniform law of nations? There certainly is not the same one for all the nations and states of the world. The public law, with slight exceptions, has always been, and still is, limited to the civilized and Christian people of Europe or those of European origin.”). and that it did not apply, or at least did not have to be followed, when the civilized interacted with those considered savage or uncivilized. 51 See S. James Anaya, Indigenous Peoples in International Law 26–27 (2d ed. 2004) (discussing view that international law only applied to European-recognized, “civilized” states). During warfare against an uncivilized opponent, theorists of the law of nations and laws of war taught that law either did not apply or that it applied and allowed or even encouraged extreme violence, like summary execution of captured enemies or wholesale extermination of combatants and civil­ians. 52 See, e.g., 3 Emmerich de Vattel, The Law of Nations or the Principles of Natural Law § 34, at 246 (Charles G. Fenwick trans., Carnegie Inst. of Wash. 1916) (1758) (noting “nations are justified in uniting together . . . with the object of punishing, and even of exterminating savage peoples” like “those barbarians . . . who make war from inclination and not from love of country”); see also Antony Anghie, Imperialism, Sovereignty and the Making of International Law 27 (2005) (describing Vitoria’s views on lawfulness of violence against unbelievers or Indians who bear arms against Christians); Elbridge Colby, How to Fight Savage Tribes, 21 Am. J. Int’l L. 279, 279–80 (1927) (documenting widespread view that customary laws of war did not apply or applied much more loosely in conflicts with “savage” or “uncivilized” enemies). It was commonly said that barbarians or other “savage” opponents could be treated like wild animals—that is, simply slaughtered. 53 See, e.g., Stephen C. Neff, War and the Law of Nations 30 (2005) (discussing Aristotle’s view that conflicts against “barbarians” were comparable to fights against wild beasts); Richard Tuck, The Rights of War and Peace 161–62 (1999) (discussing Samuel Pufendorf’s view that peoples like marauding Mongols and Turks could be hunted down like “Beasts of Prey”). Accord­ing to Thomas Hutchinson, a historian who was also lieutenant governor and later governor of the Massachusetts Bay Colony, military enemies who “have no regard to the law of nations . . . therefore deserve no human respect.” 54 2 Thomas Hutchinson, The History of the Province of Massachusetts-Bay 83 (2d ed., London, J. Smith 1768). Western nations, including the United States, tended to act with extraordinary severity against foes deemed uncivilized or savage. 55 See generally Robert M. Utley, Frontier Regulars: The United States Army and the Indian, 1866–1891 (Bison Books 1984) (1973) (detailing various atrocities committed by United States in American Indian Wars); Russell F. Weigley, The American Way of War 153–63 (1973) (same).

The same general categorical rules and exemptions from legal obligation pertained to persons or groups that committed acts of vio­lence and plunder unlawfully, such as banditti, marauders, pirates, and guerillas. 56 2 William Winthrop, Military Law 11 (Washington, D.C., W.H. Morrison, Law Bookseller and Publisher 1886) (noting guerillas are “regarded as criminals and outlaws, not within the protection of the rights of war, or entitled . . . to be treated as prisoners of war, but liable to be shot, imprisoned, or banished, either summarily where their guilt is clear or upon trial and conviction by military commission”). Even the theorist Emmerich de Vattel, an exponent of more civilized and peaceful norms of international conduct than generally pre­vailed in his day, taught that “[a] Nation that is attacked by enemies of this sort is not under any obligation to observe towards them the rules belonging to formal war.” 57 de Vattel, supra note 52, § 68, at 258.

In sum, under traditional domain rules, noncitizens located outside the United States, military enemies (wherever located), and all persons at a site of active combat were outside the protection of the Constitution. The right to access U.S. courts to claim protection from the Constitution or other laws was denied to military enemies and to nonresident enemy aliens. The domain of protection from domestic laws and courts was therefore based on formal, categorical distinctions between domestic and foreign territory, war and peace, citizen and noncitizen, resident and nonresident, enemy fighter and enemy nonfighter, and zone of battle and elsewhere. Protections of international law also depended on categorical distinctions between citizen versus noncitizen and civilized versus uncivilized.

II. Institutional Design and Operating Rules for the National Security State

In their design and rules of the road, the national security institu­tions of the United States have observed and instantiated the categorical distinctions between foreign and domestic, enemy and friend, war and peace, and citizen (or noncitizen permanent resident) and noncitizen, and the like. These structures and internal operating rules therefore pro­vide either legal or practical protection to persons who might be affected by national security or foreign affairs activities of the United States. Nei­ther the statutory or regulatory operating rules for national security institutions that protect individual rights nor the institutional designs that provide structural protections to certain persons, places, and con­texts were universally protective, however. Largely paralleling the situa­tion with rules for individual rights protection discussed in Part I, the institutional structures and operating rules demarcated some persons, places, and contexts that were not protected. Often these subconstitu­tional operating rules and institutional design decisions have greater practical importance for protecting individual liberty and property inter­ests than do primary rules regarding individual rights and court access found in constitutional law, international law, or the common law, and it is thus important to sketch their outlines in order to understand the historical baseline against which modern changes can be discerned. In describing these institutional design features and operating rules, it is helpful to distinguish between the post–World War II period, when the modern national security state developed, and earlier eras of U.S. history.

A. Premodern Period

For much of American history, a zone of liberty within the United States was preserved primarily by institutional design, intentional neglect and weakness, and ideological aversion to a strong domestic military, intelligence, or law enforcement presence. The common law also played an important role in limiting the role of the military or militarized law enforcement within the United States.

The national government that would wield the military force of the nation was designed by the Founding generation to be small and con­cerned primarily with external objects, in order to protect the liberties of the American people. 58 See, e.g., The Federalist No. 23, supra, at 142–43 (Alexander Hamilton) (“The principal purposes to be answered by Union are these—the common defence of the members; the preservation of the public peace as well against internal convulsions as external attacks; the regulation of commerce with other nations and between the States; the superintendence of our intercourse . . . with foreign countries.”); The Federalist No. 45, at 306 (James Madison) (Harvard Univ. Press ed. 2009) (“The powers delegated by the proposed Constitution to the federal government . . . will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce.”). Thus, the level of government with more con­stant and encompassing control over the daily lives of Americans—the state governments and their subordinate, local bodies—would not be clothed with the awesome military and foreign affairs powers. 59 See U.S. Const. art. I, § 10, cl. 3 (“No state shall, without the consent of Congress, . . . keep troops . . . in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.”).

The Constitution places the military firmly under civilian control by the U.S. government, 60 See id. art. I, § 8, cls. 11–16, 18 (establishing military powers of Congress); id. art. II, § 2, cl. 1 (“The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.”). ensuring that its strength, while needed against external foes, will not be turned inward to threaten domestic liberties. The Constitution also specifies that federally controlled military force may be used internally only to the extent necessary to “execute the Laws of the Union,” “suppress Insurrections,” 61 Id. art. I, § 8, cl. 15. or at the request of the state government affected, protect states “against domestic Violence.” 62 Id. art. IV, § 4.

The U.S. Army was generally tiny prior to the Civil War, and was garrisoned mostly on the frontiers, far away from the population cen­ters. 63 See Andrew J. Birtle, U.S. Army Counterinsurgency and Contingency Operations Doctrine, 1860–1941, at 7 (1998) (describing pre-Civil War U.S. Army as “child of the frontier” and noting “antebellum Army spent the bulk of its time policing the nation’s ever-changing western boundary”). The permanent defense establishment consisted primarily of coastal fortifications and a small Navy. 64 See Weigley, supra note 55, at 42–43 (describing U.S. defense strategy as based on fortresses to protect “vital parts of the American coast” and free-ranging Navy to ward off invading expeditions and protect waterborne commerce). During the Civil War, the Army expanded hugely in size and massively increased its domestic powers over the civilian population, 65 See, e.g., Mark E. Neely, Jr., The Fate of Liberty: Abraham Lincoln and Civil Liberties, at xii (1991) (noting Lincoln “suspended the writ of habeas corpus early in the [Civil War] and thereafter managed the home front, in part, by means of military arrests of civilians—thousands and thousands of them”). but upon the surrender of Confederate forces, the extraordinary domestic powers were curtailed and the Army’s size greatly reduced. 66 The U.S. military continued to operate for some time in the former Confederate States, but the numbers involved were small. “During the 1870s the average size of the entire army was only 29,000, and only about 7,500 soldiers per year served in the South.” Joseph E. Dawson III, Army Generals and Reconstruction: Louisiana, 1862–1877, at 4 (1982). Within a few years, it was again a small frontier garrison force and remained that way until the 1898 war against Spain. 67 See Graham A. Cosmas, An Army for Empire: The United States Army in the Spanish-American War 1–14 (1994) (“[T]he Army in 1897 . . . had no permanent troop formations larger than regiments . . . and neither detailed war plans nor a staff for making them existed.”). In 1890, the United States was the richest country in the world but had only the fourteenth-largest army—an army smaller than Bulgaria’s. 68 Fareed Zakaria, From Wealth to Power: The Unusual Origins of America’s World Role 47 (1998). At the end of Reconstruction, legislators from the former Confederate States of America helped enact the Posse Comitatus Act, which required a specific act of Congress before the military could be used for domestic law enforcement purposes. 69 See Army Appropriations Act, ch. 263, § 15, 20 Stat. 145, 152 (1878) (codified as amended at 18 U.S.C. § 1385 (2012)) (“[I]t shall not be lawful to employ any part of the Army of the United States . . . for the purpose of executing the laws, except in such cases and under such circumstances as . . . may be expressly authorized by the Constitution or by act of Congress. . . .”).

There was essentially no federal law enforcement apparatus until the Civil War, and it was tiny and ill-funded for decades afterward. 70 There were, for example, some postal inspectors, revenue agents, U.S. marshals, and Secret Service agents assigned to investigate counterfeiting and the like, but their numbers were small and their jurisdiction limited. See generally David R. Johnson, American Law Enforcement: A History 73–86, 167 (1981). Although institutionalized military intelligence efforts began in the latter part of the nineteenth century, the efforts were wholly devoted to war planning and military analysis of potential external adversaries. 71 See David R. Rudgers, Creating the Secret State: The Origins of the Central Intelligence Agency 5–6 (2000) (tracing evolution of American intelligence-gathering agencies). Before World War II, there was no foreign-intelligence and espionage agency. 72 See id. Within the United States, the FBI—a relatively small law enforcement agency—was responsible for counterintelligence. 73 See generally Tim Weiner, Enemies: A History of the FBI (2012) (discussing FBI’s evolution over time). Unlike many other countries, the United States has never had a stand-alone domestic intelligence agency. 74 See Peter Chalk et al., Considering the Creation of a Domestic Intelligence Agency in the United States: Lessons from the Experiences of Australia, Canada, France, Germany, and the United Kingdom 8 (Brian A. Jackson, ed. 2009) (noting debate over “whether the United States needs a dedicated domestic intelligence agency”). In contrast, Australia, Canada, France, Germany, and the United Kingdom all have stand-alone domestic intelligence agencies. Id. at 9. Housing domestic intelligence work within a law enforcement organization has been a conscious choice, designed to ensure that domestic rule-of-law norms govern intelligence work at home.

The judicially enforced common law helped protect the domestic zone of liberty in earlier eras. Habeas corpus and tort damages suits were available to ensure the military did not encroach on civilian life. 75 See Kent, Damages, supra note 17, at 1163–65 (detailing viable causes of action during Civil War period). Until the Civil War, there was no standing authority for statutory indemnifica­tion of sued federal officers, 76 See generally James G. Randall, The Indemnity Act of 1863: A Study in the War-Time Immunity of Governmental Officers, 20 Mich. L. Rev. 589, 589 (1922) (discussing Civil War immunity statutes). meaning that the prospect of a damages judgment could have significant deterrent effect on behavior. Prior to the Civil War, the common law and constitutional law of treason gener­ally assumed that U.S. citizens could be traitors, prosecutable in civilian court and liable to be opposed by military force if they arrayed them­selves militarily and in large numbers; they could not, however, be treated as full military enemies who were entirely outside the protection of the laws and courts. 77 See Kent, Civil War, supra note 7, at 1860–61 (discussing treason and rebellion during Civil War period). Under the common law, deadly force could, of course, be used domestically, but only in order to prevent serious crime during its commission, apprehend fleeing felons, or put down rebellions and insurrections. When invasion or rebellion required the domestic use of military power, old common law rules—which the Supreme Court in 1866 held were incorporated into the Constitution’s individual rights protections—required that martial law could only pre­vail where the courts and other institutions of civil justice could not in fact function. 78 Ex parte Milligan, 71 U.S. (4 Wall.) 2, 121–22 (1866); see also Kent, Civil War, supra note 7, at 1927–29 (noting Milligan Court was signaling “it disapproved of military Reconstruction and the continued displacement of civil by military courts”).

B. Post–World War II Period

The modern national security state created during and after World War II would be orders of magnitude larger and more powerful than what had existed previously, and hence more threatening to individual liberty at home. But its designers made a number of decisions that helped protect the zone of liberty within the United States and ensured military and other coercive force would be turned principally against the outside world. Especially since the reforms of the 1970s and 1980s, the national security state has reflected and instantiated the categorical distinctions demarcating zones, people, places, and contexts where protection was available and where it was not.

From the outset, the modern national security state was founded on a foreign–domestic divide, with the United States homeland and its peo­ple, institutions, and politics being shielded—for the most part—from the pointed end of the spear. For instance, the CIA’s organic act, dating from 1947, prohibits it from exercising “police, subpoena, law enforce­ment powers, or internal-security functions,” 79 National Security Act of 1947, Pub. L. No. 80-523, § 102, 61 Stat. 495, 498 (codified as amended at 50 U.S.C. § 3036(d)(1) (2012)). in part because Congress did not want to create an American Gestapo. 80 See Tim Weiner, Legacy of Ashes: The History of the CIA 5–6 (2007) (describing early fears surrounding creation of intelligence agency). The classified presidential directive that established the National Security Agency in 1952 stated that its primary purpose would be to “provide an effective, unified organiza­tion and control of the communications intelligence activities of the United States conducted against foreign governments.” 81 Christopher J. Seline, Eavesdropping on the Compromising Emanations of Electronic Equipment: The Laws of England and the United States, 23 Case W. Res. J. Int’l L. 359, 390 (1991) (presenting reprint of document). National secu­rity policy also placed great reliance on policing a citizen–noncitizen and domestic–foreign divide with measures relating to exclusion or deportation of foreign nationals who posed national security threats, 82 See, e.g., Internal Security Act of 1950, Pub. L. No. 81-831, §§ 22–23, 64 Stat. 987, 1006–12 (outlining circumstances under which aliens might be excluded or deported). ideological bars to naturalization, 83 See, e.g., id. § 25, 64 Stat. at 1013–15 (amending Nationality Act of 1940). denials of passports to U.S. persons who were members of communist organizations, 84 See, e.g., id. § 6, 64 Stat. at 993 (authorizing passport denials). and denationalization of persons who committed certain actions deemed sufficiently disloyal, such as taking an oath of allegiance to or serving in the armed forces or other government service of a foreign nation, or committing the crime of treason. 85 See Immigration and Nationality Act of 1952, Pub. L. No. 82-414, § 349, 66 Stat. 163, 267–68 (reenacting as amended provisions of Nationality Act of 1940). The Supreme Court substantially limited the government’s ability to denationalize in Afroyim v. Rusk, 387 U.S. 253, 257 (1967) (holding Congress lacks power to involuntarily divest person of U.S. citizenship).

But the full development of structural and rule-based protections for the people and territory of the United States did not develop until the 1970s and 1980s. After Watergate, the death of J. Edgar Hoover, and the revelation of embarrassing CIA covert operations abroad, a series of investigations by Congress and the press revealed that the CIA, the FBI, and military intelligence components had engaged in surveillance and subversion of many domestic groups and persons. These agencies moni­tored everything from Communists and other left wing individuals and political organizations to civil rights leaders, hippies, anti-Vietnam War activists, student groups, and many others that posed no real threat of any kind to the security of the United States and were plainly inappropri­ate targets of the national security state. 86 See, e.g., 2 Select Comm. to Study Gov’t Operations, Final Report of the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities: Intelligence Activities and the Rights of Americans, S. Rep. No. 94-755, at 5–9 (2d Sess. 1976) (Church Committee Report) (summarizing results of intelligence study).

Reforms by Congress and the executive branch followed these revelations, creating the modern national security architecture that endured through the first decade of the twenty-first century, when it started to change again in response to the pressures of the war against al Qaeda, globalization, and other forces.

The modern national security state reinforced a foreign–domestic divide, designed to protect the United States homeland and its people, institutions, and politics from the most coercive types of military and intelligence activities. Specific protections for the American people are rarely reserved for citizens only. Instead, most statutory and regulatory protections are for “United States person[s],” a term of art that includes citizens and lawful permanent residents. 87 See, e.g., 50 U.S.C. § 1801(i) (2012) (defining “United States person” as “citizen of the United States, an alien lawfully admitted for permanent residence . . . , an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation . . . incorporated in the United States . . . .”); Exec. Order No. 12333 § 3.5(k), reprinted as amended in Exec. Order No. 13,470, 73 Fed. Reg. 45,325 [hereinafter EO 12333] (defining “United States Person” to include citizens, aliens “known by the intelligence element concerned to be a permanent resident alien,” and the two types of corporations as described above).

The overall structure of government, by limiting coercive activities that may occur within the United States, protects the liberty of everyone in the United States, including aliens who are not lawful permanent resi­dents. For example, the military is hemmed in by strict legal rules that greatly reduce its authority to operate domestically and hence help pre­serve liberty at home. Building on rules enacted in earlier eras, Congress requires that military force only be used within the United States when ordinary criminal processes are insufficient, 88 10 U.S.C. §§ 332–333 (2012) (authorizing military force when “President considers [it] . . . impracticable to enforce the laws of the United States . . . by . . . judicial proceedings” or “suppress . . . any insurrection, domestic violence, unlawful combination, or conspiracy, if it . . . hinders the execution of the laws of that State, and of the United States within the state”). Similar laws had been on the books since the first decade of the country’s existence. See Act of May 2, 1792, ch. 28, 1 Stat. 264 (authorizing President to use military force in face of “imminent danger of invasion” or “insurrection in any state”); Act of Feb. 28, 1795, ch. 36, 1 Stat. 424 (same). and that Congress must specifically authorize it before any U.S. citizen may be detained 89 18 U.S.C. § 4001(a) (2012) (added by Non-Detention Act, Pub. L. No. 92-128, 85 Stat. 347, 347–48 (1971)). or the U.S. military may directly participate “in a search, seizure, arrest, or other similar activity” by law enforcement. 90 10 U.S.C. § 375. This act is quite similar in intent and effect to the Posse Comitatus Act of 1878, now codified at 18 U.S.C. § 1385. See supra note 69 and accompanying text (discussing Posse Comitatus Act).

As noted, the CIA’s organic act prohibits it from exercising “police, subpoena, law enforcement powers or internal security functions.” 91 50 U.S.C. § 3036(d)(1). Law enforcement organizations, the DOJ and FBI, have primary responsibility for human-source foreign-intelligence collection within the United States, while the CIA has the responsibility for human-source collection abroad. 92 EO 12333, supra note 87, § 1.3(b)(20)(A)–(B); see also 50 U.S.C. § 3036(d)(3) (“The Director of the Central Intelligence Agency shall . . . provide overall direction for and coordination of the collection of national intelligence outside the United States through human sources by elements of the intelligence community authorized to undertake such collection . . . .”). No intelligence community entity except the FBI is allowed to engage within the United States in “foreign intelligence collection . . . for the purpose of acquiring information concerning the domestic activities of United States persons.” EO 12333, supra note 87, § 2.3(b). This choice was made because law enforcement organizations are structured and trained to follow legal commands that protect civil liberties, while foreign-intelligence organizations must habitually break the laws of countries where they operate. To take one basic example, law enforcement organizations seize and detain individuals within a web of constitutional and statutory commands that impose ex ante requirements before a detention can begin and require quick approval by an independent judicial officer in order to continue a detention. 93 See, e.g., Cnty of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991) (holding Constitution requires person arrested without judicially approved warrant must be brought before magistrate promptly, which generally means within forty-eight hours).

Executive Order 12333, a 1981 reform directive which today, as amended, still structures the intelligence community, requires that “[e]lements of the Intelligence Community shall use the least intrusive collection techniques feasible within the United States or directed against United States persons abroad.” 94 EO 12333, supra note 87, § 2.4. Covert actions, often the most coercive form of national security action besides kinetic military force, are generally barred domestically, and both statute and Executive Order 12333 provide that “[n]o covert action may be conducted which is intended to influence United States political processes, public opinion, policies, or media.” 95 Id. § 2.13; see also 50 U.S.C. § 3093(e) (“As used in this subchapter, the term ‘covert action’ means an activity or activities of the United States Government to influence political, economic, or military conditions abroad, where it is intended that the role of the United States Government will not be apparent or acknowledged publicly . . . .”); id. § 3093(f) (“No covert action may be conducted which is intended to influence United States political processes, public opinion, policies, or media.”). The intelligence community is greatly restricted in its ability to secretly monitor or participate in domestic political groups. 96 See EO 12333, supra note 87, § 2.9 (barring undisclosed participation by intelligence community in domestic organizations except in certain circumstances). These restrictions can be eased according to procedures approved by the Attorney General and in cases where it is found “essential,” and barring attempts to influence domestic organizations unless “undertaken on behalf of the FBI in the course of a lawful investigation” or the domestic organization is largely composed of foreign nationals and “reasonably believed to be acting on behalf of a foreign power.” Id.

Entities other than the FBI are strictly limited in terms of the surveil­lance and searches they can perform within the United States, and some­what limited regarding activities against U.S. persons abroad. 97 See id. § 2.4 (limiting “Intelligence Community” to “least intrusive collection techniques feasible” and enumerating restrictions to electronic surveillance and physical searches “in the United States”). And the Foreign Intelligence Surveillance Act (FISA), enacted in 1978, 98 Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95-511, 92 Stat. 1783 (codified as amended at 50 U.S.C. §§ 1801–1811 (2012)). limits the surveillance and physical searches the FBI can conduct domestically for foreign-intelligence purposes and puts these functions under the oversight of Article III judges. 99 50 U.S.C. §§ 1803–1806, 1812, 1823–1825. FISA is complex, but in its basic structure it requires both high-ranking executive and judicial approval for surveillance in the United States or against U.S. persons abroad, 100 See id. §§ 1801–1805 (defining “[e]lectronic surveillance,”— communications surveillance regulated by FISA). and sets up a number of substantive protections to make sure that every­one’s domestic communications and worldwide communications of U.S. persons are only targeted to the extent they are themselves agents of for­eign powers or are communicating with such agents. 101 See id. §§ 1801(a)–(b), 1802(a), 1805(a) (defining “[f]oreign power” and “[a]gent of foreign power” who can be targeted). Strict rules for the intelligence community governing the collection, retention, and dis­semination of foreign-intelligence information generally only cover U.S. persons, 102 See id. §§ 1801 (h)(1), 1806(a) (delineating “[m]inimization procedures”); EO 12333, supra note 87, § 2.3 (restricting collection of information “concerning United States persons”). and the general Privacy Act also only protects U.S. persons. 103 See 5 U.S.C. § 552a(b) (2013) (limiting disclosure of “any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains”); see also id. § 552a(a)(2) (“[T]he term ‘individual’ means a citizen of the United States or an alien lawfully admitted for permanent residence . . . .”); id. § 552a(a)(4) (“[T]he term ‘record’ means any item, collection, or grouping of information about an individual that is maintained by an agency . . . .”). FISA loosens restrictions of foreign-intelligence surveillance and searches in the United States during periods of declared war. 104 See 50 U.S.C. § 1811 (lifting surveillance restrictions “following a declaration of war”); id. § 1829 (noting same for physical-search restrictions).

Thus, although there were deeply unfortunate incidents during the early- to mid-Cold War period in which military and foreign-intelligence organizations were deployed against U.S. citizens domestically, the architecture and operating rules of the modern national security state, especially those that emerged in the 1970s and after as part of the reform movement, respect and further the categorical divides between home and abroad, U.S. persons and foreign nationals, and war and peace.

III. Convergence of Domains, Disappearance of Legal Black Holes

Many aspects of the traditional protection framework described above were essentially unchallenged until the mid-twentieth century. The pace and extent of change has accelerated in the twenty-first century. A great convergence is underway. The distinctions between domestic and foreign, enemy and friend, peace and war, and citizen and noncitizen are breaking down, both in the real world, and in the constitutional and international law determining the domain of rights and the right to access the courts. The protections of the Constitution and the right to access the courts are expanding beyond the territorial borders of the United States to noncitizens abroad. Judicially enforceable constitutional protections are coming to cover military enemies. The battlefield is being constitutionalized to some extent. The institutional design and operating rules of the national security state are relaxing their traditional distinc­tions between foreign and domestic, enemy and friend, and U.S. person and non-U.S. person.

This Part offers evidence of convergence of domains and closing of legal black holes in a numbers of areas. First, the importance of citizenship and territorial location to determining rights is decreasing. Second, distinctions between wartime and peacetime are blurring. Third, the operating rules and institutional structures of the national security state are changing to reflect this convergence and softening of categorical dis­tinctions. Fourth, the U.S. law governing foreign relations and national security is losing its distinctiveness, as it assimilates more and more norms from the domestic, peacetime legal regime. And finally, international law is changing in various important respects, most notably its broadening to protect a country’s own citizens in domestic matters, rather than just for­eigners in foreign relations contexts.

A. Citizenship and Territorial Location

The importance of an individual’s citizenship and territorial location to obtaining protection from the laws and courts has declined, and it is possible to imagine a future where they are largely irrelevant. But not all commentators see this kind of convergence. For example, since 9/11, it has been asserted that the U.S. government has targeted and oppressed noncitizens as never before. 105 See, e.g., David Cole, Enemy Aliens 1–14 (2003) [hereinafter Cole, Enemy Aliens] (discussing treatment of noncitizens since 9/11). There is certainly some truth to that. Trial by military commission, detention at Guantanamo Bay, extraordinary rendition to foreign countries, and imprisonment in CIA black sites over­seas, where some of the worst interrogation abuses occurred, were all reserved for noncitizens. 106 See, e.g., 10 U.S.C. § 948b(a) (2012) (limiting military commission trials for “unprivileged enemy belligerents” to noncitizens); Hamdi v. Rumsfeld, 542 U.S. 507, 510 (2004) (plurality opinion) (noting Yaser Hamdi was transferred from custody at Guantanamo Bay to United States after U.S. officials learned he was U.S. citizen); Military Order of Nov. 13, 2001, Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57,833 §§ 2–4 (Nov. 16, 2001) (limiting military detention and trial to noncitizens); David D. Cole, Against Citizenship as a Predicate for Basic Rights, 75 Fordham L. Rev. 2541, 2544 (2007) (noting post–9/11 immigration sweeps looking for terrorism suspects in United States and detention in Guantanamo Bay were both defended by administration on ground they were limited to noncitizens); Leila Nadya Sadat, Ghost Prisoners and Black Sites: Extraordinary Rendition Under International Law, 37 Case W. Res. J. Int’l L. 309, 318 (2006) (noting Bush Administration did not claim right to use extraordinary rendition to foreign countries against U.S. citizens). And noncitizen residents of the United States from Arab or Muslim countries were rounded up and temporarily detained in large numbers after 9/11, primarily using immigration laws. 107 Cole, Enemy Aliens, supra note 105, at 5. But I believe that the more important and more lasting trend in recent years has been toward convergence of the rights of citizens and noncitizens, as well as convergence in rights of people in the United States and abroad.

Even for U.S. citizens, location outside the sovereign territory of the United States often used to result in a lack of protection from the Constitution. 108 See Neely v. Henkel, 180 U.S. 109, 122–23 (1901) (holding U.S. citizen extradited from United States to Cuba for trial in local courts during U.S. military occupation not protected by “rights, privileges, and immunities that are guaranteed by the Constitution to persons charged with the commission in this country of crime against the United States”); In re Ross, 140 U.S. 453, 464 (1891) (holding sailor of U.S.-flagged vessel tried in U.S. consular court in Japan could not “invoke protection of the provisions [of the Constitution] . . . until brought within the actual territorial boundaries of the United States”). But see Kent, Citizenship, supra note 28, at 2121 n.20 (discussing evidence of extraterritorial constitutional rights for U.S. citizens prior to mid-twentieth century). All that changed with a landmark decision in 1957, Reid v. Covert. 109 354 U.S. 1 (1957). Since Reid, it has generally been assumed (though Supreme Court decisions have been very few) that U.S. citizens have the same constitutional rights whether they are located in the United States or abroad. 110 See Louis Henkin, Foreign Affairs and the United States Constitution 305–07 (2d ed. 1996) (“Outside the United States, constitutional protections for the individual against governmental action is enjoyed, we may continue to assume, by U.S. citizens . . . .”). This change was likely motivated, at least in part, by the large increase in the number of U.S. servicemen and their family members living abroad for extended periods of time in the aftermath of World War II. Reid, for example, involved civilian dependents of U.S. servicemen convicted of capital murder in military courts on U.S. military bases overseas.

Reid was explicit that it concerned only citizens, though, 111 See Kent, Global Constitution, supra note 6, at 474–75 (“[T]he Court is discussing the unique relationship between the U.S. government and its ‘citizens.’”). and so noncitizens remained outside the protection of the Constitution when they were outside the United States. But in 2008 in Boumediene v. Bush, the Court for the first time held that noncitizens detained by the govern­ment in another country have rights under our Constitution, 112 Boumediene v. Bush, 553 U.S. 723, 770 (2008) (“It is true that before today the Court has never held that noncitizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution.” (emphasis omitted)). and did so on behalf of detainees of the U.S. military charged with being enemy fighters in the armed conflict against al Qaeda and the Taliban. 113 Regarding enemy fighters, who had traditionally lacked constitutional rights or access to U.S. courts, the Supreme Court had earlier allowed detained enemy fighters who were present in the United States to use habeas corpus. Kent, Enemy Fighters, supra note 9, at 156–57. After 9/11, this right was extended tacitly to enemy fighters held at Guantanamo Bay in Hamdan v. Rumsfeld, 548 U.S. 557 (2006) (entertaining constitutional separation of powers objections to military commission trial of alleged enemy fighter). Boumediene was the first direct, express holding on this point. Although some of the language in Boumediene suggests that decision is limited to a single unique location (Guantanamo Bay, leased by the U.S. government from Cuba) and a single procedural clause of the Constitution (the Habeas Suspension Clause), the decision is not actually so limited. As I have explained elsewhere, Boumediene and other recent cases suggest that noncitizens abroad can now make constitutional claims involving at least Due Process and separation of powers claims in addition to habeas. 114 Kent, Enemy Fighters, supra note 9, at 245–48. And Boumediene’s test for extension of the Constitution abroad is in no way limited to Guantanamo. 115 See id. (“[T]he Court surely intended to leave itself the maximum flexibility as to where the Constitution applies extraterritorially . . . .”). Eric Posner correctly identified a “cosmopolitan” impulse at the core of Boumediene, a non-instrumental concern for the liberties of noncitizens outside the United States. 116 Eric A. Posner, Boumediene and the Uncertain March of Judicial Cosmopolitanism, 2008 Cato Sup. Ct. Rev. 23, 32–34.

Noncitizens have seen their rights converge somewhat with those of citizens in immigration law as well. For at least a century, the so-called plenary power doctrine has meant significant judicial deference almost amounting to a lack of constitutional restraint on federal immigration statutes and also a view that “aliens lack the right to seek judicial review of the constitutionality of immigration policy.” 117 Adam B. Cox, Citizenship, Standing, and Immigration Law, 92 Calif. L. Rev. 373, 375 (2004). Because of its connec­tions to foreign affairs and national security, and the fact that noncitizens were the primary subjects of its application, immigration law was conceived as a zone apart where ordinary constitutional restraints did not apply. 118 In one particularly stark formulation, the Court said that “[w]hatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.” United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 544 (1950). But in the twenty-first century, immigration law is becoming increasingly normalized, with more and more constitutional protections available and enforced by the courts. 119 See Landau, Due Process, supra note 26, at 882 (arguing application of Mathews v. Eldridge, 424 U.S. 319 (1976), to immigration has “produced surprisingly rights-affirming outcomes”); Peter J. Spiro, Explaining the End of Plenary Power, 16 Geo. Immigr. L.J. 339, 339 (2002) (positing Supreme Court decisions from 2000 Term show expansion of “quantum of constitutionally mandated rights owed aliens in immigration proceedings”). As Landau explains, the Supreme Court’s doctrine in immigration law for analyzing claims of individual right used to be based on great deference to the political branches and “categorical, group-based analysis grounded in status, territoriality, and sovereignty that generally resulted in the denial of the claims of foreign nationals.” 120 Landau, Due Process, supra note 26, at 884. But recently the Court has asserted “a more involved judi­cial role in assessing both the government’s claimed need for border con­trol and national security and the foreign national’s unique liberty inter­ests and overall circumstances,” with a concomitant greater protection of individual rights. 121 Id. at 885. For example, the Supreme Court recently “narrowly interpreted . . . statutes stripping . . . jurisdiction; imposed limits on the amount of time that foreign nationals can be detained; narrowed the meaning and scope of Chevron [Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)] deference . . . or ignored Chevron altogether; and rejected or narrowed agency-created procedures that, with Congress’s blessing, limited or foreclosed procedural rights of foreign-nationals.” Id. at 885–86 (citing Kucana v. Holder, 558 U.S. 233, 233, 235 (2010); Nken v. Holder, 556 U.S. 418, 418 (2009); Negusie v. Holder, 555 U.S. 511, 522–23 (2009); Boumediene v. Bush, 553 U.S. 723, 724–25, 728 (2008); Dada v. Mukasey, 554 U.S. 1, 2 (2008); Rasul v. Bush, 542 U.S. 466, 466 (2004); Zadvydas v. Davis, 533 U.S. 678, 679 (2001); INS v. St. Cyr, 533 U.S. 289, 309–10 (2001)). The stark, categorical view of the reach of constitu­tional protection is starting to break down.

B. Enemy Status in Wartime

The way the law regards both citizen and noncitizen enemies in war­time has changed significantly over the centuries, with older, categorical distinctions fading in importance as judicial review and protection of the law expands to cover more and more people and contexts.

1. Enemy Citizens. Although the rules were somewhat unsettled and disputed coming out of the Revolutionary War and its debates about how to treat American colonists who adhered to the Crown, it was gener­ally accepted in the Founding and antebellum periods that a citizen could not be deemed outside the law’s protection even when committing a serious breach of allegiance such as supporting military enemies or levying war against the United States. 122 See Kent, Civil War, supra note 7, at 1860 (explaining far reach of protection of law in antebellum period). The traditional rule was that such an individual was subject to criminal prosecution for treason or crimes but could not be subject to military detention or trial. “A citizen could be a ‘traitor’ but could not be an ‘enemy,’ that is, someone out of the protection of the law.” 123 Id. at 1860–61.

These older understandings broke down during the early part of the Civil War. Congress, the executive, and the Supreme Court agreed that all residents of the Confederate States of America were liable to be treated as de facto enemy aliens who lacked protection of the laws. 124 See id. at 1872–1911. Many residents of Union states were also so treated in practice, for exam­ple, Confederate-aligned guerrillas in loyal border states like Missouri and Kentucky. And although the Supreme Court in Milligan tried after the war ended to reimpose some of the older, categorical protection for U.S. citizenship, 125 Ex parte Milligan, 71 U.S. (4 Wall.) 2, 120–21 (1866) (“The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.”). the Court nevertheless acknowledged that U.S. citi­zens who were enemy fighters or residents of the Confederacy could be treated as military enemies lacking protection from the Constitution and laws. 126 See supra note 35 and accompanying text (noting all persons resident in enemy nation, enrolled in enemy’s armed forces (enemy fighters), or present at site of actual combat were out of protection of Constitution); see also Kent, Civil War, supra note 7, at 1842, 1927–29 (discussing differences among prisoners of war, persons residing in enemy territory, and persons residing in loyal U.S. territory).

So it was that during World War II, the Supreme Court reiterated that U.S. citizens “who associate themselves with the military arm of the enemy government” and fight against the United States can be treated as “enemy belligerents” outside the protections of the Constitution and detained or tried by military commission just like noncitizen enemy fighters. 127 Ex parte Quirin, 317 U.S. 1, 37–38, 44 (1942). The infamous internment of U.S. citizens of Japanese ancestry during World War II in effect treated certain civilian U.S. citizens, resi­dent in the United States, as de facto enemy aliens. This was broadened beyond Japanese Americans during the early Cold War. In the Emergency Detention Act of 1950 (Title II of the Internal Security Act), Congress authorized the President to detain any person in the United States, including U.S. citizen civilians, during a declared war, invasion, or insurrection in aid of a foreign enemy. 128 Emergency Detention Act of 1950, Pub. L. No. 81-831, §§ 102–103, 64 Stat. 987, 1019–21 (noting “detention of persons who there is reasonable ground to believe” will commit espionage is “essential to the common defense . . . of the United States”).

When a U.S. citizen was detained after 9/11 during the war in Afghanistan and brought to the United States in military custody, Justice Scalia opined in a dissent that “the categorical procedural protection” of the Constitution for U.S. citizens barred his military detention. 129 Hamdi v. Rumsfeld, 542 U.S. 507, 575 (2004) (Scalia, J., dissenting). But he was 150 years too late. The majority of the Court had no trouble conclud­ing that “[t]here is no bar to this Nation’s holding one of its own citizens as an enemy combatant.” 130 Id. at 519 (plurality opinion). Justice Thomas, the fifth vote against the detainee, would have gone even further in rejecting the U.S. citizen’s claims for protection from the courts. See id. at 585 (Thomas, J., dissenting) (“[T]he question whether Hamdi is actually an enemy combatant is of a kind for which the Judiciary has neither aptitude, facilities nor responsibility . . . .” (internal quotation marks omitted)). Scalia excoriated what he called the “judicious balancing” that replaced the older “categorical” protec­tions. 131 Id. at 575 (Scalia, J., dissenting). I call it convergence.

2. Court Access.Rights without a judicial remedy often provide little protection. Hence, the right and ability to access courts is a crucial part of being protected by the laws.

At common law and during the American Founding period, a very strict rule was applied barring all alien enemies—wherever domiciled, and no matter whether civilians or enemy fighters—from access to the courts during wartime. In the first decades of the nineteenth century, the rule softened so that civilian enemy aliens who were peacefully present in the United States could access the courts. 132 Cf. supra note 29 and accompanying text (discussing ability of noncitizens to access the courts at the time). The categorical bar remained, however, for nonresident alien enemies and enemy fighters, no matter where located. 133 See Kent, Enemy Fighters, supra note 9, at 188–95 (discussing court access for nonresident alien enemies and enemy fighters).

In retrospect, a major moment in convergence occurred during World War II when, in the famous Quirin case, the Supreme Court reversed course and held that the German enemy fighters held for mili­tary commission trial in the United States had a constitutional right to access the courts. 134 See id. at 165–69 (discussing Quirin’s holdings). Since that time, it has been assumed that literally any person present in the United States may access the courts, at least via habeas corpus, to challenge executive detention. But even after Quirin, nonresident enemy fighters continued to be barred from the courts, a lingering remnant of the old categorical rule applicable to all enemy aliens. 135 See Johnson v. Eisentrager, 339 U.S. 763, 769–71 (1950) (“It is war that exposes the relative vulnerability of the alien’s status.”). Boumediene contributed to additional convergence when it held in 2008 that noncitizens held as alleged enemy fighters in territory under the control but not sovereignty of the United States had a constitu­tional right to access the courts via habeas to challenge their detentions. The constitutional right to access the courts is not yet fully universal—extraterritorially, the right might only apply to habeas corpus, and there might be some places or persons where it does not reach 136 Maqaleh v. Hagel, 738 F.3d 312, 317 (D.C. Cir. 2013) (declining to extend Boumediene to detainees at U.S. military base at Bagram, Afghanistan). —but it is getting there.

3. The Legal Effects of War on Persons and Property. Wartime used to be understood as an exceptional state during which all ordinary civil intercourse between persons of warring nations was, in theory if not in practice, interdicted, and the persons and property of enemy aliens, even law-abiding civilians, liable to seizure.

Today, it is very unusual for the United States to go to war with a nation state. 137 Eric Talbot Jensen, Future War, Future Law, 22 Minn. J. Int’l L. 282, 298 (2013) (“The vast majority of the armed conflicts in recent decades have not been between states, but between states and non-state actors or between two groups of non-state actors. Advancing technologies will make this phenomena even more pronounced.”). Even when the United States fights a nation state, the old apparatus of detention of peaceful enemy alien civilians and private property confiscation is forgotten. 138 See Sidak, supra note 38, at 1405 (noting Alien Enemy Act was not invoked during Korean War, Vietnam War, or Gulf War because those were not formally declared wars). The stark distinctions between peacetime and wartime are dissolving. There are no “enemy aliens” in the long war against al Qaeda and related terrorist groups, because the United States is not fighting a nation state. Using terminology from a landmark Supreme Court case about how to understand the Civil War, we can say that war used to commonly be “territorial,” with people’s status determined not by their personal conduct but by their citizenship or geography (domicile), while today war is much more “personal,” with guilt and hence authority to use force against a person determined more by individual behavior. 139 See The Prize Cases, 67 U.S. (2 Black) 635, 694–95 (1863) (Nelson, J., dissenting) (discussing transition from territorial war to personal war). See generally Issacharoff & Pildes, Targeted Warfare, supra note 27, at 1522–23 (“Whereas the traditional practices and laws of war defined ‘the enemy’ in terms of categorical, group-based judgments that turned on status . . . we are now moving to a world that . . . requires the individuation of enemy responsibility of specific enemy persons before the use of military force is considered justified . . . .”).

Prior to 9/11, threats from non-state groups like terrorists were largely handled as a matter of law enforcement and intelligence gather­ing. But it has been clear for about fourteen years that non-state groups’ successful perpetration of mass-casualty attacks and the U.S. govern­ment’s military response were blurring the lines between peacetime ver­sus wartime, crime versus warfare, and law enforcement versus military responses. 140 See, e.g., Rosa Ehrenreich Brooks, War Everywhere: Rights, National Security Law, and the Law of Armed Conflict in the Age of Terror, 153 U. Pa. L. Rev. 675, 677 (2004) (“[B]inary distinctions are no longer tenable.”). It is frequently said that the old notion of a “battlefield” as distinct from areas where armed conflict is not occurring is fading away. 141 See, e.g., Frédéric Mégret, War and the Vanishing Battlefield, 9 Loy. U. Chi. Int’l L. Rev. 131, 141 (2011) (“The deconstruction of the battlefield is, in fact, well under way . . . .”). In this new era, convergence of domains has been rapidly occurring.

Extended, indefinite military detention became a leading way that the U.S. government responded to the threat from al Qaeda and affili­ated groups. Even some suspected terrorists captured in the United States, including a U.S. citizen, were put initially into military detention instead of the Article III system. 142 See al-Marri v. Wright, 487 F.3d 160, 164 (4th Cir. 2007), rev’d sub nom. al-Marri v. Pucciarelli, 534 F.3d 213 (4th Cir. 2008) (en banc) (per curiam), vacated sub nom. al-Marri v. Spagone, 555 U.S. 1220 (2009); Padilla v. Hanft, 423 F.3d 386, 388 (4th Cir. 2005). Some suspected terrorists caught abroad were held in CIA or military detention and interrogated without Miranda warnings even though they were eventually sent to the United States to answer for ordinary criminal indictments. 143 See, e.g., Butch Bracknell & James Joyner, Ahmed Abu Khattala and the Miranda-Rights Question, Nat’l Int. (July 8, 2014), http://nationalinterest.
org/‌feature/ahmed-abu-khattala-the-miranda-rights-question-10828 (on file with the Columbia Law Review) (recounting initial un-Mirandized interrogation aboard Navy ship of captured Libyan jihadist and subsequent transfer to U.S. soil to appear before federal judge).
Even when deten­tion stayed within the civilian Article III system, the government’s prac­tices changed significantly, blurring the line between criminal and extraordinary, noncriminal detention. 144 See Chesney & Goldsmith, supra note 25, at 1100–08 (arguing federal prosecutors in post–9/11 terrorism cases increasingly pursue membership-based liability, akin to traditional military detention). The Supreme Court upheld (albeit not on the merits) the government’s apparent practice of pretextually using the material-witness detention statute against both U.S. citizens and noncitizens in the United States for counterterrorism purposes. 145 See Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080–83 (2011) (finding no constitutional violation in using material-witness arrest warrant to detain U.S. citizen, at least where there is no dispute individualized suspicion supported issuance of warrant).

On the same day as it decided Boumediene, the Court, in Munaf v. Geren, 146 553 U.S 674 (2008). heard habeas cases from dual U.S. citizens detained as security threats under the control of the U.S. military in Iraq during the insur­gency. The Court implied that the substantive due process clause might provide limits on the treatment of these individuals—who were held by U.S. forces in a zone of active combat. 147 See Kent, Insular Cases, supra note 8, at 107 & n.22 (citing Munaf, 553 U.S. at 702) (noting Court disclaimed any intent to rule out potential due process claim arising from more extreme cases of detention, such as transferring detainee to foreign control if torture is likely). It is unclear at this point how far Boumediene and Munaf will extend habeas corpus and constitutional rights into war zones. But what is clear is that being a noncitizen or an enemy fighter in a foreign war zone is no longer a categorical bar to constitutional rights and judicial review.

The Anwar al-Awlaki drone strike also highlights these trends of extending rights abroad and to enemy fighters. Al-Awlaki was a U.S. citi­zen who became a high-ranking leader of al Qaeda in the Arabian Peninsula, helping to direct terrorist attacks against U.S. targets from hiding places in ungoverned regions of Yemen. 148 See Charlie Savage & Peter Baker, Obama, in a Shift, to Limit Targets of Drone Strikes, N.Y. Times (May 22, 2013), http://www.nytimes.com/2013/05/23/us/us-acknowledges-killing-4-americans-in-drone-strikes.html (on file with the Columbia Law Review) (discussing drone strike against al-Awlaki and U.S. government’s legal rationale for it). Because he was an enemy fighter in an armed conflict authorized by Congress, and was located outside the United States in a hostile area, older understandings would have treated al-Awlaki as beyond the protection of the Constitution. But in al-Awlaki’s case, the U.S. executive branch now recognized that geography and war no longer served as impermeable barriers against constitutional protections, in particular because he was a U.S. citizen. An Office of Legal Counsel (OLC) opinion and a DOJ white paper prepared for public release opined that al-Awlaki had Fourth and Fifth Amendment rights that the executive had to respect. 149 See DOJ, Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who Is a Senior Operational Leader of al-Qa’ida or an Associated Force 5–10, available at http://msnbcmedia.msn.com/i/msnbc/sections/news/020413_DOJ_White_Paper.pdf (on file with the Columbia Law Review) (last visited Mar. 8, 2015) (considering whether and in what circumstances legal operation against U.S. citizen abroad violated Fourth and Fifth Amendment constitutional protections); DOJ Office of Legal Counsel, Applicability of Federal Criminal Laws and the Constitution to Contemplated Lethal Operations Against Shaykh Anwar al-Aulaki 38–41 (2010), available at https://www.aclu.org/sites/default/
files/assets/2014-06-23_barron-memorandum.pdf (on file with the Columbia Law Review) (same); Charlie Savage, Justice Department Memo Approving Targeted Killing of Anwar Al-Awlaki, N.Y. Times (June 23, 2014), http://www.nytimes.com/interactive/2014/06/
23/us/23awlaki-memo.html?_r=0 (on file with the Columbia Law Review) (providing electronic version of OLC memo).
The DOJ’s analysis revealed that the executive believes that the Constitution places important limitations on its ability to target U.S. citizens, even when they are enemy fighters in hostile or ungoverned territory. At the same time, the executive has suggested that it will follow with regard to noncitizen targets the same or similar procedural rules that it says the Constitution requires for U.S. citizens. 150 President Obama articulated this point during a speech at the National Defense University in 2013:

Beyond the Afghan theater, we only target al Qaeda and its associated forces. And even then, the use of drones is heavily constrained. America does not take strikes when we have the ability to capture individual terrorists; our preference is always to detain, interrogate, and prosecute . . . . [W]e act against terrorists who pose a continuing and imminent threat to the American people, and when there are no other governments capable of effectively addressing the threat. And before any strike is taken, there must be near-certainty that no civilians will be killed or injured—the highest standard we can set.

President Barack Obama, Remarks by the President at National Defense University (May 23, 2013), http://www.whitehouse.gov/the-press-office/2013/05/23/remarks-president-national-defense-university (on file with the Columbia Law Review).

Another example of this rights convergence and softening of categorical boundaries is the change in the rules regarding blocking and seizing the property for national security or foreign affairs purposes. Old rules allowed the U.S. government to detain the property of foreign nations, foreign nationals, and U.S. persons residing in enemy nations during wartime. But in recent years, the U.S. government has applied these rules to U.S. persons within the United States and has successfully argued to several lower federal courts that only the most minimal constitutional protections limit that seizure authority. 151 See Islamic Am. Relief Agency v. Gonzales, 477 F.3d 728, 735–36 (D.C. Cir. 2007) (finding no constitutional violation in government decision to block Muslim organization’s assets); Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 164–66 (D.C. Cir. 2003) (same). But see Kindhearts for Charitable Humanitarian Dev. v. Geithner, 647 F. Supp. 2d 857, 919 (N.D. Ohio 2009) (holding U.S.-based charity targeted by government blocking order for alleged terrorist ties had significant Fourth Amendment and Due Process rights that had been violated by government).

C. Institutional Arrangements and Operating Rules

As discussed above, there is an important kind of protection in addi­tion to legal protections in the form of rights and judicial review: practi­cal protections derived from the institutional structures or operating rules of national security institutions. Convergence of previously distinct domains is also occurring in that area. Individual rights and interests of groups previously excluded from protection—such as military enemies and noncitizens abroad—are increasingly being protected by structures and operating rules of national security institutions.

This can be seen in the area of intelligence collection. At least since the enactment of FISA, there has been a stark divide: Intelligence collection for national security purposes conducted outside the United States could proceed with little legal limit and essentially no judicial oversight (though U.S. citizens and lawful permanent residents received somewhat more protection), whereas within the United States, much stricter limits and judicial oversight applied. But convergence is occurring. As a result of recent legislation, the federal judiciary is now reviewing ex ante the legality of some surveillance requests directed at foreign targets over­seas 152 FISA Amendments Act of 2008, 50 U.S.C.A. § 1881a (West 2008). while at the same time, as the recent revelations by Edward Snowden have shown, approving sweeping collection of telephony and internet metadata of U.S. citizens’ domestic communications. 153 See ACLU v. Clapper, 959 F. Supp. 2d 724, 730 (S.D.N.Y. 2013) (“Edward Snowden’s unauthorized disclosure of Foreign Intelligence Surveillance Court (‘FISC’) orders has provoked a public debate and this litigation. While robust discussions are underway across the nation, in Congress, and at the White House, the question for this Court is whether the Government’s bulk telephony metadata program is lawful.”). There is pressure for further convergence. The recent Report and Recommendations of the President’s Review Group on Intelligence and Communications Technologies recommended that non-U.S. persons be given significantly greater privacy protections from electronic surveillance than they cur­rently possess under the Constitution and laws of the United States, 154 Liberty and Security in a Changing World: Report and Recommendations of the President’s Review Group on Intelligence and Communications Technologies 29–30 (2013) (Recommendations 13–14), http://www.lawfareblog.com/wp-content/uploads/
2013/12/Final-Report-RG.pdf (on file with the Columbia Law Review).
and the President responded affirmatively in the new Presidential Policy Directive (PPD-28) on Signals Intelligence Activities. 155 Presidential Policy Directive/PPD-28—Signals Intelligence Activities, pmbl. (Jan. 17, 2014), http://www.whitehouse.gov/the-press-office/2014/01/17/presidential-policy-directive-signals-intelligence-activities (on file with the Columbia Law Review) (stating U.S. signals-intelligence practices must protect “legitimate privacy and civil liberties concerns of U.S. citizens and citizens of other nations”); id. § 4, 4(a) (“All persons . . . have legitimate privacy interests in the handling of their personal information. . . . To the maximum extent feasible consistent with the national security . . . policies and procedures are to be applied equally to the personal information of all persons, regardless of nationality.”). In a similar vein, even though the Privacy Act protects only U.S. persons with regard to government records, the Department of Homeland Security has adminis­tratively extended some protections to noncitizens. 156 See Memorandum from Hugo Teufel III, Chief Privacy Officer, U.S. Dep’t of Homeland Security, Privacy Policy Guidance Memorandum § III, (Jan. 7, 2009), http://www.dhs.gov/xlibrary/assets/privacy/privacy_policyguide_2007-1.pdf (on file with the Columbia Law Review) (extending some protections of Privacy Act of 1974 to non-U.S. citizens).

Judicialization and greater rights protection through institutional change have been evident in the electronic surveillance area since at least 1978. Based on hints from the Supreme Court, 157 See United States v. U.S. Dist. Court, E.D. Mich., 407 U.S. 297, 321–22 (1972) (imposing limits on domestic surveillance but identifying surveillance regarding foreign entities as separate matter). a number of courts of appeals affirmed the constitutionality of warrantless evidence gathering by the executive—either electronic surveillance or physical searches—for foreign-intelligence purposes, even when U.S. citizens were the target or the search occurred in the United States. 158 United States v. Truong Dinh Hung, 629 F.2d 908, 912–16 (4th Cir. 1980); United States v. Butenko, 494 F.2d 593, 604–05 (3d Cir. 1974) (en banc); United States v. Brown, 484 F.2d 418, 425–27 (5th Cir. 1973). But Congress in 1978 imposed a regime of judicial oversight through the FISA statute.

Military targeting presents another area in which national security institutions are changing in ways that provide greater protection to previ­ously vulnerable groups. Up through the end of the Vietnam War, American commanders did not seek or receive legal advice about battlefield matters such as targeting. 159 Goldsmith, supra note 23, at 125. In the last several decades, there has been a “comprehensive integration of military lawyers into the target­ing process” 160 Peter Margulies, Valor’s Vices: Against a State Duty to Risk Forces in Armed Conflict, 37 Vt. L. Rev. 271, 303 (2012) [hereinafter Margulies, Valor’s Vices]. and all other aspects of war-fighting. 161 See Goldsmith, supra note 23, at 125–35 (surveying growing role of lawyers in reviewing operational plans, giving advice on battlefield, and educating soldiers on legal issues). One result has been the development of internal rules and processes that give great weight to minimizing anticipated harm to foreign civilians and foreign civilian infrastructure. 162 See id. at 135–46 (summarizing role of lawyers in “elaborate, multi-layered, lawyer-vetted process” aimed at minimizing collateral damage); Margulies, Valor’s Vices, supra note 160, at 303–04 (arguing military lawyers are well-equipped to develop process-based approach to analyzing targeting decisions in light of collateral effects). For an overview of current targeting doctrines and practices, see generally Gregory S. McNeal, New Approaches to Reducing and Mitigating Harm to Civilians, in Shaping a Global Framework For Counterinsurgency Law: New Directions In Asymmetric Warfare 127 (William Banks ed., Oxford University Press 2013).

A similar phenomenon exists in intelligence agencies. Before the mid-1970s, a small number of agency lawyers “were not consulted” dur­ing the planning of intelligence collection or covert actions. 163 Goldsmith, supra note 23, at 87. As a result of the revelations of CIA scandals in the 1970s, everything changed. The Office of General Counsel at the CIA increased in size nearly tenfold from late 1970s to the present. 164 Id; see also John Rizzo, Company Man 48 (2014) (discussing expansion of Office of General Counsel from 1970s to turn of twenty-first century). Congress imposed restrictions on CIA covert actions that were meant to increase presidential accountability to Congress and therefore decrease excesses like the attempted assassina­tion of foreign leaders. 165 Goldsmith, supra note 23, at 87–95 (outlining accountability mechanisms imposed upon intelligence community by Congress following Iran–Contra scandal). All of the new lawyers enforced these and other restrictions. Based on interviews with participants, Goldsmith estimates that today over 100 government officials, including at least ten lawyers “and often more” review any proposed covert action. 166 Id. at 89. All of this law, review, and oversight has the effect of providing practical protections to the foreign nationals who otherwise would have been impacted by covert actions, as either targets or collateral damage.

D. Decline of Foreign Affairs Exceptionalism and Deference

For at least a century, 167 There is significant debate about how exceptional foreign affairs law was—how deferential courts were to the political branches in foreign affairs cases—during the Founding and antebellum periods. Recent scholarship suggests that courts actively entered the fray in cases raising significant foreign affairs questions and did not apply deference doctrines. See, e.g., David Sloss, Judicial Deference to Executive Branch Treaty Interpretations: A Historical Perspective, 62 N.Y.U. Ann. Surv. Am. L. 497, 498–99 (2007) (examining treaty interpretation by Supreme Court in early Republic). Other scholars disagree. if not more, foreign affairs law has been understood to be different than ordinary constitutional law in both rules about authority of government and rights of individuals. This “foreign affairs exceptionalism” 168 See Curtis A. Bradley, A New American Foreign Affairs Law?, 70 U. Colo. L. Rev. 1089, 1096 (1999) (defining foreign affairs exceptionalism as “view that the federal government’s foreign affairs powers are subject to a different, and generally more relaxed, set of constitutional restraints than those that govern its domestic powers”); see also Louis Henkin, The Constitution for Its Third Century: Foreign Affairs, 83 Am. J. Int’l L. 713, 716 (1989) (suggesting foreign affairs are likely to remain “constitutionally ‘special’” in U.S. law). has manifested itself in many ways. There has been a generalized posture and rhetoric of deference by the courts. 169 See, e.g., Haig v. Agee, 453 U.S. 280, 292 (1981) (reviewing suit for declaratory and injunctive relief concerning Secretary of State’s administrative revocation of passport and approaching task of statutory construction with view “[m]atters intimately related to foreign policy and national security are rarely proper subjects for judicial intervention”); Harisiades v. Shaughnessy, 342 U.S. 580, 588–89 (1952) (rejecting constitutional challenge to deportation of former members of Communist Party and stating “contemporaneous policies in regard to the conduct of foreign relations [and] the war power . . . [are matters] so exclusively entrusted to the political branches as to be largely immune from judicial inquiry or interference”). Courts have given great deference to factual and predictive claims by the executive branch. 170 See, e.g., Korematsu v. United States, 323 U.S. 214, 218–19 (1944) (deferring to Congress and military to determine exclusion order was necessary to prevent espionage and sabotage by U.S. residents of Japanese ancestry). The political question, standing, and related justiciability doctrines were often applied to dismiss suits raising national security and foreign affairs issues. 171 See, e.g., Baker v. Carr, 369 U.S. 186, 211–14 (1962) (listing foreign affairs issues found to be nonjusticiable political questions); Rodric B. Schoen, A Strange Silence: Vietnam and the Supreme Court, 33 Washburn L.J. 275, 278–303 (1994) (describing how Supreme Court avoided ruling on merits of suits raising legal questions about U.S. participation in Vietnam War). Courts often gave deference to the executive branch’s interpretations of treaties. 172 See, e.g., Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 184–85 & n.10 (1982) (noting “meaning attributed to treaty provisions by the Government agencies charged with their negotiation and enforcement is entitled to great weight”). Courts allowed the executive to decide on a case-by-case basis questions of immunity for for­eign officials and, before enactment of FISA, foreign governments too. 173 Samantar v. Yousuf, 130 S. Ct. 2278, 2284–85 (2010) (discussing history of these doctrines and practices). Courts allowed the executive to unilaterally make domestically binding law in foreign affairs in ways that would be unthinkable under ordinary, domestic constitutional rules. 174 See, e.g., Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 413–27 (2003) (preempting state law because it interfered with presidential foreign policy initiative). Courts applied much more expansive preemption doctrines in foreign affairs cases than they did in ordinary domestic cases. 175 See, e.g., Hines v. Davidowitz, 312 U.S. 52, 63 (1941) (“Our system of government is such that the interest of the cities, counties and states, no less than the interest of the people of the whole nation, imperatively requires that federal power in the field affecting foreign relations be left entirely free from local interference.”). When cases were heard on the merits raising questions about individual rights in wartime or other national security crises, the courts often upheld the government actions if they found endorsement by both Congress and the President, without fully grap­pling with the individual rights questions. 176 See Samuel Issacharoff & Richard H. Pildes, Between Civil Libertarianism and Executive Unilateralism: An Institutional Process Approach to Rights During Wartime, 5 Theoretical Inquiries L. 1, 5 (2004) (finding courts are reluctant to inquire into tradeoff between security and liberty when other two branches have acted together). Many other examples could be given.

Foreign affairs exceptionalism buttressed and even exacerbated the categorical distinctions in individual rights protection that demarcated legal black holes. Justiciability doctrines and formalized or de facto defer­ence to the political branches could provide an additional reason why no judicially enforceable individual rights protections were available to cer­tain persons, places, or contexts, thereby reinforcing the categorical distinctions. And even for persons, places, or contexts that in theory were within the zone of protection, deference or justiciability doctrines could render protections unavailable. 177 See, e.g., Korematsu v. United States, 323 U.S. 214, 220 (1944) (justifying detainment of Japanese American U.S. citizens with idea that military’s “power to protect [against foreign threats] must be commensurate with the threatened danger”).

As Goldsmith, Ingrid Wuerth, Peter Spiro, and others have written, foreign affairs exceptionalism has been in decline since the 1990s, and the changes have seemed to accelerate recently. For instance, the Supreme Court has been gradually backing away from the political ques­tion doctrine, making it easier for courts to hear foreign affairs cases on the merits. 178 See Zivotofsky ex rel. Zivotofsky v. Clinton, 132 S. Ct. 1421, 1430 (2012) (rejecting executive’s argument that challenge to its refusal on Article II grounds to comply with congressional statute regarding U.S. passports and status of Jerusalem was nonjusticiable political question). Courts are giving less deference to the government’s fact-finding and predictive judgments about foreign affairs or security issues. 179 For example, in Boumediene, the Court independently determined that the government had presented “no credible arguments” or evidence to corroborate its claim “that the military mission at Guantanamo would be compromised if habeas corpus courts had jurisdiction to hear the detainees’ claims.” Boumediene v. Bush, 553 U.S. 723, 769 (2008). The Court is reining in executive lawmaking in foreign affairs. 180 See Medellin v. Texas, 552 U.S. 491, 498–99 (2008) (holding President lacked authority to order state courts to reconsider criminal convictions that, according to International Court of Justice decision, violated defendants’ treaty-based rights). In the post–9/11 era, Goldsmith and others have observed federal judges “discard[ing] their traditional reluctance to review presidential military decisions and thr[owing] themselves into questioning, invalidating, and supervising a variety of these decisions.” 181 Goldsmith, supra note 23, at xi. The Supreme Court is making it very difficult for Congress to remove federal court jurisdiction over habeas challenges to executive detentions in foreign affairs and national security settings. 182 See Boumediene, 553 U.S. at 724–25, 728 (holding unconstitutional statute providing federal judiciary had no jurisdiction to hear habeas petitions from noncitizens detained at Guantanamo Bay); Hamdan v. Rumsfeld, 548 U.S. 557, 576–84 (2006) (applying exacting clear statement rule to hold Congress had not barred with sufficient clarity federal court jurisdiction over Guantanamo detainee’s habeas corpus petition); INS v. St. Cyr, 533 U.S. 289, 309–10 (2001) (applying clear statement rule to narrowly interpret jurisdiction-limiting provisions of immigration statutes and permitting habeas petition by foreign nationals to proceed in habeas corpus). Many other examples could be given of the decline of foreign affairs exceptionalism or domesticization of foreign affairs. 183 As Goldsmith has pointed out, in some areas of foreign relations law, the Court has become more formalist, rejecting free-form balancing by courts of foreign relations interests in favor of more rule-like approaches. See Jack L. Goldsmith, The New Formalism in United States Foreign Relations Law, 70 U. Colo. L. Rev. 1395, 1424 (1999) (arguing “[s]ince the end of the Cold War, the Supreme Court and lower federal courts have begun to adopt a more formalistic approach” to foreign relations doctrines). One can see this in the act of state doctrine, dormant foreign affairs preemption, the political question doctrine, and doctrines about the extraterritorial reach of U.S. statutes. See id. at 1425–29 (discussing Court’s adoption of rule-like approach in various foreign relations doctrines). Although this formalism reduces judicial subjectivity and freedom, the net effect is often to treat cases that were previously considered foreign affairs more like ordinary cases, and to resolve them under ordinary rules. See id. at 1437 (noting rule-like approach minimizes judicial foreign policy judgments). These developments support and extend the convergence of individual rights protection by making it more likely that judicial review will be available and, if it is, less likely that the courts will defer to the govern­ment’s position. 184 Of course the Court has not wholly abandoned its practice of treating foreign affairs and national security cases as exceptional. See, e.g., Aziz Z. Huq, Structural Constitutionalism as Counterterrorism, 100 Calif. L. Rev. 887, 897–98 (2012) (criticizing Court’s decision in Holder v. Humanitarian Law Project, 561 U.S. 1 (2010), for deferring too much to government’s factual claims and failing to apply ordinary, domestic First Amendment analysis to challenge to statute banning provision of material support to foreign terrorist organizations).

E. International Law

Convergence of previously distinct domains, closing of legal black holes, and greater protection of rights can be seen in international law as well. The development of international human rights law meant that international law now protected a country’s citizens against their own government. International law became universal, no longer just the law of a club of “civilized” countries. The international laws of war developed greatly, bringing widely accepted, robust legal protections to previously at-risk groups, like civilians in occupied territory, prisoners of war, and the wounded. Other developments in the international laws of war and human rights law meant that it was no longer acceptable to treat gueril­las, pirates, and other practitioners of “uncivilized” warfare as outside of all legal protection. While this is a complex subject, it can fairly be said that the traditional, categorical distinctions between the laws of war and the law of human rights are dissolving, 185 See Cordula Droege, Elective Affinities? Human Rights and Humanitarian Law, 90 Int’l Rev. Red Cross 501, 501–05 (2008) (“[T]here is today no question that human rights law comes to complement humanitarian law in situations of armed conflict.”); Hans-Joachim Heintze, On the Relationship Between Human Rights Law Protection and International Humanitarian Law, 86 Int’l Rev. Red Cross 789, 789–91 (2004) (noting human rights laws now apply to both war- and peacetime). as are the categorical divisions within the laws of war between the law governing international versus non-international armed conflicts. 186 See Jensen, supra note 137, at 290–91 (arguing bifurcation between laws for international conflict and laws for non-international conflicts is “under fire”).

Like U.S. law, international human rights law is also gradually expanding its protections geographically. Important U.S. government actors, and many foreign governments, NGOs, and commentators have been arguing that treaties like the Convention Against Torture and the International Covenant on Civil and Political Rights do not only apply in U.S. territory but also wherever the government exercises effective jurisdiction and control, 187 See, e.g., Peter Margulies, Extraterritoriality and Human Rights: Time for a Change in the U.S. View?, Lawfare (Mar. 8, 2014, 8:11 am), http://www.lawfareblog.com/
2014/03/extraterritoriality-and-human-rights-time-for-a-change-in-the-u-s-view/ (on file with the Columbia Law Review) (arguing against U.S. position that treaties do not apply extraterritorially).
such as at detention facilities run by the U.S. government in foreign countries.

IV. What Might Today Be Driving the Convergence of Domains and the Closing of Legal Black Holes?

This Essay has described convergence of domains and closing of legal black holes through changes in constitutional law, common law, international law, statutory law, judicial attitudes and practices, and executive-branch structures and operating rules. Though change has been most pronounced in recent decades, some of the legal, institu­tional, and attitudinal changes have taken place over centuries. Pinpoint­ing causal factors would clearly be a difficult undertaking.

What might be more feasible, and more useful, would be to suggest some forces that, whether or not they have been responsible for pushing toward convergence and the closing of legal black holes in the past, today seem to be associated with and supportive of further movements in those directions.

A. The Expansion of Rights, Jurisdiction, and Remedies

When the Constitution had a fairly limited domain of protection, even in ordinary domestic settings, it would not have seemed strange or troubling that large areas of national security and foreign affairs were outside the Constitution’s protective umbrella. And when the jurisdiction of the federal courts was fairly limited, doctrines that blocked access to the courts in foreign affairs and national security cases on the basis of citizenship, geography, or territorial location would also not have seemed strange or troubling either. But over the course of American history, both the substantive coverage of the Constitution and the jurisdiction of the courts has increased greatly.

For many decades, constitutional rights were interpreted narrowly and rarely, and the rights protected relatively few people. The Supreme Court’s first holding on the Fifth Amendment Due Process Clause came in 1856. 188 See Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 280–81 (1856) (ruling statute allowing for property liens on debtor did not violate Fifth Amendment’s Due Process Clause). The Court’s first decision addressing the Sixth Amendment jury trial guarantee and Confrontation Clause came in 1878. 189 See Reynolds v. United States, 98 U.S. 145, 168 (1878) (ruling grand jury in polygamy case did not violate Sixth Amendment). The Court’s first important Fourth Amendment case was decided in 1886. 190 See Boyd v. United States, 116 U.S. 616, 634–35 (1886) (holding “compulsory production of . . . private books” was “unreasonable search and seizure—within the meaning of the Fourth Amendment”). The First Amendment had little bite until the 1940s. 191 See, e.g., Abrams v. United States, 250 U.S. 616, 624 (1919) (affirming conviction under Espionage Act for urging curtailment of production of war material with intent to hinder war effort). Very little in the Constitution applied as rights-based limits to the activities of state and local governments until the Reconstruction Amendments. Either for­mally or practically, for many purposes, whole categories of people were outside the protection of the Constitution: slaves, African Americans including freed slaves, incarcerated convicts, and the institutionalized mentally ill. The federal courts’ jurisdiction was also relatively narrow for many decades: It was not until 1875 that general federal ques­tion jurisdiction was given to the federal courts. 192 See Judiciary Act of 1875, ch. 137, § 1, 18 Stat. 470  Congress did briefly establish general federal question jurisdiction in the Midnight Judges Act of 1801, see Act of Feb. 13, 1801, ch. 4, § 11, 2 Stat. 89, 92, but it was quickly repealed, see Act of Mar. 8, 1802, ch.8, § 1, 2 Stat. 132.

Though over time the expansion of federal jurisdiction aided the expansion of individual constitutional rights, in 1875, the intent was more nearly the opposite. Both the jurisdiction and size of the federal judiciary were increased by a Republican Party that had largely abandoned the cause of black civil rights and wanted to entrench a nationalist economic vision. See Howard Gillman, How Political Parties Can Use the Courts to Advance Their Agendas: Federal Courts in the United States, 1875–1891, 96 Am. Pol. Sci. Rev. 511, 517–19 (2002) (attributing late nineteenth-century federal court jurisdiction expansion to Republican efforts to control national economy). The most important judicial tools for remedying unconstitutional government actions also developed slowly. Throughout the nineteenth century, injunctions and mandamus were often unavailable. 193 See Kent, Damages, supra note 17, at 1170–71 (explaining nineteenth-century judicial preference against equitable remedies like mandamus and injunctions).

Starting gradually in the latter part of the nineteenth century, follow­ing on the heels of the extension of federal question jurisdiction, and increasing exponentially after World War II, there has been an expansion in the substantive coverage of constitutional rights. Today, it is a dense code that pervasively regulates many of the activities of all branches and levels of government. Previously excluded groups, mentioned above, have over time come within the protections of the Constitution, either by formal amendment or interpretation or both. 194 Kent, Citizenship, supra note 28, at 2117; see also G. Edward White, Observations on the Turning of Foreign Affairs Jurisprudence, 70 U. Colo. L. Rev. 1109, 1117–18 (1999) (noting “unprecedented expansion in judicial protection for the civil and political rights of selected minorities . . . which characterized American constitutional jurisprudence for three decades after the close of the Second World War”). There has been a crimi­nal procedure revolution that vastly expanded protections for suspects and defendants, primarily in the 1960s and 1970s, though its roots appeared decades earlier. 195 See, e.g., Joseph L. Hoffmann & William J. Stuntz, Habeas After the Revolution, 1993 Sup. Ct. Rev. 65, 77–80 (describing “criminal procedure revolution” of 1960s and 1970s). At approximately the same time, constitu­tional law witnessed an enormous growth in the reach and bite of proce­dural due process. 196 See, e.g., Richard J. Pierce, Jr., The Due Process Counterrevolution of the 1990s?, 96 Colum. L. Rev. 1973, 1974–80 (1996) (exploring background and combined effect of “five landmark opinions issued between 1970 and 1972” that drastically expanded due process protection). Constitutional law and rights expanded in numerous other domains, from privacy and sexual liberty, to regulation of voting, and protections for speech, expression, and religious liberty. 197 See generally Morton J. Horwitz, The Warren Court and the Pursuit of Justice 74–98 (1998) (discussing opinions from Warren era of Supreme Court expanding protection of rights such as decisions on voting regulation and police searches); Lucas A. Powe, Jr., The Warren Court and American Politics 209–335 (2000) (exploring history of Warren Court from 1962–1968 and discussing its rulings on freedom of expression and other personal rights). And the courts have developed powerful remedial tools and doctrines with which to grant injunctive relief and restructure government to pro­tect individual rights. 198 See, e.g., Abram Chayes, The Role of the Judge in Public Law Litigation, 89 Harv. L. Rev. 1281, 1292–96 (1976) (discussing increasing availability of equitable remedies in twentieth century); Kent, Damages, supra note 17, at 1167–72 (describing shift in courts’ preferences toward equitable remedies in suits against government officials during latter part of twentieth century). As these developments have proceeded, it has seemed more unusual and more normatively troubling to have any zones remain where rights are nonexistent or very limited and where courts decline to exercise jurisdiction or grant remedies.

At the same time, nineteenth-century formalism in legal doctrine and reasoning, characterized by a legal landscape divided into separate spheres or categories, has been declining. Formalist legal doctrine, which was often about drawing lines and deciding which side of the boundary line different phenomena fell on, 199 Morton J. Horwitz, The Transformation of American Law 1870–1960, at 17 (1992) (stating “[n]ineteenth-century legal thought was overwhelmingly dominated by categorical thinking” and “[l]ate-nineteenth-century legal reasoning brought categorical modes of thought to their highest fulfillment”). has been gradually supplanted by different styles of legal analysis. Modern constitutional doctrine is often based around rights and interest balancing, rather than categorical rules. 200 See T. Alexander Aleinikoff, Constitutional Law in the Age of Balancing, 96 Yale L.J. 943, 948–63 (1987) (explaining emergence of “balancing” competing interests in modern constitutional jurisprudence). This shift in reasoning makes it less likely that legal analysis will find any person, place, or context to be categorically outside the protec­tions of the Constitution.

These expansions in individual rights and remedial protections for them have, of course, not happened in a vacuum. Contemporary moral psychology and conceptions of equality seem also to be consistent with and supportive of convergence and closing of legal black holes. When the United States was founded, the structure of social life, morality, and legal thought probably contributed to or buttressed the view that protec­tion from the law and courts was very unevenly divided between distinct categories or spheres of persons, places, and contexts. As G. Edward White writes, Americans of the eighteenth and early nineteenth centuries were used to putting people into categories, often binary ones, that entailed social, economic, and sometimes legal differences in powers, privileges, and responsibilities. 201 G. Edward White, History of the Supreme Court of the United States: The Marshall Court and Cultural Change, 1815–1835, at 20 (1988). Thus, there were important categorical differences in status between men and women, children and adults, squires and artisans, Indians and non-Indians, slaves and free persons, free whites and free people of color, property holders and those without property, aliens and citizens, and resident aliens and nonresident aliens.

Already in the early nineteenth century, the social and legal distinc­tions between different kinds of people were coming into some tension with what White calls “the equality principle.” 202 Id. at 32. Since that time, one of the most important developments in U.S. history has been the expansion of “We the People” to include previously marginalized groups, especially during the huge expansions of civil rights and civil liberties protections from the 1940s onward.

Changes in the moral psychology of residents of the developed West might also be relevant to convergence. As psychologist Jonathan Haidt observes, all societies must confront the question of how to balance needs of the group and those of individuals, and there are two main ways that societies answer this question. According to Haidt, the West has been moving from a sociocentric moral approach to allocating power, rights, and resources—one that places the needs of groups and institutions first and subordinates the needs of individuals—to a more individualistic approach that places individuals at the center and makes society a serv­ant of the individual. 203 Jonathan Haidt, The Righteous Mind: Why Good People Are Divided by Politics and Religion 14–15 (2012) (“The individualistic answer largely vanquished the sociocentric approach in the twentieth century as individual rights expanded rapidly, consumer culture spread, and the Western world reacted with horror to the evils perpetrated by the ultrasociocentric fascist and communist empires.”). Gradually increasing recognition of the dignity and rights of all individuals, in both U.S. constitutional law and interna­tional human rights law, has proceeded apace with this underlying change in moral psychology. At the same time, an older moral framework based on loyalty, authority, and sanctity has been breaking down. This framework, according to Haidt, valued “self-control over self-expression, duty over rights, and loyalty to one’s groups over concerns for out-groups.” 204 Id. at 192–93. Over time, persons on the liberal or left side of the ideologi­cal spectrum in the West, have come to value the former much more.

These underlying moral changes have proceeded apace with formal changes in constitutional law and remedies, helping create our present circumstances where it seems more and more “un-American” 205 See Countdown with Keith Olbermann, supra note 5 (quoting Neal Katyal). to hold that any person, place, or context is categorically outside the protection of the Constitution and laws.

B. Role and Self-Conception of the Supreme Court and Federal Judiciary

Certain institutional changes within the U.S. government, notably the rise to prominence and power of the Supreme Court, seem conceptu­ally and historically linked to convergence and closing of legal black holes. Today, the Court’s fairly aggressive vision of judicial supremacy, especially in the area of individual rights, is clearly supportive of further convergence and closing of legal black holes.

In Marbury v. Madison, the Court sketched a very limited role for judicial review. First, the Court emphasized that its duty and power to say what the law was could properly be exercised only in service of the court’s duty to provide a remedy for violations of an individual’s private right. 206 See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163, 177–78 (1803). Second, the Court broadly described categories of “political” issues that could not be decided judicially but lay within the “constitutional or legal discretion” of another branch. 207 Id. at 165–66. And, famously, the Court exercised the power of judicial review in service of limiting the Court’s power in the particular case before it and ducking confrontation with the President and Congress.

But in a gradual process spanning centuries, the modern imperial Court emerged from these humble beginnings. Only two acts of Congress were declared unconstitutional in the entire period prior to the Civil War (in Marbury and Dred Scott). 208 See Jed Handelsman Shugerman, A Six-Three Rule: Reviving Consensus and Deference on the Supreme Court, 37 Ga. L. Rev. 893, 907 (2003) (“The Court invalidated federal laws only twice before the Civil War (Marbury v. Madison and Dred Scott).”). The pace quickened over the subsequent decades. As of 2002, a Government Printing Office publica­tion had counted 157. 209 Gov’t Printing Office, Acts of Congress Held Unconstitutional in Whole or in Part by the Supreme Court of the United States (2002), http://www.gpo.gov/fdsys/
pkg/GPO-CONAN-2002/pdf/GPO-CONAN-2002-10.pdf (on file with the Columbia Law Review).
The Court barely maintains any longer the fic­tion that it decides constitutional issues only when it unavoidably must to protect an individual’s private rights. It is often very self-conscious and forthright about its modern role of declaring constitutional doctrines and rules that will operate prospectively as binding rules of law applica­ble to all government actors facing circumstances within the scope of those rules or doctrines. 210 See, e.g., Pearson v. Callahan, 555 U.S. 223, 236 (2009) (discussing value of “promot[ing] the development of constitutional precedent” by issuing rulings on constitutionality of official conduct); Saucier v. Katz, 533 U.S. 194, 201 (2001) (stressing importance of federal courts issuing written decisions on constitutionality of officers’ conduct); Cnty. of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998) (same). The scope, density, and ambition of the mod­ern Court’s constitutional jurisprudence are astounding. It is difficult to think of any important area of social, political, economic, or educational life that entirely evades its reach.

The Court is less and less willing to see any zones of U.S. govern­ment activity as categorically immune to judicial review and oversight. 211 See Kent, Damages, supra note 17, at 1128–30 (“[T]he Supreme Court has arguably never been more assertive in adjudicating national security and foreign relations issues than it has in recent years.”). At the Supreme Court level, if not yet in the lower federal courts, the scope of things considered nonjusticiable political questions has shrunk. Out of quasi-departmentalist beginnings, the modern Court has decided that it “alone among the three branches has been allocated the power to provide the full substantive meaning of all constitutional provisions.” 212 Rachel E. Barkow, More Supreme Than Court? The Fall of the Political Question Doctrine and the Rise of Judicial Supremacy, 102 Colum. L. Rev. 237, 241 (2002). The modern Court’s supremacy is widely accepted. “Governments at all levels . . . have essentially acceded to the Supreme Court’s demand in Cooper v. Aaron that the constitutional doctrines and rules announced by the Court in its decisions be treated as equivalent to the Constitution itself.” 213 Kent, Damages, supra note 17, at 1158–59.

For this enormously powerful and self-confident modern Court, it must seem increasingly quaint to hear the government argue in national security and foreign affairs cases that the judiciary lacks competence or authority to decide a given issue. 214 Even in national security cases involving core competencies of the Congress and executive, the modern Court often does not deign to even mention its doctrines that counsel deference to the political branches, much less apply them. See, e.g, id. at 1133 n.38 (discussing Hamdan v. Rumsfeld, 548 U.S. 557 (2006)).

As has been widely recognized, the Court has also shifted the focus and intensity of its judicial review over time. One salient change is the shift that became most obvious in the late 1930s and 1940s, and was noted by the Court itself in, among other places, the famous footnote in the Carolene Products decision. 215 United States v. Carolene Prods. Co., 304 U.S. 144, 152–53 n.4 (1938) (suggesting more searching inquiry might be appropriate when, among other things, rights of discrete and insular minorities are at stake). As the Court moved toward a more deferential posture to legislative and executive action when reviewing law in the economic and regulatory spheres, it has moved quite strongly to protect civil rights and civil liberties.

This is not to say that the Court entirely sets its own agenda or pro­ceeds further and faster on behalf of individual rights than the national political order will tolerate. Courts are part of that political order, as Mark Tushnet and others emphasize, and when they exercise judicial review it is generally in collaboration with one part of the political order against another, understood either vertically (working with the federal government against state or local governments) or temporally (working with the current order against policies of a prior generation). 216 See Mark E. Tushnet, The Supreme Court and the National Political Order: Collaboration and Confrontation, in The Supreme Court and American Political Development 117–37 (Ronald Kahn & Ken I. Kersch eds., 2006) (examining Court’s role in shaping political order); see also Keith Whittington, Political Foundations of Judicial, Supremacy 4 (2007) (arguing “political incentives facing elected politicians . . . often lead politicians to value judicial independence and seek to bolster, or at least refrain from undermining, judicial authority over constitutional meaning”).

Political coalitions can also amend the Constitution in ways that change individual rights protections directly 217 See, e.g., U.S. Const. amends. XIII, § 1 (banning slavery and involuntary servitude), XIV, § 1 (defining and protecting national citizenship and barring states from abridging privileges or immunities of U.S. citizens or denying persons of due process of law or equal protection of laws), XV, § 1 (barring discrimination in voting on account of race or previous condition of servitude). or allow Congress to enforce constitutional rights protections, 218 See id. amends. XIII, § 2, XIV, § 5, XV § 2 (giving Congress power to enforce amendments). change the jurisdiction or structure of the federal judiciary in ways that promote the protection of individual constitutional rights, 219 See, e.g., Judiciary Act of 1875, ch. 137, § 1, 18 Stat. 470 (granting general federal question jurisdiction of federal courts); Civil Rights Act of 1866, ch. 31, § 3, 14 Stat. 27 (giving federal courts jurisdiction over actions challenging civil and criminal deprivations of civil rights). or enact legislation that supports affirmative constitutional litigation and change, 220 See, e.g., Voting Rights Act of 1965, Pub. L. No. 89-110, §§ 3–6, 10, 79 Stat. 437 (authorizing Attorney General to initiate and federal courts to hear cases to protect voting rights); 42 U.S.C. § 1983, enacted as section 1 of the Enforcement Act or Ku Klux Klan Act of 1871, ch. 22, 17 Stat. 13 (creating private right of action for deprivation of constitutional rights by persons acting under color of state law). declares the punish­ment of deprivations of constitutional rights, 221 See, e.g., Voting Rights Act of 1965 § 10 (declaring poll taxes violate Constitution and authorizing Attorney General to institute suits to ban them); Civil Rights Act of 1866 § 2 (making it crime for states and state actors to deprive persons of their civil rights or impose increased punishments on account of race). tasks the bureaucracy with protecting and extending constitutional rights, 222 See, e.g., Civil Rights Act of 1964, tit. IV–VI, Pub. L. No. 88-352, 78 Stat. 241 (granting authority to offer grants and technical assistance to promote desegregation of public schools; empowering investigations of racial discrimination in voting, education, housing, employment, use of public facilities, and administration of criminal justice; and directing federal agencies to ensure entities receiving funding do not practice racial discrimination). or promotes pre­ferred values of constitutional dimension, and hence entrench those norms in the legal and political culture. 223 See, e.g., id., tit. VII (barring discrimination in employment on basis of race, color, sex, religion, or national origin).

Collaboration with other national political actors has marked the Court’s push for greater protection of civil rights and civil liberties gener­ally and, more recently, the moves toward convergence of domains and closing of legal black holes. Instances of sharp conflict between the fed­eral courts and the George W. Bush Administration, and a more general­ized but subtler difference in perspectives about the extent to which foreign affairs and national security should be legalized and judicialized, should not be allowed to obscure the role of Congress, the executive, and other parts of the national political order in supporting the judiciary in greater convergence and closing of legal black holes. During the Bush Administration, for example, Congress legislated to protect noncitizen detainees against torture in foreign locations 224 See Detainee Treatment Act, Pub. L. No. 109-148, § 1003(a), 119 Stat. 2680, 2739 (2005) (“No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment.”). and to provide federal court review of detentions and military commission trials, 225 See id. § 1005 (providing for federal-court review of military trials); see also Military Commissions Act of 2006, Pub. L. No. 109-366, § 950, 120 Stat. 2600 (same). albeit not the full-blown habeas corpus that the Court later mandated in Boumediene. The earlier statutory protections were expanded by President Obama and a later Congress. 226 See Military Commissions Act of 2009, Pub. L. No. 111-84, 123 Stat. 2190 (providing greater procedural protections, with Article III judicial review, of military commission trials); Exec. Order No. 13,491, 74 Fed. Reg. 4893 (Jan. 22, 2009) (banning torture and mistreatment, including harsh interrogation tactics). For decades Congress has been instrumental in introducing Article III judicial oversight of certain kinds of foreign-intelligence surveillance and searchers. 227 The original Foreign Intelligence Surveillance Act of 1978 has been extended numerous times by later Congresses.

C. International Relations and International Law

There have been deep changes in the structure of the international system that seem connected with and supportive of convergence and the closing of legal black holes. At a very broad level, the increasing cross–border flows of people, information, money, goods, and services—in a word, globalization—has likely contributed to a softening of the distinc­tions between foreign and domestic affairs and between citizen and noncitizen. Sociologist Saskia Sassen describes “denationalization” driven by globalization, where “[t]erritory, law, economy, security, authority, and membership” are no longer constructed solely as “national.” 228 Saskia Sassen, Territory, Authority, Rights: From Medieval to Global Assemblages 1–2 (2006). But these phenomena operate at such a deep level that any causal role in changes in U.S. law and institutions relevant to this Essay is likely remote and highly mediated. I will instead look for more specific forces.

As I noted earlier in Part III.E, the structure of international law has changed dramatically. It is now universal, not limited in its coverage to civilized states and groups. It protects both noncitizens and citizens from their own governments. It used to have hugely different rules for peace­time and wartime, but those distinctions are collapsing somewhat.

In international law and international relations, there has been a centuries-long shift from diplomacy and coercion at the nation-state level toward a more individualized, judicialized view of how aliens are to be protected. Since at least the eighteenth century, it has been thought that international law has required that a host nation provide some minimum level of fair treatment to alien residents or visitors. 229 See, e.g., de Vattel, supra note 52, §§ 104–114, at 145–48 (describing rights retained by foreigners abroad by virtue of membership in society and mankind); 3 G.F. Von Martens, A Compendium of the Law of Nations, Founded on the Treaties and Customs of the Modern Nations of Europe 88 (William Cobbett trans., Cobbett & Morgan 1802) (1795) (suggesting fair treatment of alien visitors was required by law of nations); 8 id. at 273. This norm was often embodied in bilateral treaties. See, e.g., Treaty of Amity, Commerce, and Navigation, U.S. –United Mexican States, arts. XIV–XV, Apr. 5, 1832, 8 Stat. 410 (offering governmental protection of civil rights and immunities to each nation’s citizens when in states of treaty signatories); Treaty of Friendship, Limits and Navigation, U.S.–Spain, art. XX, Oct. 27, 1795, 8 Stat. 138 (same); Treaty of Amity and Commerce, U.S.–Prussia, art. II, July 9–Sept. 10, 1785, 8 Stat. 84 (same); Treaty of Amity and Commerce, U.S.–Swed., art. XVII, Apr. 3, 1783, 8 Stat. 60 (same); Treaty of Amity and Commerce, U.S.–Neth., art. VIII, Oct. 8, 1782, 8 Stat. 32 (granting protections from arbitrary detention and capture of vessels by party signatories of each other). “Denial of justice” to aliens within the country—for instance, refusing or hindering access to domestic courts—was treated by international law as an injury to the alien’s home state for which the territorial state that had denied justice was responsible. 230 See Francesco Francioni, The Right of Access to Justice Under Customary International Law, in Access to Justice as a Human Right 1, 9–13 (Francesco Francioni ed., 2007) (describing aliens’ access to justice). The offended home state could, if it chose to “espouse” the claim of its national, seek redress diplomatically. 231 Id. at 9. Force could also be used if redress were refused; denial of justice was consid­ered a justifiable cause of reprisal. 232 See de Vattel, supra note 52, §§ 348–353, at 230–31 (noting instances where force is appropriate); The Federalist No. 80, supra note 58, at 522–23 (Alexander Hamilton) (noting denial of justice as just cause of war). In more extreme circumstances such as riot or war, where justice was not so much denied as absent, cus­tomary international law allowed the state whose nationals were in peril to intervene forcibly to protect lives or even property, 233 See Lillich on the Forcible Protection of Nationals Abroad 41 (Thomas C. Wingfield & James E. Meyen eds., 2002) (discussing evidence showing state use of force to protect property and life). something the United States has done many times. 234 See Edwin M. Borchard, The Diplomatic Protection of Citizens Abroad or the Law of International Claims 448 (1915) (“The army or navy has frequently been used for the protection of citizens or their property in foreign countries in cases of emergency where the local government has failed, through inability or unwillingness, to afford adequate protection to the persons or property of the foreigners in question.”).

Modern trends are away from force and more toward judicial reme­dies. Post–UN Charter, military force is only allowed to be used in self-defense or through authorized collective security processes. International human rights law is increasingly recognizing a right to court access—a right of anyone, citizen or alien, to access domestic courts in the state where they are located to seek redress for violations of domestic or international legal norms. 235 See, e.g., International Covenant on Civil and Political Rights, art. 2(3), Dec. 16, 1966, 999 U.N.T.S. 171 (“Each State Party to the present Covenant undertakes: (a) To ensure that any person whose rights or freedoms . . . are violated shall have an effective remedy . . . (b) . . . that any person claiming such a remedy shall have his right thereto determined by competent judicial . . . authorities, or . . . any other competent authority . . . .”); see also Universal Declaration of Human Rights, art. 8, G.A. Res. 217 (III) A, art 8, U.N. Doc. A/RES/217(III) (Dec. 10, 1948) (“Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.”); Charter of Fundamental Rights of the European Union, 364/01, art. 47, 2000 (“Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.”); Organization of American States, American Convention on Human Rights, art. 8(1), Nov. 22, 1969, 1144 U.N.T.S. 143 (“Every person has the right to a hearing with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal . . . for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature.”); African Charter on Human and Peoples’ Rights, art. 7(1), June 27, 1981, 1520 U.N.T.S. 217 (“Every individual shall have the right to have his cause heard.”).

More generally, as Samuel Moyn argues, the idea of rights was untethered from citizenship in the state, allowing the idea of universal human rights as against the state to be possible. 236 Samuel Moyn, The Last Utopia: Human Rights in History 44–85 (2010). The enormous growth and success of the idea of international human rights in the post–World War II period means that it seems increasingly anachronistic and arbi­trary to deny rights protection on the basis of citizenship. For example, the International Covenant on Civil and Political Rights, one of the most important modern human rights instruments to which 167 states are par­ties, provides that rights of personal security and access to the courts are available to all human beings without distinction. 237 International Covenant on Civil and Political Rights, art. 2(1), Dec. 16, 1966, 999 U.N.T.S. 171 (“Each State Party . . . undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized . . . without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”); id. art. 14(1) (“All persons shall be equal before the courts and tribunals.”); id. art. 9(1) (“Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.”). The famous Third Geneva Convention bans the detaining power from making invidious distinctions between prisoners of war on the basis of “nationality” or “similar criteria.” 238 Geneva Convention Relative to the Treatment of Prisoners of War, art. 16, Aug. 12, 1949, 6 U.S.T. 3316. In light of these trends, protection under U.S. law that turns on categorical distinctions between different classes of persons is increasingly seen as a potential human rights violation.

D. Changes in National Security and Foreign Affairs Activity of U.S. Government

Concerted pressure for extending rights beyond the sovereign terri­tory of the United States began when the U.S. government started projecting power abroad in sustained ways. When extraterritorial action by the U.S. government was irregular, brief, and primarily involved war-fighting or similar coercive activities, it seemed natural that constitu­tional rights developed for peacetime; domestic application would not be extended. But, as the twentieth century opened, the United States came to be involved in many extraterritorial activities that looked less like epi­sodic coercion and more like governing, such as nation-building, ruling civilian populations of non-sovereign zones where military bases were located, or staffing and running U.S. courts in foreign countries like China. For example, an important case about whether constitutional rights applied outside the United States arose in Cuba during the time of temporary U.S. military government, 239 Neely v. Henkel, 180 U.S. 109, 112 (1901) (extraditing U.S. citizen to Cuba, then governed by U.S. military, for criminal trial). as part of this country’s first attempt at self-described humanitarian intervention. And the long-term occupations of Germany and Japan after World War II raised questions about whether constitutional rights limited U.S. government actions. 240 See, e.g., Eisentrager v. Forrestal, 174 F.2d 961, 963–65 & 963 n.9 (D.C. Cir. 1949) (holding Fifth Amendment Due Process and Habeas Suspension Clauses protect “any person,” anywhere in world, including admitted agents of German government convicted of war crimes by U.S. military commission in China and detained in U.S.-occupied Germany), rev’d sub nom. Johnson v. Eisentrager, 339 U.S. 763, 785 (1950) (holding German petitioners lacked constitutional rights, including right to access U.S. courts).

At first these developments merely generated calls in some quarters for convergence and closing of black holes but did not actually change U.S. law in that direction. If anything, categorical distinctions were invigorated and new ones developed in order to give more flexibility to the government. The classic example is the so-called incorporation doc­trine developed in the Insular Cases of 1901 and thereafter. The best understanding of U.S. law and practices at the time was that during peacetime, full constitutional rights should be available to the people and entities present in territory that was de jure part of the United States. 241 See Kent, Citizenship, supra note 28, at 2127–28. There were minor exceptions based on territories’ unique status as proto-states. For instance, federal courts in the territories were not staffed with Article III judges with life tenure—a kind of structural protection for individual rights—because territorial courts would be abolished once statehood was attained. But in response to pressures generated by the imperialism of 1898 and thereafter, the Supreme Court in the Insular Cases acceded to the government’s wish to have fewer constitutional restrictions on its colonial governments, holding that not all constitutional restraints were applicable until Congress decided to fully “incorporate” a territory into the United States. 242 See id. (discussing outcome and impact of Insular Cases).

But over time, the changing nature of U.S. foreign relations and national security activity has seemed to cause changes in U.S. law. In gen­eral, when a government is seen to wield great power, it leads to calls for more legal restraint. For example, once the breadth and intrusiveness of what the NSA has been doing in domestic and foreign surveillance became known as a result of the Snowden leaks, calls for the courts or Congress to rein it in have increased exponentially.

In recent conflicts with non-state actors like al Qaeda or insurgents in post–Saddam Hussein Iraq, U.S. government activities like long-term preventive detention, extensive interrogation for intelligence purposes, and counterinsurgency campaigns seem to many observers to be close enough to ordinary law enforcement and governance that norms of constitutional protection should be applicable.

There are other features of conflicts with non-state actors that create pressure for increased rights protection and judicialization. There are pervasive and factually complex disputes about whether a given individ­ual detainee or military or intelligence target is, in fact, an enemy fighter. The likelihood of “false positives” is increased by the fact that citizenship cannot be used as an easy proxy for enemy status and that detainees who in fact are enemy fighters lack an incentive to self-identify as such because they will not receive prisoner-of-war protections but instead might be tried for unlawful belligerency or domestic crimes. 243 See generally Issacharoff & Pildes, Targeted Warfare, supra note 27, at 1545–46 (discussing pressures and incentives for military force to be used based on individual guilt rather than group status). There is great indeterminacy about which international legal protections apply to detainees who are alleged terrorists. Skimpiness of those that do apply, like Common Article 3 of the Geneva Conventions of 1949, suggests to some observers that more robust and certain protections of domestic rights enforced by courts are needed. The indefinite and highly mallea­ble scope and length of the conflict raises the discomfiting prospect of war without end or limits, and hence we see increasing calls to make armed conflict more like peacetime in terms of judicial involvement and rights protection. The fact that the home governments of many detainees are U.S. allies in the conflict against al Qaeda and the Taliban and there­fore do not always advocate strongly for the detainees’ interests also likely increases the calls for judicial oversight under robust domestic law norms.

On the other hand, the enormous destructive power that can be har­nessed by non-state groups suggests to many that simple law enforcement methods are not sufficient, and that harder-edged military and intelli­gence assets and techniques must be deployed as well. Territorial loca­tion matters less as well. Whether through cyber attacks, dispersal of biological weapons, or the use of ordinary objects like commercial airplanes as weapons, destructive attacks can potentially be launched from anywhere and everywhere, putting pressure on the U.S. govern­ment to militarize the homeland. At the same time, changes in communications technologies mean that it is often difficult to determine the geographic location or identity of the parties to the communication, and hence traditional rules about electronic surveillance, based on a foreign–domestic distinction concerning citizenship and territorial loca­tion, are increasingly unworkable.

As Pildes and Issacharoff have argued, changes in military technol­ogy—such as the development and spread of precision munitions and drone technology—are putting increasing pressure on the military to “individuate,” to apply force in a surgical manner so that it only impacts individuals who have been deemed targetable or guilty in some fashion through fair procedures. 244 Id. at 1525–28 (“[T]he use of military force against terrorists necessarily must shift, and has shifted, away from traditional group-based membership attributions of responsibility to individuated judgments of responsibility.”).

As non-state threats rise in importance, the U.S. government and courts are less likely to confront a noncitizen as a representative of a for­eign government. Spiro has noted that foreign affairs law often treated aliens for constitutional purposes “not as individuals but rather as components of other nations.” 245 Peter J. Spiro, Globalization and the (Foreign Affairs) Constitution, 63 Ohio St. L.J. 649, 704 (2002) [hereinafter Spiro, Globalization]. This is seen, for example, in immigra­tion cases giving great deference to the U.S. government because of con­cerns about the potential disloyalty of noncitizens to the United States. And courts often justified deference and fewer constitutional rights for noncitizens with the assumption “that their interests will be protected on the international plane by their country of nationality, so that even as they are deprived of individual constitutional rights, their rights will be protected through diplomatic channels.” 246 Id. at 706. As non-state groups became more important to U.S. foreign policy, exceptional treatment of noncitizens seems less justifiable. 247 See id. at 707 (arguing historical justifications for distinguishing noncitizens for constitutional purposes “offer no support for its persistence”).

And even though threats from non-state actors are serious, they pale in comparison to the threat of annihilation from superpower conflict. Today’s reduced-threat environment has led some to argue that doctrines limiting judicial review and individual rights in foreign affairs and national security contexts have less justification today. 248 See id. (arguing prevalence of non-state threats erodes historical justifications for differential constitutional treatment of aliens).

Spiro correctly observes that much of the deference to the U.S. gov­ernment from courts in foreign relations cases came from an asserted need to protect diplomatic secrecy and from concerns about provoking confrontation with another nation. The greatest deference to the govern­ment often came in cases that directly implicated the interests of third-party foreign countries. 249 See id. at 680 (noting “courts have shown a demonstrably greater willingness to entertain foreign relations matters that do not directly implicate other countries”).

Thus, the very kinds of national security and foreign affairs activities that are most salient today tend to be ones that lead observers and, often, courts and other political actors to think that ordinary legal norms and perhaps even judicial review should govern.

E. Trust in Government, Growth of New Media, and Relations Between the Government and the Press

Paul Stephan has suggested that the attractiveness of judicial defer­ence to the political branches in foreign relations waxes and wanes based on the legal elite’s view of the competence and probity of the Executive and Congress. 250 See Paul B. Stephan, Courts, the Constitution, and Customary International Law: The Intellectual Origins of the Restatement (Third) of the Foreign Relations Law of the United States, 44 Va. J. Int’l L. 33, 58–59 (2003). Large portions of the American public have always been skeptical of the federal government, but it may be a distinctively modern phenomenon that large swaths of the legal and economic elites are today.

The Vietnam War and the Watergate scandals are commonly said to mark the beginning of a dramatic decline of trust and confidence in the federal government. For a brief period after 9/11, the shock of the attack and sense of crisis and national purpose may have rallied legal elites behind a posture of judicial deference to the political branches. But soon, the enormous credibility crisis of the Bush Administration surrounding WMDs in Iraq and revelations of behavior (e.g., intentional torture of captives) that many members of the legal elite found shocking and obviously illegal, among other things, led to the elite bar and, seem­ingly, even Justices of the Supreme Court to harbor distrust of the execu­tive branch. 251 See, e.g., Boumediene v. Bush, 553 U.S. 723, 765–69 (2008) (rejecting traditional bright-line rule that noncitizens outside United States lacked constitutional protections in part because such rule was “subject to manipulation” by President or Congress); Hamdan v. Rumsfeld, 548 US 557, 587–88 (2006) (stating process for review of military commission convictions that includes Secretary of Defense and ends with President “clearly lack[s] the structural insulation from military influence that characterizes the Court of Appeals for the Armed Forces,” hence Article III courts should not abstain from adjudicating legality of military commission proceedings); Hamdi v. Rumsfeld, 542 U.S. 507, 530 (2004) (plurality opinion) (“[A]s critical as the Government’s interest may be in detaining those who. . . pose an immediate threat. . . , history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat.”). Public approval of and trust in the executive has remained low during the Obama years. 252 See Gallup, Trust in Government, http://www.gallup.com/poll/5392/trust-government.aspx (on file with the Columbia Law Review) (last visited Mar. 7, 2015) (displaying poll results from 1972 through 2014 asking respondents about trust in federal executive branch, showing both George W. Bush and Barack Obama Administrations received high marks at beginning of their first terms but soon were trusted by less than half of respondents).

Congress’s painfully obvious dysfunction and partisanship, which is reflected in very low public approval, 253 See Gallup, Congress’ Approval Rating Remains Near Historical Lows (Aug. 13, 2013), http://www.gallup.com/poll/163964/congress-approval-rating-remains-near-histor
ical-lows.aspx (on file with the Columbia Law Review) (showing over eighty percent of Americans disapprove of job Congress is doing).
has not helped its standing with the elite bar and the courts. It seems likely that the Supreme Court’s assertiveness vis-à-vis Congress, seen for example in the record number of congressional statutes declared unconstitutional in recent decades and in cases like City of Boerne, Garrett, and Shelby County, 254 See Shelby Cnty. v. Holder, 133 S. Ct. 2612, 2630–31 (2013) (invalidating key section of Voting Rights Act in part because Court disagreed with Congress’s fact-finding about extent of voting discrimination); Bd. of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 368 (2001) (invalidating part of Americans with Disabilities Act because Court determined Congress had failed to document in legislative record sufficient pattern of misconduct by states); City of Boerne v. Flores, 521 U.S. 507, 536 (1997) (finding limit on Congress’s authority to enforce Fourteenth Amendment where it assertedly encroached on Court’s prerogative of defining meaning of Constitution). results at least in part from a decline in respect for Congress by members of the Supreme Court. 255 The Court has become more and more detached from Congress, and from high-level politics generally. The last Supreme Court Justice who served in Congress prior to joining the Court was Sherman Minton, who retired from the Court in 1956. The last former governor was Earl Warren, who retired in 1969. The last former Attorney General of the United States was Tom Clark, who retired from the Court in 1967. See Pamela S. Karlan, Foreword: Democracy and Disdain, 126 Harv. L. Rev. 1, 5 (2012) (“[T]he current Supreme Court is the first in U.S. history to lack even a single member who ever served in elected office.”). In the title of her recent Harvard Law Review foreword, Pamela Karlan suggests that the current Court has “disdain” for Congress and politics more generally. 256 Id. at 12 (“The current Court, in contrast to the Warren Court, combines a very robust view of its interpretive supremacy with a strikingly restrictive view of Congress’s enumerated powers. The Roberts Court’s approach reflects a combination of institutional distrust . . . and substantive distrust . . . .”); see also Vicki C. Jackson, Standing and the Role of Federal Courts: Triple Error Decisions in Clapper v. Amnesty International USA and City of Los Angeles v. Lyons, 23 Wm. & Mary Bill Rts. J. 127, 181 (2014) (“At times the Court seems to show a particular lack of respect for Congress as compared with state legislatures.”).

Even as trust in Congress and the executive branch have declined, a new media environment scrutinizes the activities of government like never before. As Goldsmith has argued, “[t]he growth of global television and the Internet” since the 1990s has given unprecedented publicity to the foreign affairs and national security activities of the United States and other governments, and by shining a light on them, has made their “perceived fairness” and compliance with law matters of public concern and debate. 257 Goldsmith, supra note 23, at 125–35. The information and media revolution has gone hand-in-hand with decreased trust in government. Important seg­ments of the American public and much of the press have, since Watergate and other scandals of the 1970s and the associated congres­sional hearings and press reporting that revealed abuses through the executive branch, become rather skeptical about U.S. government asser­tions that it should be trusted to do the right thing in secret. The transparency and checks and balances that come with judicial review therefore seemed more desirable. And, as Spiro argues, when the executive and Congress lose their monopoly over information about for­eign affairs and national security, courts are less receptive to pleas for deference. 258 Spiro, Globalization, supra note 245, at 683 n.127. Recent decades have seen the rise of very active and sophisticated press and advocacy networks that ferret out and publicize unsavory government secrets.

The same information revolution that has changed the media land­scape has also made it much easier for government insiders to leak large amounts of national security information to reporters or advocacy groups. And at the same time, many advocacy organizations have sprung up dedicated to using information about government misdeeds to expand constitutional and other legal protections for groups such as noncitizens abroad and military targets who would previously have been categorically unprotected.


The historical trajectory toward the closing of legal black holes and converging of domains is clear. Most of the forces I have suggested might be supportive of this change today seem unlikely to abate any time soon. Part of the reason is that many of the trends seem to reinforce each other. For example, the increase in the number and potency of individ­ual constitutional rights and associated remedies gives authority and legitimacy to the role of federal courts restraining the political branches, and hence increases the self-confidence and assertiveness of the courts. In turn, greater assertiveness and self-confidence will lead the courts to elaborate and apply more rights and remedies. Moral psychology that increasingly values the autonomy and equality of individuals will tend to support increased individual constitutional rights and vice versa.

Many of these trends I have identified are probably also individually self-reinforcing. Take, for example, the increasing confidence of the U.S. judiciary about its right and capacity to adjudicate foreign affairs and national security cases. As the courts hear more such cases, they will likely gain both confidence in their ability to handle them and the confidence of outside observers. Courts create precedents when they decide cases, and a growing body of precedent will make it seem increasingly natural and accepted that courts are adjudicating these cases. The federal judici­ary’s involvement adjudicating applications for foreign-intelligence surveillance since 1978 259 Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95-511, 92 Stat. 1789 (codified as amended at 50 U.S.C. §§ 1801–1885c (2012)). has, for example, recently led to calls for a simi­lar kind of judicial review of targeted killings. 260 See Scott Shane, Debating a Court to Vet Drone Strikes, N.Y. Times (Feb. 9, 2013), http://www.nytimes.com/2013/02/09/world/a-court-to-vet-kill-lists.html (on file with the Columbia Law Review).

Because these trends toward the closing of legal black holes and con­verging of domains appear to be longstanding and mutually reinforcing as well as self-reinforcing, the future will probably bring more rather than less convergence in rights protection and the further closing of legal black holes. That does not mean that the trend lines will always be steady. A military or other catastrophe, such as the 9/11 attacks, can temporarily lead political actors, including the courts, to adopt and countenance fewer individual rights protections than they ordinarily would. 261 See Janet Cooper Alexander, The Law-Free Zone and Back Again, 2013 U. Ill. L. Rev. 551, 551 (showing national security policies were less protective of individual rights during first Bush term immediately after 9/11 than during second term or Obama presidency). A major nation-to-nation war involving the United States, unlikely as that may seem today, would probably push the country further off the course of convergence and closing of legal black holes, and for a longer time. 262 See generally Jack Goldsmith & Cass R. Sunstein, Military Tribunals and Legal Culture: What a Difference Sixty Years Makes, 19 Const. Comment. 261, 281 (2002) (discussing different reactions to Franklin D. Roosevelt versus George W. Bush’s use of military tribunals and observing “[f]or better or for worse, solicitude for the interests of accused belligerents will diminish when the risks to the Nation seem most serious and tangible”). But even that is unlikely to be permanent and almost certainly would not roll back the developments of the last several decades. As Goldsmith and Cass Sunstein argue, U.S. history shows a ratchet effect, where perceived abuses of individual rights in the name of security during wartime are criticized and rejected afterwards and thus develops a new, higher base­line for treatment of individuals going forward. 263 See id. at 284–85 (“During every serious war in our nation’s history, civil liberties have been curtailed. Following . . . each war, elites regret these restrictions . . . [as] unwarranted or extreme . . . . This dialectic produces a ratchet effect, over time, in favor of more expansive civil liberties during wartime.”).

The future of national security and foreign affairs is thus likely to see more and more aggressive judicial review and further application and extension of ordinary constitutional and other legal norms. The number of persons, places, or contexts that are legal black holes will continue to shrink, perhaps to zero. National security and foreign affairs will become less and less legally exceptional, as convergence continues apace.

Some more specific predictions might be ventured. Pildes and Issacharoff are surely right that there will be increased pressure, includ­ing by legal means, for the U.S. military to “individuate” by applying force in a surgical manner so that it only impacts individuals who have been deemed targetable or guilty in some fashion through fair proce­dures. 264 See supra note 27 and accompanying text (describing Pildes and Isacharoff thesis on pressures on military to “individuate”). Calls for a “drone court” similar to the Foreign Intelligence Surveillance Court are an example of this phenomenon. 265 See, e.g., Benjamin Wittes, The New York Times Proposes Judicial Review of Nearly All Drone Strikes, Lawfare (Feb. 15, 2013, 7:21 am), http://www.lawfareblog.com/
2013/02/the-new-york-times-proposes-judicial-review-of-nearly-all-drone-strikes/ (on file with the Columbia Law Review) (discussing proposed “drone court”).

Because the political actors driving convergence and closing of legal black holes tend to be more associated with the political left of center—for instance, it was the left of the Supreme Court plus Justice Kennedy that produced the narrow margins of victory for the detainees in Rasul, Hamdan, and Boumediene 266 Rasul v. Bush, 542 U.S. 466 (2004), and Boumediene v. Bush, 553 U.S. 723 (2008), were 5-4 decisions, while Hamdan v. Rumsfeld, 548 U.S. 557 (2006), would have been 5-4 if Chief Justice Roberts had not recused himself after having voted for the government when the case was at the D.C. Circuit. —we will likely see more and faster conver­gence and closing of legal black holes on issues where the right can join in too. So, for example, issues involving property or other economic rights or First Amendment rights for commercial or other entities are ones to watch.

The Supreme Court, in an opinion by Chief Justice Roberts, recently held that the First Amendment rights of organizations that provided funding and assistance regarding HIV/AIDS in foreign countries were violated by the statutory requirement conditioning receipt of U.S. government grants on having “a policy explicitly opposing prostitu­tion.” 267 Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., 133 S. Ct. 2321, 2326 (2013). The Court relied entirely on case law involving ordinary, domes­tic issues—such as restrictions on using federal funds to counsel women about abortions, 268 See id. at 2328 (citing Rust v. Sullivan, 500 U.S. 173, 195 & n.4 (1991)). and evinced no awareness of the separation of powers concerns with constraining U.S. foreign policy activities in foreign coun­tries with judicially imposed constitutional restrictions.

The recent D.C. Circuit decision concerning the Committee on Foreign Investment in the United States (CFIUS) is on point here. A stat­ute empowers the President, through CFIUS, an executive branch committee chaired by the Secretary of Treasury and staffed by senior officials with national security and economic portfolios, to investigate and block “any merger, acquisition, or takeover . . . by or with any foreign person which could result in foreign control of any person engaged in interstate commerce in the United States.” 269 50 U.S.C. app. § 2170(a)(3) (2012). CFIUS reviews these transactions for effects on the national security of the United States. 270 Id. § 2170(f). The statute provides that presidential decisions are not subject to judicial review. 271 Id. § 2170(e). In a case where CFIUS blocked a transaction of a U.S. corpora­tion owned by Chinese nationals on national security grounds, the D.C. Circuit first applied an exacting clear statement rule to find that the stat­ute did not clearly enough bar a due process challenge to the decision of CFIUS; held that the political question doctrine did not apply; and, with only the barest hint of deference toward the national security equities, held that the corporation had been denied its property without due pro­cess because it was not given all unclassified evidence used in the review process or any opportunity to rebut that evidence. 272 See Ralls Corp. v. Comm. on Foreign Inv. in U.S., 758 F.3d 296, 311, 314, 319 (D.C. Cir. 2014).

In the same vein, decisions that are only a little more than a decade old abruptly rejecting constitutional challenges to asset blocking orders for national security reasons by the Office of Foreign Assets Control 273 See, e.g., Holy Land Found. v. Ashcroft, 333 F.3d 156, 163–66 (D.C. Cir. 2003) (upholding asset-blocking order against Muslim charitable foundation designated as terrorist organization); Global Relief Found., Inc. v. O’Neill, 315 F.3d 748, 754 (7th Cir. 2002) (rejecting Global Relief Foundation’s constitutional arguments against seizing of its assets). are almost certainly going to be superseded by precedent imposing more traditional constitutional restrictions on this national security activity. 274 See, e.g., Al Haramain Islamic Found., Inc. v. U.S. Dep’t of Treasury, 686 F.3d 965, 988, 1001 (9th Cir. 2012) (holding OFAC violated foundation’s due process and First Amendment rights); KindHearts for Charitable Humanitarian Dev., Inc. v. Geithner, 647 F. Supp. 2d 857, 919 (N.D. Ohio 2010) (holding OFAC violated corporation’s Fourth Amendment rights).

Whether these particular predictions prove correct or not, the ten­dency in our law, political institutions, and culture will be toward greater convergence and closing of legal black holes.