In January 2011, Congress enacted legislation prohibiting the use of federal funds to transfer to the United States any individuals currently detained at Guantánamo Bay, Cuba. Among the purposes of this provision, observers commented, was to prevent the prosecution of these detainees in federal court in the United States. President Obama signed the legislation into law as part of the Defense Authorization Act, but he also issued a statement strongly objecting to the provision and pledging to seek its repeal:

[This provision] represents a dangerous and unprecedented challenge to critical executive branch authority to determine when and where to prosecute Guantánamo detainees, based on the facts and the circumstances of each case and our national security interests. The prosecution of terrorists in Federal court is a powerful tool in our efforts to protect the Nation and must beamong the options available to us. Any attempt to deprive the executive branch of that tool undermines our Nation’s counterterrorism efforts and has the potential to harm our national security.

The congressional action and the President’s response are part of a broader public debate about the role of law enforcement as a counterterrorism tool. Some question the effectiveness of the U.S. criminal justice system and argue that it should never be used against terrorists, or at least some kinds of terrorists. In contrast, some others argue that law enforcement is the only legitimate way to detain terrorists, and that they should either be prosecuted in the civilian courts or released. This article argues that we should continue to use all of the military, law enforcement, intelligence, diplomatic, and economic tools at our disposal, selecting in each case the particular tool that is most effective under the circumstances, consistent with our laws and values. The discussion proceeds in five main parts.

In one of her speeches on Internet freedom, Secretary of State Hillary Rodham Clinton said that “[t]he fact that WikiLeaks used the internet is not the reason we criticized its actions.” Although Clinton is correct that it is essential to separate the technology WikiLeaks uses from its actions, the digital age has raised new concerns about the unauthorized dissemination of sensitive national security information. New technology has made it much easier to leak and otherwise disseminate national security information. At the same time, leaks continue to play an essential role in checking governmental power and often make invaluable contributions to our public debate. WikiLeaks has prompted renewed debate concerning when the disclosure of national security information by nongovernmental actors should be protected, both as a policy matter and as a matter of constitutional law.

One dominant theme in the discussion of how to strike the balance between an informed public and the need to protect legitimate national security secrets is whether new media entities like WikiLeaks are part of“the press” and whether Julian Assange and his cohorts are engaging in“journalism.” As the gathering and distribution of news and information becomes more widely dispersed, and the act of informing the public more participatory and collaborative, however, determining who is engaging in journalism and what constitutes the press has become increasingly difficult. It is not possible to draw lines based on the medium of communication, the journalistic background of the publisher, the editing process, the size of the audience, or the methods used to obtain the information.

Professor Wasserman offers several evaluations of the Supreme Court’s 1872 decision in Klein. In places he states that it was issued in a “pathological period,” is confusing to read, and therefore difficult to apply. Yet elsewhere in his article he finds the decision to be understandable and recognizes that it offers several clear separation of powers principles. Between those two competing and conflicting positions, the latter analysis is on firmer ground. His article focuses on two recent national security issues – the 2008 statute granting immunity to telecoms that provided assistance to NSA surveillance, and the Military Commissions Act (MCA) of 2006 – to determine whether they are consistent with and controlled by Klein.

PATHOLOGICAL PERIODS

Professor Wasserman describes Klein as the product of what Vincent Blasi “has called a period of constitutional pathology, a period reflecting ‘an unusually serious challenge to one or more of the central norms of the constitutional regime.’” Pathological periods, Blasi says, are marked by a “sense of urgency stemming from societal disorientation if not panic.” They come at a time of “a shift in basic attitudes, among certain influential actors if not the public at large,” concerned with what Wasserman calls “central constitutional commitments.” Panic can affect structural features, including formal and informal separation of powers and checks and balances, which may “exert much less of a restraining influence” on the political branches and the public.” Rigorous judicial review “must be reserved for extreme cases challenging pathological laws and action . . . as a bulwark against overreaching officials and citizens.”

Klein arose, Wasserman points out, “in a previous pathological period –Reconstruction.” That is true, but what does that say about the clarity of the decision and subsequent ability to apply it with confidence? Good things and bad things come out of periods of stress and panic. The“pathological” period after the Civil War yielded three constitutional amendments: the Thirteenth (abolishing slavery), the Fourteenth (establishing new rights), and the Fifteenth (extending the right to vote). Those years opened up new professional opportunities for women. Some branches of government may perform well, others poorly. The requirement each time is to analyze a particular case or action to determine how well a political institution carries out its constitutional duties. In considering Klein in the context of the politics of 1872, the Court was clearly under stress but issued a decision that pushed back against indefensible legislation and did so in a manner that gave clear and valued guidance to future legislation and litigation.

No one seriously claims that the Supreme Court’s 1872 decision in United States v. Klein is a model of clarity. Justice Field’s opinion for the Court is as enigmatic as it is intriguing, providing the only pre-2008 example of a Supreme Court decision invalidating an Act of Congress for unconstitutionally depriving the federal courts of jurisdiction. The million dollar question, of course, is why the Court so ruled, and no amount of scholarship, no matter the quality of the analysis or the intellectual abilities of the author, has managed to settle the issue to any meaningful degree. Indeed, even when the Klein “rule” has been deployed by contemporary jurists as a basis for invalidating federal legislation, such efforts have, charitably, failed to persuade. Thus, although virtually all observers agree that Klein bars Congress from commanding the courts to rule for a particular party in a pending case, the question remains whether it stands for any broader constraint on legislative power.

Professor Howard Wasserman’s response to this state of doctrinal, academic, and juridical indeterminacy is to suggest that it conclusively establishes Klein’s insignificance, and that Klein’s importance to the modern Federal Courts canon is really a “myth,” born out of a “false belief that Klein establishes vigorous judicially enforceable constitutional limitations on Congress.”  To be sure, Wasserman does not believe Klein to be devoid of force; rather, he concludes that “[m]ost blatantly Klein violative laws are never enacted; Klein-vulnerable laws that have been enacted raise no meaningful or serious Klein problems and should survive any separation of powers challenge.”