Judicial Review as Soft Power: How the Courts Can Help Us Win the Post-9/11 Conflict
The American military efforts in Afghanistan and Iraq are not yielding desired results and, even assuming they were, such military success would not be sufficient to prevail in the war against transnational terrorism. The United States must engage in the battle of hearts and minds in order to achieve meaningful safety and a lasting respite from the specter of terrorist activity. To participate in this more intangible, intellectual battle, the United States will need to utilize its "soft power," or its ability to draw nations or peoples towards its policy preferences through attraction, as distinct from "hard power," in which foreign conduct is shaped by military or economic coercion. The question becomes what soft power resources are available to -- and may be credibly invoked by -- the United States? This Article argues that the American constitutional design, particularly its commitment to the rule of law, is an aspect of soft power that, if communicated externally, will attract moderate Muslims and others to American interests and help quell the reach and appeal of terrorists bent on destroying the United States. Such "legal soft power" will resonate with the international audience only if we adhere to fundamental American principles in actuality -- they must be more than mere platitudes. Accordingly, I suggest that the Supreme Court's robust evaluation of individual rights claims in the post-9/11 context demonstrates that the judiciary has been faithful to the rule of law even in times of national crisis and stress. It is not the outcomes that necessarily shows this, but the genuine process within which federal actions may be challenged. If it is the case that the rule of law may be an element of soft power conceptually and that the judicial decisionmaking has honored it in practice, then it would benefit American national security interests if others in the world were made aware of the American constitutional scheme, one of separation of powers and judicial review, and the Supreme Court's fidelity to the Constitution in times of war. Such information may make it more likely that other nations and peoples will be attracted to American interests. In an odd sense, the judicial branch may be a positive instrument of foreign policy and a beneficial tool in America's current war -- even if it strikes down executive or legislative actions in the government's prosecution of the war itself.
First Korematsu and Now Ashcroft v. Iqbal: The Latest Chapter in the Wartime Supreme Court’s Disregard for Claims of Discrimination
Upon his arrest in New York in the aftermath of the September 11, 2001, attacks for charges related to identity theft, Javaid Iqbal, a Muslim male, was classified as a person of “high interest” and thereafter placed in a federal prison facility housing “September 11 detainees.” Iqbal, claiming that this classification was premised on his race, religion, and national origin, and not based on any evidence tying him to terrorism, filed suit against John Ashcroft, Robert Mueller, and others. Ashcroft and Mueller moved to dismiss the complaint on the grounds that Iqbal’s allegations were insufficient to overcome their entitlement to qualified immunity. The district court and U.S. Court of Appeals for the Second Circuit disagreed, denying the motion. Last term, the Supreme Court, in a 5-4 ruling, reversed, holding that Iqbal’s allegations of discrimination were implausible under the pleading standards announced in Bell Atlantic v. Twombly, and finding unremarkable the accepted fact that the government targeted Muslims in the wake of 9/11. The purpose of this Article is to challenge both the procedural and substantive rulings in Iqbal. In particular: Part I will provide an overview of the factual background and procedural history of the case, Part II will examine the arguments put before the Court by the parties and amici, Part III will summarize the Court’s decision and the dissenting opinions, while Part IV will argue that the Court not only drastically altered the traditional pleading standards that apply to civil cases, but erroneously concluded that Iqbal’s allegations of constitutional violations were insufficient at the motion to dismiss stage. It also offers an alternative framework as to how motions to dismiss for failure to state a claim and claims of discrimination in the wartime context should be assessed by courts when and if Iqbal is revisited. Though Iqbal has largely escaped serious scholarly attention, hundreds of federal court orders are now relying upon it for its explication of the pleading requirements under Rule 8(a)(2) and even for its approval of racial profiling. This Article sheds light on Iqbal and charges that, because it dissolved notice pleading and sanctioned blanket profiling of Muslims for national security reasons, it is one of the worst decisions of our generation. It is, in other words, 9/11’s Korematsu.
A Rage Shared by Law: Post-September 11 Racial Violence as Crimes of Passion
September 11 will long be associated with unthinkable violence. The sheer magnitude of the terrorist attacks, the visual imagery of the collapsing towers of the World Trade Center, and the extensive media attention given to the victims have defined the violence of September 11 in unitary terms. But in the aftermath of the terrorist attacks, another form of violence spread across the country: in the days and weeks after September 11, over one thousand bias incidents against Arabs, Muslims, and South Asians were reported. These incidents, including the murders of as many as *1262 nineteen people, assaults of scores of others, vandalism of homes, businesses and places of worship, and verbal harassment of countless individuals, form part of the subterranean history of September 11. While the violence of September 11 itself is largely thought to have been incomprehensible, post-September 11 hate violence is remarkable precisely because it is something we can understand. Although condemned as individual acts of criminality, the phenomenon of hate violence toward Arabs, Muslims, and South Asians is one that appeared to need little explanation; it was accepted as a regrettable, but expected, response to the terrorist attacks. As early as September 12, 2001, major newspapers reported predictions of the violence against these communities. The physical violence exercised upon the bodies of Arabs, Muslims, and South Asians has been accompanied by a legal and political violence toward these communities. In the first two years after September 11, the United States has developed a corpus of immigration law and law enforcement policy that by design or effect applies almost exclusively to Arabs, Muslims, and South Asians. These laws operate in tandem with the individual acts of physical violence that have been carried out against these same communities, thereby aiding and abetting hate violence. Taken together, the multiple assaults on the bodies and rights of Arabs, Muslims, and South Asians produce a psychological violence as well and reracialize the communities they target as "Muslim-looking" foreigners unworthy of membership in the national polity.Having occurred in a time of national tragedy, and in the wake of a far grander spectacle of violence, it is perhaps inevitable that the hate violence against Arabs, Muslims, and South Asians would receive short shrift in governmental, media, or public attention. This Article attempts to trace a genealogy of the racial violence in the aftermath of September 11, with three purposes in mind: (1) to explicate the mutually reinforcing relationship between individual hate crimes and governmental racial profiling, and the racialization they jointly effect; (2) to explore the psychological motivations for individual hate crimes against Arabs, Muslims, and South *1263 Asians, and how state-sponsored violence against these communities has reflected that psychology; and (3) to illuminate how the interrelationship among different systems of subordination serves to normalize such violence.