New York Court of Appeals: People v. Best

This case arises from the conviction of defendant Emil Best for endangering the welfare of a child.  The defendant appeals his conviction on the basis that his constitutional rights were violated because he was restrained during the course of his bench trial with no specific justification.  The Court of Appeals held that the rule governing visible restraints in jury trials applies equally to non-jury trials and the district court’s failure to state a basis for the restraint was error.  The Court did go on to hold, however, that the constitutional error in this case was harmless and the conviction was affirmed.

The defendant was charged with endangering the welfare of a child based on allegations that he offered a 12-year-old boy $50 for the boy to expose himself.  The defendant waived his Miranda rights and, in a written statement, admitted that he did make the offer.  The defendant subsequently appeared for a Sandoval hearing with his hands cuffed behind his back. Defense counsel requested the handcuffs be removed, but instead the defendant’s hands were merely cuffed in front.  At this point, the defendant also waived his right to a jury trial.  At the start of trial and each subsequent day after, defense counsel made the request to remove the cuffs and each day the defendant was cuffed in front.  The defendant alleged that this action violated his constitutional rights under Deck v. Missouri, where the Supreme Court held that the Constitution “forbids routine use of visible shackles during the guilt phase” of a trial and “permits the State to shackle a criminal defendant only in the presence of special need.” 544 U.S. 622, 626 (2005).  The defendant contended that no special need was shown and that his due process rights had been violated.

The State claimed that since a judge, rather than a jury, tried the defendant, this represented an important difference. However, the Court ruled this reasoning out as grounds for distinction.  The Court proceeded to outline the reasoning behind the ruling in Deck, stating that the psychological impact on a defendant being continually restrained is detrimental, as well as addressing the negative impact that the image of a handcuffed defendant has on the public’s perception.  While the district court offered no justification for ordering the defendant’s restraint, the Court applied the constitutional harmless error analysis and found that the constitutional error the district court made in restraining the defendant was harmless, where evidence of guilt was overwhelming and where there was no reasonable possibility that it affected the outcome of the trial.

19 N.Y.3d 739, 979 N.E.2d 1187, 955 N.Y.S.2d 860 (2012)

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Note: Young Fella, If You’re Looking for Trouble I’ll Accommodate You: Deputizing Private Companies for the Use of Hackback

A computer operator sits in front of a computer screen, monitoring a tank of toxic chemicals.[1]  A series of computers control the tank’s physical hardware.  All of a sudden, the lights in the control room fail, the computers go offline, and the computer operator yells, “[t]hey’re hitting one of our servers!”[2]  Hundreds of miles away, a team of hackers hired by Barney Advanced Domestic Chemical Co. (“BAD Company”) stare as lines of code scroll by on their laptops.[3]  BAD Company has just infiltrated and taken command of their business rival’s servers.[4]  With the click of a mouse, hackers from BAD Company order the toxic chemical tanks to overflow.[5]  Toxic chemicals seep out of the tanks and contaminate the surrounding countryside.[6]  The computer operators immediately call for a hazmat team.[7]  The exercise ends.[8]

This episode was just a Department of Homeland Security (“DHS”) cybersecurity exercise, but it highlights a massive national security threat: the ability for malicious computer code to infiltrate computer systems, cripple critical infrastructure, and steal massive quantities of intellectual property.[9]  The United States National Counterintelligence Executive (“ONCIX”) noted that “[s]ensitive [U.S.] economic information and technology are targeted by the intelligence services, private sector companies, academic and research institutions, and citizens of dozens of countries.”[10]  The loss of this technology has already cost the United States (“U.S.”) anywhere from $2 billion to $400 billion.[11]  Furthermore, the pace of U.S. data loss is increasing.[12]  Foreign intelligence services, private individuals, and foreign corporations have increased their efforts directed at stealing intellectual property, costing U.S. companies millions of dollars in development costs and tens or hundreds of millions of dollars in potential profits.[13]

There is no doubt that these cyber threats pose a huge problem for both the U.S. government and U.S. companies.  How, then, can we effectively prevent these threats?  Should we pour more money into network defenses?  Should we focus on attack response and recovery from the inevitable network penetration?[14]  Should we pursue an offensive doctrine that establishes a deterrent policy?  Perhaps the best approach is a combination of all three?

Furthermore, who should prevent these intrusions?  Should the U.S. government protect private networks, and does it have the legal ability to do so?  Should U.S. companies shoulder the burden of protecting themselves?  Do we want to empower companies to defend themselves outside their own perimeters?[15]  If so, how far does a company’s ability to defend itself extend?

These questions highlight a disturbing reality: many of the networks that control our electricity, water, financial systems, and other critical industries operate in a largely unregulated and unprotected cyberspace.[16]  In fact, cyberspace has drawn comparisons to the American Wild West; in both areas, black hat criminals have taken advantage of the lawlessness of their respective domains.[17]  To bring order to this chaos and tame the Wild West, private companies must have the ability to protect themselves in cyberspace.  As such, this note advocates for a form of cyber self-defense called active defense.  Active defense, colloquially known as “hackback,” is when a targeted entity uses a counter-cyberattack against an attacker’s system, thereby stopping the cyberattack in progress and discouraging future attacks.[18]

Part I of this note will analyze the cyber threat that both the U.S. government and U.S. companies currently face.  Part II will consider who is best suited to respond to these cyber threats—whether it is the private or the public sector—and what options each entity can pursue.  Part III assesses how the law of self-defense applies in cyberspace, paying particular attention to both the benefits and drawbacks of hackback.  Part IV transitions to a discussion of the Computer Fraud and Abuse Act (“CFAA”), the basic federal anti-hacking statute, and explains how the Department of Justice (“DOJ”) might view hackback.[19]  In doing so, I will propose a legal framework that allows companies to hackback under a deputy arrangement with the U.S. government, providing the benefits of hackback with the oversight of government regulation.

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Zach West: Juris Doctor Candidate 2013, Syracuse University College of Law.



[1].  Ellen Nakashima, Homeland Security Tries To Shore Up Nation’s Cyber Defenses, Wash. Post, Oct. 1, 2011, http://www.washingtonpost.com/world/national-security/homeland-security-tries-to-shore-up-nations-cyber-defenses/2011/09/27/gIQAtQ6bDL_story.html.

[2].  Id.

[3].  Id.

[4].  Id.

[5].  Id.

[6].  Nakashima, supra note 2.

[7].  Id.

[8].  Id.

[9].  Id.

[10].  Office Of The Nat’l Counterintelligence Exec., Foreign Spies Stealing US Econ. Secrets In Cyberspace, Report to Cong. on Foreign Econ. Collection and Industr. Espionage, 2009-2011, i (2011), available at http://www.ncix.gov/publications/reports/fecie_all/Foreign_Economic_Collection_2011.pdf [hereinafter “Foreign Spies”].

[11].  Id. at 4.

[12].  Id. at 1.

[13].  Id.

[14].  Gen. Michael V. Hayden, The Future of Things “Cyber”, 5 Strategic Stud. Q. 3, 5 (2011), www.au.af.mil/au/ssq/2011/spring/spring11.pdf.

[15].  Id.

[16]. See Greg Y. Sato, Should Congress Regulate Cyberspace?, 20 Hastings Comm. & Ent L.J. 699, 709 (1998) (“the Internet is highly unregulated; cyberspace is not subject to any central control and operates without any supervision . . . Since there is no supervising or police-like authority which overlooks activity on the Internet, ‘anything goes’ in cyberspace”); see also In Praise of Chaos: Governments’ Attempts to Control the Internet Should be Resisted, Economist, Oct 1, 2011, available at http://www.economist.com/node/21531011 (“For something so central to the modern world, the internet is shambolically governed . . . It is in short a bit chaotic.”).

[17].  Neal Katyal, Community Self-Help, 1 J.L. Econ. & Pol’y 33, 60 (2005).

[18].  Alexander Melnitzky, Defending America Against Chinese Cyber Espionage Through the Use of Active Defenses, 20 Cardozo J. Int’l & Comp. L. 537, 538-40 (2012).

[19].  See generally Computer Fraud and Abuse Act, 18 U.S.C. § 1030 (2006).

Article: Humanitarian Aid is Never a Crime? The Politics of Immigration Enforcement and the Provision of Sanctuary

In September 2010, the United States Court of Appeals for the Ninth Circuit reversed the federal criminal conviction of humanitarian Daniel Millis for placing water for migrants crossing the United States-Mexico border in the Buenos Aires National Wildlife Refuge.[1]  In 2008 Mr. Millis, an activist with the Sierra Club and the Tucson faith-based organization No More Deaths/No Mas Muertes,[2]  had been found guilty of “Disposal of Waste” pursuant to 50 C.F.R. § 27.94(a), in the United States District Court for the District of Arizona.[3]  No More Deaths, along with other faith-based organizations in Southern Arizona,[4]  have adopted the slogan “Humanitarian Aid is Never a Crime” in support of their mission to leave water for migrants crossing the desert near the United States-Mexico border.[5]  Although the district court rejected Mr. Millis’ defense that “leaving full jugs of life-sustaining water for human consumption does not constitute littering,[6]  two judges on the three-judge panel of the Ninth Circuit that heard Mr. Millis’ case found that the term “garbage” in the regulation under which Mr. Millis was prosecuted is ambiguous, and vacated his conviction on those grounds.[7]

The Ninth Circuit’s ruling in United States v. Millis was lauded by immigrants’ rights groups, border activists, humanitarian and faith groups as a victory for Good Samaritans and peaceful protestors of federal immigration policy.[8]  Supporters of Mr. Millis and sympathetic observers were buoyed by what they believed to be the implication of the Court’s decision—that “we do not want to be a country that puts humanitarians in prison for giving water to people dying of thirst.”[9]  However, nowhere in the Court’s opinion is there any indication—implicit or otherwise—that the Court’s rejection of the Government’s prosecution of Mr. Millis under 50 C.F.R. section 27.94(a) is a commentary on federal immigration policy generally.  The Ninth Circuit overturned Mr. Millis’ conviction because it determined that the regulation governing his conviction is ambiguous; it did not explicitly address his humanitarian defense in its holding, and did nothing to signal either its approval or disapproval of the provision of humanitarian aid to those seeking refuge within our borders.[10]

The Ninth Circuit’s silence regarding Mr. Millis’ motivation for leaving water in the desert—the desire to protect and sustain human life—belies the role that Congress, the Department of Justice, the Department of Homeland Security, and the federal courts play in creating and sustaining an immigration policy that causes hundreds of people to die in the desert on the United States-Mexico border each year, and countless more migrants to live in the shadows once their journey to the United States is complete due to our government’s “enforcement only” immigration policies.  Contributing to the climate of fear are recent attempts to criminalize the provision of humanitarian aid to undocumented immigrants by federal, state, and local governments,[11] which present a new and troubling challenge for people of faith and conscience who feel compelled to “welcome the stranger,”[12] even in the face of potential prosecution.

This Article argues that the unprecedented increase in the enforcement of immigration law—on both the border and the interior—and the politics surrounding comprehensive immigration reform has given rise to a renewed need for the provision of sanctuary for undocumented immigrants, and surveys the different forms of action that can constitute sanctuary.[13]  Part I discusses Mr. Millis’ case in order to examine in further detail his legal defense—and personal belief—that “humanitarian aid is never a crime,” and the Court’s discussion of whether water left in the desert for humanitarian purposes is “garbage,” “litter,” or something else entirely.  Part II discusses the current effort by legislatures in states such as Alabama, Arizona, Georgia, Indiana, Oklahoma, South Carolina, and Utah to further criminalize and prosecute individuals who provide humanitarian aid for “harboring” or “transporting” undocumented immigrants at the state level, including those who provide food, shelter, and medical treatment.  Part III examines previous federal prosecutions of providers of humanitarian aid to migrants, particularly those affiliated with the faith-based Sanctuary Movement of the 1980s, while also looking at the various forms of action sanctuary for undocumented immigrants can take.  In doing so, this section discusses the missions of several organizations involved in the contemporary New Sanctuary Movement that has arisen in response to the immigration enforcement policies of the G.W. Bush and Obama administrations, as well as the non-cooperation policies and affirmative benefits for undocumented immigrants provided by so-called modern “sanctuary cities.”[14]  The Article concludes with Part IV, which discusses how the provision of sanctuary to undocumented immigrants has been linked to the unpopular political term “amnesty,” how this negative framing of the issue has hindered reasonable proposals for immigration reform such as the DREAM Act,[15] and offers suggestions for how we can move toward crafting comprehensive immigration reform that puts the sanctity of human life on par with national security.

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Kristina M. Campbell: Assistant Professor of Law and Director, Immigration and Human Rights Clinic, University of the District of Columbia David A. Clarke School of Law.



[1].  See generally United States v. Millis, 621 F.3d 914 (9th Cir. 2010).

[2].  No More Deaths/No Mas Muertes was formed in 2004, and became affiliated with the Unitarian Universalist Church of Tucson as an official church ministry in Summer 2008.  See Unitarian Universalist Church of Tucson, No More Deaths, No Más Muertes: Humanitarian Aid is Never a Crime, http://www.uuctucson.org/index.php/social-action/no-more-deaths-no-mas-muertes.html (last visited Sept. 10, 2012).

[3].  United States v. Millis, No. CR 08-1211, 2009 WL 806731, at *6 (D. Ariz. Mar. 20, 2009).  Mr. Millis was the driver of a vehicle containing four individuals (including himself) affiliated with No More Deaths for the purpose of placing water in the desert for migrants.  Id. at *1.

[4].  No More Deaths works closely with two other groups in Southern Arizona that provide humanitarian aid on the U.S.-Mexico border, Humane Borders and the Tucson Samaritans.  See Millis, 2009 WL 806731, at *6.

[5].  See, e.g., Unitarian Universalist Church of Tucson, Numbing Numbers, http://www.nomoredeaths.org/Volunteer-Reflections/numbing-numbers.html (last visited Sept. 19, 2012) (“No More Deaths adheres to the principle that Humanitarian Aid is Never a Crime.”).  This stance is part of a larger international movement that asserts that the provision of humanitarian aid should not be criminalized in any situation, including armed conflict.  See generally Joakim Dungel, A Right to Humanitarian Assistance in Internal Armed Conflicts Respecting Sovereignty, Neutrality and Legitimacy: Practical Proposals to Practical Problems, J. Humanitarian Assistance (May 15, 2004), http://sites.tufts.edu/jha/archives/838.

[6].  See Millis, 2009 WL 806731, at *4.  In her opinion, United States District Judge Cindy K. Jorgenson stated that

Millis’ argument that his conviction cannot stand because the water jugs were of value and would have provided life-sustaining water for human consumption fails to recognize that if every person was permitted to subjectively determine if something placed on the ground is of value, no discarded item could be the basis of a littering conviction.

Id. at *5.

[7].  See Millis, 621 F.3d at 918.  In vacating Mr. Millis’ conviction due to the ambiguity of the statute, the court determined that the rule of lenity applied in this case.

(The narrow question we consider today is whether the term ‘garbage’ within the context of the regulation was sufficiently ambiguous that the rule of lenity would apply in this case. Here, given the common meaning of the term ‘garbage,’ coupled with the regulatory structure, we conclude that [50 C.F.R.] § 27.94(a) is sufficiently ambiguous in this context that the rule of lenity should apply . . . .  The only question is whether the rule of lenity should be applied to the offense charged.  We conclude that it does apply, and we reverse the judgment of the district court.).

[8].  See, e.g., Unitarian Universalist Church of Tucson, Humanitarian Action Triumphs Over Legal Action,  http://www.uuctucson.org/index.php/social-action/humanitarian-action-triumphs-over-legal-action.html (last visited Sep. 10, 2012)

(Attorney Bill Walker, who represented Walt Staton, Dan Millis and 13 other humanitarians on citations they got for ‘littering’ while doing humanitarian aid work on the Buenos Aires National Wildlife Refuge has notified us that ‘the government has abandoned their appeal in the Millis case and has asked that the Staton case be remanded to the trial court for dismissal.  This is a great double victory for us.  We are now three for three against the government in Humanitarian aid cases!!!’).

[9].  See Adam Cohen, The Crime of Giving Water to Thirsty People, Time Mag., Sept. 8, 2010, http://www.time.com/time/nation/article/0,8599,2016513,00.html.

[10].  In fact, the Court pointed out that had Mr. Millis simply been charged with violating a different federal statute, it is possible that a conviction for leaving water in the desert without a permit could have been sustained on appeal.  See Millis, 621 F.3d at 918 (“Millis likely could have been charged under a different regulatory section, such as abandonment of property or failure to obtain a special use permit. However, that is not the question presented here.”).

[11].  See infra Part II.

[12].  See Matthew 25:31- 46 (Self-Pronouncing ed., Meridian 1962).

[13].  As others have noted, the term “sanctuary” has Biblical roots, and been applied  in many social and legal contexts outside the provision of humanitarian aid to undocumented immigrants, including the American anti-slavery movement and the protection of Jews and other persecuted minorities in the World War II Holocaust.  Additionally, Professor Rose Cuison Villazor has suggested that in relation to sanctuary for undocumented immigrants, sanctuary can take two primary forms of action – those that occur in the “private sphere” (the provision of food, water, and shelter) and  those that occur in the “public sphere” (the policies enacted by “sanctuary cities”)

([A]cknowledging the public/private dichotomy of sanctuaries is useful in analyzing and critiquing current federal government policies and practices that have ignored the boundaries between public places, where federal immigration law enforcement employees typically enjoy great regulatory and enforcement powers, and private spaces, particularly one’s home, where the power of the federal government to implement immigration laws should be balanced against other concerns such as the right to property and right to privacy.).

See Rose Cuison Villazor, What is a “Sanctuary?”, 61 SMU L. Rev. 133, 150, n.109 (2008).

[14].  See infra Part III.D.1.

[15].  The Development, Relief, and Education for Alien Minors Act of 2010 (“DREAM Act of 2010”), S. 3992, 111th Cong. (2010), available at http://thomas.loc.gov/cgi-bin/bdquery/z?d111:SN03992:@@@X.

Article: Congressional Oversight of the “Marketplace of Ideas”: Defectors as Sources of War Rhetoric

Congressional oversight is “one of the most important responsibilities of the United States Congress,” particularly when oversight can enhance the likelihood that executive policies will reflect the public interest, augment the efficiency and efficacy of government operations, and deter “capricious behavior, abuse, waste, dishonesty, and fraud.”[1]  Legislative scrutiny of the executive has arguably been weak,[2] but was markedly deficient during the Bush administration.[3]  In 2006, when only 20% of Americans approved of Congress’s performance, Ralph Nader, Norman Ornstein and Thomas Mann published a book which referred to Congress as the “broken branch.”[4]

Long-term trends of growth in the administrative state,[5] the president’s role as head of state during periods of proliferating international relations, and the Commander in Chief authority during war and crises have the prospect of augmenting presidential power relative to congressional assertions of prerogative.  However, the existing composition of Congress in particular can aggravate the separation of powers balance and impede effective legislative oversight.  The majority party in Congress may be polarized, exploit the centralization of power within party leadership, obstruct the minority party,[6] initiate a preferred legislative agenda,[7] and avert or omit contentious issues from the congressional agenda, particularly when those issues could frustrate the president.[8]  The majority party in Congress has the foremost opportunity to challenge the president,[9] which means that scrutiny is apt to dwindle under unified government.[10]  During the mid-1990s, Republicans, particularly House Speakers Gingrich and Hastert and Senate Majority Leaders Dole and Lott, endeavored to drive an ideological agenda, but they were unable to overcome President Clinton’s veto.[11]  After Bush was inaugurated, Republicans controlled the presidency and Congress from 2001 to 2006.[12]

The White House can also lead the congressional agenda.  The President has a privileged institutional capability to communicate with audiences to champion chosen issues and dominate public discourse.[13]  While controversial, the President could intensify command over political agendas with advocacy programs that Congress unwittingly funds.[14]  This is particularly unsettling if government expends taxpayer funds to disseminate/propagandize a preferred message anonymously.[15]  The Constitution and legislation provide that no public funds may be dispensed without congressional approval.[16]  As for the substantive message, the marketplace model generally posits that government does not regulate information or prohibit speech,[17] and the First Amendment “does not affirmatively entitle anyone to subsidies for their speech.”[18]  If government funds one position and excludes others, the latter may be disadvantaged.

This Article examines how the congressional spending power and wanting oversight can abet operations that market war policies.  These considerations forged a vital issue preceding the Iraq War.  In its five-year investigation of the pre-war intelligence estimates, the Senate Select Committee on Intelligence (“SSCI”) devoted a 208-page report to the Iraqi National Congress (“INC”), a group of defectors who sourced the media and U.S. intelligence services with allegations that Iraq possessed weapons of mass destruction (“WMDs”) and collaborated with al-Qaeda.[19]  INC publicity activities were funded by the U.S. government.[20]

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Robert Bejesky: M.A. Political Science (Michigan), M.A. Applied Economics (Michigan), LL.M. International Law (Georgetown).  The author has taught international law courses for Cooley Law School and the Department of Political Science at the University of Michigan, American Government and Constitutional Law courses for Alma College, and business law courses at Central Michigan University and the University of Miami.



[1].  Louise M. Slaughter, H.R. Comm. on Rules Majority Office: The Gen. Principles of Cong. Oversight (1999), available at http://democrats.rules.house.gov/archives/comm_gp_cong_oversight.htm.

[2].  Douglas Kriner, Can Enhanced Oversight Repair “The Broken Branch”?, 89 B.U.L. Rev. 765, 773 (2009).  Senator Alan Simpson remarked that “when people say, ‘Where is Congress?’  They are there.  It’s just that you don’t see them there.”  Sherman J. Bellwood Lecture: National Security and the Constitution: A Dialogue with Senators Gary Hart and Alan Simpson, 43 Idaho L. Rev. 7, 21 (2006).

[3].  Thomas Mann & Norman Ornstein, The Broken Branch: How Congress is Failing America and How to Get it Back on Track 156-57 (2006).

[4].  Kriner, supra note 2, at 765-66 (citing  Mann & Ornstein, supra note 3); Presidential Powers: Articles and Poetry: A Forum on Presidential Authority, 6 Seattle J. Soc. Just. 23, 43 (2007) (20% of Americans had confidence in Congress at the same time the President had approval ratings of about 30%).

[5].  Kriner, supra note 2, at 769 (Congressional delegation of responsibilities to the executive during periods of administrative state expansion).  Executive power has been encroaching on Congressional authority for several decades.  Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 Harv. L. Rev. 2311, 2315 (2006); Cynthia R. Farina, Statutory Interpretation and the Balance of Power in the Administrative State, 89 Colum. L. Rev. 452, 508 (1989).  The administrative agency facilitates the legislative mission and promotes efficiency.  Cynthia R. Farina, False Comfort and Impossible Promises: Uncertainty, Information Overload, and the Unitary Executive, 12 U. Pa. J. Const. L. 357, 361-62, 399-403 (2010) (expansive and complex rule-making procedures in the executive branch to address changing society).  The agency’s prerogative grows in that new jurisdictional arena.  Legislative vetoes can restrict later congressional action.  See generally Immigration Naturalization Serv. v. Chadha, 462 U.S. 919 (1983).

[6].  Kriner, supra note 2, at 766; Mark Tushnet, The New Constitutional Order 18-19 (2003).  Michael Doran, The Closed Rule, 59 Emory L.J. 1363, 1367-71, 1384, 1389 (2010) (“Although they too had used the closed rule regularly throughout their twelve years in the majority, the Republicans renewed their own attacks on the closed rule – calling it ‘offensive to the spirit of representative democracy’ – once the Democrats regained control of the House in 2007.”).  Id. at 1370-71, 1429-30 (discussing the significant power of hierarchical party leadership).

[7].  See generally Gerald B.H. Solomon & Donald R. Wolfensberger, The Decline of Deliberative Democracy in the House and Proposals for Reform, 31 Harv. J. on Legis. 321 (1994).

[8].  See generally Gregory J. Wawro & Eric Schickler, Filibuster: Obstruction and Lawmaking in the U.S. Senate (2006).

[9].  Levinson & Pildes, supra note 5, at 2312, 2333-37 (the president can exercise party discipline to ensure loyalty).

[10].  Sudha Setty, The President’s Question Time: Power, Information, and the Executive Credibility Gap, 17 Cornell J.L. & Pub. Pol’y 247, 259-60 (2008).

[11].  Charles Tiefer, Congress’s Transformative ‘Republican Revolution’ in 2001-2006 and the Future of One-Party Rule, 23 J. L. & Pol. 233, 240 (2007).

[12].  Id. at 234 (“in 2001-2006, a ‘Republican Revolution’ transformed the law of Congressional rules and procedures to allow that party to implement an ideological agenda”); Doran, supra note 6, at 1367-68.

[13].  The only clear recourse is at the polls every four years.  Bd. of Regents of Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 235 (2000) (“When the government speaks, for instance to promote its own policies or to advance a particular idea, it is, in the end, accountable to the electorate and the political process for its advocacy.  If the citizenry objects, newly elected officials later could espouse some different or contrary position.”).  In Youngstown Sheet & Tube Co. v. Sawyer, Justice Jackson wrote about the President’s political power:

[n]o other personality in public life can begin to compete with him in access to the public mind through modern methods of communication.  By his prestige as head of state and his influence upon public opinion he exerts a leverage upon those who are supposed to check and balance his power which often cancels their effectiveness.

343 U.S. 579, 653-54 (1952) (Jackson, J., concurring); Branzburg v. Hayes, 408 U.S. 665, 729 (1972) (Stewart, J., dissenting) (the media should challenge government and not be a “captive mouthpiece of ‘newsmakers”).

       [14].  While discussed in greater detail elsewhere, there were other executive branch operations, other than the one discussed in this Article, that sought to craft public opinion, including the Pentagon’s embedded reporter program and military analysts, the Bush administration’s Video News Releases, and Pentagon operations that controlled Iraqi media.  See generally Robert Bejesky, Public Diplomacy or Propaganda?  Targeted Messages and Tardy Corrections to Unverified Reporting, 40 Cap. U. L. Rev. 967 (2012) [hereinafter “Bejesky, Public Diplomacy”].  Government investigations and Congress people criticized each of these programs post facto, but the common denominator with these and the Iraqi National Congress was that taxpayer funding was allocated to concerted efforts to promote a pro-war agenda.  Id.

[15].  Gia B. Lee, Persuasion, Transparency, and Government Speech, 56 Hastings L.J. 983, 1023-24 (2005).

       [16].  U.S. Const. art. I, § 9, cl. 7.  The President must submit certain information to Congress, particularly for budget appropriations.  Setty, supra note 10, at 291-92.  The Antideficiency Act states that “an officer or employee of the United States Government . . . may not . . . make or authorize an expenditure or obligation exceeding an amount available in an appropriation.”  31 U.S.C. § 1341(a)(1)(A) (1982).

       [17].  Derek E. Bambauer, Shopping Badly: Cognitive Biases, Communications, and the Fallacy of the Marketplace of Ideas, 77 U. Colo. L. Rev. 649, 653 (2006); David Cole, Beyond Unconstitutional Conditions: Charting Spheres of Neutrality in Government-Funded Speech, 67 N.Y.U. L. Rev. 675, 680-81 (1992) (if the government “seeks to prohibit speech directly, the first amendment demands that it maintain neutrality toward content, viewpoint, and speaker identity” in order to “curb government action that threatens to skew the market-place of ideas or to indoctrinate the citizenry”); Young v. Am. Mini Theatres, Inc., 427 U.S. 50, 67 (1976) (Stevens. J., plurality opinion); Bd. of Regents of Univ. of Wis. Sys., 529 U.S. at 220-21 (1976); R.A.V. v. City of St. Paul, Minn, 505 U.S. 377, 382 (1992); see, e.g., United States v. Eichman, 496 U.S. 310, 317-18 (1990); Laurence H. Tribe, American Constitutional Law § 12-36 (2d ed. 1988) (also when the government delays publication of important stories, it deprives the stories of their timely news value).

[18].  Cole, supra note 17, at 676-78, 681 (the Court has permitted government to have some degree of influence on the content of the private speech that it is funding).

[19].  See generally S. Select Comm. on Intelligence, The Use by the Intelligence Cmty. of Info.  Provided by the Iraqi Nat’l Cong., Sept. 8, 2006, available at http://intelligence.senate.gov/phaseiiinc.pdf [hereinafter “SSCI/INC”].

[20].  See infra Part I.C.

Note: Statutory Purpose and Deferring to Agency Interpretations of Laws. The Immigration Law Paradigm: “Aged Out”—Get Deported!

K-2 visa holders are children of alien-fiancé(e)s of United States citizens, who are issued a visa to accompany their parents to the U.S.  An alien parent is issued a K-1 visa to travel to the U.S. to marry his or her U.S. citizen fiancé(e).  Pursuant to one’s marriage to a U.S. citizen, the alien-parent and one’s minor children would become eligible to adjust their status to that of legal permanent residents—i.e., to obtain green cards.  Until June 23, 2011, the Board of Immigration Appeals (“BIA”)—the agency appellate court that reviews judgments of immigration courts—interpreted the meaning of a “child” under 8 U.S.C. section 1101(a)(15)(K)(iii) as an unmarried person under the age of 21 at the time of adjudication of his or her petition to adjust one’s status.  This meant that if such a child turned 21 before the United States Citizenship and Immigration Services (“USCIS”) could review his or her case, one was no longer eligible to adjust status (i.e., “aged out”), and therefore, was subject to deportation.

This interpretation subverted the whole purpose behind the K-visa statute—family unification—and produced controversial, inconsistent, and absurd results.  Thus, when a person was admitted to the U.S. on a K-2 visa, he or she could immediately become ineligible for adjustment because of turning 21 just a few days following one’s admission.  Likewise, two K-2 visa holders, who were the exact same age upon admission to the U.S., could experience opposite outcomes based solely on USCIS’ efficiency in adjudicating their applications.

The doctrine of “Chevron deference” requires reviewing federal courts to defer to agency interpretations of ambiguous provisions of the statutes they administer.  The government has often used Chevron as a defense of its interpretation of the K-visa statute.  This note argues that reviewing courts should consider statutory purpose as part of the Chevron analysis.  In doing so, the note conducts a case study into the problem of “aging out” of K-2 visa beneficiaries.  It argues that, despite the recent favorable resolution of the K-2 “age out” problem by the BIA, this issue should have been resolved by an Article III court, and that the government would have failed the Chevron test.  Additionally, the note identifies another group of people currently struggling with a similar issue.  Finally, the note offers two solutions to produce more logical and coherent results: (1) to always use statutory purpose as part of the Chevron analysis and (2) to employ canons of statutory construction should statutory purpose prove difficult to ascertain.

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Ivan A. Pavlenko: J.D. Candidate, Syracuse University College of Law, 2013; B.A. International Relations, State University of New York at New Paltz, 2009.