Comment: Suffering in Silence: The Dark Side of Judging in 2013

This Comment is intended to show the dark side of judging.  This paper was written with the intent to provoke discussion about the very important topic of judicial security and internet safety.  The purpose of this Comment is to allow the reader to place themselves in the role of a judge who is enduring these threats on a daily basis.  I ask the reader to feel what a judge feels and then think about steps that may need to be taken to further protect these judicial officers and public servants.  More importantly, what can be done to protect their families?  The advent of social media and the internet is allowing judicial predators to post pictures of judges’ children and grandchildren online.  How would you feel if it was your child or grandchild?

This Comment is not about an analysis of free speech, privacy, or any other law, rule, or procedure.  It is simply about determining what is right and what is wrong.  Is the risk mentioned in this paper a new part of the job description when a person is appointed to the federal bench?  Would you assume this very real risk that could affect the health and safety of your family?

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Andrea Henson-Armstrong: Professorial Lecturer, Information Systems and Technology Management Department, George Washington University; Instructor, Judicial Administration Program, Michigan State University. MS-IST, George Washington University; J.D., University of the District of Columbia; B.A., University of California, Riverside.

Note: The Prosecution of Child Soldiers: Balancing Accountability with Justice

I saw some other SBU [Small Boys Unit] boys coming closer to me with another small boy and the boy was crying, screaming.  He asked them, “What have I done?”  They didn’t say anything to him, but the boy was screaming.  At first they had to put his right arm on a log.  They took a machete and amputated it at the wrist.  The boy was screaming and they took the left arm again and put it on the same log and sliced it off.  He was still screaming and shouting.  They took the left leg and put it on the same log and cut it off at the ankle.  At last they took the right leg again and put it on the same log and cut it off with a machete.  Some held him by his hand at that time now and I am speaking about the same SBU boys.  They are the same people doing this.  Some held his other hand, legs.  They were swinging the boy.  They threw him over into a toilet pit.  I was there, I saw it myself.[1]

Children are capable of committing atrocious crimes.  With an estimated 300,000 child soldiers currently participating in armed conflict around the world,[2] children are undoubtedly responsible for numerous deaths, rapes, mutilations, and other crimes.  However, the international community has failed to set an age at which these children can be held legally responsible for their actions.  In contrast, domestic courts have further complicated the issue by setting the minimum age of criminal responsibility anywhere from seven to eighteen-years-old.

The Convention on the Rights of the Child (“CRC”) provides the most widely accepted definition of childhood:[3]  a child “means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.”[4]  Unfortunately, the CRC lacks support from any international treaties binding this definition as the proper age of criminal responsibility.  Nonetheless, it correctly appears to allow for a lower age of majority taking into account individual cultures and domestic laws.

In determining the proper age at which a child can be held criminally liable, many factors must be considered, including physical and mental maturity, traditions, and culture.  Victims of these atrocities must also receive proper consideration.  Their quest for justice cannot be secondary to the rehabilitation and forgiveness of a child soldier.  This delicate balance is difficult to accommodate and certain non-judicial mechanisms, such as truth and reconciliation commissions and cultural cleansing rites, have provided some relief for both the victims and perpetrators.

While rehabilitative measures are preferable to judicial measures for all individuals under eighteen, both international and domestic courts must continue to retain their discretion to prosecute juveniles for the most atrocious crimes.  To properly ensure these judicial systems promote equality and justice, not simply retribution, it is crucial that the international community determine a uniform age at which a child can be held responsible in a global forum and consequently begin to set a precedent for domestic courts.

Part I of this Note introduces the basic concepts of international law, including international criminal law and the legal protections that have been established for individuals under eighteen-years-old.  Part II examines the difficulties that arise when determining the roles of children in armed conflict and the extent to which they can be held responsible for their actions.  Additionally, this section suggests several possible defenses that should be made available to juveniles if they are prosecuted in an international tribunal.  Part III provides a case study of the only person under eighteen years of age who has been prosecuted for a war crime since World War II and further evaluates the United States’ role in this trial and their general perspective towards the treatment of minors in combat.  Finally, Part IV emphasizes the need for an international consensus regarding the minimum age of criminal responsibility in international courts.

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Erin Lafayette: Syracuse University College of Law, J.D. 2013.

[1].  Transcript of Record ¶¶ 699-700, Prosecutor v. Taylor, SCSL 2003-01 (Jan. 8, 2008).  The SBU was a group of approximately 10,000 children, generally between the ages of 8-10, who were recruited by the Revolutionary United Front as militants during the civil war in Sierra Leone.  This was a common form of mutilation by children.

[2].  Children of Conflict:  Child Soldiers, BBC, (last visited Jan. 12, 2012).  This number is unclear due to the difficulty in accurately counting children recruited into armed conflict.

[3].  Matthew Happold, Child Soldiers:  Victims or Perpetrators?, 29 U. La Verne L. Rev. 56, 62 (2008).  The CRC has been ratified by every State except the United States, Somalia, and South Sudan.

[4].  Convention on the Rights of the Child, art. 1, Nov. 20, 1989, 1577 U.N.T.S. 3 [hereinafter CRC].

Article: Uncertainty Squared: The Right of Publicity and Social Media

The laws of probability tell us that the likelihood of a particular result goes down dramatically as the number of variables on which that result depends goes up.  So, for example, while the odds of rolling an even number on a six-sided die is ½, the odds of rolling two even numbers on two dice is ½ times ½, or only ¼.

Predicting the applicability of publicity rights law in the context of social media is a bit like that.  Each variable in the equation is itself the subject of greater-than-average uncertainty compared to other fields of law and technology.  The right of publicity, for example, is generally treated as a species of intellectual property (“IP”), yet it is a product of state (as opposed to federal) common law, and has only been acknowledged by barely more than half of the states.  It has as many sources of law as it does jurisdictions that recognize it—more, in fact—and many of its critical elements remain either disputed or undeveloped.  Likewise, social media—as we currently understand that term—has been in the public consciousness for not much longer than five years; yet it has already come to dominate the way that individuals and entire societies communicate worldwide.  At the same time, the technology behind, and precise expressions of social media remain incredibly fluid, with individual forums rising from obscurity to prominence and back again all within the space of a year.  The proper role of social media in civil society and the parameters of the law that governs it, therefore, are equally uncertain.

Keeping these caveats in mind, however, it is nevertheless both possible and fruitful to explore how the right of publicity—that is, the right of an individual to control the commercial exploitation of his or her identity—will manifest itself in social media.  This is actually quite an important inquiry, since the very thing that makes social media special is that it enables individuals to create and deepen interpersonal relationships with specific people—often, people they already know through other means.  The identities of our online “friends” and “followers,” therefore, are a crucial component of our social media experience.

The companies that provide these experiences realized this long ago.  Indeed, since social media users generally do not pay for the privilege of using the service, the service providers have based their entire business models on exploiting their unique access to our interpersonal relationships.  The initial, easiest, and still-predominant way that they profit from our use of their services is by selling advertisers access to our eyeballs.  But as social media services have become more sophisticated and the pressure to monetize the services has increased, service providers have dug deeper into the granular detail of our interactions in order to target their ads even more effectively.  In many cases, they are relying on the credibility of our friends to sell us goods and services.  As discussed below, that practice has given rise to legal action by social media users who argue that this amounts to a commercial exploitation of their identities in violation of the right of publicity.

At the same time, social media’s focus on interpersonal relationships naturally results in a lot more data about individuals being shared in digital form than had previously been done.  That, in turn, naturally increases the probability that some of that data will be exploited by commercial means—again implicating the right of publicity.

For several decades before the advent of the social internet and related forms of digital publishing, the right of publicity was a curious blend of privacy, IP, and First Amendment law that was litigated only infrequently and barely registered in the public consciousness.  Courts went so far as to explicitly hold that only “celebrities” could even possess the right, and the realities of pre-internet media imposed severe limits on the ability of any given person to achieve enough celebrity to make their identities worth exploiting commercially.  Social media—along with reality TV, self-publishing, and the internet in general—changed all that.  Perhaps, therefore, the example of rolling two dice is not as apt of an analogy as it may first seem because those two variables are completely independent of each other.  The development of publicity rights case law and social media, by contrast, may well depend in large part on each other.

The discussion below begins with a brief summary of the right of publicity, including its elements, development, and remaining areas of uncertainty.  It then examines several of the most likely ways that this body of law will influence, and be influenced by social media including:  the manner of measuring the “commercial value” in an individual’s identity; the proper amount of damages for misappropriations of that identity; the availability of defenses based on the First Amendment, the Copyright Act, and other related legal rights; and the role social media plays in fueling publicity rights violations.

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Brian D. Wassom: Partner and Chair of the Social, Mobile and Emerging Media Practice Group at Honigman Miller Schwartz and Cohn, LLP (Bloomfield Hills, MI); Instructor of Social Media Law and Ethics at Central Michigan University; law clerk to the Hon. Alice M. Batchelder, United States Court of Appeals for the Sixth Circuit (1999-2000); J.D. magna cum laude, Case Western Reserve University School of Law (1999).

Article: Why We Can’t Be Friends: Preserving Public Confidence in the Judiciary Through Limited Use of Social Networking

Judges occupy a special place in American society.  Their actions, both inside and outside the courthouse, play an integral role in the public’s respect for, and confidence in, the legal system.  The existence of an independent, fair, and impartial judiciary is the hallmark of the American legal system.  By necessity, judges are held to a higher standard of professional conduct than other members of the legal profession, and their personal and professional activities are subject to heightened scrutiny by members of the profession and the public.  Although judges are members of the larger community, they hold an elevated position as symbols of the law and justice.  As a result, a judge’s actions and behaviors have ramifications far beyond how members of the public view the judge as an individual.  What a judge does or says reflects directly on the integrity of the judicial system.

When a member of the judiciary utilizes social media to communicate with colleagues, friends, and family members, a legitimate risk exists that his or her actions or statements may undermine the public’s confidence in, and respect for, the judiciary.  In some ways, the use of social media is no different than direct communication because certain acts or statements would be construed as clearly improper regardless of the medium.  In either forum, a judge may actually say or do something that undermines the public’s confidence in the judicial system, such as divulge confidential information, comment on a pending case, or use the prestige of the bench for personal gain.  In clear cases, the method by which the message is delivered is irrelevant.  However, there is a more subtle but equally dangerous risk associated with the use of social networking.  Unlike direct person-to-person communication, online communication does not offer the benefit of context, emotion, or in many cases visual aids that provide clarity to the meaning and purpose behind a particular communication.  Rather, most online communication is static and heavily dependent on the recipient of the communication to discern the meaning, purpose, or intent behind the words used.  Thus, when individuals, including judges, post comments online there is a greater risk that those who read the comment will misunderstand the message and form erroneous and unfounded opinions.  Whether a judge’s words or actions are clearly improper or merely misconstrued, the impact can be substantial and serve to undermine judicial canons employed to promote public confidence in the judiciary.

Members of the legal profession, including judges, continue to embrace social networking in both their personal and professional lives.[1]  In one recent survey, 40% of responding judges reported that they engage in social media, such as Facebook.[2]  That number is expected to increase.[3]  Such use can promote the efficient and effective administration of services, but it can also present unique challenges for those individuals seeking to comply with professional rules of conduct.  Although the federal judiciary has not issued an ethics opinion on the use of social media by judges, the Committee on Codes of Conduct within the Judicial Conference of the United States has recognized the potential hazards and drafted proposed guidelines on the use of social media by judicial employees.[4]  The Committee acknowledged that the use of social media “raises ethical, security, and privacy concerns for courts and court employees.”[5]  It noted that the limited ability to effectively control or retrieve communication once released poses unique problems for courts.[6]  The inability to ever completely erase or delete comments, coupled with the ability to preserve and replicate posted messages exacerbates the potential risks.[7]  The Committee also noted that due to a perceived sense of anonymity, individuals may engage in conduct online that they might refrain from engaging in in person.[8]  These issues are problematic for judges who must carefully balance their role as members of the community with their elevated status as a symbol of the judicial system.

Technology plays a significant role in the provision of legal services, but its uses are not without risk.  As the use and influence of social media continues to grow, it is essential for the legal profession to understand how its members use and share content on these sites.  It is equally important to consider how society’s evolving perspective on privacy and online communication should apply to judges.  In 2011, the American Bar Association (“ABA”) Commission on Ethics 20/20 examined the use of new technologies in the practice of law and found that with some additional clarification the current rules governing attorney conduct are sufficient to address the use of that technology, including online communications.[9]  While these rules offer guidance on appropriate judicial behaviors, alone they are insufficient to address the unique challenges posed by social networking.

This Article considers the rapid rise in the use of social media and its use by members of the judiciary, and asserts that judicial canons drafted prior to the advent of social media outlets are inadequate to address the risk posed through the use of social media.  Part I provides a brief overview of the rapid emergence of social media as a primary mode of communication and the unique risks it poses for users.  Part II provides a brief summary of codes of judicial conduct that are relevant to a judge’s use of social media.  Part III evaluates recent state judicial ethics opinions addressing the use of social media.  Part IV argues that a restrictive approach to the use of social media, which has been adopted by several states, is necessary to protect the integrity of the judicial system.  Part V offers recommendations to balance the competing interests of protecting the judiciary and allowing judges to participate in the communities they serve.

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Helia Garrido Hull: Associate Professor of Law and Coordinator of Student Professionalism Enhancement Program, Barry University Dwayne O. Andreas School of Law; B.A. Providence College, J.D. Stetson University College of Law.

[1].  Nicole Black, A Look at Lawyers’ Use of Technology in 2011, Sui Generis (Oct. 4, 2011),

[2].  Conference of Court Pub. Info. Officers, Report of the New Media Comm. of the Conference of Court Pub. Info. Officers 19th Annual Meeting, New Media and the Courts:  The Current Status and a Look at the Future 7, 9 (released Aug. 26, 2010) [hereinafter CCPIO], available at

[3].  Id. at 10.

[4].  See generally Comm. on Codes of Conduct, Judicial Conference of the U.S., Resource Packet for Developing Guidelines on Use of Social Media by Judicial Employees (Apr. 2010), available at

[5].  Id. at 5.

[6].  Id.

[7].  Id. at 6.

[8].  See generally CCPIO, supra note 3.

[9].  Am. Bar Ass’n Comm’n on Ethics 20/20, Initial Draft Proposals—Technology and Confidentiality, (last modified May 2, 2011).

Note: The Tale of the E-Book: Library Lending’s Newest Edition

Imagine the scene.  As the last moments of sunlight filter through the partially drawn shade, a comfy armchair beckons while the winter’s fire sets the mood, its warm glow illuminating . . . . Wait a minute!  That glow is not coming from the fire.  It’s coming from an iPad loaded with the most recent New York Times bestseller!  Wait, what?  That doesn’t seem right.  Let’s try that again.  Picture this.  A dimly lit library hall, shelves lined with leather bound books, the smell of rich mahogany fills the air, and the Kindle Fire powers on, its screen displaying the latest Stephenie Meyer chicklit . . . . Hold up just one minute.  What’s going on here?  When did the trendy and cool realm of the techies’ hottest picks invade the tried and true world of the bespectacled bookworm?  Have the techno-gadget advancements introduced by innovators like Apple’s Steve Jobs and Amazon’s CEO Jeff Bezos roused an otherwise sleepy publishing industry?  With e-book sales skyrocketing throughout the consumer market, the answer would seem to be an enthusiastic “Yes!”  If that is the case, what is to come of the most traditional public face of the book industry, the public library, in this electronically driven world?

“[N]othing would do more extensive good at small expense than the establishment of a small circulating library in every county, to consist of a few well-chosen books, to be lent to the people of the county under regulations that would secure their safe return in due time.”[1]  In the 200 years since Thomas Jefferson wrote these words, even the most forward thinking of American pioneers could not have envisioned the vast potential of this “small circulating library.”[2]  Forget two centuries.  Just a few short years ago, the technology that may serve to launch the American library into a leading pop cultural position was disparaged as “going nowhere fast.”[3]  This potential springboard is none other than the e-book, of course.  This modern book format has not only reinvigorated an outdated publishing industry,[4] it has also provoked a tidal wave in the tranquil waters of an otherwise predictable library system.[5]

Virtual library branches have become routine.  They enable library patrons to forego that trek to the local library, in exchange for an online e-book checkout complete with all the comfort and ease afforded by a home computer.[6]  The combination of free lending and a dynamic e-book format is a novel phenomenon which has catapulted an unsuspecting public library system into the front lines of e-book battles between major players like publishing houses, authors, agents, and techno-manufacturers.  These battles have revived discussions over the Copyright Act.[7]  As library lending makes its most dramatic change in over 200 years with its sudden capacity to lend to patrons absent a visit to the premises, the effect on both the prominence of the public library and the e-book market will be systemic.[8]  The balance between the interests at stake may come down to which weighs more, the traditional hardcover embodied in and protected by the old style business model of publisher and author, or the e-reader as embraced by the unlikely ally of the public library.  This ongoing plot will surely be played out in the next best page-turner.

This Note will narrate the story of the e-book and the public library system.  It will position the evolution of these characters within their historical and legislative contexts, examine the legal doctrines that customarily structure this relationship, and address reasons for the ineffectiveness of these doctrines in the digital environment.  After comparing the competing interests of the two sides and identifying the parties’ current practices, this Note will analyze the appropriateness of creating a Digital First Sale Doctrine and suggest a solution to the current conflict between libraries and publishers.

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Marysia Wlazlo: Syracuse University College of Law, J.D. Candidate, 2013; Boston College, B.A., summa cum laude, 2008.

[1].  Brief for American Library Association et al. as Amici Curiae Supporting Petitioners, Golan v. Holder, 131 S.Ct. 1600 (2011) (No. 10-545), 2011 WL 2533007 (quoting Letter from Thomas Jefferson to John Wyche (May 19, 1809), in Thomas Jefferson:  A Chronology of His Thoughts, 223 (Jerry Holmes ed., 2002)).

[2].  Thomas Jefferson:  A Chronology of His Thoughts, 223 (Jerry Holmes ed., 2002).

[3].  Claire Elizabeth Craig, Lending Institutions:  The Impact of the E-Book on the American Library System, 2003 U. Ill. L. Rev. 1087, 1095 (2003).

[4].  See, e.g., Michael Kelley, New Statistics Model for Book Industry Shows Trade Ebook Sales Grew Over 1,000 Percent, Libr. J. (Aug. 9, 2011),

[5].  See Bruce Judson, eBook Universe:  What Role Will Libraries Play?, ForeWord (Oct. 2010), reprinted in

[6].  See Download Services for Public Libraries, OverDrive, Inc., (last visited Sept. 28, 2012).

[7].  See Craig, supra note 3, at 1092-93.

[8].  See id. at 1088.

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,

[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 [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),

[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 (“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, (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, (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),

[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, (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,,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

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

[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 [hereinafter “SSCI/INC”].

[20].  See infra Part I.C.