Books, Chapters, Articles and Book Reviews
BOOKS:
Securing Liberty: Debating Issues of Terrorism and Democratic Values in the Post-9/11 United States (iDebate Press, 2011)
The Torture Memos: Rationalizing the Unthinkable (New Press, 2009)
Justice at War: The Men and Ideas that Shaped the Bush Strategy in the War on Terror (New York: New York Review Books June 2008)
Less Safe, Less Free: The Failure of Preemption in the War on Terrorism, with Jules Lobel (New Press, 2007)
Palmer Civil Liberties Prize, 2007
Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism (New Press, 2003) (rev. paperback ed., 2005)
American Book Award, 2004
Hugh M. Hefner First Amendment Award, 2004
Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security, with James X. Dempsey (First Amendment Foundation, 199) (The New Press, 2d rev. ed. 2002) (The New Press, 3rd fully revised ed. 2006)
No Equal Justice: Race and Class in the American Criminal Justice System (The New Press, 1999)
Anne Rea Jewell Prize for Best Non-Fiction Book of 1999, Boston Book Review
Gladys M. Kammerer Award for best political science publication in the field of national policy, from American Political Science Association, 2000
Alpha Sigma Nu Prize, 2001, Jesuit Honor Society
BOOK CHAPTERS:
"Judgment and Discrimination," in Blind Goddess: A Reader on Race and Justice, ed. Alexander Papachristou (New Press, 2011)
"Outsourcing Terror: Extraordinary Rendition and the Necessity for Extraterritorial Protection of Human Rights," in Prisoners in War, ed. Sybille Scheipers (Oxford Univ. Press, 2010)
"Counterterrorism and the Constitution: Does National Security Require a Trade-off with Civil Liberties?"in Debating Terrorism and Counterterrorism: Conflicting Perspectives on Causes, Contexts, and Responses, ed. Stuart Gottlieb, (CQ Press, 2009)
"Terror Financing, Guilt by Association, and the Paradigm of Prevention," in Counterterrorism: Democracy's Challenge, edited by A. Bianchi and A. Keller (Hart Publishing, 2009)
"Strategies of the Weak": Thinking Globally and Acting Locally toward a Progressive Constitutional Vision, in The Constitution in 2020 297 (Jack M. Balkin & Reva B. Siegel eds., Oxford: Oxford University Press 2009)
"Communists, Terrorists, or Just Arabs?: The Twenty-One Year Epic Deportation Struggle of the LA 8," in The Arab-American Handbook (Seattle, Wash.: Cune Press 2009)
"Human Rights and the Challenge of Terror," in Leonard Weinberg, ed., Democratic Responses to Terrorism (Routledge, 2008)
"Foreword: Justice and the Outsider," in David C. Brotherton and Philip Kretsedemas, eds., Keeping Out the Other: A Critical Introduction to Immigration Enforcement Today (Columbia Univ. Press, 2008)
"What Bush Wants to Hear," in Liberty Under Attack: Reclaiming Our Freedom in an Age of Terror (Richard C. Leone & Greg Anrig, Jr. eds., New York: Public Affairs 2007).
"Gideon v. Wainwright and Strickland v. Washington: Broken Promises," in Criminal Procedure Stories (Carol Steiker, ed. 2006)
"The Idea of Humanity: Human Rights and Immigrants' Rights," in Samantha Besson, Michel Hottelier, Franz Werro, eds., Human Rights at the Center (Schultess Press, Switzerland, 2006)
"Imaginary Walls and Unnecessary Fixes," in Stewart A. Baker and John Kavanagh, eds., Patriot Debates: Experts Debate the USA PATRIOT Act (2005)
"Criminalizing Speech: The Material Support Provision," in Stewart A. Baker and John Kavanagh, eds., Patriot Debates: Experts Debate the USA PATRIOT Act (2005)
"The New McCarthyism: Repeating History in the War on Terrorism," in Dissent in Dangerous Times, ed. Austin Sarat (Univ. of Mich. Press, 2005)
"What's a Progressive to Do? Strategies for Social Reform in a Hostile Political Climate," in Varieties of Progressivism, Peter Berkowitz, ed. (Hoover Institute Press, 2004)
"Shining Light on the Black Box," Foreword to Benjamin Fleury-Steiner, Jurors' Stories of Death: How America's Death Penalty Invests in Inequality (Univ. of Mich. Press, 2004)
"Terrorism and Civil Liberties," in What We Stand For: A Practical Progressive Program for America, ed. by Mark Green (Newmarket Press, 2004)
"Let's Fight Terrorism, Not the Constitution," in Rights vs. Public Safety After 9/11: America in the Age of Terrorism (A. Etzioni and J. Marsh, eds.) (2003)
"The Ashcroft Raids," in It's a Free Country: Personal Freedom in America After September 11 (D. Goldberg, V. Goldberg, and D. Greenwald, eds. 2002)
"Terrorism Control and the Constitution," in Encyclopedia of the American Constitution (Oxford Univ. Press, 2000)
"Government-Funded Art and the First Amendment," in Michael Kelly, ed., Encyclopedia of Aesthetics (Oxford Univ. Press, 1998)
"Two Standards of Criminal Justice," in David Kairys, ed., The Politics of Law (3d edition, Basic\Harper Collins,1998)
"Casualties of the Drug War: An Equality-Based Argument for Drug Treatment," in Joel A. Egertson, Daniel M. Fox, & Alan I. Leshner, Treating Drug Abusers Effectively 281(Blackwell Publishers, 1997) (with Barry Littman)
"Abortion Clinic Protests," in Gara LaMarche, ed., Speech and Equality: Do We Really Have to Choose? (1996)
"David Wojnarowicz," in David Wojnarowicz: Brush Fires in the Social Landscape(Aperture Books, 1994)
ARTICLES AND BOOK REVIEWS:
"The Taint of Torture: The Roles of Law and Policy in Our Descent to the Dark Side," 49 Houston L. Rev. 53 (2012)
"The First Amendment's Borders: The Place of Holder v. Humanitarian Law Projectin First Amendment Doctrine," 6 Harv. L. & Pol. Rev. 147 (2012)
"The Gay Path Through the Courts," (review of Flagrant Conduct: The Story of Lawrence v. Texas by Dale Carpenter), New York Review of Books, April 5, 2012
"Keeping Watch on the Detectives," (review essay on multiple books), New York Review of Books, Dec. 22, 2011
"Turning the Corner on Mass Incarceration?," 9 Ohio St. L. J. 27 (2011)
"35 States to Go," London Review of Books, Mar. 3, 2011 (reviewing David Garland, Peculiar Institution: America's Death Penalty in an Age of Abolition)
"The Sacrificial Yoo:Accounting for Torture in the OPR Report," 4 Journal of National Security Law and Policy 455 (2010)
"Hope and Betrayal on Death Row,"New York Review of Books, Nov. 25, 2010 (Review of David Dow, Autobiography of an Execution, and Wilbert Rideau, In the Place of Justice)
"What to Do About Guantanamo," New York Review of Books, Oct. 14, 2010 (reviewing several books)
"English Lessons: A Comparative Analysis of UK and US Responses to Terrorism," 62 Current Legal Problems, ch. 5 (2009)
"Can Our Shameful Prisons Be Reformed?," New York Review of Books, Nov. 19, 2009 (reviewing several books)
"Out of the Shadows: Preventive Detention, Suspected Terrorists, and War," 97 California Law Review 693 (2009)
"The Same-Sex Future," New York Review of Books, July 2, 2009 (reviewing several books)
"What to Do About the Torturers?," New York Review of Books, Jan. 15, 2009 (reviewing several books)
"Rights Over Borders: Transnational Constitutionalism and Guantanamo Bay," 2008 Cato Supreme Court Review 487
"No Reason to Believe: Radical Skepticism, Emergency Power, and Constitutional Constraint," (Review of Eric Posner and Adrian Vermeule, Terror in the Balance), forthcoming Univ. of Chicago Law Review (2008)
"A Larger War on Terror," New York Review of Books, Dec. 4, 2008 (reviewing Philip Bobbitt, Terror and Consent)
"The Poverty of Posner's Pragmatism" (Review of Richard Posner, Not A Suicide Pact, 59 Stanford Law Review 1735 (2007)
"The Brits Do It Better," New York Review of Books, June 12, 2008 (reviewing Laura K. Donohue, The Cost of Counterterrorism: Power, Politics, and Liberty and David Bonner, Executive Measures, Terrorism and National Security: Have the Rules of the Game Changed?
"The Man Behind the Torture," New York Review of Books (December 6, 2007) (Review of Jack Goldsmith, The Terror Presidency),
"Against Citizenship as a Predicate for Basic Rights," 75 Fordham Law Review 2541 (2007)
"The Grand Inquisitors," New York Review of Books (July 19, 2007) (reviewing several books)
"How to Skip the Constitution," New York Review of Books, Nov. 16, 2006 (Review of Richard Posner, Not a Suicide Pact)
"Double Standards, Democracy, and Human Rights," 18 Peace Review 427
(Oct.-Dec. 2006)
"Reviving the Nixon Doctrine: NSA Spying, the Commander-in-Chief, and Executive Power in the War on Terror," 13 Wash. & Lee J. of Civ. Rts. & Soc. Justice 1 (2006)
"Why the Court Said No," New York Review of Books, August 10, 2006
"In Case of Emergency" (Review of Bruce Ackerman, Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism), New York Review of Books (July 13, 2006)
"The Liberal Legacy of Bush v. Gore," forthcoming Georgetown Law Journal (June 2006)
"Are We Safer?" (Review of Daniel Benjamin and Steven Simon, The Next Attack), New York Review of Books (March 9, 2006)
"The National Security Agency's Domestic Spying Program: Framing the Debate," 81 Indiana Law Journal 1355 (2006) (with Martin S. Lederman)
"How to Skip the Constitution" (Review of Richard Posner, Not a Suicide Pact, New York Review of Books (November 16, 2006)
"Reviving the Nixon Doctrine: NSA Spying, the Commander-in-Chief, and Executive Power in the War on Terror," 13 Wash. & Lee J. of Civ. Rts. & Soc. Justice 1 (2006)
"Why the Court Said No," New York Review of Books, August 10, 2006
"In Case of Emergency" (Review of Bruce Ackerman, Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism), New York Review of Books (July 13,2006)
"Torture and the War On Terror": NSA Wiretapping Controversy: A Debate between Professor David D. Cole and Professor Ruth Wedgwood," Case Western Reserve Journal of International Law 509 (2006)
"The Liberal Legacy of Bush v. Gore," 94 Georgetown Law Journal 427 (2006)
"The Idea of Humanity: Human Rights and Immigrants' Rights," 37 Columbia Human Rights Law Review 627 (2006)
Reprinted in Samantha Besson, Michel Hottelier, Franz Werro, eds., Human Rights at the Center (Schultess Press, Switzerland, 2006)
Reprinted in V. B. Malleswari, Human Rights: International Perspectives(Icfal University Press, India, 2007)
"Are We Safer?" (Review of Daniel Benjamin and Steven Simon, The Next Attack), New York Review of Books (March 9, 2006)
"The National Security Agency's Domestic Spying Program: Framing the Debate," 81 Indiana Law Journal 1355 (2006) (with Martin S. Lederman)
"The Priority of Morality: The Emergency Constitution's Blind Spot," 113 Yale Law Journal 1753 (2004)
"Are Foreign Nationals Entitled to the Same Constitutional Rights as Citizens?," 25 Thomas Jefferson Law School Law Review 367 (2004)
"Judging the Next Emergency: Judicial Review and Individual Rights in Times of Crisis," 101Michigan Law Review 2565 (2003)
"The Course of Least Resistance: Repeating History in the War on Terrorism," in Cynthia Brown, ed., Lost Liberties: Ashcroft and the Assault on Personal Freedom (2003)
"Terrorism and the Rule of Law: A Review of Ronald Daniels, et al., The Security of Freedom: Essays on Canada's Anti-Terrorism Bill (2001), 1 Intl J. of Const. L. 745 (2003)
"The New McCarthyism: Repeating History in the War on Terrorism," 38 Harv. Civil Rights Civil Liberties Law Review 1 (2003)
reprinted in Dissent in Dangerous Times, ed. Austin Sarat (Univ. of Mich. Press, 2005)
"Their Liberty, Our Security," Boston Review, Dec. 2002/Jan. 2003
reprinted in 32 International Journal of Legal Information 290 (2003)
"In Aid of Removal: Due Process Limits on Immigration Detention,"
51 Emory Law Journal 1003 (2002)
"Enemy Aliens," 54 Stanford Law Review 953 (2002)
"Faith and Funding: Toward an Expressivist Model of the Establishment Clause," 75 S. Cal. L. Rev. 559 (2002)
"Formalism, Realism, and the War on Drugs," 35 Suffolk Univ. Law Rev. 241 (2001)
"Secret Evidence, Guilt by Association, and the Terrorist Profile," 15 Journal of Law and Religion 267 (2001)
"As Freedom Advances: The Paradox of Severity in American Criminal Justice," 3 University of Pennsylvania Journal of Constitutional Law 455 (2001)
"No Equal Justice: How the Criminal Justice System Uses Inequality," 6 Harvard Journal of African American Public Policy 85 (2000)
"No Equal Justice," 1 Connecticut Public Interest Law Journal (2000) (at www.law.uconn.edu/journals/cpilj/crntisu.html)
"Hanging With the Wrong Crowd: Of Gangs, Terrorists, and the Right of Association," 1999 Supreme Court Review. 203 (2000)
"Damage Control?A Comment on Professor Neuman's Reading of Reno v. AADC, 14 Georgetown Immigration Law Journal 347 (2000)
"Foreword: Discretion and Discrimination Reconsidered: A Response to the New Criminal Justice Scholarship," 87 Georgetown Law Journal 1059 (1999)
"Symposium: Art, Distribution, and the State: Perspectives on the National Endowment for the Arts," 17 Cardozo Arts & Entertainment Law Journal 705 (1999)
"The Value of Seeing Things Differently: Boerne v. Flores and Congressional Enforcement of the Bill of Rights," 1998 Supreme Court Review 31 (1998)
"Jurisprudence and Liberty: Habeas Corpus and Due Process as Limits on Congress's Control of Federal Jurisdiction," 86 Georgetown Law Journal 2481 (1998)
"No Clear Statement: An Argument for Preserving Judicial Review of Removal Decisions," 12 Georgetown Immigration Law Journal 427 (1998)
"What's Criminology Got to Do With It?" (Review Essay on Michael Tonry, Malign Neglect -- Race, Crime and Punishment in America, and John Hagan & Ruth D. Peterson, eds., Crime and Inequality), 48 Stanford Law Review 1605 (1996)
"The Paradox of Race and Crime: A Comment on Randall Kennedy's 'Politics of Distinction,'" 83 Georgetown Law Journal 2547 (1995)
Reprinted in Wasserstrom & Snyder, A Criminal Procedure Anthology (1996)
"Playing by Pornography's Rules: The Regulation of Sexual Expression," 143 Univ. of Pennsylvania Law Review 111 (1994)
"From Hand-Holding to Sodomy: First Amendment Protection ofHomosexual (Expressive) Conduct," 29 Harv. Civ. Rts.- Civ. Lib. L. Rev. 319 (1994) (with William Eskridge)
"Going to England: Irish Abortion Law and the European Community," 17 Hastings Int'l. & Comp. L.Rev. 113 (1993)
"Beyond Unconstitutional Conditions: Charting Spheres ofNeutrality in Government-Funded Speech," 67 New York Univ. L. Rev. 675 (1992)
"Neutral Standards and Racist Speech," 2 Reconstruction 65 (1992)
Reprinted in Bender et al., Hate Crimes (Greenhaven Press, 1996)
"Are You Now or Have You Ever Been a Member of the ACLU?" (Book Review of Samuel Walker, In Defense of American Liberties), 90 Mich. L. Rev. 1404 (1992)
"First Amendment Antitrust: The End of Laissez-Faire in Campaign Finance," 9 Yale Law & Policy Rev. 236 (1991)
"Youngstown v. Curtiss-Wright," (Book Review of Harold Koh, The National Security Constitution: Sharing Power After the Iran-Contra Affair), 99 Yale Law Journal 2063 (1990)
"McCarran-Walter," Constitution, Vol. 2, No. 1, at 51 (1990)
"What's A Metaphor?: The Deportation of a Poet," 1 Yale Journal of Law and Liberation 5 (1989)
"Interpreting the Alien Tort Statute: Amicus Curiae Memorandum of International Law Scholars and Practitioners in Trajano v. Marcos," 12 Hastings International and Comparative Law Review 1 (1988) (with Harold Koh and Jules Lobel)
"A Justice's Passion," 10 Cardozo Law Review 221 (1988)
"Against Literalism," (Book Review of James Boyd White, Heracles' Bow: Essays on the Rhetoric and Poetics of Law), 40 Stanford Law Review 545 (1988)
"Agon at Agora: Creative Misreadings in the First AmendmentTradition," 95 Yale Law Journal 857 (1986)
"Taming Lyons: Obtaining Standing to Seek Equitable Relief," in Lobel, ed., Civil Rights Litigation and Attorney Fees Annual Handbook (1986)
"Getting There: Reflections on Trashing from Feminist Jurisprudence and Critical Theory," 8 Harvard Women's Law Journal 59 (1985)
"Challenging Covert War: The Politics of the Political Question Doctrine," 26 Harvard International Law Journal 155 (1985)
"The Force of Law: Judicial Enforcement of the War Powers Resolution," 17 Loyola L.A. Law Review 715 (1984) (with Michael Ratner)
"Strategies of Difference: Litigating for Women's Rights ina Man's World," 2 Journal of Law & Inequality 33 (1984)