Media Mentions

An article by Noah Feldman: At a hastily arranged Rose Garden press conference on Monday, President Donald Trump announced his intention to invoke the Insurrection Act of 1807 to send federal troops into the states unless governors were able to “dominate” protesters using National Guard soldiers. Then, after the Secret Service fired tear gas and rubber bullets at what appeared to be peaceful protesters in Lafayette Park, Trump walked a few hundred feet across the park for a photo op in front of a boarded-up church opposite the White House. Given Trump’s track record of announcing legally problematic measures and not implementing them, it could be that his plan to invoke the Insurrection Act is no more meaningful than was his walk in the park. Nevertheless, it’s worth looking closely at the law in question. The Posse Comitatus Act of 1878 might ring a faint bell in your mind — it’s the law that says the president can’t use the military to enforce the law without authorization from Congress. The Insurrection Act is even more obscure. But it’s also more important right now. That’s because it is an act of Congress that authorizes use of the military to enforce the law in some circumstances. In other words, it functions as an exception to the Posse Comitatus Act.

Even if you’re sitting at home on your couch, there’s a chance you could be arrested for protesting. How? If the police force in your area is using any kind of facial recognition software to identify protesters, it’s possible you could be misidentified as one. Most facial recognition was trained to identify white male faces, experts told Digital Trends, which means the probability of misidentification for anyone who is not white and not a man is much higher...A facial recognition system prone to false positives could cause innocent people to be arrested, according to Mutale Nkonde, a fellow at the Berkman Klein Center of Internet & Society at Harvard University and a non-resident fellow at the Digital Civil Society Lab at the Stanford Center on Philanthropy and Civil Society. “Police will use the mug shots of people who have been committed for other crimes to train facial recognition, arguing that if you’ve committed one crime, then you’ve committed another,” Nkonde said. “First off, that’s unconstitutional. Second, that means that if you’ve been arrested for looting in the past, but haven’t looted recently, the police could now come arrest you for looting in May or June because your picture is in the system and it may have turned up a false positive.”

An officer shoving a protester to the ground. Two New York Police Department cars ramming demonstrators. Police using batons, bicycles and car doors as weapons. These are becoming defining images of the protests against police brutality of black people that have swept the nation, sparked by the killing of George Floyd in Minneapolis. Countless videos of these moments have been shared on social media. Among the most-seen of them: a compilation video created on Saturday. Jordan Uhl, a political consultant and activist in Washington, D.C., wanted to make sure as many people saw these videos as possible. Encouraged by a friend, he edited together 14 clips, including one from a reporter at The New York Times of an officer accelerating and opening a car door that hit protesters...Mutale Nkonde, a fellow at the Berkman Klein Center for Internet and Society at Harvard University, said that Mr. Uhl’s video “really reinforces that black protests, white protests and all social justice protests generally are not violent in nature. It moves us away from the ‘there are bad people on both sides’ or ‘there are good people on both sides’ argument and really highlights law enforcement’s aggressive attitude toward black people displaying their rights.”

Several hundred new accounts and thousands of new tweets representing a surge in inauthentic social media activity have sprung up around the Black Lives Matter protests happening around the U.S. Specifically, 30%-49% of people tweeting about the protests might be bots at any given time, according to research by Kathleen Carley, a professor of computer science at Carnegie Mellon University. Over the last five days of May, Carley said, she saw 625,375 tweets and 413,900 users that qualified as suspected inauthentic activity. “About 30% of those tweets are guaranteed to be bots,” Carley told Digital Trends. “There’s another bunch that appear to be bot-like.” Carley also noted that the bots seemed to be spreading different narratives than the humans were...Oumou Ly, a staff fellow at the Harvard Berkman Klein Center, noted that most of the disinformation seems to be coming from the far-right. “The online information environment is very asymmetric,” she told Digital Trends. “The right participates more often and in a more sustained way in spreading disinformation because they have more to gain politically from it. It’s part of their political strategy.”

As coronavirus cases have spread, law firms across the nation have been stepping up to help, from providing pro bono legal assistance to fundraisers and donations. Law360 rounds up some of the latest charity efforts from the legal community in response to the pandemic. Clyde Bergstresser, a malpractice attorney at Boston-based boutique Bergstresser & Pollock PC, has launched a charity with the support of other attorneys in the community to raise money to support the frontline health care workers battling the coronavirus. Joining Bergstresser in the effort are his colleague Russell Pollock, Choate Hall & Stewart LLP partner Joan Lukey, Prince Lobel Tye LLP partner Walter Prince, Morgan Lewis & Bockius LLP partner Jonathan Albano, Smith Duggan Buell & Rufo LLP partner Christopher Duggan and former U.S. District Judge and current Harvard Law School lecturer Nancy Gertner.

President Trump on Monday vowed to send the military into American cities if any city or state “refuses” to take the steps necessary to quell the violent protests erupting around the country. The Insurrection Act of 1807 does give the president broad authority to deploy federal military forces to a state or to federalize a state’s national guard to deal with a rebellion or other domestic unrest that is preventing the enforcement of federal law — even over the objection of the state’s governor, legal scholars say. But governors and Democratic attorneys general around the country were quick to declare that the law does not apply to the current unrest, which has involved peaceful protests as well as looting and violence. They say that local law enforcement has not been overwhelmed...Some scholars agree with Healey that the Insurrection Act cannot be used in the current situation — but they don’t necessarily think that will stop Trump from using the law. Unlike in the school desegregation battles of the 1950s and 1960s, the states do not appear to be flouting federal law or federal court orders. “I would say that’s an unconstitutional use of the military because there is no real rebellion against the US,” said Laurence Tribe, a constitutional law professor at Harvard Law School. Treating ordinary American citizens engaged in civil protest as insurrectionists “turns the law upside down,” he said.

President Donald Trump, responding to sometimes-violent protests following the death of George Floyd at the hands of police, said he would send in the U.S. military to “quickly solve” the problems of looting and rioting if the nation’s mayors and governors did not act forcefully enough. The use of the armed forces within U.S. borders is strictly governed by federal law, however, and there would be serious questions about the legality of such a move...Would the law allow Trump to act alone in the current situation? Many legal experts believe it would. Noah Feldman, a Harvard University law professor and Bloomberg Opinion columnist, says the broad language of the Insurrection Act means Trump “might have a case” that the rioting and looting “is obstructing execution of federal law to the extent that local police and the National Guard can’t successfully stop violence on the streets.”

Sixty-five Harvard law professors have condemned President Trump's actions in response to protests over the killing of George Floyd. In a letter, the professors say the president's tweet saying "when the looting starts, the shooting starts," commits federal authority in a way that violates the law. Harvard law professor Christine Desan signed the letter and also denounced the president's threat to deploy the military to quell protests. "One message I hope the letter sends is to remind us all that the Army — and for that matter the police forces — are not his army," Desan said. "It's not Trump's army that he’s deploying. It’s our army, our military, and we have the right and responsibility to make sure that that military is used responsibly." The letter was addressed to Harvard law students.

An article by Cass Sunstein: With widespread grief and protests over the killing of George Floyd, the U.S. is badly in need of national leadership. Ideally, the president, or someone with a great deal of stature and trust, would provide it. In an analogous time, Robert F. Kennedy did exactly that, with what is generally considered one of the most moving speeches in U.S. history. Like the Gettysburg Address, which it resembles, it is elegiac — and short. And as with Lincoln’s great speech, every word rings true. But if you listen to it today, you would be right to feel some discomfort. For all its gentleness and sensitivity, it is missing something important: an acknowledgment of the past and present effects of white racism. The day was April 4, 1968. Kennedy was in Indianapolis, running for the Democratic nomination for president. Martin Luther King Jr. had just been killed. RFK announced King’s assassination to an audience that was largely African-American. People were worried about riots. Kennedy began simply: “Martin Luther King dedicated his life to love and to justice for his fellow human beings, and he died because of that effort.” He addressed the question of the proper response: “For those of you who are black — considering the evidence there evidently is that there were white people who were responsible — you can be filled with bitterness, with hatred, and a desire for revenge.”

A podcast by Noah Feldman: Jason Furman, a professor of the Practice of Economic Policy at the Harvard Kennedy School, explains why we don't need to be too concerned about the mounting federal debt caused by the coronavirus pandemic.

A letter from group of Harvard Law School faculty: We write to condemn a series of acts by President Trump and other public servants that endorse violence and are inconsistent with a democratic legal order. Their life-and-death impact is divisive and exacerbates political unrest and extreme economic distress, particularly in communities of color.  The injustices animating current protests go far beyond the President’s actions.  We focus on those actions here because they expose structural racism and our collective responsibility for change. On May 29, the President responded to protests in Minneapolis with a tweet that pledged federal control to the effect that “when the looting starts, the shooting starts.” The statement promised indiscriminate violence on its own terms. In addition, the phrase, famously uttered by a southern police chief who embraced police brutality during the Civil Rights Era, aligned U.S. military action with violent reprisals against protesters. Finally, as in the Civil Rights Era, the statement pledged violent state action against those who protest race-based injustices.

When an outbreak of the bubonic plague swept through Europe in the 16th century, people in London were told to stay home for a month if anyone they lived with had contracted the disease. So long as they carried with them a long white stick, known as a plague wand, one person from an infected household could venture outside to get food or other supplies. The stick served as a warning sign. It told other people to stay away. Today, in the grip of the Covid-19 pandemic, the advice is the same: Stay home and avoid other people. But in the 21st century, we no longer use white sticks to identify those who may be contagious. Instead, governments and law enforcement agencies are turning to a vast armory of digital technologies in an effort to track and stop outbreaks in different parts of the world. We have surveillance systems that can map out the movements of entire populations, thanks to the invisible signals emitted by the smartphones we carry in our pockets. We have drones that fly above city parks and blast out audio warnings to anyone not following guidelines on social distancing...Many governments had broad digital surveillance capabilities in place prior to the pandemic. In 2013, the U.S. National Security Agency whistleblower Edward Snowden laid bare some of them. Snowden’s disclosures revealed that the NSA had built a global spying apparatus that was vacuuming up vast amounts of private communications from the world’s phone and internet networks. In December 2013, the Washington Post reported that the agency was covertly collecting almost 5 billion records every day on the whereabouts of people’s cellphones internationally... “They already have these ridiculous surveillance powers,” says Bruce Schneier, a security expert and cryptographer who lectures at Harvard's Kennedy School. “The smartphone is the most invasive surveillance device our species has ever invented. I don’t see what’s happening now [during the Covid pandemic] as making any difference.”

The clash between Twitter and Donald Trump has thrust rival Facebook into turmoil, with employees rebelling against CEO Mark Zuckerberg's refusal to sanction false or inflammatory posts by the US president. Some Facebook employees put out word of a "virtual walkout" to take place Monday to protest, according to tweeted messages. "As allies we must stand in the way of danger, not behind. I will be participating in today's virtual walkout in solidarity with the black community," tweeted Sara Zhang, one of the Facebook employees in the action. Nearly all Facebook employees are working remotely due to the pandemic. "We recognize the pain many of our people are feeling right now, especially our Black community," Facebook said in response to the AFP request for comment. "We encourage employees to speak openly when they disagree with leadership." Facebook was aware some workers planned the virtual walkout and did not plan to dock their pay...To make matters worse, US media revealed Sunday that Zuckerberg and Trump spoke by telephone on Friday. The conversation was "productive," unnamed sources told the Axios news outlet and CNBC. Facebook would neither confirm nor deny the reports. The call "destroys" the idea that Facebook is a "neutral arbiter," said Evelyn Douek, a researcher at Harvard Law School. Like other experts, she questioned whether Facebook's new oversight board, formed last month to render independent judgments on content, will have the clout to intervene. On Saturday, the board offered assurances it was aware there were "many significant issues related to online content" that people want it to consider.

A much-anticipated explanation from the federal judge presiding over Michael Flynn’s criminal case was submitted on Monday in the U.S. Court of Appeals for the District of Columbia Circuit. The D.C. Circuit previously ordered U.S. District Judge Emmet Sullivan to explain, within 10 days, why he didn’t immediately grant the Department of Justice’s motion to dismiss the Flynn case. That order came down after Flynn’s lawyers filed an emergency petition for a writ of mandamus with the D.C. Circuit, asking the appellate court to direct Sullivan to dismiss the case...Amici curiae in former independent counsel Ken Starr and former Republican congressman Trey Gowdy weighed in and backed the DOJ; George Conway, Laurence Tribe, Watergate prosecutors and others took the opposite stance, arguing that Sullivan was acting within his authority when appointing retired federal judge John Gleeson to present the arguments against the DOJ. Sullivan also ordered Gleeson to examine whether Flynn should be held criminal contempt of court for perjuring himself over the course of his prosecution.

An article by Noah Feldman: On Sunday, President Donald Trump tweeted that the executive branch will designate Antifa as a “terrorist organization,” apparently in an attempt to pin blame for the weekend’s violent protests on the loose collection of far-left activists. The president’s announcement was characteristically unclear. Federal law says that if the Secretary of State designates a group as a foreign terrorist organization, then materially supporting that organization becomes a very serious federal crime. There is no comparable domestic terrorism designation under existing law. Setting aside the important factual question of whether groups of anti-fascist protestors are actually to blame for the violence, let’s look at whether Trump can “designate” them as terrorists. (The fact that Antifa may not be very organized wouldn’t itself necessarily stop designation. Nothing in the law specifies how organized a group must be to count as an organization.) If Trump’s “designation” is purely symbolic, the Constitution doesn’t come into it. Even without congressional authorization, the president can say what he likes — including inventing a designation that carries no legal consequences. However, if the Trump administration were to designate Antifa as a foreign terrorist organization, and the designation survived judicial review, then joining the group, funding it or coordinating with the organization in any way could be punished with harsh jail terms.

A podcast by Noah Feldman: Vanita Gupta, the former head of the U.S. Department of Justice’s Civil Rights Division, discusses the protests across the country, and the reforms she would make to how policing works in the U.S.

If you’ve tried to read a book — or anything longer than 280 characters — lately, you’ve likely pondered the role of, and appetite for, fiction in our attention-fractured times. So, too, has Tyler Cabot, since long before the coronavirus swept in. “We’ve had an overflow of news, generally, and then on the other side, a lot of opinion pieces,” said the former editor at Esquire and current affiliate at the Berkman Klein Center for Internet and Society at Harvard. “But what I found lacking was a place to think more deeply about the news, where art is used to get a better understanding of the way that we’re actually living now.” In early March, after six months of work, Mr. Cabot and a small team of modestly paid friends launched the website The Chronicles of Now, a collection of bite-size fiction pieces, each inspired by a recent headline. For the inaugural post, titled “The Extinction Show: Live! One Night Only!,” the author Manuel Gonzales took cues from a report in this newspaper about the human-accelerated demise of certain species. In subsequent weeks, sparked by an article in The Washington Post, Colum McCann rattled off, rapid-fire, all of the thoughts that crossed the soccer player Megan Rapinoe’s mind during the 61st minute of last year’s World Cup final; Sloane Crosley imagined the actress Lori Loughlin’s internal monologue amid her lawyers’ claims they have new evidence of her innocence (hat-tip to The Associated Press); Vauhini Vara used an Atlantic deep-dive on SpaceX’s Starlink satellites as an entry point for her exploration of what we believe in.

An article by Jack Goldsmith: Inspectors general are under attack. President Trump’s recent termination of State Department Inspector General Steve Linick was the fifth time in two months that Trump has fired or removed inspectors general and sought to replace them with officials he perceives to be more loyal. Congress, including important Republicans, is finally stirring to protect these internal agency watchdogs. But the focus on trying to make it harder for the president to remove inspectors general is misplaced. Instead, lawmakers should concentrate on restricting how a president can fill vacant inspector general positions. The modern inspector general dates to 1978, when Congress gave many inspectors general extraordinary internal investigative powers, required them to be confirmed by the Senate and tasked them with reporting to Congress. All this was controversial as a constitutional matter. President Jimmy Carter signed the 1978 law even though his Justice Department concluded that the dual reporting obligations to the executive branch and Congress “violate the doctrine of separation of powers.” Over the decades, constitutional concerns have faded as inspectors general have proved their worth in rooting out agency waste, fraud and abuse, and in conducting credible investigations of controversial agency actions. The 2003 Central Intelligence Agency report on black sites, the 2012 General Services Administration report on federal employee extravagances, the 2012 Justice Department report on the “Fast and Furious” gun-running program, and the 2019 Justice Department report on the investigation of the Trump campaign are exemplars that led to important reforms.

An article by Jesse Fried: Last month, the US Senate unanimously passed a bill aimed at improving the reliability of financial statements by China-based companies trading in the US. The legislation focuses on a real problem with these businesses, whose total market capitalisation is about $1tn. Over the past decade, alleged fraud at China-based, US-traded companies — including most recently Luckin Coffee — has cost American investors billions of dollars. Unfortunately, the bill’s remedy may end up making them worse off. To reduce fraud, the Sarbanes-Oxley Act of 2002 requires audits of every US-traded company to be inspected by the Public Company Accounting Oversight Board. But those based in China refuse to comply. They, and the Chinese government, say PCAOB inspection of China-based audit records would violate state-secrecy laws. Why block PCAOB access? Inspections might well reveal bribes to high-ranking officials, embarrassing the Chinese Communist party. The US bill requires the Securities and Exchange Commission to prohibit trading in the stock of any company that goes three consecutive years without PCAOB inspection. Its apparent goal is to force China to agree to inspections. If the strategy succeeds, it should be harder for insiders of China-based companies to defraud American investors. The bill has bipartisan support in the House of Representatives.

The U.S. Court of Appeals for the Ninth Circuit rejected the petition of oil supermajors and ruled that state courts are more suitable to impartially adjudicate climate change lawsuits against oil and gas companies instead of federal venues that are suspected to be bias to the energy industry. The lawsuits, filed by the cities of San Francisco and Oakland, hold five Big Oil majors, namely ExxonMobil XOM, Chevron CVX, ConocoPhillips COP, BP plc BP and Royal Dutch Shell RDS.A accountable for misleading the public by wrongly promoting their work to be environmentally friendly when in reality, they were aware of their hazardous contribution to climate change. By alleging the companies to be financially responsible for this menace, they demand the oil giants to cough up billions for the damages caused due to intensified carbon footprint and help construct a protective infrastructure to prevent the rise in sea-level and other problems cropping up from global warming. The unanimous verdict by a three-judge panel of the Ninth Circuit, Judge Sandra Ikuta, a George W. Bush appointee along with judges Morgen Christen and Kenneth Lee overturned the decision of judge William Alsup, who had earlier dismissed the Oakland and San Francisco litigation in 2018. He opined that court cases were not the best solution to address the damages induced by fossil fuels or global warming and consequently, moved the case to the federal court where two judges failed to reach a consensus...The cities and counties “live another day to put forth their claims and argue their case,” said Hana Vizcarra, staff attorney, Harvard Law School’s Environmental and Energy Law Program.

Professor Dehlia Umunna calls into iHeartRADIO's Matty in the Morning to discuss race and policing in the United States.