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Joseph Margulies

Cornell University, Government, Faculty Member

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I am a civil rights and criminal defense lawyer, as well as a professor at Cornell University with a joint appointment in the law school and the government department. Like most people, however, I have diverse interests that are not well captured by the content of my business card. Sometimes, I am a student of the American criminal justice system, and write about its cruelty and inequity. Other times, I am a student of neighborhood well-being, and ask what it takes to create and sustain healthy, vibrant and safe neighborhoods. And on other occasions, I am a civil rights attorney and critic of the national security state. For many years, I defended people caught up in the excesses of the so-called war on terror.

Wearing my academic hat, I have written a slew of articles and two books: What Changed When Everything Changed: 9/11 and the Making of National Identity (Yale 2013), and Guantánamo and the Abuse of Presidential Power (Simon & Schuster 2006). Guantánamo won a bunch of awards, which was very nice.

I have a third book coming out in the fall of 2021 from Yale University Press on neighborhood well-being, which asks whether a distressed community can save itself without setting the seeds for its own destruction. It is entitled, Thanks for Everything--Now Get Out. I am working on a new book on forgiveness in the criminal justice system. It will be published by Beacon Press.

Wearing my civil rights hat, I was lead counsel in Rasul v. Bush (2004), involving detentions at the Guantánamo Bay Naval Station, and in Geren v. Omar & Munaf v. Geren (2008), involving detentions at Camp Cropper in Iraq. I am one of the lawyers for Abu Zubaydah, who was held in CIA black sites and whose interrogation in 2002 and 2003 prompted the Bush Administration to draft the infamous "torture memos."

I am also an endurance cyclist, and whatever else I am doing, I would probably rather be riding.

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Papers by Joseph Margulies

Reviewer’s comment concerning “3D analysis of brace treatment in idiopathic scoliosis” (ESJO-D-12-00300R” by A. Courvoisier, X. Drevelle, R. Vialle, J. Dubousset and W. Skalli)

European Spine Journal, Aug 27, 2013

Resource Deprivation and the Right to Counsel

Journal of Criminal Law & Criminology, 1989

Court recognized that arraignment "is a critical stage in a criminal proceeding" where available ... more Court recognized that arraignment "is a critical stage in a criminal proceeding" where available defenses may be irretrievably lost "if not then and there asserted .... In Holloway v. Arkansas, 435 U.S. 475,484 (1978), the Court observed that the multiple representation of clients with conflicting interests deprives defendants of "the guarantee of 'assistance of counsel.' " "[I]n a case ofjoint representation of conflicting interests the evil-it bears repeatingis in what the advocate finds himself compelled to refrain from doing, not only at trial but also as to possible pretrial plea negotiations and in the sentencing process." Id. at 490 (emphasis in original). In addition, in Avery v. Alabama, 308 U.S. 444, 446 (1940), the Court wrote: [The denial of opportunity for appointed counsel to confer, to consult with the accused and to prepare his defense, could convert the appointment of counsel into a sham and nothing more than a formal compliance with the Constitution's requirement that an accused be given the assistance of counsel. The Constitution's guarantee of assistance of counsel cannot be satisfied by mere formal appointment. This dicta in Avery has been more recently reaffirmed. See, e.g., Kimmelman v. Morrison, 477 U.S. 365 (1986). 2 The one qualification to this is the harmless error doctrine. As argued elsewhere, 673 JOE MARGULIES Now suppose the state passes another statute that produces the same effect, but without the positive prohibitions of the first statute. That is, suppose the state designates a set of attorneys to represent all indigent defendants in the jurisdiction, but at the same time refuses to provide adequate funding. On the average, each attorney will represent well over 500 defendants at any given time. The office has no investigators, nominal support staff, and no money for expert witnesses. In fact, suppose the state provides just enough funding so these attorneys can do nothing more than appear at those proceedings to which they are entitled to appear. Time spent preparing for any particular proceeding is, necessarily, time taken away from an appearance. Time spent investigating, for example, means that the attorney cannot attend proceedings. Time spent conferring with clients may mean no legal research. In short, the statute guarantees nothing more than the right to a body beside the defendant-counsel only by the accident of having passed the local bar exam. Just as with the first statute, one can be confident that some defendants prosecuted under this regime will be acquitted. Many, however, will no doubt be convicted. The question immediately arises, then, of how to analyze this problem-the problem of systemic resource deprivation. On the one hand, there are obvious similarities between the regime created by resource deprivation and the regime created by direct statutory prohibitions. One accomplishes directly what the other achieves indirectly, but both lead to the same result. It is the result which causes the injury to the defendant, and in that respect the two are precisely the same. On the other hand, there are equally obvious similarities between the resource poor counsel and the incompetent counsel. Both often create the same trial record, so for the reviewing court, the two are indistinguishable. The explanation for a failure to inveshowever, harmless error has no application to the problem of systemic resource deprivation. A constitutional violation is subject to harmless error analysis only when its scope can be readily identified and its effect isolated from the remainder of the proceeding.

Fall 1989 Resource Deprivation and the Right to Counsel

Court recognized that arraignment "is a critical stage in a criminal proceeding" where available ... more Court recognized that arraignment "is a critical stage in a criminal proceeding" where available defenses may be irretrievably lost "if not then and there asserted .... In Holloway v. Arkansas, 435 U.S. 475,484 (1978), the Court observed that the multiple representation of clients with conflicting interests deprives defendants of "the guarantee of 'assistance of counsel.' " "[I]n a case ofjoint representation of conflicting interests the evil-it bears repeatingis in what the advocate finds himself compelled to refrain from doing, not only at trial but also as to possible pretrial plea negotiations and in the sentencing process." Id. at 490 (emphasis in original). In addition, in Avery v. Alabama, 308 U.S. 444, 446 (1940), the Court wrote: [The denial of opportunity for appointed counsel to confer, to consult with the accused and to prepare his defense, could convert the appointment of counsel into a sham and nothing more than a formal compliance with the Constitution's requirement that an accused be given the assistance of counsel. The Constitution's guarantee of assistance of counsel cannot be satisfied by mere formal appointment. This dicta in Avery has been more recently reaffirmed. See, e.g., Kimmelman v. Morrison, 477 U.S. 365 (1986). 2 The one qualification to this is the harmless error doctrine. As argued elsewhere, 673 JOE MARGULIES Now suppose the state passes another statute that produces the same effect, but without the positive prohibitions of the first statute. That is, suppose the state designates a set of attorneys to represent all indigent defendants in the jurisdiction, but at the same time refuses to provide adequate funding. On the average, each attorney will represent well over 500 defendants at any given time. The office has no investigators, nominal support staff, and no money for expert witnesses. In fact, suppose the state provides just enough funding so these attorneys can do nothing more than appear at those proceedings to which they are entitled to appear. Time spent preparing for any particular proceeding is, necessarily, time taken away from an appearance. Time spent investigating, for example, means that the attorney cannot attend proceedings. Time spent conferring with clients may mean no legal research. In short, the statute guarantees nothing more than the right to a body beside the defendant-counsel only by the accident of having passed the local bar exam. Just as with the first statute, one can be confident that some defendants prosecuted under this regime will be acquitted. Many, however, will no doubt be convicted. The question immediately arises, then, of how to analyze this problem-the problem of systemic resource deprivation. On the one hand, there are obvious similarities between the regime created by resource deprivation and the regime created by direct statutory prohibitions. One accomplishes directly what the other achieves indirectly, but both lead to the same result. It is the result which causes the injury to the defendant, and in that respect the two are precisely the same. On the other hand, there are equally obvious similarities between the resource poor counsel and the incompetent counsel. Both often create the same trial record, so for the reviewing court, the two are indistinguishable. The explanation for a failure to inveshowever, harmless error has no application to the problem of systemic resource deprivation. A constitutional violation is subject to harmless error analysis only when its scope can be readily identified and its effect isolated from the remainder of the proceeding.

Routledge eBooks, Oct 25, 2018

Resource Deprivation and the Right to Counsel

The Journal of Criminal Law and Criminology (1973-), 1989

Court recognized that arraignment "is a critical stage in a criminal proceeding" where available ... more Court recognized that arraignment "is a critical stage in a criminal proceeding" where available defenses may be irretrievably lost "if not then and there asserted .... In Holloway v. Arkansas, 435 U.S. 475,484 (1978), the Court observed that the multiple representation of clients with conflicting interests deprives defendants of "the guarantee of 'assistance of counsel.' " "[I]n a case ofjoint representation of conflicting interests the evil-it bears repeatingis in what the advocate finds himself compelled to refrain from doing, not only at trial but also as to possible pretrial plea negotiations and in the sentencing process." Id. at 490 (emphasis in original). In addition, in Avery v. Alabama, 308 U.S. 444, 446 (1940), the Court wrote: [The denial of opportunity for appointed counsel to confer, to consult with the accused and to prepare his defense, could convert the appointment of counsel into a sham and nothing more than a formal compliance with the Constitution's requirement that an accused be given the assistance of counsel. The Constitution's guarantee of assistance of counsel cannot be satisfied by mere formal appointment. This dicta in Avery has been more recently reaffirmed. See, e.g., Kimmelman v. Morrison, 477 U.S. 365 (1986). 2 The one qualification to this is the harmless error doctrine. As argued elsewhere, 673 JOE MARGULIES Now suppose the state passes another statute that produces the same effect, but without the positive prohibitions of the first statute. That is, suppose the state designates a set of attorneys to represent all indigent defendants in the jurisdiction, but at the same time refuses to provide adequate funding. On the average, each attorney will represent well over 500 defendants at any given time. The office has no investigators, nominal support staff, and no money for expert witnesses. In fact, suppose the state provides just enough funding so these attorneys can do nothing more than appear at those proceedings to which they are entitled to appear. Time spent preparing for any particular proceeding is, necessarily, time taken away from an appearance. Time spent investigating, for example, means that the attorney cannot attend proceedings. Time spent conferring with clients may mean no legal research. In short, the statute guarantees nothing more than the right to a body beside the defendant-counsel only by the accident of having passed the local bar exam. Just as with the first statute, one can be confident that some defendants prosecuted under this regime will be acquitted. Many, however, will no doubt be convicted. The question immediately arises, then, of how to analyze this problem-the problem of systemic resource deprivation. On the one hand, there are obvious similarities between the regime created by resource deprivation and the regime created by direct statutory prohibitions. One accomplishes directly what the other achieves indirectly, but both lead to the same result. It is the result which causes the injury to the defendant, and in that respect the two are precisely the same. On the other hand, there are equally obvious similarities between the resource poor counsel and the incompetent counsel. Both often create the same trial record, so for the reviewing court, the two are indistinguishable. The explanation for a failure to inveshowever, harmless error has no application to the problem of systemic resource deprivation. A constitutional violation is subject to harmless error analysis only when its scope can be readily identified and its effect isolated from the remainder of the proceeding.

Memories of an Execution

Terrorizing Academia

In an observation more often repeated than defended, we are told that the attacks of September 11... more In an observation more often repeated than defended, we are told that the attacks of September 11 "changed everything." Whatever merit there is in this notion, it is certainly true that 9/11-and in particular the legal response set in motion by the administration of President George W. Bush-left its mark on the academy. Nine years after 9/11, it is time to step back and assess these developments and to offer thoughts on their meaning. In Part II of this essay, we analyze the post-9/11 scholarship produced by this "emergency" framing. We argue that legal scholars writing in the aftermath of 9/11 generally fell into one of three groups: unilateralists, interventionists, and proceduralists. Unilateralists argued in favor of tilting the allocation of government power toward the executive because the state's interest in survival is superior to any individual liberty interest, and because the executive is best able to understand and address threats to the state. Interventionists, by contrast, argued in favor of restraining the executive (principally through the judiciary) precisely to prevent the erosion of civil liberties. Proceduralists took a middle road,

Religion, Insurrection, and Social Forgiveness

Social Science Research Network, Jan 22, 2021

This article is part of an ongoing research project on the place of forgiveness in the criminal j... more This article is part of an ongoing research project on the place of forgiveness in the criminal justice system. The article, which appeared in the Canopy Forum on the Interactions of Law and Religion, examines the insurrection at the Capitol through the religious injunction to forgive captured in Luke.

Communities Need Neighborhood Trusts

The current approach to community revitalization has helped arrest and even reverse the degradati... more

In Defense of Neighborhood Trusts

Readers of a recent article on neighborhood trusts raised a number of objections to the author&#3... more

What Changed When Everything Changed

Why the Hubbub about Habeas?: A Post-Mortem on a Failed Policy

William Mitchell law review, 2009

Recently, I had occasion to speak at an event sponsored by the Chicago Humanities Festival, an an... more Recently, I had occasion to speak at an event sponsored by the Chicago Humanities Festival, an annual celebration of the arts and letters with public lectures and performances at sites around the city. The theme was, "Thinking Big." The organizers asked me to talk about habeas corpus, which they apparently believed was a topic that lent itself to Big Thoughts. I agreed, but fully expected that whatever thoughts I had-big or small-would be shared with just a few. It was, after all, habeas. So I thought the organizers were out of their minds when they scheduled the event at a 700-seat auditorium on the campus of Northwestern University Law School, where I teach. Naturally, consistent with my long success in public prognostications, the hall was filled to overflowing. I never expected that Internet thing would catch on either. The turnout forces us to ask why habeas has become a matter of such public concern. I take it as a given it is not the Great Writ of Liberty in itself that attracts so much attention. As much as I would like to believe otherwise, I find it improbable that the American public has suddenly developed an intense and abiding interest in King John at Runnymede. Obviously, the curiosity comes from the more recent and unaccustomed prominence of habeas in our great national debate. And since the most visible and controversial use of habeas these past seven years has been in challenges to the Bush administration's post-9/11 detention policy, and in particular to its imprisonment of foreign nationals at t Clinical Associate Professor, Northwestern University School of Law. Thanks to Muneer Ahmad for helpful suggestions on an earlier draft of this essay, and to Brian Carter-Stiglitz for his research assistance. 5089

The Dark Side of the Creed: Stable Values and Constructed Meaning in American Thought

Human Rights and America’s War on Terror, 2018

A Prison beyond the Law

Virginia Quarterly Review, 2004

Making Sense of Camp Delta

Washington University Journal of Law and Policy, 2007

Deviance, Risk, and Law: Reflections on the Demand for the Preventive Detention of Suspected Terrorists

Cognitive psychologists have long understood the tendency of people to make sense of what is new ... more Cognitive psychologists have long understood the tendency of people to make sense of what is new by analogy to what is old. They call this "analogical reasoning." 1 I prefer the more familiar and less clunky phrase, "reasoning by analogy," but the meaning is the same. Reasoning by analogy "allows us to apply knowledge we have from one domain to a new context and therefore to make inferences and judgments without starting from scratch." 2 In addition, by framing our understanding of the novel in terms of the familiar, we conjure up images of a proper solution to new problems. "When our understanding of the source domain includes normative prescriptions and evaluations, [they] are applied analogically to suggest the right evaluation or course of action in the new situation." 3 This * Clinical Professor, Northwestern University School of Law. In the interest of disclosing possible biases, I was counsel of record for the petitioners in Rasul v. Bush, 542 U.S. 466 (2004), involving post-9/11 detentions of foreign nationals at Guantanamo, and Munaf v. Geren, 553 U.S. 674 (2008), involving post-9/11 detentions of U.S. citizens in Iraq. Presently, I am counsel of record for Abu Zubaydah, for whose interrogation the infamous "torture memos" were written. These were legal memos written by attorneys with the Office of Legal Counsel at the Department of Justice which wrongly concluded that torture, when ordered by the President in his capacity as Commander in Chief, would not violate domestic or international law. Zubaydah is often described as a candidate for preventive detention. An earlier version of this Article was presented at a symposium at Seton Hall University Law School. I am grateful to the participants for their helpful comments and to Sidney Tarrow, Albert Alschuler, Jonathan Simon, and Michael Sherry for their many suggestions. Thanks also to Sarah Grady and Zachary Dillon for their research assistance.

Memories of an Execution

Panel 1: Lessons From Guantánamo

Moderator: Elizabeth A. WilsonAssistant Professor, Whitehead School of Diplomacy and Internationa... more Moderator: Elizabeth A. WilsonAssistant Professor, Whitehead School of Diplomacy and International Relations, Seton Hall University Eric M. FreedmanMaurice A. Deane Distinguished Professor of Constitutional Law, Hofstra University School of Law Joseph MarguliesClinical Professor of Law, Northwestern University School of Law David FraktAssociate Professor of Law, Barry University Dwayne O. Andreas School of Law Glenn M. SulmasyProfessor of Law, U.S. Coast

What changed when everything changed: 9/11 and the making of national identity

Choice Reviews Online, 2013

Beautifully written and carefully reasoned, this bold and provocative work upends the conventiona... more Beautifully written and carefully reasoned, this bold and provocative work upends the conventional wisdom about the American reaction to crisis. Margulies demonstrates that for key elements of the post-9/11 landscape-especially support for counterterror policies like torture and hostility to Islam-American identity is not only darker than it was before September 11, 2001, but substantially more repressive than it was immediately after the attacks. These repressive attitudes, Margulies shows us, have taken hold even as the terrorist threat has diminished significantly. Contrary to what is widely imagined, at the moment of greatest perceived threat, when the fear of another attack "hung over the country like a shroud," favorable attitudes toward Muslims and Islam were at record highs, and the suggestion that America should torture was denounced in the public square. Only much later did it become socially acceptable to favor "enhanced interrogation" and exhibit clear anti-Muslim prejudice. Margulies accounts for this unexpected turn and explains what it means to the nation's identity as it moves beyond 9/11. We express our values in the same language, but that language can hide profound differences and radical changes in what we actually believe. "National identity," he writes, "is not fixed, it is made."

Reviewer’s comment concerning “3D analysis of brace treatment in idiopathic scoliosis” (ESJO-D-12-00300R” by A. Courvoisier, X. Drevelle, R. Vialle, J. Dubousset and W. Skalli)

European Spine Journal, Aug 27, 2013

Resource Deprivation and the Right to Counsel

Journal of Criminal Law & Criminology, 1989

Court recognized that arraignment "is a critical stage in a criminal proceeding" where available ... more Court recognized that arraignment "is a critical stage in a criminal proceeding" where available defenses may be irretrievably lost "if not then and there asserted .... In Holloway v. Arkansas, 435 U.S. 475,484 (1978), the Court observed that the multiple representation of clients with conflicting interests deprives defendants of "the guarantee of 'assistance of counsel.' " "[I]n a case ofjoint representation of conflicting interests the evil-it bears repeatingis in what the advocate finds himself compelled to refrain from doing, not only at trial but also as to possible pretrial plea negotiations and in the sentencing process." Id. at 490 (emphasis in original). In addition, in Avery v. Alabama, 308 U.S. 444, 446 (1940), the Court wrote: [The denial of opportunity for appointed counsel to confer, to consult with the accused and to prepare his defense, could convert the appointment of counsel into a sham and nothing more than a formal compliance with the Constitution's requirement that an accused be given the assistance of counsel. The Constitution's guarantee of assistance of counsel cannot be satisfied by mere formal appointment. This dicta in Avery has been more recently reaffirmed. See, e.g., Kimmelman v. Morrison, 477 U.S. 365 (1986). 2 The one qualification to this is the harmless error doctrine. As argued elsewhere, 673 JOE MARGULIES Now suppose the state passes another statute that produces the same effect, but without the positive prohibitions of the first statute. That is, suppose the state designates a set of attorneys to represent all indigent defendants in the jurisdiction, but at the same time refuses to provide adequate funding. On the average, each attorney will represent well over 500 defendants at any given time. The office has no investigators, nominal support staff, and no money for expert witnesses. In fact, suppose the state provides just enough funding so these attorneys can do nothing more than appear at those proceedings to which they are entitled to appear. Time spent preparing for any particular proceeding is, necessarily, time taken away from an appearance. Time spent investigating, for example, means that the attorney cannot attend proceedings. Time spent conferring with clients may mean no legal research. In short, the statute guarantees nothing more than the right to a body beside the defendant-counsel only by the accident of having passed the local bar exam. Just as with the first statute, one can be confident that some defendants prosecuted under this regime will be acquitted. Many, however, will no doubt be convicted. The question immediately arises, then, of how to analyze this problem-the problem of systemic resource deprivation. On the one hand, there are obvious similarities between the regime created by resource deprivation and the regime created by direct statutory prohibitions. One accomplishes directly what the other achieves indirectly, but both lead to the same result. It is the result which causes the injury to the defendant, and in that respect the two are precisely the same. On the other hand, there are equally obvious similarities between the resource poor counsel and the incompetent counsel. Both often create the same trial record, so for the reviewing court, the two are indistinguishable. The explanation for a failure to inveshowever, harmless error has no application to the problem of systemic resource deprivation. A constitutional violation is subject to harmless error analysis only when its scope can be readily identified and its effect isolated from the remainder of the proceeding.

Fall 1989 Resource Deprivation and the Right to Counsel

Court recognized that arraignment "is a critical stage in a criminal proceeding" where available ... more Court recognized that arraignment "is a critical stage in a criminal proceeding" where available defenses may be irretrievably lost "if not then and there asserted .... In Holloway v. Arkansas, 435 U.S. 475,484 (1978), the Court observed that the multiple representation of clients with conflicting interests deprives defendants of "the guarantee of 'assistance of counsel.' " "[I]n a case ofjoint representation of conflicting interests the evil-it bears repeatingis in what the advocate finds himself compelled to refrain from doing, not only at trial but also as to possible pretrial plea negotiations and in the sentencing process." Id. at 490 (emphasis in original). In addition, in Avery v. Alabama, 308 U.S. 444, 446 (1940), the Court wrote: [The denial of opportunity for appointed counsel to confer, to consult with the accused and to prepare his defense, could convert the appointment of counsel into a sham and nothing more than a formal compliance with the Constitution's requirement that an accused be given the assistance of counsel. The Constitution's guarantee of assistance of counsel cannot be satisfied by mere formal appointment. This dicta in Avery has been more recently reaffirmed. See, e.g., Kimmelman v. Morrison, 477 U.S. 365 (1986). 2 The one qualification to this is the harmless error doctrine. As argued elsewhere, 673 JOE MARGULIES Now suppose the state passes another statute that produces the same effect, but without the positive prohibitions of the first statute. That is, suppose the state designates a set of attorneys to represent all indigent defendants in the jurisdiction, but at the same time refuses to provide adequate funding. On the average, each attorney will represent well over 500 defendants at any given time. The office has no investigators, nominal support staff, and no money for expert witnesses. In fact, suppose the state provides just enough funding so these attorneys can do nothing more than appear at those proceedings to which they are entitled to appear. Time spent preparing for any particular proceeding is, necessarily, time taken away from an appearance. Time spent investigating, for example, means that the attorney cannot attend proceedings. Time spent conferring with clients may mean no legal research. In short, the statute guarantees nothing more than the right to a body beside the defendant-counsel only by the accident of having passed the local bar exam. Just as with the first statute, one can be confident that some defendants prosecuted under this regime will be acquitted. Many, however, will no doubt be convicted. The question immediately arises, then, of how to analyze this problem-the problem of systemic resource deprivation. On the one hand, there are obvious similarities between the regime created by resource deprivation and the regime created by direct statutory prohibitions. One accomplishes directly what the other achieves indirectly, but both lead to the same result. It is the result which causes the injury to the defendant, and in that respect the two are precisely the same. On the other hand, there are equally obvious similarities between the resource poor counsel and the incompetent counsel. Both often create the same trial record, so for the reviewing court, the two are indistinguishable. The explanation for a failure to inveshowever, harmless error has no application to the problem of systemic resource deprivation. A constitutional violation is subject to harmless error analysis only when its scope can be readily identified and its effect isolated from the remainder of the proceeding.

Routledge eBooks, Oct 25, 2018

Resource Deprivation and the Right to Counsel

The Journal of Criminal Law and Criminology (1973-), 1989

Court recognized that arraignment "is a critical stage in a criminal proceeding" where available ... more Court recognized that arraignment "is a critical stage in a criminal proceeding" where available defenses may be irretrievably lost "if not then and there asserted .... In Holloway v. Arkansas, 435 U.S. 475,484 (1978), the Court observed that the multiple representation of clients with conflicting interests deprives defendants of "the guarantee of 'assistance of counsel.' " "[I]n a case ofjoint representation of conflicting interests the evil-it bears repeatingis in what the advocate finds himself compelled to refrain from doing, not only at trial but also as to possible pretrial plea negotiations and in the sentencing process." Id. at 490 (emphasis in original). In addition, in Avery v. Alabama, 308 U.S. 444, 446 (1940), the Court wrote: [The denial of opportunity for appointed counsel to confer, to consult with the accused and to prepare his defense, could convert the appointment of counsel into a sham and nothing more than a formal compliance with the Constitution's requirement that an accused be given the assistance of counsel. The Constitution's guarantee of assistance of counsel cannot be satisfied by mere formal appointment. This dicta in Avery has been more recently reaffirmed. See, e.g., Kimmelman v. Morrison, 477 U.S. 365 (1986). 2 The one qualification to this is the harmless error doctrine. As argued elsewhere, 673 JOE MARGULIES Now suppose the state passes another statute that produces the same effect, but without the positive prohibitions of the first statute. That is, suppose the state designates a set of attorneys to represent all indigent defendants in the jurisdiction, but at the same time refuses to provide adequate funding. On the average, each attorney will represent well over 500 defendants at any given time. The office has no investigators, nominal support staff, and no money for expert witnesses. In fact, suppose the state provides just enough funding so these attorneys can do nothing more than appear at those proceedings to which they are entitled to appear. Time spent preparing for any particular proceeding is, necessarily, time taken away from an appearance. Time spent investigating, for example, means that the attorney cannot attend proceedings. Time spent conferring with clients may mean no legal research. In short, the statute guarantees nothing more than the right to a body beside the defendant-counsel only by the accident of having passed the local bar exam. Just as with the first statute, one can be confident that some defendants prosecuted under this regime will be acquitted. Many, however, will no doubt be convicted. The question immediately arises, then, of how to analyze this problem-the problem of systemic resource deprivation. On the one hand, there are obvious similarities between the regime created by resource deprivation and the regime created by direct statutory prohibitions. One accomplishes directly what the other achieves indirectly, but both lead to the same result. It is the result which causes the injury to the defendant, and in that respect the two are precisely the same. On the other hand, there are equally obvious similarities between the resource poor counsel and the incompetent counsel. Both often create the same trial record, so for the reviewing court, the two are indistinguishable. The explanation for a failure to inveshowever, harmless error has no application to the problem of systemic resource deprivation. A constitutional violation is subject to harmless error analysis only when its scope can be readily identified and its effect isolated from the remainder of the proceeding.

Memories of an Execution

Terrorizing Academia

In an observation more often repeated than defended, we are told that the attacks of September 11... more In an observation more often repeated than defended, we are told that the attacks of September 11 "changed everything." Whatever merit there is in this notion, it is certainly true that 9/11-and in particular the legal response set in motion by the administration of President George W. Bush-left its mark on the academy. Nine years after 9/11, it is time to step back and assess these developments and to offer thoughts on their meaning. In Part II of this essay, we analyze the post-9/11 scholarship produced by this "emergency" framing. We argue that legal scholars writing in the aftermath of 9/11 generally fell into one of three groups: unilateralists, interventionists, and proceduralists. Unilateralists argued in favor of tilting the allocation of government power toward the executive because the state's interest in survival is superior to any individual liberty interest, and because the executive is best able to understand and address threats to the state. Interventionists, by contrast, argued in favor of restraining the executive (principally through the judiciary) precisely to prevent the erosion of civil liberties. Proceduralists took a middle road,

Religion, Insurrection, and Social Forgiveness

Social Science Research Network, Jan 22, 2021

This article is part of an ongoing research project on the place of forgiveness in the criminal j... more This article is part of an ongoing research project on the place of forgiveness in the criminal justice system. The article, which appeared in the Canopy Forum on the Interactions of Law and Religion, examines the insurrection at the Capitol through the religious injunction to forgive captured in Luke.

Communities Need Neighborhood Trusts

The current approach to community revitalization has helped arrest and even reverse the degradati... more

In Defense of Neighborhood Trusts

Readers of a recent article on neighborhood trusts raised a number of objections to the author&#3... more

What Changed When Everything Changed

Why the Hubbub about Habeas?: A Post-Mortem on a Failed Policy

William Mitchell law review, 2009

Recently, I had occasion to speak at an event sponsored by the Chicago Humanities Festival, an an... more Recently, I had occasion to speak at an event sponsored by the Chicago Humanities Festival, an annual celebration of the arts and letters with public lectures and performances at sites around the city. The theme was, "Thinking Big." The organizers asked me to talk about habeas corpus, which they apparently believed was a topic that lent itself to Big Thoughts. I agreed, but fully expected that whatever thoughts I had-big or small-would be shared with just a few. It was, after all, habeas. So I thought the organizers were out of their minds when they scheduled the event at a 700-seat auditorium on the campus of Northwestern University Law School, where I teach. Naturally, consistent with my long success in public prognostications, the hall was filled to overflowing. I never expected that Internet thing would catch on either. The turnout forces us to ask why habeas has become a matter of such public concern. I take it as a given it is not the Great Writ of Liberty in itself that attracts so much attention. As much as I would like to believe otherwise, I find it improbable that the American public has suddenly developed an intense and abiding interest in King John at Runnymede. Obviously, the curiosity comes from the more recent and unaccustomed prominence of habeas in our great national debate. And since the most visible and controversial use of habeas these past seven years has been in challenges to the Bush administration's post-9/11 detention policy, and in particular to its imprisonment of foreign nationals at t Clinical Associate Professor, Northwestern University School of Law. Thanks to Muneer Ahmad for helpful suggestions on an earlier draft of this essay, and to Brian Carter-Stiglitz for his research assistance. 5089

The Dark Side of the Creed: Stable Values and Constructed Meaning in American Thought

Human Rights and America’s War on Terror, 2018

A Prison beyond the Law

Virginia Quarterly Review, 2004

Making Sense of Camp Delta

Washington University Journal of Law and Policy, 2007

Deviance, Risk, and Law: Reflections on the Demand for the Preventive Detention of Suspected Terrorists

Cognitive psychologists have long understood the tendency of people to make sense of what is new ... more Cognitive psychologists have long understood the tendency of people to make sense of what is new by analogy to what is old. They call this "analogical reasoning." 1 I prefer the more familiar and less clunky phrase, "reasoning by analogy," but the meaning is the same. Reasoning by analogy "allows us to apply knowledge we have from one domain to a new context and therefore to make inferences and judgments without starting from scratch." 2 In addition, by framing our understanding of the novel in terms of the familiar, we conjure up images of a proper solution to new problems. "When our understanding of the source domain includes normative prescriptions and evaluations, [they] are applied analogically to suggest the right evaluation or course of action in the new situation." 3 This * Clinical Professor, Northwestern University School of Law. In the interest of disclosing possible biases, I was counsel of record for the petitioners in Rasul v. Bush, 542 U.S. 466 (2004), involving post-9/11 detentions of foreign nationals at Guantanamo, and Munaf v. Geren, 553 U.S. 674 (2008), involving post-9/11 detentions of U.S. citizens in Iraq. Presently, I am counsel of record for Abu Zubaydah, for whose interrogation the infamous "torture memos" were written. These were legal memos written by attorneys with the Office of Legal Counsel at the Department of Justice which wrongly concluded that torture, when ordered by the President in his capacity as Commander in Chief, would not violate domestic or international law. Zubaydah is often described as a candidate for preventive detention. An earlier version of this Article was presented at a symposium at Seton Hall University Law School. I am grateful to the participants for their helpful comments and to Sidney Tarrow, Albert Alschuler, Jonathan Simon, and Michael Sherry for their many suggestions. Thanks also to Sarah Grady and Zachary Dillon for their research assistance.

Memories of an Execution

Panel 1: Lessons From Guantánamo

Moderator: Elizabeth A. WilsonAssistant Professor, Whitehead School of Diplomacy and Internationa... more Moderator: Elizabeth A. WilsonAssistant Professor, Whitehead School of Diplomacy and International Relations, Seton Hall University Eric M. FreedmanMaurice A. Deane Distinguished Professor of Constitutional Law, Hofstra University School of Law Joseph MarguliesClinical Professor of Law, Northwestern University School of Law David FraktAssociate Professor of Law, Barry University Dwayne O. Andreas School of Law Glenn M. SulmasyProfessor of Law, U.S. Coast

What changed when everything changed: 9/11 and the making of national identity

Choice Reviews Online, 2013

Beautifully written and carefully reasoned, this bold and provocative work upends the conventiona... more Beautifully written and carefully reasoned, this bold and provocative work upends the conventional wisdom about the American reaction to crisis. Margulies demonstrates that for key elements of the post-9/11 landscape-especially support for counterterror policies like torture and hostility to Islam-American identity is not only darker than it was before September 11, 2001, but substantially more repressive than it was immediately after the attacks. These repressive attitudes, Margulies shows us, have taken hold even as the terrorist threat has diminished significantly. Contrary to what is widely imagined, at the moment of greatest perceived threat, when the fear of another attack "hung over the country like a shroud," favorable attitudes toward Muslims and Islam were at record highs, and the suggestion that America should torture was denounced in the public square. Only much later did it become socially acceptable to favor "enhanced interrogation" and exhibit clear anti-Muslim prejudice. Margulies accounts for this unexpected turn and explains what it means to the nation's identity as it moves beyond 9/11. We express our values in the same language, but that language can hide profound differences and radical changes in what we actually believe. "National identity," he writes, "is not fixed, it is made."

DRAFT: NOT TO BE CITED OR CIRCULATED WITHOUT PERMISSION GUANTÁNAMO: A WELL-STUDIED TRUNK

What matters about Guantánamo has very little to do with what engages most legal scholars and soc... more What matters about Guantánamo has very little to do with what engages most legal scholars and social scientists. Law at Guantánamo—and especially the law of military commissions—is an extravagant irrelevance, of almost no substantive purpose except to distract from the reality of unfettered global American power in the war on terror and the plight of the remaining prisoners at the base. Law serves a symbolic purpose to the right and left that increasingly has nothing to do either with the reality of the Cuban prison or the scope of American hegemony. Sadly, however, most scholars have been slow to detect the difference between symbol and substance, and even less inclined to account for the chasm that separates the two. I It is a curious but familiar feature of American public life that what matters most about a particular policy is often met with yawning indifference, while what matters least is frequently subjected to breathless scrutiny. Since early in the 21 st century, for instance, much ink has been spilled about mass incarceration (e.g. Hinton, 2016). Under the benevolent influence of works like The New Jim Crow, the belief has become widespread that the crisis can be traced to the over-criminalization of drug use, especially among people of color (Alexander, 2010). Many people seem to think we can empty the prisons if we simply end the inhumane practice of locking up black and brown men and women for the possession of a small amount of drugs. Yet this has never been remotely true. Most people in prison in this country have been convicted of either property crimes or crimes of violence (Wagner & Rabuy, 2017). Even if

GOVT 3121, SYLLABUS FINAL S

This is my syllabus for the introductory class at Cornell University on the criminal justice syst... more

PRISONS SYLLABUS FINAL F 17.pdf

Guantanamo: A Well-Studied Trunk

Human Rights and America's War on Terror, 2018

What matters about Guantánamo has very little to do with what engages most legal scholars and soc... more What matters about Guantánamo has very little to do with what engages most legal scholars and social scientists. Law at Guantánamo—and especially the law of military commissions—is an extravagant irrelevance, of almost no substantive purpose except to distract from the reality of unfettered global American power in the war on terror and the plight of the remaining prisoners at the base. Law serves a symbolic purpose to the right and left that increasingly has nothing to do either with the reality of the Cuban prison or the scope of American hegemony. Sadly, however, most scholars have been slow to detect the difference between symbol and substance, and even less inclined to account for the chasm that separates the two.