Back on May 9, I suggested that a future post on whether the Fifth Amendment’s guarantee against self-incrimination applies to non-citizens abroad was forthcoming.  Though I’ve been a bit distracted by trial the last few weeks, I have not forgotten that commitment.

As a general matter, foreign nationals outside the United States are not entitled to constitutional protections, including due process protections. This limitation might extend to non-citizens interrogated abroad by U.S. law enforcement, or non-citizens without status in the United States giving interviews to U.S. consular officials in an effort to obtain a visa. But there’s a good case for arguing that the right against self-incrimination embedded within the Fifth Amendment’s text would preclude the use of any incriminating statements given without procedural warnings in a subsequent criminal prosecution. Such an argument would not depend on an extraterritorial application of the Fifth Amendment, but rather a domestic one.

Continue Reading Self-Incrimination Abroad

Henry Friendly still has my vote for the title of greatest American judge who ever served at any level. It’s the country’s misfortune that he never served on the U.S. Supreme Court. He did, however, spend nearly thirty years on the United States Court of Appeals for the Second Circuit, writing more than 1,000 opinions and carving out a reputation as one of the country’s most influential jurists. On March 10, 1986, thirty-two years ago today, Friendly died.

I’ve written at some length elsewhere about my definitely-not-unhealthy devotion to a long-deceased judge on an intermediate appellate court who, with a few exceptions, did not weigh in on the most hotly contested constitutional questions of the day. But Friendly’s reputation was built on his alarming analytical acuity, the lucidity of his writing, and his record of pragmatic decisions. He also had a great eye for talent: his law clerks included Chief Justice John Roberts, federal appellate judges Merrick Garland, A. Raymond Randolph, William Bryson, Pierre Leval, and Michael Boudin, and a slew of influential lawyers and academics including Bruce Ackerman, Larry Kramer, and Ruth Wedgewood.

For purposes of this blog, Friendly wrote several decisions addressing the scope of the attorney–client privilege and reviewing convictions for white collar crimes in an era when prosecutions for such crimes were relatively rare. Two of those decisions are discussed below and recounted in detail in David Dorsen’s excellent biography of Friendly.

Continue Reading This Day in White Collar History: Remembering Henry Friendly