December 2013 Vol. 112 No. 3 THE REVIEW
ARTICLES

Legislative Diplomacy

Ryan M. Scoville

A traditional view in legal scholarship holds that the U.S. Constitution assigns the president exclusive power to carry on official diplomatic communications with foreign governments. But in fact, Congress and its members routinely engage in communications of their own. Congress, for example, receives heads of state and maintains official contacts with foreign parliaments. And individual members of the House and Senate frequently travel overseas on congressional delegations ("CODELs") to confer with foreign leaders, investigate problems that arise, promote the interests of the United States and constituents, and even represent the president. Moreover, many of these activities have occurred ever since the Founding. Together, they comprise an understudied field of legislative diplomacy. This Article has two purposes: The first is to use State Department cables from WikiLeaks, a recent compilation of public reports, and original historical sources to provide a uniquely detailed, descriptive account of legislative diplomacy. The second is to develop theories about the practice's constitutionality. Text, original meaning, and customary practice suggest that the separation of diplomacy powers is more complicated than commonly assumed and that those powers do not belong exclusively to the president. The analysis undermines the "sole organ" metaphor, serves as a counterpoint to the widely held view that authority over foreign affairs belongs overwhelmingly to the executive, and carries practical implications for the execution of U.S. foreign relations.

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Constitutionally Tailoring Punishment

Richard A. Bierschbach and Stephanos Bibas
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NOTES

The Legality of Deliberate Miranda Violations: How Two-Step National Security Interrogations Undermine Miranda and Destabilize Fifth Amendment Protections

Lee Ross Crain

As part of the global "War on Terror," federal agents intentionally delay issuing Miranda warnings to terrorism suspects during custodial interrogations. They delay the warnings presuming that unwarned suspects will more freely offer vital national security intelligence. After a suspect offers the information he has, agents administer Miranda warnings and attempt to elicit confessions that prosecutors can use at the suspect's trial. No court has ruled on the constitutionality of this two-step national security interrogation process to determine whether admitting the second, warned confession is allowed under Miranda v. Arizona and its progeny. A fragmented Supreme Court examined two-step interrogations generally in Missouri v. Seibert but offered no clear holding. This Note argues that while confessions derived from two-step national security interrogations are admissible under Justice Kennedy'sSeibert test, courts should instead apply Justice Souter's Seibert test to limit the use of such interrogations. This Note further contends that permitting two-step national security interrogations contravenes the spirit, if not the letter, of the Fifth Amendment as well as decades of Miranda jurisprudence.

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Can We Calculate Fairness and Reasonableness? Determining What Satisfies the Fair Cross-Section Requirement of the Sixth Amendment

Colleen P. Fitzharris
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