Sixth public hearing of the National Commission on Terrorist Attacks Upon the United States

Statement of Stephen J. Schulhofer to the National Commission on Terrorist Attacks Upon The United States
December 8, 2003

Mr. Chairman, Mr. Vice Chairman, Commissioners:

Thank you very much for this opportunity to contribute to your important work.

You have asked me to discuss the adequacy of the government's legal authority to collect intelligence within the United States, both currently and in the period before September 11, 2001. No one doubts the importance of that question. Yet I want to stress at the outset that legal issues are far less important than the public and the legal profession generally believe.

An effective intelligence process requires that information be gathered, translated (when necessary), pooled by the relevant agencies, analyzed and then delivered to those in a position to investigate further or take quick preventive action. Legal rules are largely irrelevant at the stages where our past and current problems have been greatest - - translation, analysis and delivery. Law has posed significant obstacles to the pooling of intelligence, but the obstacles of agency culture, resources and lines of communication have mattered and still matter much more. Even at the stage of gathering domestic intelligence, the stage where we expect law to govern, capabilities are largely determined by non-legal constraints - - technical, budgetary and human resources, the training and priorities of our officers and the organization and cultures of the relevant agencies - - all areas where our deficits have been, and continue to be, enormous.

In reaction to the events of September 11th, legal experts, along with most citizens, quickly concluded that we needed immediate steps to strengthen the government's intelligence-gathering authority, steps that, in the conventional cliché, would "shift the balance" between liberty and security. More than two years later, questions centered on legal authority, such as the merits of the USA PATRIOT Act, continue to dominate public discussion of the domestic intelligence function. Yet when the intelligence process suffers from major deficits in resources, personnel, organizational strength, and translation, analytic and delivery capabilities, a preoccupation with questions of legal authority can be misleading and dangerous.

Obviously, the legal problems should be fixed, even when their importance is secondary. The point is not to question their relevance, but to insist that we keep our priorities straight. The truly grave weaknesses of our intelligence process - - and there are many of them - - cannot be solved by passing more laws. And most of them cannot be solved by technical working groups; they require sustained attention and commitment at the highest levels of political leadership. Yet our political system can focus only on a limited number of problems. When legal issues consume the lion's share of the public attention devoted to domestic intelligence, they inevitably drive off-stage and prevent us from addressing problems that matter much more. That has happened far too often since September 11th, 2001.

The government's legal powers, prior to September 11th , were very strong, though not perfect. And those imperfections bear little if any of the blame for the failure to prevent September 11th. Rather, severe human, budgetary and organizational deficits prevented our law enforcement and intelligence agencies from using their strong legal powers effectively. And there is no reason to believe that additional legal authority, in that environment, would have been used to any greater advantage. Though many clear warning signs were in hand, our grave non-legal deficiencies - - in organization, staffing levels, technical resources, and priority setting - - cost us what chances we had to abort the plot.

Turning to the future, we cannot limit ourselves to correcting the deficits responsible for September 11th. Legal and non-legal capacities that were irrelevant then could be crucial for preventing the next major attack. With that in mind, you have asked me to assess the expanded legal authority conferred since September 11th. The principal conclusions can be indicated at the outset:

• Overall, the government currently has amply sufficient legal tools, but it remains sorely lacking in the non-legal capabilities needed to deploy those tools effectively.

• More than a dozen significant initiatives since September 11th are demonstrably not justified as a response to 9/11. They impair privacy and freedom but are altogether irrelevant to fighting terrorism.

• Many new measures, though relevant to the counter-terrorism effort, are so overbroad that they sacrifice liberty and privacy needlessly and in ways that are likely to prove counterproductive, leaving us both less free and less secure.

• The pervasive pattern of restricting public information, access to courts and other checks and balances undermines our security far more than it advances it. The absence of effective systems of accountability is a recipe for wasted effort, misdirected resources, and misuse of legitimately acquired information.

• Our security depends on building confidence, here and around the globe, that America exercises its power with restraint and with respect for the rule of law. Yet present policies of secrecy and unchecked law enforcement power sow alienation and mistrust.

• Both to maximize our security and to avoid compromising fundamental freedoms, we must act quickly in two areas. We must restore effective checks and balances, and we must make the commitment to provide a substantial infusion of additional resources to support the intelligence process, to facilitate compliance with reasonable accountability requirements and to provide effective protection on the ground for targets that will inevitably remain vulnerable, no matter how good our intelligence and warning systems may be. Unless we are willing to pay that price, we cannot be safe, no matter how much of our liberty we are willing to sacrifice.

I explain these conclusions in detail below.

Intelligence gathering authority prior to September 11th.

Before September 11th, the government possessed far-reaching intelligence-gathering authority, including the electronic surveillance powers conferred by Title III and the still-broader search and surveillance authorities available under FISA. Both statutes had been updated frequently to meet newly identified needs. In particular, FISA authority, primarily concerned with monitoring agents of foreign governments, was made available many years before 9/11 for monitoring individuals (both foreign nationals and US citizens) believed to be associated with international terrorism, even when not associated with any state actor.

Nonetheless, there were weaknesses. Several statutory surveillance authorities had failed to keep pace with new technologies, including cable providers, voice-mail systems and mobile phones. There were many gaps in our powers to trace and neutralize the sources of terrorist financing.

Moreover, the evolving terrorist threat had outstripped the traditional distinction between law enforcement and preventive intelligence. As a result, rules that restricted the sharing of grand-jury and FISA information, in the interest of preserving secrecy, privacy and accountability, no longer took adequate account of the need for wider dissemination of such information within the law enforcement and intelligence communities. Yet paradoxically, one result of the growing interpenetration of law-enforcement and intelligence functions was an increasingly elaborate effort to keep them confined to separate spheres, an effort that made appropriate use of the FISA process even more difficult than the law required.

These legal weaknesses were no doubt worth fixing. But it is crucial for the public to understand that they did not play a significant role in our failure to foil the 9/11 attack.

Prior to 9/11, FBI agents and other officials had many items of information that, at least in retrospect, raised bright-red flags about the unfolding plot. Yet, as the Joint Inquiry documented, these alarm bells were repeatedly overlooked or ignored by those who were in a position to take action. Even in the high-risk environment that had been identified in the summer of 2001, there was little to no investigative focus on the would-be hijackers or their accomplices. There was virtually no effort to deploy readily available investigative tools to gather more information about them. Relevant intelligence obtained by CIA and FBI agents typically was not communicated promptly enough (or at all), and when communicated, such intelligence was largely ignored. With so many simple investigative steps not taken, we can be confident that additional surveillance and intelligence-gathering authority would have remained unused as well.

The failures to pool and relay intelligence were almost exclusively attributable not to legal obstacles but to agency cultures, obsolete lines of communication and severe shortages of necessary human and technical resources. For example, legal obstacles to sharing of grand-jury information played no role in impeding preventive action prior to 9/11. There was no secret grand jury material that would, if disseminated, have alerted FBI counter-terrorism units or provided more "dots" for them to connect. There was a considerable amount of alarming information present, on the law enforcement side, as a result of the embassy-bombing and 1993 World Trade Center investigations. This information, however, was part of the trial record in those cases and was readily available to non-law enforcement officials and indeed to the general public. It remains unclear, at least as a matter of public record, to what extent the FBI took account of such information in setting investigative priorities prior to 9/11. Whatever the answer to that question, we can be confident that different grand-jury secrecy rules would not have changed FBI action in regard to the unfolding 9/11 plot.

The now-familiar flight school alerts in July and August 2001, though already much belabored, are worth mention because some public commentators have (incorrectly) attributed inaction in those matters to perceived legal constraints.

- - The Phoenix Field Office Request

In July 2001, officials at headquarters and elsewhere ignored a Phoenix field office request for an investigation of suspicious individuals seeking flight training. Testimony before the Joint Inquiry does not identify any specific reason for FBI inaction at that crucial juncture; it seems possible that no FBI official made a conscious decision on the matter at all. Some public reports ascribe the inaction to a lack of sufficient resources to pursue the field office request; others refer to a purported concern to avoid actions that might be perceived as "racial profiling." Whatever the explanation, the Bureau unquestionably had ample legal authority to pursue such an investigation.

- - The Moussaoui Search Request

In August 2001, FBI headquarters rejected a Minneapolis field office request to seek a FISA warrant to search Zacharias Moussaoui's computer and other personal effects, because headquarters officials apparently believed that FISA requirements could not be satisfied. That belief was simply incorrect, and inexplicably so. FISA required (and would still require) probable cause to believe that Moussaoui was associated with an international terrorist group, but the French intelligence report on Moussaoui easily satisfied the "common sense, practical" probable cause standard.*

This perceived obstacle to a FISA warrant in the Moussaoui episode (the required status as a foreign agent) is distinct from the problematic legal requirements associated with the FISA "wall." The Joint Inquiry's discussion of the Moussaoui/FISA fiasco focuses on FBI concerns related to the wall, and the resulting tensions with the FISA court over FBI certifications. Significant problems in that area surfaced beginning in the summer of 2000; those problems could have spilled over into legally unrelated issues and may have contributed to a psychology of reluctance to seek warrants that the FISA court might question on other grounds as well.

But in my judgment, FBI misconceptions about FISA requirements were more basic and predated tensions related to the wall. The Joint Inquiry apparently did not focus on DOJ documents indicating that by April 2000, several months before the major tensions over the wall, DOJ officials were aware of a broader pattern of unjustified FBI caution and repeated failures to understand FISA requirements.

The public record does not indicate the extent to which efforts were made, after April 2000, to correct this deficiency. Nor is it clear why corrective efforts, if any, proved insufficient, even after the problem had become evident more than a year prior to 9/11.

Whatever the Commission's ultimate assessment of these questions, the misstep in the Moussaoui matter cannot be attributed to the FISA law itself or even to an understandable mistake in seeking to comply with it. There is nothing inordinately complex about the probable cause requirement that law enforcement officers must apply every day. Rather, it seems plausible to assume that once again, time pressure, resource constraints and competing priorities prevented sufficient attention to the elementary need to insure adequate training in the application of the legal rules, whatever they might be.

Another piece of the legal environment that has been blamed (again, incorrectly) for the Moussaoui fiasco is DOJ's system of internal "Attorney General's Guidelines" that structure the discretion of FBI field agents. The Guidelines had been in force continuously, with minor adjustments, since the Administration of President Gerald Ford. Shortly after news of the Moussaoui and Phoenix missteps became public in May 2002, the Attorney General publicly associated FBI inaction with restrictions in the Guidelines and announced a substantial relaxation of existing rules.

That suggested linkage poses a puzzle that the Commission will be in a position to clarify. The Guidelines that the Attorney General criticized ("Attorney General's Guidelines on General Crimes, Racketeering Enterprise and Domestic Security/Terrorism Investigations") were not applicable to the Minneapolis and Phoenix requests at all, since those Guidelines stated (and still state) that they are not to be used in international terrorism investigations. The Guidelines that do apply in such investigations ("Attorney General's Guidelines for FBI Foreign Intelligence Collection and Foreign Counterintelligence Investigations"), though largely classified, are no doubt more flexible than those applicable to ordinary domestic crimes; yet an examination of the domestic Guidelines quickly reveals that even if those more restrictive rules had applied, none of their provisions would have posed any obstacle to the investigations that the Phoenix and Minneapolis agents had requested.

The problem embedded in these fine points is of considerable importance. If the old Guidelines explain FBI inaction in the face of the Phoenix and Minneapolis requests, then the problem can be corrected at the stroke of a pen, and we can take some comfort that a similar misstep is unlikely to recur. But if those Guidelines cannot explain the inaction, then its causes almost certainly lie, as I have suggested, in deeper problems of budgetary constraint, organizational culture and human resources, all problems that are difficult to correct and will require sustained attention at the highest official levels.

In sum, the available public record makes clear that prior to 9/11, our law enforcement and intelligence communities had strong domestic intelligence gathering powers that were not deployed effectively even when alarming indications of an unfolding terrorist threat were in hand. There is little doubt that broader authority likewise would have remained unused, because major weaknesses in our human, budgetary and organizational resources prevented the effective use of whatever legal tools would have been available.

Changes since 9/11

The USA PATRIOT Act took constructive steps to conform the statutes to new technologies and remove legal obstacles to effective coordination between the law enforcement and intelligence communities.

Yet many of the new measures are far broader than necessary. I suspect that most Americans already understand that and are not particularly alarmed. For those like myself who live and work in lower Manhattan, the impulse to err in the direction of security, to try anything that might help, is especially understandable.

Nonetheless, a close, critical look at these measures is imperative, and not only for the familiar reason that civil liberties are too easily devalued. Talk of a "balance" between liberty and security implies that decreases in liberty produce at least some increase in security, but too often, overbroad law enforcement powers backfire, undermining both liberty and security. I will try to be concrete about how that dynamic has operated since 9/11, and how it has led us to sacrifice important liberties unnecessarily while at the same time undermining our security. But I want to begin by identifying the more troubling new measures specifically. My discussion is selective, because we do not have the time or space to mention the numerous perfectly proper steps taken since 9/11. I focus instead on the shortcomings, many of which are extremely important.

- - Measures Unrelated To Terrorism

Many new measures have no possible benefit to our counter-terrorism effort - - none - - because they expand law enforcement power in investigations not related to terrorism in any way. The USA PATRIOT Act contains more than a dozen provisions of this nature. Although many new powers are granted in terms that limit their use to terrorism investigations, others, like the controversial sneak-and-peak search power (§213), can be used in any investigation, whether it concerns drugs, gambling, prostitution or a even routine regulatory offense. The same is true of the provision (§216) that extends "pen register" concepts from the telephone to e-mail and internet communications, where privacy implications are not entirely analogous.

The FISA amendments are especially troublesome in this regard. There is a strong case for lowering the barrier between law enforcement and intelligence gathering in the context of counter-terrorism efforts. But the PATRIOT Act makes FISA powers available when the primary purpose is to gather evidence for a routine prosecution wholly unrelated to terrorism. To be sure, FISA surveillance must have a significant purpose to gather "foreign intelligence information" from a suspected "foreign agent," but those terms are defined so broadly that they reach numerous situations with no connection to international terrorism or hostile foreign powers.

Last year's changes to the Attorney General's Guidelines governing FBI investigation are another example. The Guidelines have long had separate sections for racketeering, domestic terrorism and "general crimes," with an entirely separate document applicable to international terrorism. The racketeering and general crimes guidelines served us well for almost 30 years, protecting the privacy and reputation of innocent citizens, preserving accountability, and above all insuring efficient use of FBI resources. Even with regard to terrorism investigations, the case for modifying the Guidelines remains debatable, but there was no justification for using that concern as an occasion for relaxing the other Guidelines simultaneously, and without Congressional input - - a change that has large costs for both liberty and effective management, with no conceivable counter-terrorism pay-off.

- - Measures Related to Terrorism But Overbroad

Measures that are unnecessarily broad and ultimately counterproductive include:

• the DOJ Regulation that permits monitoring of attorney-client communication without judicial approval;

• the Directive that permits blanket secrecy in immigration detentions and in immigration hearings without a judicial finding of need;

• the Directive that permits indefinite detention of certain foreign nationals without a judicial finding of need;

• The PATRIOT Act provisions (§§215, 507) permitting FBI access to previously confidential business, educational and other non-business records, including records of bookstore purchases, video rentals, library borrowing, and religious affiliations, with no FISA court review of the asserted relevance of the records to a terrorism investigation;

• Inclusion in the extended (and mostly appropriate) new authority to issue National Security Letters of a power to obtain records of all credit card purchases, without need for a subpoena or FISA court determination of relevancy or need for confidentiality.

The common thread running through these measures is the erosion and in some instances the complete obliteration of traditional checks and balances, not only in the form of the right to counsel and judicial review but also in the form of accountability to the public, to the press, and even to the Congress. Elsewhere, I have discussed in detail the justifications proffered for each of these individual measures and why in my judgment those justifications cannot withstand scrutiny.*

Whatever the need, post-9/11, to reposition the line between law enforcement power and individual rights, this imperative does not in itself imply a need to suspend the mechanisms of accountability that traditionally frame executive power, even in wartime. If anything, there is more need, as investigative powers expand, for strong, effective checks and balances. Secrecy and absence of outside accountability are dangerous, and not only because they risk unnecessary invasions of liberty and privacy. They are also a recipe for wasted effort, misdirected resources, and misuse of legitimately acquired information for illegitimate purposes.

Let me stress the obvious point that these are not politically partisan concerns. Their force does not depend on whether our Attorney General is John Ashcroft or Janet Reno. Suspicion of unchecked executive power began with the Administration of George Washington, probably the most widely trusted leader in our history, and it has been the lesson of experience in every other country around the world.

The Justice Department has been understandably frustrated by the requirements of documentation and justification that accountability invariably entails. It has sometimes explained the need to reduce the judicial role on the ground that resources consumed by administrative requirements could better be devoted to investigative effort on the ground. Again, the universal experience is that checks and balances, though they seem cumbersome, invariably pay their way. The solution to the dilemma, of course, is not to stint on investigation on the ground; nor is it to sacrifice the rule of law in order to free personnel for field work. Rather, the solution is simply to commit the modest resources required to permit appropriate documentation, accountability and oversight. Facing threats and resource constraints at least as serious as those we ourselves confront, the Israeli Supreme Court reaffirmed just this year that difficulty in organizing sufficient personnel to permit effective judicial review cannot justify curtailment of checks and balances; rather, the court said, when "emergency conditions undoubtedly demanded a large-scale deployment of forces . . . by the same standards, effort and resources must be invested in the protection of the detainees' rights."*

- - Interrogation Of Suspected "Enemy Combatants"

A related problem, worth special attention, is the Administration's use of the "enemy combatant" designation to facilitate investigative interrogation. Invoking the "enemy combatant" label, the Administration claims the power to remove from the ordinary judicial system any American citizen arrested on American soil and then transfer him to military custody, where he will be held for interrogation indefinitely and completely incommunicado - - that is, with no access to the courts, to counsel or even to his own family. Jose Padilla, the first American citizen to fall subject to this power, has been held in a Navy brig in Charleston, South Carolina, for nearly a year and a half, with no outside contact whatsoever and no prospect for release except when the President in his sole discretion determines to grant it.

In the so-called Jacoby affidavit, the Administration asserts that in order to interrogate effectively, it must have the power to detain suspected enemy combatants without judicial interference, with no outside contact, and with no outer time limit.

Such a broad assertion of unilateral executive power to incarcerate a citizen, free of any outside accountability, violates the most minimal requirements of the rule of law. Contrary to claims that the Administration has made in court papers and in the media, there is no precedent in American law for a unilateral military power to detain a citizen seized within our borders, far from a zone of active combat, if he disputes the alleged enemy affiliation. There is no precedent, even in wartime, for holding such a person indefinitely, with no opportunity for contact with counsel and no opportunity for a hearing in any tribunal to contest the charges against him. *

The "enemy combatant" power is likewise beyond the bounds - - far beyond the bounds - - of the detention authority that other nations deem acceptable in response to emergency counter-terrorism imperatives. When Britain faced devastating terrorism in Northern Ireland, it extended executive detention beyond the usual 48 hours; the European Court of Human Rights upheld the special measures but only because detention without a judicial hearing could not exceed seven days, and detainees were guaranteed an absolute right to consult a solicitor 48 hours after arrest. The same Court held that Turkey's response to grave and persistent terrorism in its Kurdish region went too far when it sought to detain suspected terrorists for 14 days.

Israel accepts the same principle. Under recent emergency conditions, its military sought to detain suspected terrorists for a maximum of 18 days without access to the courts, in order the carry out more effective intelligence gathering and interrogation. The Israeli Supreme Court held that the 18 day period was impermissible, stressing that "judicial intervention . . . is essential to the principle of the rule of law. . . . An 'unlawful combatant' is to be brought promptly before a judge."*

Even in today's dangerous world, no other country that subscribes to democratic principles would attempt to detain an alleged "enemy combatant" without a hearing for as long as 18 days, much less for the 18 month period that Jose Padilla has been held incommunicado in military custody.

- - The Importance Of Accountability

The traditional value of accountability is in no way diminished by the unusual challenges of a war on terrorism. On the contrary, the superficial attractions of unchecked executive power are especially deceptive and short-sighted in today's world. Our security depends on building confidence, here and around the globe, not only that America is strong but that America is fair, a society where our government practices what it preaches in terms of human rights; treats all people with decency; and exercises its power with restraint and with respect for the rule of law.

If we fear potential terrorists lurking in our communities of Muslim-Americans and immigrants from the Middle East, we will do far better to work at winning the respect and cooperation of the law-abiding members of those communities, rather than alienating them by oppressive surveillance and harsh policies of detention and deportation.

Yet present policies of secrecy and unchecked law enforcement power sow alienation and mistrust. With their penchant for secrecy, their strong preference for unilateral executive power, their disdain for international human rights, and their efforts to detain Muslim citizens and foreign nationals with no access to lawyers or to the courts, our present policies pursue short-term gain (usually slender at best) at the price of fostering lasting animosity and resentment among the very people here and abroad whose help we most need most if we are to break the cycle of terrorist violence.

Further steps

The Commission's final set of questions asks whether additional tools are necessary and how we may best enhance our protection from terrorist attacks without compromising the fundamental freedoms that define the American way of life.

I would emphasize four suggestions.

First, we must move toward restoring accountability - - through maximum feasible transparency in the law enforcement and intelligence gathering efforts, through meaningful Congressional oversight, and through greater respect for the appropriate role of the courts and the press in our system of checks and balances.

My next three recommendations concern needs that I believe no one wants to hear about, but they are essential. They are resources, resources and resources. We urgently need resources for the intelligence process, resources for accountability and resources to protect soft targets.

We have taken steps in the right direction, but our counter-terrorism effort remains hobbled by unjustified, and in some instances inexplicable resource constraints. Specifically, we cannot have an adequate intelligence gathering capability without substantially more human, technical and financial resources, and we cannot have a useful intelligence product without substantially more resource support at the other stages of the intelligence process. Second, we need resources for accountability - - to bring staffing levels to the point where currently overburdened intelligence and law enforcement officers can function effectively while managing the paperwork that accountability and the rule of law entail.

Finally, we have not done nearly enough to protect our most vulnerable, high-impact targets and to support related damage-control services such as the Centers for Disease Control and our first responders. One lesson of the two recent terrorist bombings in Saudi Arabia is that unlimited government powers of surveillance, detention and interrogation are of little value if attractive targets are left lightly protected. On both occasions, intelligence officials had warned that an attack in the country was imminent, but without adequate defenses on the ground, the plots succeeded anyway.

In our own Homeland Security effort, we urgently need to establish meaningful priorities, and we must have a realistic funding strategy that does not rely primarily on voluntary private-sector financing to provide adequate safeguards against the public disaster of a successful attack on one of our major ports or chemical plants.

The steps I suggest will cost real money. But if we are willing to pay that price, we can be reasonably safe and free. If we are not willing to pay that price, we cannot be safe, no matter how much of our liberty we surrender.

Previously the Julius Kreeger Professor of Law and Director for Studies in Criminal Justice at the University of Chicago Law School, Professor Schulhofer is one of the nation's most distinguished scholars of criminal justice. He has written more than fifty scholarly articles and six books, including the leading casebook in the field and highly regarded, widely cited work on a wide range of criminal justice topics.

His most recent book, Unwanted Sex: The Culture of Intimidation and the Failure of Law (Harvard University Press) is a balanced yet controversial examination of our laws against sexual assault and other forms of intimidation and sexual overreaching. His comprehensive and original study demonstrates how our laws against rape and sexual harassment still fail to protect women against sexual abuse, and it argues that sexual autonomy, like other basic human entitlements, should be comprehensively protected. This new book confirms Professor Schulhofer's already established reputation at the forefront of the national discussion of sexual harassment and feminist concerns relating to the criminal justice system. He is one of a small group of trenchant, reasonable, and analytically rigorous advocates of a basic rethinking of American law governing issues of unwanted sex and criminal justice responses to women who are victims or offenders.

Professor Schulhofer's other work has been distinguished by his simultaneous engagement with doctrinal analysis of law, examination of criminal justice policy, and his own original empirical work. He has written on police interrogation, the self-incrimination clause, administrative searches, drug enforcement, indigent defense, sentencing reform, plea bargaining, capital punishment, battered spouse syndrome, and many other criminal justice matters. His current projects include an investigation of the growing practice of trying juveniles in adult court and an analysis of recent developments in the Supreme Court's interpretation of core Fifth Amendment principles. Throughout his career, Professor Schulhofer has contributed to discussion of a wide variety of issues at the forefront of contemporary concerns about crime and due process.

Professor Schulhofer began his scholarly career researching and writing about punishment and sentencing and produced articles for the Pennsylvania Law Review that illustrated his ability to integrate a thorough understanding of legal issues with both empirical and philosophical literatures. In the 1980s, he focused on his own empirical study of bench trials in Philadelphia to prove that criminal justice could be efficiently and fairly administered without resort to plea bargaining, and published his analyses in the Harvard Law Review. Then he turned his attention to the proposals for sentencing guideline reform and to the controversy surrounding the Miranda rules for police interrogation. In the mid-90s Professor Schulhofer returned to police interrogation, conducting several empirical studies of the impact of Miranda on confession rates, and at the same time began his ground breaking work on sexual abuse and other feminist concerns in the administration of criminal justice.

Formerly, Professor Schulhofer was the Ferdinand Wakefield Hubbell Professor of Law at the University of Pennsylvania. He completed his B.A. at Princeton and his J.D. at Harvard, both summa cum laude, and was the Developments and Supreme Court editor of the Harvard Law Review. He then clerked for two years for U.S. Supreme Court Justice Hugo Black. Before teaching, he also practiced law for three years with the firm Coudert Freres, in France.