Publications

Forthcoming
Goldenziel, Jill, and Manal Cheema. Forthcoming. “Protecting First Amendment Rights in the Fight Against Disinformation: Lessons from FISA.” Maryland Law Review. Abstract
As the “endless war” has shifted to the information domain, Congress must enable the United States to fight enemy information warfare while protecting the rights to privacy and freedom of speech and information that Americans hold dear. Fortunately, Congress has had some recent experience crafting legislation to balance national security with these constitutional rights: the Foreign Intelligence Surveillance Act (FISA). FISA, which was initially passed in 1978, was modified significantly after the 9/11 terrorist attacks. The statute is an example of Congress’s attempt to thread the same needle that any response to foreign disinformation campaigns must: allowing surveillance of foreign agents without unduly infringing on the First Amendment rights of U.S. persons (“USPERs”). This Essay argues that lessons learned from debates over FISA can inform legislation that would balance national security and First Amendment rights in the fight against information warfare. FISA can serve as a framework for balancing the government’s need to access information, that may include USPER First Amendment information, to combat campaigns that threaten USPERs’ Constitutional rights. 
Goldenziel, Jill I., and Manal Cheema. Forthcoming. “The New Fighting Words?: How U.S. Law Hampers the Fight Against Information Warfare.” University of Pennsylvania Journal of Constitutional Law. Abstract
This Article argues that the U.S. must reform laws protecting freedom of speech, information, and privacy to protect the U.S. democratic process and national security. Lawmakers must take care to balance Constitutional rights with national security concerns so as not to impinge upon fundamental American freedoms. However, current U.S. laws constrain the U.S.’s ability to combat information warfare by enemy states. The article will primarily explore the example of the Russian threat to the U.S. electoral process, which is the most widely-known example of information warfare against the U.S. However, other enemy states, such as China, have exploited the U.S.’s free information environment. Concerns with inhibiting First Amendment and privacy rights have hampered the U.S.’s response to these enemy actions. The article concludes by making recommendations on how future legislation and agency action should balance First Amendment and privacy rights with national security interests to protect the U.S. democratic process. To do so, the article will draw on lessons learned from the implementation of the PATRIOT Act. The U.S. response to information warfare will have broader implications for the creation of appropriate legislation to balance national security concerns with Constitutional rights.
Goldenziel, Jill I. Forthcoming. “Checking Rights at the Border: Detention of Migrants in International and Comparative Law.” Virginia Journal of International Law.
2018
Goldenziel, Jill I. 2018. “ International Decisions: Khlaifia and others v. Italy, App. No. 16483/12 (European Court of Human Rights, 2016).” American Journal of International Law 112: 274-.
Goldenziel, Jill I. 2018. “When Law Migrates: Refugees in Comparative International Law.” Comparative International Law.
2017
Goldenziel, Jill I. 2017. “Virtues are Not Enough: A Response to Michael Ignatieff.” Journal of International Law and International Relations 13: 15-.
Goldenziel, Jill I. 2017. “Displaced: A Proposal for an International Agreement to Protect Refugees, Migrants, and States.” Berkeley Journal of International Law 35 (1).
2015
Goldenziel, Jill. 2015. “Five Myths about Refugees and Migrants.” The Washington Post.
Goldenziel, Jill. 2015. “Migrant or Refugee?That Shouldn't Be a Life-or-Death Question.” The Washington Post, Monkey Cage.
Goldenziel, Jill. 2015. “Time to Revise America's Cuban Immigration Policy.” The National Interest.
2014
Goldenziel, Jill. 2014. “Solving the Middle East's Refugee Disaster.” National Interest. Publisher's Version
This article explains how international organizations can improve human rights outcomes under conditions where treaty regimes fail. By using their authority to create more flexible standards than those contained in international human rights law, facilitating linkage of human rights practices to economic incentives, and providing valuable legal cover for state actions, international organizations may succeed in getting even rogue states to improve their human rights practices. I develop this argument in the context of the UN Refugee Agency’s management of the post-2003 Iraqi refugee crisis in Jordan and Syria. I also present examples of how international organizations might serve as regulators of human rights in other contexts.
2013
Goldenziel, Jill, and David Landau. 2013. “Egypt's Constitutional Crisis.” L.A. Times. Publisher's Version
Goldenziel, Jill I. 2013. “Veiled Political Questions: Islamic Dress, Constitutionalism, and the Ascendance of Courts.” American Journal of Comparative Law 63 (1). Website Abstract

This article explains how judicial independence can develop in regimes that are not fully democratic. Conventional wisdom holds that a strong legislature and political parties are necessary for the emergence of an independent judiciary. This article challenges conventional wisdom by explaining how judicial independence may arise in regimes where these conditions are not present. It presents a theory of how judicial independence emerges and why and when other political actors will respect it. The article also explains why courts may be better poised than legislatures to counter executive power in non-democracies. The theory is developed through a discussion of cases involving Islamic headscarves and veils in Middle Eastern courts. These cases have broad political implications because of their significance to Islamists, who pose the biggest challenge to the power of traditional elites in majority-Muslim countries; and their broad legal ramifications with respect to judicial power, individual rights, constitutional convergence, religious freedom, and the relationship between shari‘a and state law. The article also explains how national courts have interpreted Islamic law and challenges the notion that courts function to secularize state-sponsored religion. To the author’s knowledge, this article contributes the most complete discussion in the English-language academic literature of recent high court cases in Egypt, Kuwait, and Turkey that were translated for the purposes of this article, thus contributing to the body of foreign constitutional case law available for comparative study.

This article received the Best Paper Prize at the 2012 Meeting of the American Society of Comparative Law's Younger Comparativists Committee. This article explains how judicial independence can develop in regimes that are not fully democratic. Conventional wisdom holds that a strong legislature and political parties are necessary for the emergence of an independent judiciary. This article challenges conventional wisdom by explaining how judicial independence may arise in regimes where these conditions are not present. It presents a theory of how judicial independence emerges and why and when other political actors will respect it. The article also explains why courts may be better poised than legislatures to counter executive power in non-democracies. The theory is developed through a discussion of cases involving Islamic headscarves and veils in Middle Eastern courts. These cases have broad political implications because of their significance to Islamists, who pose the biggest challenge to the power of traditional elites in majority-Muslim countries; and their broad legal ramifications with respect to judicial power, individual rights, constitutional convergence, religious freedom, and the relationship between shari‘a and state law. The article also explains how national courts have interpreted Islamic law and challenges the notion that courts function to secularize state-sponsored religion. To the author’s knowledge, this article contributes the most complete discussion in the English-language academic literature of recent high court cases in Egypt, Kuwait, and Turkey that were translated for the purposes of this article, thus contributing to the body of foreign constitutional case law available for comparative study.

2010
Goldenziel, Jill I. 2010. “Refugees and International Security.” On the Move: Migration Challenges in the Indian Ocean Littoral. Abstract

Recent civil and international conflicts have given rise to a global crisis of human displacement. Resultant refugee flows have created humanitarian and political woes in their host states. A major part of this displacement has occurred in the Middle East, and from this region to other parts of the world.* For the most part, host states in the region are poor and politically distant from traditional sources of power and funding in the international community. Palestinian and Iraqi refugees present particularly revealing case studies of the strength and efficacy of the international refugee management system. The protracted plight of these refugees has become an international security issue as terrorist groups have recruited from refugee camps. This article discusses the conditions under which refugees may become a threat to international security.

goldenziel_refugees_and_international_security__2010.pdf

Recent civil and international conflicts have given rise to a global crisis of human displacement. Resultant refugee flows have created humanitarian and political woes in their host states. A major part of this displacement has occurred in the Middle East, and from this region to other parts of the world.* For the most part, host states in the region are poor and politically distant from traditional sources of power and funding in the international community. Palestinian and Iraqi refugees present particularly revealing case studies of the strength and efficacy of the international refugee management system. The protracted plight of these refugees has become an international security issue as terrorist groups have recruited from Palestinian refugee camps. This article discusses the conditions under which refugees may become a threat to international security.

2009
Goldenziel, Jill I. 2009. “Sanctioning Faith: Religion, State, and U.S.-Cuban Relations.” Journal of Law and Politics 25: 179. Abstract

Fidel Castro’s government actively suppressed religion in Cuba for decades. Yet in recent years Cuba has experienced a dramatic flourishing of religious life. Since the fall of the Soviet Union, the Cuban government has increased religious liberty by opening political space for religious belief and practice. In 1991, the Cuban Communist Party removed atheism as a prerequisite for membership. One year later, Cuba amended its constitution to deem itself a secular state rather than an atheist state. Since that time, religious life in Cuba has grown exponentially. All religious denominations, from the Catholic Church to the Afro-Cuban religious societies to the Jewish and Muslim communities, report increased participation in religious rites. Religious social service organizations like Caritas have opened in Cuba, providing crucial social services to Cubans of all religious faiths. These religious institutions are assisted by groups from the United States traveling legally to Cuba on religious visas and carrying vital medicine, aid, and religious paraphernalia.

What explains the Cuban government’s sudden accommodation of religion? Drawing on original field research in Havana, I argue that the Cuban government has strategically increased religious liberty for political gain. Loopholes in U.S. sanctions policies have allowed aid to flow into Cuba from the United States via religious groups, tying Cuba’s religious marketplace to its emerging economic markets. The Cuban government has learned from the experience of similar religious awakenings in post- Communist states in Eastern Europe and has shrewdly managed the workings of religious organizations while permitting individual spiritual revival. By allowing greater public expression of religious faith, the Cuban government has opened the door to religious pluralism on the island while closely monitoring religious groups to prevent political opposition. As the Obama Administration has already begun to ease U.S. sanctions on Cuba, these recent changes in Cuban law may allow the U.S. to promote political change in Cuba through religious civil society institutions.

goldenziel_sanctioning_faith_2009_1_1.pdf

In 1992, the Cuban government amended its constitution to declare itself a secular state rather than an atheist state. Since then, religious life on the island has flourished. What explains the Cuban government’s recent accommodation of religion? Drawing on original field research in Havana, I argue that the Cuban government has strategically increased religious liberty for political gain. Loopholes in U.S. sanctions policies have allowed aid to flow into Cuba from the United States via religious groups, tying Cuba’s religious marketplace to its emerging economic markets. The Cuban government has learned from the experience of similar religious awakenings in post- Communist states in Eastern Europe and has shrewdly managed the workings of religious organizations while permitting individual spiritual revival. By allowing greater public expression of religious faith, the Cuban government has opened the door to religious pluralism on the island while closely monitoring religious groups to prevent political opposition. As the Obama Administration has already begun to ease U.S. sanctions on Cuba, these recent changes in Cuban law may allow the U.S. to promote political change in Cuba through religious civil society institutions.

2006
Goldenziel, Jill I. 2006. “Fire Prevention: A Review of Amy Chua's World on Fire.” UCLA Pacific Basin Law Journal 23: 1.
goldenziel_ucla_f2005_vol23_no1.pdf
2005
Goldenziel, Jill I. 2005. “Administratively Quirky, Constitutionally Murky: The Bush Faith-Based Initiative.” NYU Journal of Legislation and Public Policy, 359. Abstract

In this article, I argue that the the Bush Administration's Faith-Based Initiative may be unconstitutional, but that its unique place in the administrative legal apparatus makes it nearly immune to constitutional challenge. The Bush Administration's Faith-Based Initiative facilitates federal funding for faith-based social services, implicating serious First Amendment concerns. The Administration has ignored the few discernible rule-making guidelines of the Supreme Court's ambiguous Establishment Clause jurisprudence, thereby building a framework for social services on shaky constitutional ground. The Initiative and its programs may violate the constitutional rights of program participants and taxpayers. Yet citizens have little recourse to protect their First Amendment rights. In this paper, I assess the constitutionality of the Initiative and suggest a framework for greater public accountability for the program.

goldenziel_nyu_2004_vol8_no2.pdf

This article received the Leonard J. Schreier Memorial Prize in Ethics from the NYU School of Law. In this article, I argue that the the Bush Administration's Faith-Based Initiative may be unconstitutional, but that its unique place in the administrative legal apparatus makes it nearly immune to constitutional challenge. The Bush Administration's Faith-Based Initiative facilitates federal funding for faith-based social services, implicating serious First Amendment concerns. The Administration has ignored the few discernible rule-making guidelines of the Supreme Court's ambiguous Establishment Clause jurisprudence, thereby building a framework for social services on shaky constitutional ground. The Initiative and its programs may violate the constitutional rights of program participants and taxpayers. Yet citizens have little recourse to protect their First Amendment rights. In this paper, I assess the constitutionality of the Initiative and suggest a framework for greater public accountability for the program.

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