New GTMO Transfer: Al Rabiah sent to Kuwait

1. New GTMO Transfer: Al Rabiah sent to Kuwait

Al Rabiah had prevailed in his habeas litigation in September, and has now been transferred back to Kuwait. Details here.

2. Forthcoming Scholarship

Conquering Peace: Military Commissions as a Lawfare Strategy in the Mexican War

Erika Myers
American Journal of Criminal Law, Vol. 35, No. 2, pp. 201-240, 2008

The War on Terror has provoked much discussion on the proper role of law in war. A considerable amount of this debate has centered on the idea of lawfare: the use of international law as a weapon of war – usually by weaker states or unconventional combatants, and usually to America’s disadvantage. This Note examines this theory of lawfare through our experience with military tribunals in the Mexican War; it provides the most extensive study to date of the use of military commissions and councils of war during that conflict. Other articles have surveyed the history of American military tribunals from the Revolutionary period to the present, primarily focusing on the balance of power between the legislative and executive branches over military tribunals in the absence of specific legislation. Few, however, have devoted any significant attention to the Mexican War, and none have thoroughly explored how the Mexican War tribunals functioned as part of the American occupation strategy. This Note argues that General Scott used military tribunals as part of a counterinsurgency strategy, developing innovations tailored to the needs of his occupation yet exceeding the requirements of international law, and that this strategy worked to hamper public support for and decrease the effectiveness of unconventional enemy combatants. This Note is also the first to relate this history to the idea of lawfare, using it to challenge the common perception that lawfare is a strategy of America’s enemies, by showing how Scott used lawfare to American advantage in the occupation of Mexico.

Lincoln and Habeas: Of Merryman, Milligan, and McCardle

John Yoo (Berkeley)

Chapman Law Review, Vol. 12, No. 3, pp. 1-29, 2009

This essay examines the costs of judicial intervention in wartime policy through the lens of three Civil War cases – Ex parte Merryman, Ex parte Milligan, and Ex parte McCardle. In Merryman, the Supreme Court held that President Lincoln’s suspension of the writ of habeas corpus was unconstitutional. In Milligan, the Court held that military commissions had no jurisdiction over civilians in Northern states, where the courts were open and their process unobstructed. Although both opinions provide stirring rhetoric about the vitality of constitutional rights during wartime, they became largely irrelevant. President Lincoln refused to obey the Court and continued to order the detention of suspected Confederate sympathizers and conspirators. After Milligan, Congress stripped the Court of jurisdiction over habeas corpus appeals, and military occupation and trials continued throughout the South – an outcome accepted by the Court in McCardle. The remarkable lack of deference to the political branches during provoked reactions by the political branches that undermined the Court as an institution. Chief Justice Taney and Justice Davis wrongly believed that the Court had the final and immediate authority to resolve constitutional questions, regardless of the wartime circumstances. The Court’s attachment to judicial supremacy in wartime ultimately provoked outright presidential defiance and the only clear example of congressional jurisdiction-stripping in the Court’s history.

“Congress’s Role in Cyber Warfare”

Journal of National Security Law & Policy, Forthcoming
Vermont Law School Research Paper No. 10-16

STEPHEN DYCUS, Vermont Law School
Email: sdycus@vermontlaw.edu

U.S. defense and intelligence communities are currently working feverishly to prepare for electronic warfare. The threat of a cyber attack on the United States is extremely serious. Many nations and individuals now possess the means to carry out such an attack, and it might be impossible to identify the attacker. If the United States launches a preemptive strike or counterattack, it could be difficult to predict the effects, raising significant law of armed conflict concerns.

The potential strategic and diplomatic consequences of cyber warfare are at least at great as those of a conflict using conventional kinetic weapons. The Framers intended that Congress play a significant role in deciding when and how the United States should engage in such a consequential conflict. Yet little effort has been made so far to describe an appropriate role for Congress.

Borrowing from our experience in planning for nuclear war, this article suggests that Congress immediately engage in collaborative planning with the executive branch for cyber warfare. Specifically, it urges Congress to organize itself better to conduct this planning, to adopt general guidelines for the use of cyber weapons, and to strengthen existing rules for oversight and accountability. It proposes a review of relevant privacy laws. And it argues for a prohibition on automated offensive responses to cyber attacks, as well as on the employment of contractors to operate cyber weapons.

Judicial Micro-Management of National Security Information

Stephen I. Landman
Catholic University of America – Columbus School of Law

A recent decision by U.S. District Judge Vaughn R. Walker in the Northern District of California, al Haramain Islamic Foundation, Inc. v. Bush, has revived a question of national security law and policy long thought to be settled – is control over access to classified information entrusted to the sole discretion of the Executive Branch, and if so can the Judiciary review that determination? Although this case began as an attempt to challenge the constitutionality of the recently discovered Terrorist Surveillance Program (“TSP”), it may present the U.S. Court of Appeals for the Ninth Circuit with an opportunity to rule on the ability of the Executive Branch to protect sensitive military and national security information.

This article will evaluate the District Court’s recent discovery orders in al Haramain Islamic Foundation, Inc. v. Bush, focusing on the debate that has ensued over which branch of the United States Government is entrusted with control over access to sensitive national security information. Part I of this article will detail the background and procedural history of the al Haramain litigation, highlighting the facts and circumstances that make the plaintiff unique in the multitude of challenges to the Bush Administration’s Terrorist Surveillance Program. Part II examines the debate over access to classified documents generally as well as the specific issues highlighted by the al Haramain litigation, ultimately concluding that the District court ignored long standing precedent for judicial restraint in cases involving Executive Branch determinations over access to classified material. Finally, Part III proposes a variety of possible solutions that each of the coordinate branches could undertake to resolve the underlying dispute in the al Haramain litigation.

“Security vs. Liberty: An Imbalanced Balancing”

Minnesota Legal Studies Research Paper No. 09-42

OREN GROSS, University of Minnesota Law School
Email: gross084@umn.edu

The metaphor of balancing and the use of “balancing tests” are dominant features in legal discourse. Since the terrorist attacks of September 11, 2001, that metaphor has been invoked regularly to explain the need for a trade-off between liberty and security. This Article focuses on challenges to balancing that are either unique or somehow exacerbated in the context of responding to violent crises. Drawing on cognitive theory of decision-making under conditions of uncertainty it suggests that balancing processes, in general, and those seeking to balance such interests as liberty and security, in particular, are likely to suffer from identifiable biases. This indicates that the outcomes of such delicate and complex balancing acts are likely to be distorted and thus sub-optimal. While the theory does not, necessarily, make claims as to what the equilibrium between the competing interests ought to be at any given context – for example, it does not seek to determine what an acceptable level of risk from terrorist attacks ought to be – it does suggest that once such a decision is made, the analysis that decision-makers perform in particular cases and in adopting specific counter-measures is likely to be significantly flawed. Perhaps even more importantly, it suggests that such flaws are systematic and that they are going to be tilted in one direction – i.e., towards more security – than the other, i.e., more liberty. The systematic nature of the biases that are identified suggests that failure to address them may turn the mistakes and errors that are discussed in the paper into cognitive pathologies, i.e., decision methods that are not only mistaken but irrational.

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