* Forthcoming Scholarship
From the Michigan State Journal of International Law (note that these are just the abstracts; the papers themselves are not posted on the journal’s site yet, but instead should be accessed via Westlaw, Lexis, or in hard copy):
The Michigan State Journal of International Law is proud to announce that its latest publication is now in print, as well as being available on Lexis-Nexis and Westlaw. Volume 19, Issue 1 of the Journal is entitled "Is There a War on Terror? Torture, Rendition, Guantanamo, and Obama’s Preventive Detention."
"The Supreme Court and House of Lords in the War on Terror: Inter Arma Silent Leges?"
-John Ip (Citation: 19 Mich. St. J. Int’l L. 1 (2010-2011))
“This Article is an attempt to situate the major decisions of the Supreme Court and the House of Lords concerning aspects of the War on Terror in the historical context of judicial behavior in times of war or crisis. The conventional account of judicial behavior during such times posits that courts are ineffective guarantors of individual liberty because they inevitably defer to executive claims of national security. Only after the period of war has passed do the courts reassert themselves, resulting in a cyclical pattern of contraction and expansion of liberty. How do the relevant post–9/11 decisions of the Supreme Court and House of Lords fit within this pattern, if at all? This Article considers five possible ways of understanding the relevant decisions in light of the conventional account of judicial behavior.”
"A Lost War on Terror: Forgotten Lessons of the Russian Empire"
-Alexander N. Domrin (Citation: 19 Mich. St. J. Int’l L. 63 (2010-2011))
“Emergency powers, including introduction of a state of exception, cannot and should not be exercised ‘beyond constitutional control.’ It is true that, in many countries of the world, even constitutional provisions cannot always firmly and effectively contain the dictatorial instincts of authorities; but that is not a justification to lift ‘constitutional control’ altogether. On the contrary, it is quite easy to imagine what would happen if this last obstacle, the Constitution, were to be removed from the way of some politicians and social forces thirsting for unlimited power. Yet, a question remains: what happens if a constitution and the whole legal order of a nation ‘fails to provide for whatever emergency action may become necessary to defend the state?’ What happens if, using a modern term, a nation loses a “War on Terror?” The catastrophe of the Russian Empire gives an answer to such questions and offers one of the most vivid lessons and graphic illustrations in the history of the world.”
"Halting Military Trials at Guantanamo Bay: Can the President Call a Time-Out?"
-Kyndra Rotunda (Citation: 19 Mich. St. J. Int’l L. 95 (2010-2011))
“This Article examines President Obama’s decision to unilaterally halt military trials and analyzes that decision in the context of applicable law, including the Military Commissions Act of 2006 and the Manual for Military Commissions. It also discusses and analyzes the law prohibiting unlawful command influence and ultimately concludes that President Obama’s decision to halt Guantanamo trials, over the objection of the presiding military judge (Colonel Pohl), may have violated governing law and may have amounted to unlawful command influence.”
"Taking Human Rights Higher in the Fight Against Terrorism in South Africa"
-Mtendeweka Owen Mhango (Citation: 19 Mich. St. J. Int’l L. 105 (2010-2011))
“[Mohamed v. President of the RSA] is the starting point of any discussion about South Africa’s involvement in the global War on Terror because it illustrates the weak legal framework that existed prior to the adoption of the [Protection of Constitutional Democracy Against Terrorist and Related Activities Act 33 of 2004]. The second is to demonstrate that in the subsequent years following Mohamed, South Africa adopted a broad piece of anti–terrorism legislation, which has made South Africa a good partner for the United States in the War on Terror. The Article argues that the judgment in Mohamed, which is progressive and should be welcomed, follows a line of cases recognising the importance of the right to life and human dignity under the Constitution. The article further argues that while the constitutionality of the  Act has not been tested by the courts, Mohamed provides a definitive statement of South African law about the lawful treatment of terror suspects and will likely influence future interpretation of the  Act.”
"A War, Yes; Against Terror, No"
-John S. Baker, Jr. (Citation: 19 Mich. St. J. Int’l L. 119 (2010-2011))
“[T]he Court’s treatment of due process, as well as habeas corpus, both in Hamdi [v. Rumsfeld] and Rasul v. Bush confused the realms of war and domestic law enforcement. Prior to, and since those decisions, disagreements about fighting foreign terrorism have turned on whether the appropriate response involves “war” or “law enforcement.” In this author’s view, the Bush Administration was correct to treat the attacks as acts of war, rather than crimes; but wrong to label the U.S. response a “War on Terror.” This rhetorical confusion seems to indicate that within the Bush Administration there were conflicting understandings concerning the Constitution’s allocation of powers in war as distinguished from law enforcement.”
-Michael P. Scharf (Citation: 19 Mich. St. J. Int’l L. 129 (2010-2011))
This is the Keynote Address delivered by Michael P. Scharf at the Michigan State Journal of International Law’s 2010 Symposium, "Is There a War on Terror? Torture, Rendition, Guantanamo, and Obama’s Preventive Detention.” Scharf’s remarks were focused on “the extraordinary story of how, in the months following the attacks of 9/11, the legal policy of the U.S. government with respect to the War on Terror was hijacked and dictated by a cabal of four government lawyers who called themselves the ‘War Council.’ They could just as easily have been called the ‘Torture Team,’ or ‘T-Team’ for short because together, this team of highly–placed government lawyers produced a series of legal memoranda—which deliberately ignored adverse precedent, misrepresented legal authority, and were written to support a pre–ordained result [in the ‘War on Terror’].”