nationalsecuritylaw training opportunity: the 20th National Security Law Institute on Lawfare?

April 7, 2012

Longtime subscribers know that each spring I am eager to endorse the National Security Law Institute, which this year will convene for the 20th straight year under the auspices of John Norton Moore and Bob Turner’s Center for National Security Law at the University of Virginia. It is a terrific event, one I attended myself when first starting out as an academic. (Full disclosure: I am now a speaker at the event, and so this promotion is self-interested I suppose). In any event, all the information you need should be in the two attached documents. You may also find more information on the Institute’s home page at: http://www.virginia.edu/cnsl/nsli.html, including a copy of the program for last summer’s Institute.

NSLI-OGC Attachment-1 03262012.pdf

NSLI-OGC Letter to Colleagues 03262012.pdf


nationalsecuritylaw more forthcoming scholarship

April 7, 2012

"Humanitarian Law Project and the Supreme Court’s Construction of Terrorism"

Brigham Young University Law Review, p. 1455, 2011

WADIE E. SAID, University of South Carolina School of Law
Email: said

This Article places the Supreme Court’s encounters with the concept of “terrorism” in historical context, and then discusses the Court’s 2010 decision in Humanitarian Law Project v. Holder ("HLP") in light of that history. In so doing, the Article demonstrates how the Supreme Court’s construction of terrorism has evolved from that of a mere tactic used by subnational groups to an existential threat that must be combated, regardless of group or cause, at least rhetorically. HLP marks the first time the Supreme Court has given judicial imprimatur to the idea that “money is fungible,” i.e., that any and all funds that go to a foreign terrorist organization ("FTO"), regardless of its purpose — violent, political, or charitable — constitute material support to a banned FTO. However, the Court did not stop there, ruling that material support that takes the form of speech could be banned because it provides legitimacy to an FTO, which can only serve to strengthen its resolve to fight. This Article explains that while the government has an interest in stopping American citizens and residents from providing support that leads to violence, a criminal ban on support that bestows only legitimacy, with no link to violent activity, cannot stand when an FTO’s quarrel is not with the United States. Such a stance constitutes an impermissible prior restraint on speech in violation of the First Amendment.

"The Legality of the Continued Use of Depleted Uranium in Warfare by the United States of America"

ROBERT S. MCMANIMON, The University of Edinburgh, City University of New York School of Law
Email: robertmcmanimon

There exists an ongoing debate regarding the legality of the continued use of munitions containing Depleted Uranium (DU). While there have been moratoriums placed upon its use by various members of the international community, widespread prohibition has not yet reached the level of international custom. While DU has been proven to be toxic in high doses, existing evidence suggests that the use of DU munitions will rarely reach levels that are unsafe. Because of this, it is unlikely that prohibitions on environmental modification enumerated within International Environmental Law or binding obligations currently in effect under International Human Rights Law would prohibit the continued use of DU. No existing legal instrument explicitly prohibits DU use and it is not legally appropriate to apply a comparison by analogy between DU and those weapons that are currently prohibited. Further, proposed alternatives to DU munitions are less effective and more toxic and therefore do not meet the thresholds of Military Necessity and Proportionality. There is the possibility that an argument exists under the Martens Clause: that DU containing weapons could be prohibited because they contrast starkly with public opinion, however, international juridical bodies do not generally enforce a prohibition on these grounds alone.

"Process and Substance: Charkaoui I in the Light of Subsequent Developments"

University of New Brunswick Law Journal, Vol. 62, No. 13, May 2011

RAYNER THWAITES, Victoria University of Wellington – Faculty of Law
Email: Rayner.Thwaites

The relationship between process and substance in the Canadian Supreme Court’s 2007 Charkaoui decision, on the legality of the indefinite detention of foreign terrorist suspects under the Canadian Charter, is examined in the light of subsequent jurisprudential developments. Procedural modifications to the relevant detention regime, instigated by Charkaoui I had, by the end of 2009, resulted in cases which saw the release of two of the five men held under the regime (decisions of the Canadian Federal Court in the Charkaoui and Almrei litigation).

I argue that the benefits of the procedural solution arrived at by the Court in Charkaoui I do not outweigh the costs. My objective is to provide a fuller accounting of the costs of the Court’s decision in Charkaoui I to opt for an exclusively procedural solution to rights infringements. I characterise the procedural solution determined on by the Court in Charkaoui I as a form of constitutional minimalism, as associated with Sunstein. Amongst other criticisms of the Court’s "fixation with process", I suggest that Charkaoui I raises doubts as to the extent to which constitutional minimalism can, in practice, deliver on one of the desiderata it prides itself on, namely leaving the issues “open”.


nationalsecuritylaw forthcoming scholarship

April 7, 2012

Forum Choice for Terrorism Suspects

Aziz Z. Huq (Chicago)

Duke Law Journal, Vol. 61(7)

What forum should be used to adjudicate the status of persons suspected of involvement in terrorism? Recent clashes between Congress and the president as to whether the status of terrorism suspects should be determined via Article III courts or military commissions have revived debate about this venue question. The problem is typically framed as a matter of legal doctrine, with statutory and doctrinal rules invoked as dispositive guides for sorting suspects into either civilian or military venues. This Article takes issue with the utility of that framing of the problem. It argues that the forum question can more profitably be analyzed through an institutional-design lens. A key institutional-design decision is whether or when to create jurisdictional redundancy. When, that is, should the existence of overlapping jurisdictions vest the government with a threshold choice of forums or an option to retry a suspect who has been acquitted in an initial process? Jurisdiction redundancy is pervasive. But conventional wisdom suggests it is unwise. This Article demonstrates, however, that overlap between forums has complex direct and indirect effects on the accuracy and cost of terrorism-related adjudication. It presents a comprehensive framework for analyzing redundancy by exploring how it influences error rates, system maintenance costs, externalities, information production, and incentives. Applying that framework, I contend that the conventional wisdom is flawed. Pervasive redundancy has surprising merit in contrast to two leading reform proposals that would eliminate most jurisdictional overlap.

"Judicial Formalism and the State Secrets Privilege"

William Mitchell Law Review, Forthcoming
Western New England University School of Law Legal Studies Research Paper No. 12-4

SUDHA SETTY, Western New England University School of Law
Email: ssetty

In the last decade, a disturbing pattern of judicial formalism and unwarranted deference to the executive branch with regard to secrecy claims has emerged in U.S. jurisprudence. The application of the state secrets privilege in the U.S. and English litigation surrounding former Guantanamo detainee Binyam Mohamed illustrates the way in which the United States appears to be moving away from the flexible, rule of law-oriented approach that courts in the United Kingdom and Israel take and is instead echoing the formalistic rigidity that the Indian Supreme Court uses in cases involving state invocations of secrecy. This formalism has resulted in the unnecessary and inappropriate failure of U.S. courts to engage in cases that present credible evidence of gross human rights violations at the hands of the U.S. government.

To remedy this situation, Congress should re-introduce state secrets reform legislation that could infuse the litigation process with procedural and substantive fairness. At the same time, the courts must step away from judicial formalism, already rejected in other national security contexts, and instead heed the lessons of countries like India, the United Kingdom, and Israel with regard to the ramifications of a judiciary unwilling to engage in decision-making on these issues of fundamental civil and human rights.

"Overcoming the Unfortunate Legacy of Haditha, the Stryker Brigade ‘Kill Team’, and Pantano: Establishing More Effective War Crimes Accountability by the United States"

ALAN F. WILLIAMS, University of Idaho – College of Law
Email: afwilliams

In the years since September 11, 2001 U.S. personnel have been implicated in many incidents involving possible war crimes as defined by the Geneva Conventions. The author critically examines the current U.S approach to handling war crimes and concludes that the process is fundamentally flawed and has repeatedly produced unjust outcomes, particularly in a series of high profile cases that have greatly damaged the position of the U.S. in the international community. The author concludes that not only has the U.S. lost the respect of the international community, but has also simultaneously increased the likelihood that U.S. personnel who serve in conflicts in the future will be subjected to severe mistreatment at the hands of our enemies. In reaching this conclusion the article analyzes the implications of high-profile cases of like Haditha, the Stryker Brigade “Kill Team”, and Pantano before comprehensively assessing the likely reasons for such repeated U.S. failures. Finally, the author urges the President to redouble the efforts of the Departments of Defense and Justice in investigating and prosecuting war crimes committed by U.S. personnel, and calls for the creation of a joint Department of Defense and Department of Justice War Crimes Review Commission to prospectively and retrospectively address war crimes cases.

"Executive Warmaking Authority and Offensive Cyber Operations: Can Existing Legislation Successfully Constrain Presidential Power?"

ERIC LORBER, Upenn Law School, Duke University – Department of Political Science
Email: ebl2009

Offensive cyber operations represent a broad new frontier in warfare that allow states to achieve kinetic-like effects without using traditional means such as airstrikes and troop deployments. For example, in a recent debate in the Obama Administration in the lead-up to the deployment of NATO forces in Libya, lawyers and policymakers considered using such cyber attacks in lieu of traditional military operations to disable Libya’s air defense network. Yet, like many areas of emerging warfare, a bevy of questions concerning the legality of these new types of operations arise. In particular, American policymakers have only begun to question whether the use of cyber weapons – such as the Stuxnet virus purportedly developed by the United States and Israel and responsible for attacking and destroying Iranian uranium enrichment facilities – trigger traditional means of limiting the President’s war-making authority, such as the War Powers Resolution.

This article examines the interaction of this new tool of warfare with the War Powers Resolution, one of the most controversial means by which Congress has attempted to limit the President’s ability to use his Article 2, Section 2 authority as Commander in Chief to deploy U.S. military forces. 50 U.S.C. sec. 1541–1548. At its core, the article answers the following questions: insofar as it is constitutional, can (and under what circumstances) the War Powers Resolution serve as an effective limit on the President’s Article 2, Section 2 power? Conversely, does this new type of tool help the executive branch evade Congressional oversight of U.S. military operations?

"The Inherent Right to Self-Defence and Proportionality in Ius Ad Bellum"

European Journal of International Law, 2012

DAVID KRETZMER, Hebrew University of Jerusalem, Sapir Academic College

While force used by a state in self-defence must meet the demands of proportionality there is confusion over the meaning of the term in this, ius ad bellum, context. One source of confusion lies in the existence of two competing tests of proportionality, the ‘tit for tat’ and the ‘means-end’ tests. Since the legality of unilateral use of force by a state depends on the legitimacy of its aim – self-defence against an armed attack – the ‘means-end’ test would seem more appropriate. However, there is no agreement over the legitimate ends of force employed to achieve this aim. Is the defending state limited to halting and repelling the attack that has occurred, or may it protect itself against future attacks by the same enemy? May a state that has been attacked use force in order to deter the attacker from mounting further attacks? The ‘means-end’ test of proportionality rests primarily on the necessity of the means used to achieve legitimate ends. Disagreements over proportionality are in this context usually really disagreements over those ends. While the appropriate test in this context is generally the ‘means-end’ test, in some cases, such as use of force in response to a limited armed attack, the ‘tit for tat’ test of proportionality might be more appropriate. Finally, I show that little attention has been paid in the ius ad bellum context to the ‘narrow proportionality’ test, which assesses whether the harm caused by the force outweighs the benefits to the state using that force. The apparent reason for this is the assumption that this question is only relevant in ius in bello. I argue that while necessity of the force used is indeed the main issue in ius ad bellum, there is still place for assessing narrow proportionality.


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