nationalsecuritylaw more forthcoming scholarship

"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”.

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