gtmo detainee database; forthcoming scholarship

1. GTMO detainee database

The New York Times has posted a database identifying Guantanamo detainees and providing links to the summaries of their CSRT proceedings:

http://int-shared1.ec2.nytimes.com/guantanamo/detainees/page/38

2. Forthcoming scholarship

“Legislating Clear-Statement Regimes in National-Security Law”

George Mason Law & Economics Research Paper No. 08-56

JONATHAN F. MITCHELL, University of Chicago Law Paper Requests – Public Law and Legal Theory, George Mason University – School of Law
Email: jmitchell@law.uchicago.edu

Congress’s national-security legislation will often require clear and specific congressional authorization before the executive can undertake certain actions. The War Powers Resolution, for example, prohibits any law from authorizing military hostilities unless it “specifically authorizes” them. And the Foreign Intelligence Surveillance Act of 1978 required laws to amend FISA or repeal its “exclusive means” provision before they could authorize warrantless electronic surveillance. But efforts to legislate clear-statement regimes in national-security law have failed to induce compliance. The Clinton Administration inferred congressional “authorization” for the 1999 Kosovo War from an appropriations statute that failed to specifically authorize the conflict. And the Bush Administration inferred congressional “authorization” for the NSA surveillance program from ambiguous language in the post-September 11th Authorization to Use Military Force. In both situations, executive-branch lawyers employed expansive theories of implied repeal and constitutional avoidance to evade the codified clear-statement requirements, and Congress and the courts acquiesced to the President’s actions. Recent proposals to strengthen the clear-statement requirements in Congress’s national-security framework legislation are unlikely to be effective without institutional mechanisms, such as points of order, that can deter future legislators from enacting vague or ambiguous legislation from which the executive might claim implicit congressional “authorization,” and that can induce Congress to confront Presidents that act without specific congressional authorization. Simply enacting more narrow or explicit clear-statement requirements, or adding funding restrictions to Congress’s framework legislation, fails to counter the aggressive interpretive doctrines that executives of both political parties have used to concoct congressional “authorization” from vague or ambiguous statutory language.

“The Senses of Terrorism”

Review Journal of Political Philosophy, Vol. 6, Fall 2008

MARK RIGSTAD, Oakland University
Email: rigstad@oakland.edu

This articles exposes the methodological errors involved in attempting to operationalize or value-neutralize the concept of ‘terrorism.’ It defends, instead, an effects-based approach to the taxonomy of ‘terrorism’ that builds out from a central conceptual connection between the term’s negative connotation and a widely shared moral presumption against the killing of innocent non-combatants. Although this approach to the core meaning of ‘terrorism’ is far from value-neutral, it has a number of virtues to recommend it. First, it has the political virtue of even-handedness in the way it enables competing appraisals of asymmetric conflicts. Second, it is has the ethical virtue of being flexible enough to accommodate nuanced appraisals of various modes and degrees of terrorist violence. And third, it has the empirical virtue of being useful for purposes of rigorous social scientific research.

Boumediene and Jurisdiction Stripping: Imperial Politics Meet the Imperial Court”

Constitutional Commentary, Vol. 25, No. 2, February 2009

MARTIN KATZ, University of Denver Sturm College of Law
Email: mkatz@law.du.edu

This essay argues that the Supreme Court’s recent decision in Boumediene v. Bush, its latest pronouncement on the detainees in Guantanamo Bay, should be understood as a jurisdiction-stripping case. Most of the commentators to address the case so far have seen it as a case about the war on terror, or about the reach of habeas corpus. I argue that this decision takes significant steps toward resolving a debate that has been raging among the giants of constitutional law for more than 50 years: Can Congress “strip” jurisdiction from the federal courts to prevent them from hearing certain important cases?

Although the Court has previously gone to great lengths to avoid answering this question, and although Boumediene could have done the same, the Court instead engaged the issue and engaged it forcefully. The Court’s decision rested upon broad and powerful separation of powers principles, strongly suggesting the indispensability of judicial review. This essay argues that these principles boldly suggest something that the Court has only hinted at before: that Congress cannot preclude federal courts from hearing constitutional claims; not just habeas claims, but all constitutional claims.

The essay also addresses the normative implications of Boumediene, arguing that the opinion represents a bold but appropriate response to what the Court perceives as an imperious President and an enabling Congress. As such, this case does not represent an imperious Court, so much as it represents a restoration of a healthier balance of power.

“Afghanistan Legal Lessons Learned: Army Rule of Law Operations”

ERIC TALBOT JENSEN, Judge Advocate General’s Corps, U.S. Army
Email: eric.jensen@hqda.army.mil
AMY M. POMEROY, BYU Law School
Email: aworthin@byulaw.net

One of the most crucial components of the 2002 National Security Strategy which will impact virtually all other components is the world-wide implementation of the rule of law. In furtherance of the Strategy, National Security Presidential Directive 44 was issued in late 2005 and states that it is U.S. policy to work with other countries towards effective implementation of the rule of law. The Directive tasks the Secretaries of State and Defense with coordinating rule of law efforts and with integrating them into military contingency plans. Consequently, by direction of the President, the military has a key role to play in implementing the rule of law and Judge Advocates must be prepared to lead these efforts.

Commanders look to Judge Advocates with the expectation that they will be competent and innovative in implementing the unit’s rule of law mission. This is clearly demonstrated by the Center for Law and Military Operations’ publication of the Rule of Law Handbook: A Practitioner’s Guide for Judge Advocates, where a “constantly re-occurring theme” is that “the command naturally turns to the legal expert within the task force to plan, execute, coordinate, and evaluate rule of law efforts.”

Over six years of operations in Afghanistan, commanders have relied on JAs in their rule of law operations. These operations have created a number of lessons learned; this paper will highlight three:

1) Rule of law operations must be totally integrated into all phases and aspects of military operations and the unit mission;

2) U.S. Army Rule of Law efforts must be completely coordinated and synchronized with other rule of law efforts, especially those of the host nation, and must recognize what role the military is organizationally qualified to fill;

3) Military rule of law operations must be effects-based.

“Trial by Jury in Russian Military Courts”

NIKOLAY P. KOVALEV, affiliation not provided to SSRN
Email: n.kovalev@gmail.com

One of peculiar features of the military criminal justice system in Russia is that in some cases military defendants may apply for trial by jury. Unlike the existing U.S. court-martial jury and the Russian military jury of the early 1900s (World War I period) which were comprised of the members of the armed forces, in modern Russia jurors trying military defendants are civilians. This article aims to provide a brief history of military jury in Russia and identify issues of independence and impartiality in Russian military courts with participation of lay decision-makers. In particular, the article will analyze two high-profile cases which resulted in acquittals of Russian officers accused of killing several Chechen civilians during counter-terrorist operations in Chechnya.

“The Crimes of Terrorism”

Santa Clara Univ. Legal Studies Research Paper No. 08-65

BETH VAN SCHAACK, Santa Clara University – School of Law
Email: BVanSchaack@scu.edu
RON SLYE, University of Seattle School of Law
Email: slye@seattleu.edu

This work is a chapter for a forthcoming book on The Essentials of International Criminal Law to be published by Aspen Publishers as part of its Essentials series. This chapter discusses the contested concept of terrorism under international law, with a focus on efforts to criminalize the phenomenon. In particular, it discusses the major obstacles to achieving an omnibus definition of the crime with a particular emphasis on the intersection of the prohibitions against terrorism and international humanitarian law. Additional chapters in the text address the history of ICL, the sources of ICL, the major international crimes and defenses, and ICL reasoning and rhetoric. Publication is expected in October 2008.

“Political Control of Federal Prosecutions – Looking Back and Looking Forward”

Duke Law Journal, Forthcoming

DANIEL C. RICHMAN, Columbia Law School
Email: drichm@law.columbia.edu

This essay – written for the annual Duke Law Journal Administrative Law Symposium – explores the mechanisms of control over federal criminal enforcement activity that the Administration and Congress used or failed to use during George W. Bush’s presidency. Particular attention is given to Congress, not because it played a dominant role but because it generally chose to play such a subordinate role. My fear is that the recent focus on management inadequacies or abuses within the Justice Department might lead policymakers and observers to overlook the hard questions that remain about how the federal criminal bureaucracy should be structured and guided during a period of rapidly shifting priorities, and about the role Congress should play in this process.

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