DOJ-IG report on FBI’s Guardian database; forthcoming scholarship

1. DOJ Inspector General’s Report: The FBI’s Terrorist Threat and Suspicious Incident Tracking System (Audit Report 09-02) (Nov. 2008)

The DOJ IG’s Audit Division has released a report describing ways to improve management and performance in relation to FBI’s Guardian Threat Tracking System, the primary database for processing information stemming from initial information potentially related to terrorist threats.  Nothing too dramatic to report here, but the 70-page report may be of interest to those who wish to get a better sense of the logistics of FBI information management and the managerial difficulties it entails.

http://www.usdoj.gov/oig/reports/FBI/a0902/final.pdf

2. Forthcoming Scholarship

“Private-Public or Public-Private? Strategic Dialogue on Serious Crime and Terrorism in the EU”

Security Journal, August 2008

NICHOLAS DORN, Erasmus University Rotterdam – School of Law, School of Social Sciences, Cardiff University
Email: dorn@law.eur.nl
MICHAEL LEVI, Cardiff University
Email: Levi@cardiff.ac.uk

This paper reports on a qualitative study commissioned by the European Union (EU) and intended to help to improve strategic, pan-European security dialogue and partnership between the private and public sectors. The study draws on interviews with security managers at European level and on a reading of relevant EU policy documents. Most consultees argued for a “trusted forum”, in which security professionals would trade their knowledge and expertise, rather than “representing” specific private firms or state agencies. As the study was being conducted, there was a political tilt in “ownership” within the European Commission, the public-private security dossier being relinquished by its Directorate General for Justice Freedom and Security (Third Pillar) and being gained by DG Enterprise and Industry (First Pillar). Scanning the policy context, the paper suggests that security cooperation, hitherto conceptualised as public-private (public sector lead), should be understood as private-public, as security serves economic concerns.

Non-Lethal Weapons and the Possibility of Radical New Horizons for the Laws of War: Why Kill, Wound and Hurt (Combatants) at All?

Frederic Megret (McGill University – Faculty of Law)

It is generally considered unquestionable that the waging of war must involve at the very least the possibility of killing, wounding, and hurting combatants under certain conditions. This article attempts to explore the continued validity of that assumption in light of the emergence of so-called non-lethal weapons. Drawing on the idea of ‘necessity’ in international humanitarian law, it begins by highlighting the essential contingentness of a concept of war based on lethality. Adopting constructivist insights to the study of war can allow one to reconceptualize war as a highly socially constructed and regulated activity that defines war as much as it is defined by it. From a theoretical point of view, the only legitimate goal of war, under a properly understood concept of necessity, should be ‘incapacitation’ rather than the ‘destruction’ of enemy forces. The article explores what it is that has made ‘destruction’ necessary in war historically and what might make a more systematic use of non-lethal weapons even between combatants a possibility. It argues that a mixture of technological, military, and political dilemmas have been obstacles to the ability to think of war as a ‘meaningful’ social activity if it does not involve at least the possibility of killing combatants, but that all these factors are susceptible to change. Furthermore, it argues that whether use of non-lethal technology should be made compulsory is ultimately a normative question, and that there are strong arguments that both the ethics of war and international humanitarian law are ever more intolerant of death, be it of combatants. Ultimately, wars that rely much more on non-lethal technology would be very different from war as we know it. International humanitarian law would have a key role in bringing about such a change.

Ghosts of Halabja Saddam Hussein and the Kurdish Genocide

Michael J. Kelly

Creighton

Saddam Hussein’s execution for his crimes against Iraq’s Shi’a not only brought an end to his reign of oppression, but also to the justice that was to be served to the Iraqi Kurds. The Kurds have continually been subject to adversity since the end of World War I, when they were denied their own homeland, splitting them among three countries: Turkey, Iran, and Iraq. During Saddam’s 24-year reign, the Kurds of Iraq were frequently “under the knife” of injustice. Between 1987 and 1989, Saddam unleashed genocide, razing over 2,000 villages and murdering at least 50,000 Kurds. As his dictatorship came to an end, the Kurds long-awaited opportunity to hold Saddam responsible for the atrocities against them seemed to have come, only to be sidetracked by the Iraqi High Tribunal, the Iraqi government, and the U.S. government. While the Shi’a rejoiced in their victory, the Kurds continued to be left behind. Saddam’s death freed him of the charges against him by the Kurds. The world had turned its back on the Kurds in their age of genocide, and now appeared to turn a blind eye to the justice that was denied.

The unspeakable atrocities visited by Saddam upon the Kurds of Iraq are explored here together with the trials of Saddam by the Iraqi High Tribunal–both the completed prosecution for the Dujail massacre against the Shi’ites and the incomplete one for the Anfal Campaigns against the Kurds. However, this work is more than a litigation history. It is also an exploration of the motivations behind and the depths of organized evil in the context of a single, brutal despot at the helm of an artificially created multi-ethno/religious state lying atop massive oil wealth, but situated in the most dangerous part of the world. Saddam’s background and the context of his rule explain much about his actions, but not all. He remained an unpredictable tyrant to the end of his reign.

Table of Contents:

LIST OF ILLUSTRATIONS

FOREWORD

PREFACE

INTRODUCTION: SADDAM HUSSEIN & THE PRELUDE TO GENOCIDE

PART ONE: GENOCIDE OF THE KURDS

CHAPTER 1 KURDISTAN (INTRO & BACKGROUND ON REGION & PEOPLE)

CHAPTER 2 THE ANFAL CAMPAIGNS

CHAPTER 3 THE GASSING OF HALABJA

PART TWO: THE TWO GULF WARS

CHAPTER 4 THE 1991 PERSIAN GULF WAR

CHAPTER 5 DIVIDED LOYALTIES (INTERNAL DISSENT W/N KURDISH FACTIONS)

CHAPTER 6 THE 2003 IRAQ WAR

PART THREE: SADDAM ON TRIAL

CHAPTER 7 CREATION OF THE IRAQI HIGH TRIBUNAL

CHAPTER 8 THE DUJAIL TRIAL

CHAPTER 9 THE ANFAL TRIAL & SADDAMS EXECUTION

CHAPTER 10 INTERNATIONAL LAW THE ROAD NOT TAKEN

CONCLUSION

“J.S. Mill and the American Law of Quarantine”

Public Health Ethics, 2008
Northeastern University School of Law Research Paper No. 23-2008

WENDY E. PARMET, Northeastern University – School of Law
Email: w.parmet@neu.edu

This paper looks at the American law of quarantine in light of the teachings of John Stuart Mill, whose harm principle has often been used to justify the practice of isolating and/or quarantining individuals to prevent the spread of an infectious disease. The paper shows that despite important parallels between quarantine law and both the authorizing and prohibitive aspects of Mill’s harm principle, the contemporary law of quarantine does not reflect either Mill’s concern for the potential abuse of executive authority nor his recognition that quarantine is only ethically justified when the broader public health policy environment in which quarantine is applied is itself ethically sound.

“Averting a Legitimation Crisis and the Paradox of the War on Terror”

Northeastern University School of Law Research Paper No. 24-2008

DANIEL R. WILLIAMS, Northeastern University – School of Law
Email: d.williams@neu.edu

Rarely in the war-on-terror literature do we get an attempt to capture a Gestalt understanding of the “War on Terror.” This article brings together five books that, when examined collectively, create an opportunity to see the War on Terror as something beyond just a struggle against a particular form of terrorism or merely a politically controversial feature of the outgoing Bush Administration. The ambition here is to discover the function of the War on Terror within an emerging neo-liberal world order.

Most useful in that discovery is Philip Bobbitt’s Terror and Consent, perhaps the most comprehensive disquisition so far on terrorism and the War on Terror. It argues that Islamic terrorism is a product of the emerging new State. “Market states of consent,” as he calls them, are emerging as the dominant states of our globalization age (often called “neo-liberalism”), and al Qaeda is a reaction to this global development. This article uses Bobbitt’s thesis as a launching point for the claim that protecting civilians becomes the way a State averts what Jurgen Habermas terms, a “legitimation crisis.”

The threat of a Habermasian legitimation crisis, this article suggests, must be appreciated in order to understand how the War on Terror functions within a world order that the United States wishes to manage (and that Bobbitt fervently believes we must manage). This understanding takes two forms: one, terrorism seeks to provoke a “legitimation crisis” by communicating, through its dramatic violent acts, that the state cannot fulfill the limited obligation of sovereignty-to wit: protecting its own populace; and two, flipping the first point, the State uses “terrorism” to generate a War on Terror that exists to permit the State to overcome a legitimation crisis that otherwise would be provoked by the State’s inability to deal with the crises generated by a ravaging (read: neo-liberal) form of globalization.

Bobbitt’s Terror and Consent may be the most important book on the scene, and so it anchors the discussion here. The other four under consideration, in crucial ways, allow us to unveil the hidden geopolitical agenda within Bobbitt’s impressively scholastic disquisition on terrorism and the War on Terror. Fighting terrorism, the article concludes, is not so much a problem as it is a paradox, for terrorism and the War on Terror are caught in a self-contradiction. Only a deep reawakening of our national identity can resolve that self-contradiction. So, while Terror and Consent usefully situates the War on Terror within the realities of globalization (and on that basis offers proposals to improve that “war”), the other books examined here may provoke concern that Bobbitt’s new and improved “War on Terror” keeps us on a road to catastrophe.

“The Terrorism Exception to Asylum: Managing the Uncertainty in Status Determination”

University of Michigan Journal of Law Reform, Vol. 41, No. 3, 2008

WON KIDANE, Seattle University School of Law
Email: kidanew@seattleu.edu

The Immigration and Nationality Act (“INA”) , as it must, excludes a terrorist from receiving asylum. The substantive criteria, and the adjudicative procedures set forth under the INA for the identification of the undeserving terrorist inevitably exlude those who are neither terrorists nor otherwise undeserving. Such unintended consequences are perhaps unavoidable in any well-conceived statutory scheme. What is disconcerting is, however, the margin of the possible eroor in the application of this statutory scheme. Those who may be excluded by the application of these provisions are often not those who are supposed to be excluded as terrorists. Moreover, the existing scheme provides little help in screening out the real terrorists. The Article demonstrates these flaws and proposes some substantive and procedural modifications.

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