symposium: terrorism & the legal impact on business; forthcoming scholarship

1. Center for Terrorism Law (St. Mary’s), Symposium: Terrorism, Crime & Business: Understanding the Fundamental Legal and Security Issues for American Business (Houston, TX, March 5-6, 2009)

Details posted here: http://www.stmarytx.edu/ctl/content/events/Business_Symposium.html

2. Forthcoming Scholarship

“The Rise and Spread of the Special Advocate”

Public Law, pp. 717-741, 2008

JOHN IP, University of Auckland – Faculty of Law
Email: j.ip@auckland.ac.nz

This article critically examines the special advocate procedure, a means devised to reconcile the use of secret evidence with principles of due process or natural justice. The special advocate is a lawyer who is appointed to represent the interests of a person during proceedings in which the state relies on sensitive material that cannot be disclosed to that person.

The article traces the origins of the idea of the special advocate procedure, its establishment in the United Kingdom, and its eventual spread to Canada and New Zealand. It then considers: (1) whether special advocates can be effective in ensuring fairness, given the constraints under which they operate; and (2) whether other issues related to their increased use militate against wider adoption.

Preventive Detention in the War on Terror: A Comparison of How the United States, Britain, and Israel Detain and Incapacitate Terrorist Suspects

Homeland Security Affairs (Oct. 2008)

Stephanie Cooper Blum

After September 11, 2001, the Administration decided to detain individuals suspected of being members or agents of al Qaeda or the Taliban as enemy combatants and hold them indefinitely for the duration of the war on terror. The rationale behind this system of preventive detention is to incapacitate suspected terrorists and facilitate interrogation. While the need for preventive detention is legitimate, the Administration asserts that its decision-making process to label individuals as enemy combatants should exclusively reside within the executive branch, thereby bypassing the checks and balances that comprise America’s democratic system. Israel and Britain have been dealing with terrorism for decades, and both countries have shown that democracies facing comparable terrorist threats can implement preventive detention policies that are not based on unilateral executive usurpation of power. This article explores whether any insights can be gleaned from Israel’s and Britain’s forms of preventive detention in order to make a recommendation to the next Administration.

The Necessary Evil of Preventive Detention In the War on Terror: A Plan for a More Moderate and Sustainable Solution

Cambria Press (2008)

Stephanie Cooper Blum

After September 11, 2001, the Bush administration decided to detain certain individuals suspected of being members or agents of al Qaeda or the Taliban as enemy combatants and hold them indefinitely and incommunicado for the duration of the war on terror. The rationale behind this system of preventive detention is to incapacitate suspected terrorists, facilitate interrogation, and hold them when traditional criminal charges are not feasible for a variety of reasons. While the rationale for preventive detention is legitimate and the need for preventive detention real, the current administration’s approach has been reactionary, illogical, and probably unconstitutional.

Approximately 762 aliens were arrested in connection with the investigation of the September 11 attacks. Each detainee was held until specifically cleared by the FBI of any connection to terrorist activities. Most of these individuals were ultimately charged with violating immigration law such as remaining in the U.S. after the expiration of their visas or for entering the U.S. illegally. While this “hold until cleared” policy was the administration’s first approach to preventive detention, it only concerned aliens and not U.S. citizens. For citizens, the administration initially used material witness warrants under the U.S.Code 18, section 3144.

Material witness warrants are traditionally used to arrest and detain material witnesses to criminal activity when it is believed that the witnesses will leave the jurisdiction to avoid having to testify. The threshold for detention as a material witness is that the person has testimony “material” to a criminal proceeding and that securing the testimony through a subpoena is “impracticable.” After 9/11, the attorney general announced a policy of “aggressive detention” of material witnesses, and at least seventy people (including Jose Padilla and Ali Saleh al-Marri, discussed below) were detained under the rationale that they were “material witnesses” without any criminal charges filed. Under the statute, however, “[n]o material witness may be detained…if the testimony of such a witness can be adequately secured by deposition, and if further detention is not necessary to prevent a failure of justice.” As law professor Stephen Schulhofer aptly points out, unless this exception is expanded to swallow the rule, the material witness statute is a poor choice to detain terrorist suspects pending further investigation and trial. The Bush administration recognized the inherent limitations of creating a preventive detention regime using the material witness statute and transferred Padilla and al-Marri to military custody as enemy combatants in 2002 and 2003, respectively. President Bush justified his unilateral decisions to label individuals as enemy combatants on the exercise of his war power as commander in chief under article 2 of the Constitution and under the Joint Resolution passed by Congress after 9/11 to use all “necessary and appropriate force” against those who “planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001.”

This book explores the underlying rationales for preventive detention as a tool in this war on terror; analyzes the legal obstacles to creating a preventive detention regime; discusses how Israel and Britain have dealt with incapacitation and interrogation of terrorists; and compares several alternative ideas to the administration’s enemy combatant policy under a methodology that looks at questions of lawfulness, the balance between liberty and security, and institutional efficiency. In the end, this book recommends using the Foreign Intelligence Surveillance Court to monitor a narrow regime of preventive detention only to be used under certain prescribed circumstances where interrogation and/or incapacitation are the justifications. This book is an essential reference for collections in American studies, political science, and national security studies.

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