Margulies on the Arar argument; PNSR report; CTLab on urban warfare theory; forthcoming scholarship

1. Peter Margulies, Summary of the en banc argument before the 2nd Circuit in Arar v. Ashcroft

For those of you who are interested in how the 2nd Circuit might rule after en banc review in the Arar litigation (i.e., the civil litigation brought by Maher Arar based on his treatment upon seizure at JFK Airport and his subsequent transfer to Syria), I am forwarding a summary of the oral argument produced by Prof. Peter Margulies of Roger Williams.  C-Span broadcast the oral argument by the way, and though the video is not yet posted on their website I am told that they might be replaying it this Saturday evening.

2. Project on National Security Reform, “Forging a New Shield”

This multi-year project recommends substantial reforms to the national security establishment.  An overview, with links to the full document (weighing in at more than 800 pages) and the executive summary (just 33 pages), is here:  From the press release:

Among the PNSR’s key recommendations are:

• Establishing a President’s Security Council to replace the National Security Council and Homeland Security.

• Creating an empowered Director for National Security in the Executive Office of the President.

• Initiating the process of shifting highly collaborative, mission-focused interagency teams for priority issues.

• Mandating annual National Security Planning Guidance and an integrated national security budget.

• Building an interagency personnel system, including a National Security Professional Corps.

• Establishing a Chief Knowledge Officer in the PSC Executive Secretariat to ensure that the national security system as a whole can develop, store,retrieve and share knowledge.

• Forming Select Committees on National Security in the Senate and House of Representatives.

3. Complex Terrain Lab online symposium: “Cities and the Scientific Way of Warfare”

This is fascinating.  CTL is doing extremely interesting work.

4. Forthcoming Scholarship

“Global Terror, Private Infrastructure, and Domestic Governance”

UC Berkeley Public Law Research Paper No. 1299924

KENNETH A. BAMBERGER, University of California, Berkeley – School of Law

This article, a chapter from a three-volume study of the effects of globalization on domestic law, society and economics, considers implications for domestic administration when ”globalization comes home” in the form of terrorism risk management. Specifically, it explores tensions between the need to enlist private actors in the governance of global terror risks on the domestic front, and the traditional model of domestic public administration. In this context, policymakers must often rely on private firms’ choices regarding risk assessment. These governance choices are frequently made outside public accountability safeguards. Yet the private actors who make them are driven by economic incentives and risk decision models that might cause their behavior to ignore what are essentially public risks, thereby undermining their effectiveness.

The chapter gives an overview of these challenges and argues that the prevailing model of public reliance on voluntary self-regulation by private critical infrastructure entities fails to meet them. Delegating choices wholesale to private actors neither furthers important public accountability norms nor overcomes incentive problems that hinder effective market responses to the problem. The chapter then briefly explores alternative models of public-sector involvement in critical infrastructure governance that may hold promise in rendering private-sector decisions more accountable to both policy goals and public norms.

“The Rome Statute in Comparative Perspective”

THE STANFORD HANDBOOK OF COMPARATIVE CRIMINAL LAW, Kevin Jon Heller, Markus Dirk Dubber, eds., 2009

KEVIN JON HELLER, Melbourne Law School

The Rome Statute of the International Criminal Court is both inspiring and frustrating. On the one hand, by providing detailed definitions of the core international crimes, the possible modes of participation in those crimes, and the permissible grounds for excluding criminal responsibility, the Statute represents the international community’s most ambitious attempt to create a general and special part of international criminal law. On the other hand, most of the drafters of the Statute were diplomats who had no practical criminal law experience of any kind, much less academic expertise in international criminal law or comparative criminal law. As a result, the Rome Statute’s substantive provisions are often confusing, contradictory, and of uncertain application – an “unsystematic conglomeration from a variety of legal traditions,” as one scholar has memorably put it.

This draft book chapter attempts to provide a systematic and comparative overview of the substantive criminal law of the Rome Statute. Section I provides an introduction to the Statute: its drafting history, jurisdictional principles, sources of law, and rules of procedure and evidence. Section II discusses the Statute’s general part: theories of punishment, liability requirements (acts and omissions, material and mental elements, modes of participation), defenses, and sanctions. Finally, Section III examines the Statute’s special part: the conceptual structure of the crimes within the jurisdiction of the Court and the crimes themselves: genocide, crimes against humanity, war crimes, and aggression.

The chapter is aimed primarily at domestic criminal law scholars, particularly those with an interest in comparative criminal law. But it should be of interest to international criminal law scholars, as well.

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