forthcoming scholarship; more on the Senate Armed Services interrogation report

1. Forthcoming Scholarship

Our Nation Unhinged:  The Human Consequences of the War on Terror

University of California Press

Peter Jan Honigsberg

Professor of Law

University of San Francisco

Abstract: Jose Padilla short-shackled and wearing blackened goggles and earmuffs to block out all light and sound on his way to the dentist. Fifteen-year-old Omar Khadr crying out to an American soldier, “Kill me!” Hunger strikers at Guantánamo being restrained and force-fed through tubes up their nostrils. John Walker Lindh lying naked and blindfolded in a metal container, bound by his hands and feet, in the freezing Afghan winter night. This is the story of the Bush administration’s response to the attacks of September 11, 2001—and of how we have been led down a path of executive abuses, human tragedies, abandonment of the Constitution, and the erosion of due process and liberty. In this vitally important book, Peter Jan Honigsberg chronicles the black hole of the American judicial system from 2001 to the present, providing an incisive analysis of exactly what we have lost over the past seven years and where we are now headed.

“Biotechnological Research on the Most Dangerous Pathogens: Challenges for Risk Governance and Safety Management”

Science Direct, 2008
Boston Univ. School of Law Working Paper No. 08-37

MICHAEL BARAM, Boston University School of Law

Biotechnological research on the deadliest pathogens has rapidly grown into a vast enterprise in the United States. With over $50 billion from federal agencies, thousands of projects are conducted at hundreds of university laboratories and other facilities in a national effort to gain the knowledge and methods for preventing the natural occurrence of pathogenic disease and protecting against bioterrorism. This paper describes this enterprise, defines several risk scenarios unrelated to terrorism which threaten lab workers and the public with lethal and contagious pathogenic disease, and evaluates the official policy framework for decision-making with regard to preventing and responding to the risk scenarios. It finds that the framework emphasizes physical security and secrecy to prevent terrorist exploitation of the enterprise, but fails to sufficiently address prevention of lab mishaps, accidental releases, and other incidents during the routine conduct of research which would expose workers and the public to the lethal pathogens. Nor does the framework effectively provide for the emergency response measures needed to prevent an accidental release of the more highly contagious pathogens from spiraling into a local or larger scale disease epidemic. These findings, supported by the growing number of near misses and small-scale incidents and lawsuits, point to major weaknesses in federal oversight and regulation, official disregard for siting criteria, inadequate self-regulation and management of lab safety practices, breakdowns in reporting systems, and obstacles to organizational learning and emergency response created by secrecy and security policies. Recommendations are made regarding these inadequacies of the federal framework and urge application of lessons learned from safety science experience with other hazardous technologies where increasing attention is being given to safety culture initiatives.

“International Decision: Munaf v. Geren”

American Journal of International Law, Vol. 102, 2008
UGA Legal Studies Research Paper No. 08-011

HARLAN GRANT COHEN, University of Georgia School of Law

This International Decision case comment, the final version of which will be published in Volume 102, No. 4, of the American Journal of International Law (forthcoming), examines the U.S. Supreme Court’s decision in Munaf v. Geren, a case arising out of U.S. operations in Iraq and allegations of potential torture in Iraqi custody. In that decision, a unanimous Supreme Court held that the federal courts have jurisdiction under the habeas corpus statute to hear claims brought by American citizens held overseas by American forces “operating subject to an American chain of command, even when those forces are acting as a part of multilateral coalition.” In a defeat for the petitioners, however, the Court held that where petitioners are being held in another sovereign’s territory for crimes allegedly committed in that territory, federal courts should not interfere by enjoining their transfer to that sovereign. The Court further held that concerns of torture after transfer did not change the result and that such concerns are best assessed and handled by the political branches. This case comment discusses the Court’s decision and analyzes its potential impact.

“The Long War, the Federal Courts, and the Necessity/Legality Paradox”

University of Richmond Law Review, Vol. 43, 2009
American University, WCL Research Paper No. 2008-80

STEPHEN I. VLADECK, American University Washington College of Law

This paper is a solicited review of Ben Wittes’s book “Law and the Long War: The Future of Justice in the Age of Terror,” which rightly suggests that there would be far less legal uncertainty today vis-a-vis the conduct of the war on terrorism had the Bush Administration sought – and had Congress provided – framework legislation governing issues ranging from the detention of “enemy combatants” to surveillance and even interrogation.

Nevertheless, the review takes issue with Wittes’s critique of the role of the courts thus far, especially his contention that the Supreme Court’s decisions to date may be seen as “positioning itself for a veritable sea change in the relationship between the federal branches in wartime.” As I argue, Wittes’s critique of the courts suffers from two flaws: First, as a descriptive matter, he unconvincingly dismisses (even while noting) a competing narrative of the role of the courts (and the Supreme Court in particular) in the war on terrorism – as a model of judicial restraint, characterized by denials of review in most terrorism-related cases, narrow holdings on the merits, and implicit guidance to the political branches on how to avoid more serious confrontations.

Second, and more deeply, Wittes suggests that such aggressive judicial review is dangerous, because it will lead to the courts having to pass upon programs that may be necessary, albeit illegal. In his words, “Judges are exactly the wrong people to ask permission to break the rules, either because they will refuse (as Taney did) in situations in which the president cannot honor the refusal or because they will acquiesce to steps that the judiciary ought not permit and certainly ought not cloak in the respectability of law.” In this vein, Wittes’s concerns powerfully mirror those articulated by Justice Jackson in his dissent in Korematsu – of the dangers that courts will conflate necessity with legality. While I share in those concerns, the review argues that Wittes (like Justice Jackson before him) is wrong to conclude that the optimal solution in those situations is for the courts to stay out of such disputes altogether.

2. Follow-up regarding the Senate Armed Services Committee report on interrogation

Though I do not normally circulate journalism, I am forwarding this item as a follow-up to an earlier post in which I circulated the executive summary of the Senate Armed Services Committee’s report on interrogation policy.  That summary emphasized the claim that CIA lawyer Jonathan Fredman had given extremely permissive advice relating to torture.  Stuart Taylor has an article in National Journal describing a non-yet-public document Fredman gave to the SASC in which he denied having given such advice:

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