1. Attorney General Mukasey, Constitutionality of the OLC Reporting Act of 2008 (Nov. 14, 2008) (made public 1/12/09)
OLC has released a memorandum from AG Mukasey to the Senate Majority Leader, from November 2008, declaring his view that proposed legislation requiring public disclosure of OLC memos in certain scenarios would be unconstitutional. The memo is posted here: http://www.usdoj.gov/olc/2008/olc-reporting-act.pdf
2. Forthcoming scholarship
Post-September 11 legal events have demonstrated that ideological agendas distort the deliberation required for sound advice about national security. Legal issue entrepreneurs who market a theory without context exalt short-term interests and encourage executive unilateralism. These perils have emerged in a number of recent developments, including the torture memos drafted by the Justice Department’s Office of Legal Counsel (OLC) and the destruction of CIA interrogation tapes.
In the post-September 11 legal climate, issue entrepreneurs saw legal constraints as “lawfare” against American interests. The lawfare critics extolled parsimony as a virtue – advancing the lawfare construct to explain as many complex events as possible. However, the lawfare critics failed to recognize that legal constraints can also empower decisionmakers, by checking the executive’s tendency to discount reputational and other long-term values.
Unfortunately, existing remedies are not a good fit for the problems caused by issue entrepreneurship. Tort litigation, such as the recent suit by Jose Padilla against John Yoo, risks personalizing the problem and neglecting systemic issues. The informal norms approach suggested by a number of OLC alumni, while offering a number of excellent proposals such as citing and distinguishing adverse authority, has not attracted stakeholders across the political spectrum. A structural reform approach that replaces OLC with an adjudicative entity may produce an inquisitorial tribunal that lacks sharp adversarial inputs and loses influence to more pliable players such as White House counsel.
To transcend these difficulties, lawyers should turn to a model of dialogic equipoise relying on two values: transparency and tailoring. Dialogic equipoise allows the president to take action that is inconsistent with the most accurate reading of sources of authority. However, action must be both interstitial – with a clear exit strategy – and publicly disclosed. To implement the dialogic equipoise model, the Article recommends a blended approach, including a safe harbor for publicly disclosed legal opinions, consideration of institutional consequences, assertion of the least drastic rationale for executive power, and an ex ante role for Inspectors General and OLC in document preservation. This blended regime can reinforce deliberation when exigencies obscure the teachings of prudence.
The author discusses a decision handed down in 2007 by an Italian military court concerning the firing by Italian troops on an Iraqi ambulance in 2004, at Nassiriyah, resulting in the killing of four civilians. The court held that the action was covered by the defence of putative special military necessity and consequently acquitted the two defendants. The author argues that the accurate basis on which to exclude criminal culpability, both under Italian law and international criminal law, could be the excuse of putative self-defence. He also raises the issue of whether in that case the servicemen behaved negligently in acting in the belief that the ambulance was likely to be a car-bomb. The author then discusses the question of compensation to civilians for violations of international humanitarian law, regardless of whether such violations entail the criminal liability of the perpetrators.
Israel Law Review, Vol. 41, pp. 175-200, 2008
Hebrew University International Law Research Paper No. 16-08
Notwithstanding of the considerable body international law dealing with occupation, identification of the normative standards against which law and order is maintained continues to challenge the international community. That challenge is centered on the existence of an unclear and often awkward interface between international humanitarian law and international human rights law.
Policing represents the normal means by which order is maintained in society. In occupied territory the preference should be for maintaining order by means of properly trained police forces seeking to apply international human rights law standards. However, the security threat is often not limited to criminal activity with there being striking similarities between attempting to maintain order in occupied territory and battling insurgencies in internal armed conflicts. This then points to the application of international humanitarian law to govern the use of force.
Despite ongoing disagreement about which paradigm should be applied the question remains whether the proponents of the two frameworks can break free of their normative chains to craft a realistic approach to maintaining law and order. Suggested approaches include the situation based approach of applying the appropriate body of law to specific fact situations and the blended approach of borrowing from each normative regime to address the unique situations confronting security forces. Which ever approach is adopted the emphasis must remain on the right to life to ensure true respect for the rule of law is maintained.
To date, U.S. cross-border operations from Afghanistan into Pakistan have taken three forms: the use of Predator drones to target Al Qaeda fighters (although such drones may be launched solely from within Pakistan); the “hot pursuit” of militants who engaged in raids from Pakistan against U.S. and allied forces in Afghanistan, as well as the Afghan government; and the deployment of special operations forces into Pakistan as a means of striking at Al Qaeda. These types of cross-border operations clearly implicate the jus ad bellum, in that they entail one state projecting highly coercive military force into another state. Arguably Pakistan has consented to at least some of these types of cross-border operations, but that consent is poorly documented, suffers from the conflicting and diffuse sources of authority within the Pakistani government, and ultimately may not endure given the vicissitudes of Pakistani domestic politics. As such, though consent is a powerful and useful basis for supporting the legality of U.S. cross-border operations, other justifications should be considered as well.
Assuming Pakistani consent is lacking, other justifications for U.S. cross-border operations must be considered. The U.N. Security Council has on several occasions addressed the legality of foreign forces in Afghanistan. Yet the Security Council’s Chapter VII resolutions are best seen as either authorizing the presence of a multinational force designed to stabilize Afghanistan (without having as its mission counter-terrorism operations, let alone operations outside Afghanistan), or simply recognizing the inherent right of self-defense of the United States and its allies. The inherent right of self-defense (individual and collective) does justify U.S. cross-border operations that respond to raids by militants from Pakistan into Afghanistan, so long as the U.S. operations remain necessary and proportionate to the threat of those raids, and so long as the Afghan government consents to the presence of U.S. forces. Such self-defense would also support unilateral uses of U.S. force against Al Qaeda in Pakistan, either in the form of covert operations by special forces units or the launching of Predators from Afghanistan to strike at targets in Pakistan, so long as it can be shown that those Al Qaeda targets are ones that are supporting the cross-border raids into Pakistan, and so long as Pakistan is unwilling or unable to prevent Al Qaeda’s support for those raids. A broader right of self-defense against Al Qaeda targets in Pakistan based on the attacks of 9/11, however, is far more problematic, since the requirements of necessity and proportionality likely preclude unilateral uses of force against a third state that was not implicated in those attacks.
State of Corruption, State of Chaos: The Terror of Political Malfeasance, M. Cox, ed., pp. 167-82, 2008
This article explains why individuals support the work of charities that support jihadist operations, even when they may not agree with these organizations’ agenda. Employing a behavioral model, we argue that individual Muslims donate monies to Islamist charities that support jihadist causes as a response to social pressures, in an attempt to avoid social seclusion. We divide this chapter into two parts. The first explains why al Qaeda and other jihadist groups use charities to raise most of their funds. Part two introduces our behavioral model. It explains that when publicly facing a charity’s demands for funds a Muslim has three options. The first is exit or the person’s decision to cut himself from the community in order to avoid the charity’s fundraising efforts. The second option is sincere voice or an individual’s public expression of dissatisfaction with the charity’s demands or its agenda. The final option is self-subversion, which takes place when a person donates funds to a charity in order to comply with social pressures. After explaining why self-subversion tends to be the dominant response, we conclude this investigation with the model’s policy implications in the ongoing global struggle against terrorism.