handy link for OLC memos; forthcoming scholarship

1. Handy resource for keeping track of OLC and other legal memos from 2001-2008 relating to national security, including links to those that are public and descriptions of those that are not

This is pretty useful.  From ProPublica:


2. Forthcoming Scholarship

“‘De Facto Sovereignty’: Boumediene and Beyond”

George Washington Law Review, Forthcoming
SMU Dedman School of Law Legal Studies Research Paper No. 00-29

ANTHONY J. COLANGELO, Southern Methodist University – Dedman School of Law
Email: colangelo@smu.edu

In Boumediene v. Bush, which grants non-citizens detained at Guantanamo Bay, Cuba, constitutional habeas corpus privileges the Supreme Court took notice that the United States maintains “de facto sovereignty” over that territory. As its sole precedential support, the Court cited a case that never mentions the term de facto sovereignty. What is this concept? How important is it to the Court’s holding? Did the Court get the concept right given its longstanding usage and meaning in Supreme Court precedent? And what can de facto sovereignty tell us about when the Court will find habeas to extend to other situations involving extraterritorial detention of non-citizens in the war on terror?

“Identity Cards and Identity Romanticism”

University of Miami Legal Studies Research Paper No. 2008-41

A. MICHAEL FROOMKIN, University of Miami – School of Law
Email: froomkin@law.miami.edu

This book chapter for “Lessons from the Identity Trail: Anonymity, Privacy and Identity in a Networked Society” (New York: Oxford University Press, 2009) – a forthcoming comparative examination of approaches to the regulation of anonymity edited by Ian Kerr – discusses the sources of hostility to National ID Cards in common law countries. It traces that hostility in the United States to a romantic vision of free movement and in England to an equally romantic vision of the ‘rights of Englishmen’.

Governments in the United Kingdom, United States, Australia, and other countries are responding to perceived security threats by introducing various forms of mandatory or nearly mandatory domestic civilian national identity documents. This chapter argues that these ID cards pose threats to privacy and freedom, especially in countries without strong data protection rules. The threats created by weak data protection in these new identification schemes differ significantly from previous threats, making the romantic vision a poor basis from which to critique (highly flawed) contemporary proposals.

“Do Norms Reduce Torture?”

Journal of Legal Studies, Vol. 38

MICHAEL J. GILLIGAN, New York University, Department of Politics
Email: mg5@nyu.edu
NATHANIEL H. NESBITT, affiliation not provided to SSRN

One of the most important developments in international political and legal theory over the last two decades has been the assertion that norms affect state behavior. Scholars have claimed that states are constrained by norms of appropriate behavior and furthermore that norms actually change (reconstitute) states’ understandings of their interests thereby leading states to adapt their behavior in accordance with these new understandings. We test the proposition that norms alter state behavior with respect to the expanding international norm against torture from 1985 through 2003. Unfortunately, we find no evidence that the spreading of the international norm against torture, measured by the percentage of countries in the world that have acceded to the UN Convention Against Torture, has lead to any reduction in torture according to a variety of measures.

“Terrorism and the Proportionality of Internet Surveillance”

European Journal of Criminology, Vol. 6, No. 2, pp. 119-134, 2009

IAN BROWN, University of Oxford – Oxford Internet Institute
Email: ian.brown@oii.ox.ac.uk
DOUWE KORFF, London Metropolitan University
Email: d.korff@londonmet.ac.uk

As the Internet has become a mainstream communications mechanism, law enforcement and intelligence agencies have developed new surveillance capabilities and been given new legal powers to monitor its users. These capabilities have been particularly targeted toward terrorism suspects and organisations, which have been observed to use the Internet for communication, propaganda, research, planning, publicity, fundraising and creating a distributed sense of community. Policing has become increasingly pre-emptive, with a range of activities criminalised as “supporting” or “apologising for” terrorism. The privacy and non-discrimination rights that are core to the European legal framework are being challenged by the increased surveillance and profiling of terrorism suspects. We argue that their disproportionate nature is problematic for democracy and the rule of law, and will lead to practical difficulties for cross-border cooperation between law enforcement agencies.

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