resentencing of Abu-Jihaad; forthcoming scholarship

April 3, 2009

1. United States v. Abu-Jihaad (D. Conn.)

Hassan Abu-Jihaad has received a 10 year sentence (the statutory maximum) for his conviction on a charge of disclosing classified information relating to national defense.  The defendant had been convicted at trial on another charge—18 USC 2339A (material support in furtherance of certain specified predicate offenses)—but last month the trial judge granted a defense motion of acquittal on that count.  Details here.

2. forthcoming scholarship

The ambiguous protection of schools under the law of war – time for parity with hospitals and religious buildings.

Georgetown Journal of International Law

Gregory R. Bart (JAGC, USN)

A disturbing trend during recent armed conflicts is that states tend to treat school buildings less respectfully than they treat hospitals and religious buildings. One important cause of this trend is the different privileged status afforded to each building type under the law of war. The law of war equally forbids targeting hospitals, religious buildings, schools, and other civilian buildings unless they become justifiable military objectives. But ironically, it fails to equally protect these buildings from being used for such objectives in the first place. Under the law of war’s privileges for civilian hospitals and most religious buildings, armed forces cannot use these buildings for military purposes–without exception. In contrast, the law of war’s privilege for school buildings ambiguously allows military use based on necessity. This is surprising because military use converts a school from a privileged site into a justifiable target for an opposing army. Even more troubling, such use increases the likelihood that an opposing army will confuse converted and unconverted schools and wrongfully attack one that shelters children and other civilians.

State practice paradoxically both opposes and accepts military use of schools during war. The ongoing conflict in Iraq provides many examples. In 2003, the United States condemned Iraqi military commanders for employing school buildings and grounds as sites for artillery, materiel storage, and headquarters. (1) Human Rights Watch noted that the Iraqi practice directly contributed to the number of civilian casualties because those buildings became lawful targets for the coalition forces. (2) The United States also denounced hostile insurgent forces for using school buildings as weapons caches and bases to launch attacks. (3) Meanwhile, in northern Iraq, U.S. military commanders employed school buildings for military headquarters and command posts. (4) Of note, American forces utilized school buildings that they characterized as abandoned or as former schools while Iraqi and insurgent forces exploited ones that were still occupied by students. (5) But these incidents beg the question of why armed forces respect hospitals and religious buildings more than schools?

This article considers whether the law of war provides school buildings with a less privileged status than it gives to hospitals and religious buildings. It proposes that three critical issues necessarily affect any legal regime that seeks to establish privileged status for a specific type of building during war: 1) defining which buildings qualify; 2) ensuring maintenance of privileged status by prohibiting their military use; and 3) ensuring their recognition by armed forces.

The article’s first section reviews how the law of war and humanitarian law evolved to address these issues for hospitals and religious buildings. It traces how the law of war originally gave these buildings only a derivative privileged status that was based entirely on the presence of civilians and noncombatants. Through a series of treaties, the law of war gradually gave direct, independent protection to hospital buildings based on their inherent humanitarian nature and to most religious buildings based on their cultural and spiritual value to a people. The law shifted from focusing exclusively on the obligations of military attackers in targeting to creating equally shared obligations for attackers and defenders not to use these buildings for military purposes.

The second section shows that the law of war’s privilege for schools has not evolved to the same extent because it fails to clearly answer the above three questions for school buildings. Current international law does not provide most with a direct, clear, and independent privileged status based on their inherent humanitarian nature or value to a people. Rather, it protects schools against military use based solely on the presence of civilians and noncombatants. It thereby focuses exclusively on the military attacker’s obligations to discriminate in targeting. These indirect protections are anachronistic compared to the direct ones currently afforded to hospitals and religious buildings.

The final section proposes that the law of war should adopt for schools a modern privilege that answers the above three issues. It asserts that school buildings have an inherent value to society that merits independent protection. It further suggests a framework for a modern school privilege by borrowing the best aspects of the protections currently afforded to hospitals and religious buildings. Specifically, for schools, a modern privilege should describe which buildings qualify, prohibit their military use, and establish a distinctive emblem. In this manner, the law of war might inhibit in the future the high incidence of school building destruction that has been common in recent armed conflicts.

“Jack Bauer Syndrome: Hollywood’s Depiction of National Security Law”

Southern California Interdisciplinary Law Journal, Vol. 17, p. 279, 2008
U Iowa Legal Studies Research Paper No. 09-13

TUNG YIN, University of Iowa – College of Law
Email: tung-yin@uiowa.edu
U IOWA LEGAL STUDIES RESEARCH PAPER SERIES, University of Iowa College of Law
Email: lawssrn@iowa.uiowa.edu

In this Article, which was presented at the Law & Humanities Section Panel at the 2008 Annual AALS Conference, I examine the way that the Fox television series “24” portrays two issues relevant to national security law: the use of torture to extract information in order to stop an imminent terrorist attack, and the depiction of Arabs as villains (and non-villains) with the concomitant impact on racial profiling and other stereotyping of Arab-Americans and Arabs. I conclude that the depiction of torture is narratively stacked in favor of government agent Jack Bauer. I also conclude that “24” attempts to balance its portrayal so that not all villains are Arabs, and not all Arabs are villains. However, I point out points of improvement in this area.

“Boumediene and Lawfare”

U Iowa Legal Studies Research Paper No. 09-11
University of Richmond Law Review, Vol. 43, p. 865, 2009

TUNG YIN, University of Iowa – College of Law
Email: tung-yin@uiowa.edu
U IOWA LEGAL STUDIES RESEARCH PAPER SERIES, University of Iowa College of Law
Email: lawssrn@iowa.uiowa.edu

One reason that the Bush Administration persistently resisted giving Guantanamo Bay detainees access to courts and to lawyers was the belief that they would use such access to engage in “lawfare,” or “the use of law as a weapon of warfare.” Discovery of a purported al-Qaeda training manual in a safehouse in Great Britain reinforced this concern, particularly given the manual’s exhortation to its readers, if captured, to make false claims of torture and to use attorneys to pass information to the outside world. Yet, the Supreme Court’s decision in Boumediene v. Bush appears to discount the concern over lawfare by implying that the detainees are constitutionally entitled to representation by counsel. In this Essay prepared for the Allen Chair Symposium on “Detaining Suspected Terrorists: Past, Present, and Future,” I discuss reasons to believe that lawfare — as practiced by lawyers for detainees — can be adequately controlled by existing tools available to the government: security clearance requirements for counsel, and monitoring of privileged conversations. These tools are not without controversy, and I do not mean to suggest that they should be used lightly, but their very intrusiveness makes them particularly effective at impeding lawfare. Thus, I conclude that it is unpersuasive to argue that Bouemdiene will endanger Americans by enabling detainees to engage in effective lawfare through the use of lawyers.

“Threats of Armed Force and Contemporary International Law”

Netherlands International Law Review, Vol. 54, pp. 229-277, 2007

MARCO ROSCINI, University of Westminster School of Law, King’s College London School of Law, Queen Mary University of London School of Law
Email: mroscini@iol.it

The article first tries to define what a ‘threat’ of armed force under Article 2 (4) of the UN Charter is. It then analyses the status of its prohibition in the framework of the sources on international law. The legal consequences of the violation of the prohibition under the law of treaties, law of state responsibility and international criminal law and the remedies against such threats are finally discussed.

“The Efforts to Limit the International Criminal Court’s Jurisdiction Over Nationals of Non-Party States: A Comparative Study”

The Law and Practice of International Courts and Tribunals, Vol. 5, pp. 495-527, 2006

MARCO ROSCINI, University of Westminster School of Law, King’s College London School of Law, Queen Mary University of London School of Law
Email: mroscini@iol.it

The purpose of this article is to discuss and compare the multilateral and bilateral efforts to prevent the ICC from exercising its jurisdiction over nationals of states non-parties to the Rome Statute. In particular, the US secured the adoption of Security Council resolutions no. 1422 (2002), 1487 (2003), 1497 (2003), 1593 (2005) and launched a campaign for the conclusion of bilateral non-surrender agreements: the differences between the resolutions and between them and the agreements are analysed. None of the resolutions above can be qualified as an exercise of the Security Council’s power to request the ICC not to commence or proceed with investigations or prosecutions under Article 16 of the Rome Statute, as this provision was not conceived to cover future and hypothetical cases. Furthermore, by adopting resolutions 1422 and 1487 and by including the paragraphs on the exclusive jurisdiction of the contributing state in resolutions 1497 and 1593, the Security Council acted ultra vires, since no threat to the peace can be found in order to justify the exercise of Chapter VII powers. The resolutions are also in contrast with the principles and purposes of the UN. As to the bilateral non-surrender agreements, they cannot be qualified as “international agreements pursuant to which the consent of the sending State is required to surrender a person of that State to the Court” as required by Article 98 (2) of the Statute, since they prohibit the surrender to the ICC of any individual who is “present” on the territory of the other party and they do not require the state to which the accused has been transferred to investigate and prosecute the case. Should Italy conclude a non-surrender agreement with the US, it would incur international responsibility. The law giving effect to such an agreement in the Italian legal order would also be in contrast with Articles 10 (1) and 11 of the Constitution.

“Unraveling Guantanamo: Detention, Trials and the ‘Global War’ Paradigm”

New Directions for the Department of Justice , No. 1, 2009
NYU School of Law, Public Law Research Paper No. 09-08

STEPHEN SCHULHOFER, New York University – School of Law
Email: stephen.schulhofer@nyu.edu

Closing Guantanamo presents a daunting challenge, both politically and practically. The detainees cannot be transferred readily to other locations abroad, and yet many commentators insist that they are too dangerous to be held within the United States. Under current law the detainees cannot continue to be held unless they are charged with crimes; yet the existing military commission system is unsustainable, and many detainees allegedly are impossible to prosecute in traditional courts without jeopardizing classified information. These immediate issues are also symptoms of a more basic problem – the concept of a “global war on terror.” Clear thinking about solutions to Guantanamo cannot begin in the absence of clear thinking about the legitimacy of the global war paradigm.

The immediate need to address Guantanamo and the broader imperative to find a sustainable framework for the future can both be met by a straightforward principle – the unqualified acceptance of pre-9/11 rules of international law and domestic due process. The difficulties attributed to that traditional approach are not wholly imaginary, but they have been misunderstood and shamelessly exaggerated. Familiar rules and institutions, properly managed, possess ample resources to cope with the challenges of modern terrorism.

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