forthcoming scholarship (and happy Memorial Day)

May 25, 2009

“The ‘Bush Doctrine’: Can Preventive War Be Justified?”

Harvard Journal of Law and Public Policy, Vol. 32, 2009
U of St. Thomas Legal Studies Research Paper No. 09-08

ROBERT J. DELAHUNTY, University of St. Thomas School of Law (Minnesota)

Email: RJDELAHUNTY@stthomas.edu
JOHN YOO, University of California at Berkeley School of Law
Email: YOO@LAW.BERKELEY.EDU

We continue to live in a dangerous world. We are exposed to the risk that hostile states or terrorist groups with global reach might attack our civilian population or those of our allies using weapons of mass destruction. In such circumstances, it might seem natural for U.S. policymakers to consider preventive war as a possible tool for countering such threats. Yet in the current climate of opinion, such thinking would be controversial – in large part, no doubt, because of the continuing disputes over the normative, strategic, and legal wisdom of what has been called the ?Bush Doctrine.?

Preventive war, in appropriate circumstances, can be justified for reasons that are closely analogous to those usually offered to justify humanitarian intervention. The key difference is that in preventive war the intervenors protect their own populations, whereas in humanitarian intervention the intervenors protect the target state?s population. Although critics of preventive war tend to be sympathetic to humanitarian intervention, the underlying logic for both uses of force is substantially the same.

In this Essay, we first explain what we mean by ?preventive? war, and how it is distinguishable from ?preemptive? war. Then we briefly consider whether, as critics of the Bush Doctrine allege, the War in Iraq was virtually unprecedented in the Nation?s history or was, instead, one of several major conflicts fought by the United States that could fairly be described as preventive wars. Finally, we shall recommend certain normative guidelines and criteria for policymakers to follow in deciding whether to initiate a ?preventive? war.

“Defining Armed Conflict”

Journal of Conflict Security Law, Vol. 13, pp. 393-400, Winter 2008
Notre Dame Legal Studies Paper No. 09-09

MARY ELLEN O’CONNELL, Notre Dame Law School
Email: MaryEllenOConnell@nd.edu

Within hours of the 9/11 attacks in the United States, President George W. Bush declared ?a global war on terrorism?. Experts around the world assumed this declaration was a rallying cry, a rhetorical device to galvanize the nation to serious action. By November 2001, however, the evidence began to mount that the President was ordering actions that could only be lawful in a de jure armed conflict: targeting to kill without warning, indefinite detention without trial, and search and seizure on the high seas without consent. It was difficult to criticize these actions on the basis of international law, however, given that international law contained no widely accepted definition of armed conflict. By May 2005, the International Law Association determined that there was a pressing need for a report on the meaning of armed conflict supported by international law. The Use of Force Committee presented its Initial Report on the Meaning of Armed Conflict in International Law at the Rio de Janeiro biennial meeting of the ILA. The Report concludes that all armed conflicts have as minimum two necessary characteristics: 1.) the presence of organized groups 2.) engaged in intense armed fighting. The Report indicates that while the United States has been engaged in an armed conflict in Afghanistan and in Iraq since 9/11, it has not been engaged in a global armed conflict. The Initial Report will be expanded for presentation in final form in 2010 at The Hague biennial meeting.

“Australian Terror Laws and Academic Freedom”

FREE SPEECH IN FEARFUL TIMES: AFTER 9/11 IN CANADA, THE U.S., AUSTRALIA & EUROPE, Turk J. & Mason A., eds., pp. 234-244, Canada: James Lorimer & Company Limited
U of Melbourne Legal Studies Research Paper No. 391

JOO-CHEONG THAM, University of Melbourne
Email: j.tham@unimelb.edu.au

In Australia, the domestic ?War on Terror? has been waged through a multitude of laws with at least 26 separate pieces of anti-terrorism laws passed since the September 11 attacks.1 More disturbing than the pace of legislative enactment is the character of the laws passed. These laws mean that Australian security and police agencies now have the power to detain without trial. Broad discretion has also been conferred upon the government to ban so-called ?terrorist organisations?.

These laws also cloak the operations of police and security organisations with greater secrecy, criminalise speech and heighten the risk of political and religious persecution. It is these features of the ?War on Terror? that particularly threaten academic freedom in Australia.

“Warrantless Wiretapping, FISA Reform, and the Lessons of Public Liberty: A Comment on Holmes’ Jorde Lecture”

California Law Review, Vol. 97, No. 407, 2009

PAUL M. SCHWARTZ, UC Berkeley School of Law
Email: pschwartz@law.berkeley.edu

This Essay responds to Stephen Holmes? Jorde Lecture, which was delivered at Boalt Hall on November 5, 2007. It builds on his model of ?public liberty? by discussing how private liberty, and information privacy in particular, is a precondition for public liberty. For Holmes, private liberty is largely a negative right – a right to be free from governmental interference. In contrast, this Essay considers privacy to be an element of public rights. Participation in a democracy requires individuals to have an underlying capacity for self-determination, which requires some personal privacy.

This Essay analyzes a number of Holmesian concepts through the lens of the recent amendment of the Foreign Intelligence Surveillance Act (FISA). In Part I, I describe the background of FISA, the National Security Agency?s (NSA) warrantless surveillance program in violation of this statute, and the amendments to this law in the Protect America Act of 2007, a short term statutory ?fix? that has expired, and the FISA Amendments Act of 2008, which remains in effect.

In Part II, I turn to an analysis of the challenges to private and public liberty posed by the NSA?s surveillance. I organize this Part around three topics: (1) past wisdom as codified in law; (2) the impact of secrecy on government behavior; and (3) institutional lessons. As we shall see, a Holmesian search for the wisdom previously collected in law proves quite difficult. FISA regulated some aspects of intelligence gathering and left the intelligence community entirely free to engage in others. Over time, moreover, technological innovations and altered national security concerns transformed the implications of the past policy landscape. As a result, the toughest questions, which concern surveillance of foreign-to-domestic communications, do not receive an easy answer from the past.

Regarding the impact of secrecy on government behavior, the analysis is, at least initially, more straightforward. As Holmes discusses, the Bush administration was adept at keeping secrets not only from the public and other branches of government, but from itself. It is also striking how little Congress knew about NSA activities while amending FISA. The larger lessons, however, prove yet more complicated: strong structural and political factors are likely to limit the involvement of Congress and courts in this area. This Essay concludes by confronting these institutional lessons and evaluating elements of a response that would improve the government?s performance by crafting new informational and deliberative structures for it.

“The Dilemma of Direct Participation in Hostilities”

ERIC CHRISTENSEN, affiliation not provided to SSRN
Email: eric.christensen@gmail.com

A universal and comprehensive definition of direct participation in hostilities (DPH) does not exist. Furthermore, modern warfare?s tendency to blur the distinction between combatant and civilian necessitates some revision of DPH. However, States have incentives to pursue narrow or broad interpretations of DPH, or even both. These contradictory strategies create a dilemma for policymakers who seek to revise the concept of DPH. Any revision is likely to put some group of individuals at risk; there is not a simple answer to the question of how best to revise DPH. Instead, a radical revision of DPH is needed. This report will briefly examine the law of war and then explore the relative merits of the U.S., Israeli, and the International Committee of the Red Cross?s interpretations of DPH. Lastly, this report will recommend potential solutions to the dilemma of DPH interpretation, most notably a membership-based approach.

“Towards Military Rule?: A Critique of Executive Discretion to Use the Military in Domestic Emergencies”

Marquette Law Review, Vol. 91, No. 3, 2008
Vermont Law School Research Paper No. 09-01

JACKIE GARDINA, Vermont Law School
Email: jackie_gardina@ca1.uscourts.gov

Following 9/11 and in the aftermath of Hurricane Katrina, the Bush Administration called for an increased role for the Department of Defense and the federal armed forces in responding to domestic emergencies. Through a variety of statutory measures, Congress answered the President’s request for enhanced authority, increasing the Executive Branch’s already enormous discretionary power to deploy the federal armed forces domestically. But some members of Congress have begun to question the propriety of such authority housed almost exclusively in the Executive Branch. By increasing the military’s presence in the domestic sphere the federal government is obscuring the traditional lines between military and civilian roles. Even when sanctioned by civil leaders, the increased role of the armed forces in the domestic life endangers civil liberties and the democratic process.

The central purpose of this Article is to expose the erosion of the structural checks on the Executive’s power to deploy the military domestically to execute the laws and quash public disorder. It begins by briefly describing the historical bases for the founding generation’s mistrust of an executive with unbridled access to a military force. Next, it identifies the structural protections that were placed in the Constitution in response to these concerns, placing special emphasis on congressional control. In Part III, it describes the erosion of the structural checks, focusing first on the division of power between Congress and the Executive and then turning to the federalism issues. It offers a startling picture of how, over the last two plus centuries, excessive discretionary power has been delegated to the Executive Branch. Finally, Part IV offers a modest proposal that recognizes the dangers inherent in the introduction of military force into civilian society and attempts to restore the checks originally envisioned by the Founders while still providing adequate flexibility to respond to modern day exigencies.

“Justifying the Political Question in War: The Natural Source, Substance, and Scope of Political Power”

MATTHEW JORDAN COCHRAN, Campbell University School of Law
Email: matthewjordancochran@gmail.com

Attempts by plaintiffs to avoid induction into the armed forces, to enjoin the President’s military orders, and to contest war taxing and spending – each claim asserting the “unconstitutionality” of military actions then underway – have been thwarted by justiciability doctrines. The most persuasive of these doctrines, but for reasons distinct from and more compelling than its traditional justifications, is the political question doctrine.

The traditional political question doctrine rubric, as shown by its application during and following the Vietnam War, has proven misleading and largely incomplete. It becomes important to understand that social contract principles – and not doctrinal slight of hand – forbid unelected judges from answering war questions. The “political question result” should be seen as our government’s sensitivity (whether innate, learned, or bitter) to the natural boundaries within which it may operate legitimately.


Ashcroft v. Iqbal; upcoming events; forthcoming scholarship

May 19, 2009

[note: some of you have inquired recently to ensure the list is running correctly, prompted by the low volume of recent posts.  Not to worry; the drop-off in volume just reflects some competing work obligations that will have an impact between now and late July.  From late July onward, things will be back to normal (if not sooner).]

1. Ashcroft v. Iqbal (S.Ct. May 18, 2009)

The Supreme Court yesterday held that a Bivens complaint (asserting civil causes of action against several government officials in connection with post-9/11 immigration enforcement measures) failed to satisfy the pleading standard set forth in Twombly.  En route to that holding, the court noted that Bivens liability in this context cannot be vicarious, but must instead be premised on the individual defendant’s personal unconstitutional conduct.  The case will be remanded to the Second Circuit for a determination as to whether the plaintiffs should be given leave to replead.

The opinion appears here.

2. Upcoming Events

“Scars of Intelligence Reform” (Breakfast presentation by Donald Kerr, sponsored by the ABA Standing Committee on Law and National Security) Tuesday June 9th, at 8 a.m.

Dear Colleague:

On Tuesday, June 9, 2009, Donald Kerr, former Principal Deputy Director of National Intelligence in the Office of the Director of National Intelligence, will address the Standing Committee on Law and National Security.  His topic is “Scars of Intelligence Reform.”

The breakfast will be held at the University Club, 1135 16th Street, NW in Washington and will begin at 8:00 am.

Dr. Kerr, currently a Research Professor at George Mason University, has a notable career in the Intelligence Community. Prior to serving as second in command in the office of the DNI, he served as Director of the National Reconnaissance Office, Deputy Director for Science and Technology at the CIA, Assistant to the Secretary of the Air Force for Intelligence Space Technology and Assistant Director of the FBI, responsible for the Laboratory Division and Director of the Los Alamos National Laboratory from 1979 to 1985.

The charge for this breakfast is $25.00.  Reservations must be made in advance.  Checks made payable to “ABA” may be enclosed with the response form attached [SEE ATTACHMENT] and returned by June 5. If you are bringing guests, please note their names on the form. In the event you need to cancel your reservation, a refund will be made provided notice of cancellation is received in our office by June 5.  There is no charge for members of the press.

We look forward to seeing you at our next breakfast program on Tuesday, June 9.

“Legal Aspects of the Fight Against Terrorism” (day one of a two day “Ivy to Olives Joint Academic Symposium” held at Ono Academic College in Israel (June 1, 2009)

Please see the attached flyer for the very interesting lineup of topics and speakers.

3. Forthcoming Scholarship

United States Detention Operations in Afghanistan and the Law of Armed Conflict

Matthew C. Waxman
Columbia Law School

Columbia Public Law Research Paper No. 09-202
Israel Yearbook on Human Rights, Vol. 39, 2009

Abstract:
Looking back on US and coalition detention operations in Afghanistan to date, three key issues stand out: one substantive, one procedural and one policy. The substantive matter – what are the minimum baseline treatment standards required as a matter of international law? – has clarified significantly during the course of operations there, largely as a result of the US Supreme Court’s holding in Hamdan v. Rumsfeld. The procedural matter – what adjudicative processes does international law require for determining who may be detained? – eludes consensus and has become more controversial the longer the Afghan conflict continues. And the policy matter – in waging counterinsurgency warfare, how do foreign military forces transition military detention operations to effective civilian institutions? – has emerged as a critical strategic priority for which the law of armed conflict provides little instructive guidance.

After briefly outlining the basis of US and coalition detention operations, this article addresses each of these issues in turn. It concludes with some general observations about the convergence of law and strategy.

“Defining Armed Conflict”

Journal of Conflict Security Law, Vol. 13, pp. 393-400, Winter 2008
Notre Dame Legal Studies Paper No. 09-09

MARY ELLEN O’CONNELL, Notre Dame Law School

Email: MaryEllenOConnell@nd.edu

Within hours of the 9/11 attacks in the United States, President George W. Bush declared ?a global war on terrorism?. Experts around the world assumed this declaration was a rallying cry, a rhetorical device to galvanize the nation to serious action. By November 2001, however, the evidence began to mount that the President was ordering actions that could only be lawful in a de jure armed conflict: targeting to kill without warning, indefinite detention without trial, and search and seizure on the high seas without consent. It was difficult to criticize these actions on the basis of international law, however, given that international law contained no widely accepted definition of armed conflict. By May 2005, the International Law Association determined that there was a pressing need for a report on the meaning of armed conflict supported by international law. The Use of Force Committee presented its Initial Report on the Meaning of Armed Conflict in International Law at the Rio de Janeiro biennial meeting of the ILA. The Report concludes that all armed conflicts have as minimum two necessary characteristics: 1.) the presence of organized groups 2.) engaged in intense armed fighting. The Report indicates that while the United States has been engaged in an armed conflict in Afghanistan and in Iraq since 9/11, it has not been engaged in a global armed conflict. The Initial Report will be expanded for presentation in final form in 2010 at The Hague biennial meeting.

“Share and Share Alike: Intelligence Agencies, Information Sharing, and National Security”

George Washington Law Review, Forthcoming
George Mason Law & Economics Research Paper No. 09-24

NATHAN ALEXANDER SALES, George Mason University School of Law
Email: nsales1@gmu.edu

Why don’t intelligence agencies share information with each other? This article attempts to answer that perennially vexing question by consulting public choice theory as well as insights from other legal disciplines. It begins by surveying arguments for and against expanded sharing, examples of sharing failures, and recent reforms intended to encourage sharing. Next, the article considers why intelligence agencies see information sharing as a threat to the various values they maximize, such as influence over senior executive branch policymakers and autonomy to pursue agency priorities. It then proposes a series of analytical frameworks that enrich our understanding of why agencies resist sharing: At times data exchange resembles an intellectual property problem, sometimes it looks like an antitrust problem, and sometimes it looks like an organizational theory problem. Finally, the article examines whether the solutions suggested by these other disciplines can be adapted to the problems of information sharing.

Boumediene‘s Quiet Theory: Access to Courts and the Separation of Powers”

Notre Dame Law Review, Vol. 84, 2009
American University, WCL Research Paper No. 2009-08

STEPHEN I. VLADECK, American University – Washington College of Law
Email: svladeck@wcl.american.edu

At the core of Justice Kennedy’s majority opinion in Boumediene v. Bush are his repeated suggestions that habeas corpus is an integral aspect of the separation of powers, and that, as such, the writ remains relevant even when the individual rights of those who would seek its protections are unclear. And whereas some might view these passages as little more than rhetorical flourishes, it is difficult to understand the crux of Kennedy?s analysis – of why the review available to the Guantanamo detainees failed to provide an adequate alternative to habeas corpus – without understanding the significance of his separation-of-powers discussion. At least where habeas corpus is concerned, it seems clear from Boumediene that the purpose of judicial review, in Justice Kennedy’s view, appears to be as much about preserving the role of the courts as it is about protecting the individual rights of the litigants.

In this article, I take on this quiet theory behind Kennedy’s opinion and ask whether it might have applications beyond the unique context of habeas corpus, especially with regard to the more general constitutional right of access to the courts. As I argue, there is actually much to gain from re-conceptualizing access to courts as being as much about protecting the courts as it is about vindicating the individual rights of litigants, a theme largely reflected (although since forgotten) in the judicial decisions giving rise to modern access-to-courts jurisprudence. Thus, going forward, Boumediene might do more than just answer the circumstance-specific question about habeas corpus rights for non-citizens detained as enemy combatants; it might provide the starting point for a new theory of access to the federal courts in particular that could allow us to rethink a number of tenets of federal courts doctrine.

“The Problem of Jurisdictional Non-Precedent”

Tulsa Law Review, Vol. 44, 2009
American University, WCL Research Paper No. 2009-09

STEPHEN I. VLADECK, American University – Washington College of Law
Email: svladeck@wcl.american.edu

Most critiques of the Supreme Court’s June 2008 decision in Boumediene v. Bush (including Justice Scalia’s dissent in the same) have at their core the argument that Justice Kennedy’s majority opinion is inconsistent with prior precedent, specifically the Supreme Court’s 1950 decision in Johnson v. Eisentrager A closer read of Eisentrager, though, reveals a surprisingly unclear opinion by Justice Jackson, that seems to go out of its way to reach various issues on the merits even after suggesting that the federal courts lacked jurisdiction over habeas petitions filed by 22 Germans convicted of war crimes by a U.S. military tribunal in China. Put another way, it is hard to understand the scope of the rule that the Eisentrager majority thought it was enunciating, and therefore the extent to which it should have also applied in the Guantanamo cases.

This problem is not unique to Eisentrager, though. In the Court’s June 2008 decision in Munaf v. Geren, it also brushed aside a post-World War II precedent — the 1948 decision in Hirota v. MacArthur, again because it was not clear exactly which facts the earlier jurisdiction-precluding decision relied upon. As I explore in this essay — part of the Tulsa Law Review’s annual Supreme Court review — these decisions are emblematic of a judicial methodology that is no longer in vogue, thanks to the Supreme Court’s 1998 decision in Steel Co. v. Citizens for a Better Environment. After Steel Co., federal courts can no longer reach issues over which they lack jurisdiction, and so are far more careful to resolve jurisdictional questions at the outset, before moving on (where possible) to the merits.

But what effect does Steel Co. have on prior precedent, where the Court’s decision leaves unclear how much the merits actually mattered? As I explore in this essay, Steel Co. may itself compel that contemporary courts narrowly construe jurisdiction-precluding rules in cases like Eisentrager and Hirota, on the assumption that those courts would not have analyzed questions the answers to which could not have mattered. Reasonable people may disagree about whether Boumediene and Munaf were rightly decided, but the critical point for present purposes is that both were decided on jurisprudential clean slates.

“ASAT-Isfaction: Customary International Law and the Regulation of Anti-Satellite Weapons”

Michigan Journal of International Law, Vol. 30, 2009
Georgetown University Law Center, Public Law and Legal Theory Research Paper No. 09-09

DAVID A. KOPLOW, Georgetown University – Law Center
Email: koplow@law.georgetown.edu

This article asserts the thesis that customary international law (CIL), even in the absence of any new treaty, already provides a legal regime constraining the testing and use in combat of anti-satellite (ASAT) weapons. This argument, if validated, is important for both legal and public policy considerations: the world (especially, but not only, the United States) has grown increasingly dependent upon satellites for the performance of a wide array of commercial and military functions. At the same time, because of this growing reliance (and hence vulnerability), interest has surged in developing novel systems for attacking a potential enemy’s satellites – ASAT technology has been tested by the United States, Russia, and China, and other countries may soon shoot up that same dangerous trajectory. Oddly, the United States has consistently opposed international efforts to negotiate an arms control solution to this problem. Any comprehensive treaty would certainly be difficult to reach (there are numerous complicated issues of definitions, scope, and verification to surmount) but the American stance (not only during the Bush Administration) has been that we should not even try, because “there is currently no arms race occurring in outer space.”

This article turns that resistance on its head, by asking whether customary international law, even without any formal treaty on point, already imposes meaningful constraints upon ASAT activities. To develop the argument, it analyzes three strands of CIL: first, “general” customary international law, which has long been recognized as an authoritative, albeit complex, source of binding rules; second, the specialized legal regime incorporated into the law of armed conflict, which imposes its own strictures, fully applicable to conventional warfare, but not yet applied extra-terrestrially; and finally, another realm of specialized CIL, the emerging jurisprudence governing international environmental law. My conclusion is that there is already a meaningful ASAT-control regime, created by CIL even without codification in a new treaty. This is not, to be sure, a fully comprehensive legal web, and there would still be plenty of additional scope for a new treaty to enhance and extend the legal regime. But the conclusion is that treaty negotiators would not be drafting on a complete tabula rasa; an incipient legal order is already in place.

“Constitutional Canaries and the Elusive Quest to Legitimize Security Detentions in Canada”

Case Western Reserve Journal of International Law, Vol. 40, pp. 531-560, 2009

MAUREEN T. DUFFY, McGill Centre for Human Rights and Legal Pluraliem
Email: maureen.duffy@mail.mcgill.ca
RENE PROVOST, McGill University – Faculty of Law
Email: rene.provost@mcgill.ca

Canada, like many other countries, has struggled with questions of how to prevent terrorist attacks without undermining human rights. One tool that gained prominence in recent years involves preventive detention under “security certificates.” This measure, undertaken through immigration legislation, applies to non-citizens found inadmissible for one of a number of reasons, including a suspicion that they endanger national security. Such detentions have ignited considerable controversy within Canada. In February 2007, the Supreme Court of Canada found the existing scheme unconstitutional. While the Court did not find the scheme to be discriminatory, in spite of its application only to non-citizens, it did find that the potential use of secret evidence contravened procedural fairness. Canada subsequently passed legislation, creating a special advocate system. This article argues that continued problems exist with these detentions, including questions of discrimination and concerns about the fairness of the new special advocate system.

“International Cooperation in Homeland Security”

U of Utah Legal Studies Paper No. 057-08-09

AMOS N. GUIORA, University of Utah – S.J. Quinney College of Law
Email: guioraa@law.utah.edu

Terrorism against the United States, post-9/11, reaches far beyond the U.S. borders. In order to effectively prevent and react to terrorism within the homeland, the U.S. must think of security internationally. International security efforts touch on key issues such as travel security, border control, immigration, intelligence, and financing terrorism. This article examines the U.S. effort at international cooperation in homeland security by examining security and threat assessment in order to analyze current developments and necessary progress moving forward. Further, this article explores comparative efforts at international cooperation in homeland security by examining Canada, Japan, and the E.U. in terms of security and threat assessment. Finally, this article offers recommendations and articulates criteria by which the U.S. can improve vital efforts at international cooperation in homeland security.

To ensure effective counterterrorism, the U.S. must follow a two step process. First, the U.S. must take measures to protect the homeland. Those measure include: promoting travel security by implementing sophisticated technology; promoting border security by securing the Northern border; implementing intelligence sharing between agencies; creating a coordinated plan to promote travel and border security; undergoing training and simulation, and finally; ensuring institutionalized continuity from one Administration to the next.

After taking action to protect the homeland, the U.S. must use these factors as a foundation on which to establish international cooperation. To establish effective international cooperation in homeland security, the U.S. must take measures including the following: forging international partnerships; sharing intelligence related to travel security; creating a coordinated international security plan; running international training and simulation exercises, and finally; implementing international institutionalized continuity.

“Anticipatory Self-Defence and International Law – A Re-Evaluation”

Journal of Conflict and Security Law, 2008
U of Utah Legal Studies Paper No. 057-08-10

AMOS N. GUIORA, University of Utah – S.J. Quinney College of Law
Email: guioraa@law.utah.edu

Traditional state v. state war is largely a relic. How then does a nation-state protect itself – preemptively – against the unseen enemy? Existing international law – the Caroline Doctrine, UN Charter Article 51, Security Council Resolutions 1368 and 1373 – do not provide sufficiently clear guidelines regarding when a state may take preemptive or anticipatory action against a non-state actor. This article proposes rearticulating international law to allow a state to act earlier provided sufficient intelligence is available. After examining international law, this article proposes a process-based “strict-scrutiny” approach to self-defense. Under this approach, the executive will have to convince a court, based on relevant, reliable, viable, and corroborated intelligence, that preemptive action is appropriate. This process leads to a check on the power o the executive by placing a judicial check on preemptive action, consequently establishing objective legal criteria for operational counterterrorism.

Muge Kinacioglu, Department of International Relations, Bilkent, University, Turkey, wrote a response to my article titled, “A Response to Amos Guiora: Reassessing the Parameters of the Use of Force in the Age of Terrorism: Pre-emptive Action and International Law.” Tarcisio Gazzini, Faculty of Law, VU University, Amsterdam, also wrote a response titled, “A Response to Amos Guiora’s Article on Pre-Emptive Self-Defence Against Non-State Actors.”

“An Exchange on Law and Israel’s Gaza Campaign”

ABA National Security Law Report, Vol. 31, pp. 1-6, February 2009
U of Utah Legal Studies Paper No. 057-09-01

AMOS N. GUIORA, University of Utah – S.J. Quinney College of Law
Email: guioraa@law.utah.edu
DAVID LUBAN, Georgetown University – Law Center
Email: david.luban@gmail.com

This exchange on Operation Cast Lead – Israel’s December 2008-January 2009 campaign in the Gaza Strip – includes essays by Guiora and Luban, followed by Guiora’s response to Luban’s essay and Luban’s response to Guiora’s. Luban argues that the Gaza campaign violated both the jus ad bellum and jus in bello proportionality principles. He also argues that the Hamas civil administration were not lawful targets under Israel’s own interpretation of the law of armed conflict. Guiora argues that terrorism changes the landscape of armed conflict and requires a reconfiguration of international law. Under this reconfiguration, an entire terrorist organization may properly be targeted.

Attachments:


Hamlily v. Obama (major opinion partially accepting and partially rejecting the revised

May 19, 2009

* Hamlily v. Obama (D.D.C. May 19, 2009) (Judge Bates recognizes a relatively limited degree of detention authority in the GTMO habeas cases)

Judge Bates, fresh from becoming the new chief of the FISA Court, today issued an important decision that partially accepts and partially rejects the Obama administration’s recently-revised definition of its military detention authority vis-à-vis the GTMO detainees.  Specifically, Judge Bates holds that detention authority includes those who are functional members of AQ, the Taliban, and co-belligerent groups, as well as those others who directly participate in hostilities.  It does not include, however, those who provide support to these groups separate and apart from membership, or those who provide support to hostile acts separate and apart from direct participation.

Below I provide the conclusion of his opinion, and then an outline of his rationale:

Conclusion:

After careful consideration, the Court is satisfied that the government’s detention authority is generally consistent with the authority conferred upon the President by the AUMF and the core law of war principles that govern non-international armed conflicts. In those instances where the government’s framework has exceeded that which is permitted by the law of war – specifically with respect to the concept of “support” — the Court rejects such bases for detention. Therefore, the Court concludes that under the AUMF the President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who are or were part of Taliban or al Qaeda forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed (i.e., directly participated in) a belligerent act in aid of such enemy armed forces.” (p. 21)

Outline:

1. Background:

– The question presented: what is the scope of detention authority under the AUMF, as informed by the law of war? (p.1)

– The judiciary owes some degree of deference to the executive in matters relating to foreign affairs. (p.6-7) [Note that Judge Bates here cites the dueling law review articles on this topic by Eric Posner and Cass Sunstein, on one hand, and Derek Jinks and Neal Katyal on the other.  And they say judges don’t read law review articles anymore…]

2. Summary of the holding:

The court “rejects the concept of “substantial support” as an independent basis for detention. Likewise, the Court finds that “directly support[ing] hostilities” is not a proper basis for detention. In short, the Court can find no authority in domestic law or the law of war, nor can the government point to any, to justify the concept of “support” as a valid ground for detention. The Court does not accept the government’s position in full, then, even given the deference accorded to the Executive in this realm, because it is ultimately the province of the courts to say “what the law is,” Marbury v.Madison, 1 Cranch 137, 177, 2 L.Ed. 60 (1803), and in this context that means identifying the “permissible bounds” of the Executive’s detention authority, Hamdi, 542 U.S. at 522 n.1. Detention based on substantial or direct support of the Taliban, al Qaeda or associated forces, without more, is simply not warranted by domestic law or the law of war. With the exception of these two “support”-based elements, however, the Court will adopt the government’s proposed framework, largely for the reasons explained in Gherebi. The AUMF and the law of war do authorize the government to detain those who are “part of” the “Taliban or al Qaida forces.”  (p. 7)

3. Explanation of the holding:

a. The AUMF: The AUMF, as a matter of domestic law, grants detention authority with respect to the members of the organizations it covers. (p. 10-12)

b. Construing the AUMF in light of the laws of war: The next question is whether this grant of authority is compatible with the law of war, given the detainees argument that there are no combatants and hence no status-based detention in non-international armed conflict.  (p. 12)  The petitioners argued instead for detention being limited to those who directly participated in hostilities (DPH), and they argued that DPH should be construed narrowly (though the court noted that their own expert appeared to support a broader formulation of DPH).  (p. 12)

c. Detention authority in non-international armed conflict: The court accepted that the relationship between the US and AQ is best described as a non-international armed conflict and that there is no “combatant” status in NIAC, but nonetheless rejected the argument that this compels the conclusion that all detainees must then be categorizes as “civilians.”  (P.13)  The court noted that Common Article 3 itself refers to protections for “members of armed forces who have laid down their weapons,” and that AP II provides certain protections specifically directed toward the “civilian” population (implying the existence of non-civilians, according to the court).  (p.14)  Judge Bates then cited a pair of ICTY decisions in support of this view. (p. 14-15)  [As to customary law, interestingly, the court observes that “candidly” this is an open question.]

d. The meaning of associated forces” – the court concludes that the AUMF extends beyond AQ and the Taliban to “associated forces,” which it defined in terms of co-belligerent status.  (p.16).  The court also noted, however, that “”Associated forces” do not include terrorist organizations who merely share an abstract philosophy or even a common purpose with al Qaeda — there must be an actual association in the current conflict with al Qaeda or the Taliban.” (p. 16 n. 17)

e. Who counts as a member or part of a covered group? The court declined to offer a comprehensive test, saying there are “no settled criteria,” that the decision must be individualized, and that the analysis should be “more functional than formal.” (p. 17)  The key, following the earlier decision of Judge Walton in Gherebi, is not self-identification as a member but, instead, “whether the individual functions or participates within or under the command structure of the organization — i.e., whether he receives and executes orders or directions.” (p. 17)

f. “Support” for a covered group as a ground for detention: The opinion states that the government provided no argument to explain how the laws of war support use of a “support” criterion as a basis for detention, other than what the court found to be an unpersuasive effort at oral argument to root the concept in the notion of co-belligerency.  (p. 18)  Judge Bates concludes that the concept instead is an “import” from civilian criminal law. (p. 18-19)  He therefore concludes: “Detaining an individual who “substantially supports” such an organization, but is not part of it, is simply not authorized by the AUMF itself or by the law of war. Hence, the government’s reliance on substantial support” as a basis for detention independent of membership in the Taliban, al Qaeda or an associated force is rejected.” (p. 19)

g. Support for a covered group as evidence of functional membership in the group: Judge Bates went out of his way to observe that evidence of support—particularly recurring support-could constitute evidence that a person as a functional matter is part of AQ, the Taliban, etc., even if they would not self-identify as such. (p.19-20).

h. Support for hostilities as a ground for detention: Citing the same rational provided above, Judge Bates also rejected the proposition that supporting hostile acts can provide a basis for detention. (p. 20)

i. Committing a belligerent act as a ground for detention: Judge Bates concluded that detention authority does extend to persons who commit belligerent acts, a category he defined with reference to the DPH concept.  (p. 20)  He did not attempt to define the outer parameters of DPH, but did note that the ICRC is engaged in an attempt to do just that, and observed that the outer bounds will be determined as needed in the habeas context on a case-by-case basis.  (p. 21)