PATRIOT reauthorization – revised proposal in Senate Judiciary; forthcoming scholarship

1. Amended version of Senate Judiciary Committee bill on PATRIOT Act reauthorization

As I understand it, the latest version of the PATRIOT Act reauthorization legislation (encompassing section 215 orders, roving wiretaps, lone wolf scenarios, and also addressing National Security Letters) is this amended billput forward by Senators Leahy, Feinstein, and a number of others.  (Note that this bill, unlike a Senator Feingold proposal I mentioned in a post last week, does not contain language relating to 18 USC 2339B (the 1996 material support law which is now before the Supreme Court inHolder v. Humanitarian Law Project).

2. Forthcoming Scholarship

The War on Terror and the Laws of War

Geoff Corn, Vic Hansen, Dick Jackson , Eric T. Jensen, Mike Lewis, and James Schoettler, Jr.

Oxford University Press (2009)


When a soldier in the field of battle is under attack in a small village and comes upon a villager who could be a combatant or a civilian, what rules govern how that soldier should act? If the soldier detains the villager and determines that the villager is an unaffiliated combatant, what do the rules of detention require? In The War on Terror and the Laws of War , six legal scholars with experience as military officers bring practical wisdom to the contentious topic of applying international law to the battlefield. The authors apply their unique expertise to issues that have gained greater urgency during the United States’ wars in Iraq and Afghanistan: including categorizing targets and properly detaining combatants. The modern battlefield has proven to be a difficult arena in which to apply traditional legal rules. The War on Terror and the Laws of War brings clarity to the subject with an insider’s perspective.

Table of Contents

Foreword, by Major General Charles J. Dunlap
Introduction, by Professor Geoffrey S. Corn

Chapter 1: What Law Applies to the War on Terror?
by Geoffrey S. Corn, South Texas College of Law

Chapter 2: Targeting of Persons and Property
by Eric T. Jensen, US Army JAG Corps

Chapter 3: Detention of Combatants and the Global War on Terror
by James A. Schoettler, Jr., Georgetown University Law Center

Chapter 4: Interrogation and Treatment of Detainees in the Global War on Terror
by Dick Jackson, US Army JAG Corps

Chapter 5: Trial and Punishment for Battlefield Misconduct
by Geoffrey S. Corn (S. Texas College of Law) and Eric T. Jensen (JAG)

Chapter 6: Command Responsibility and Accountability
by Victor M. Hansen, New England School of Law

Chapter 7: Battlefield Perspectives on the Laws of War
by Michael W. Lewis, Ohio Northern University College of Law

The Rise and Fall of Invasive ISP Surveillance

Paul Ohm (University of Colorado Law School)

2009 Ill. L. Rev. 1417

Nothing in society poses as grave a threat to privacy as the Internet Service Provider (ISP). ISPs carry their users’ conversations, secrets, relationships, acts, and omissions. Until the very recent past, they had left most of these alone because they had lacked the tools to spy invasively, but with recent advances in eavesdropping technology, they can now spy on people in unprecedented ways. Meanwhile, advertisers and copyright owners have been tempting ISPs to put their users’ secrets up for sale, and judging from a recent flurry of reports, ISPs are giving in and experimenting with new forms of spying. This is only the leading edge of a coming storm of unprecedented and invasive ISP surveillance. This Article seeks to help policymakers strike the proper balance between user privacy and ISP need. Policymakers cannot simply ban aggressive monitoring, because ISPs have legitimate reasons for scrutinizing communications on an Internet teeming with threats, so instead policymakers must learn to distinguish between an ISP’s legitimate needs and mere desires. In addition, this Article injects privacy into the network neutrality debate—a debate about who gets to control innovation on the Internet. Despite the thousands of pages that have already been written about the topic, nobody has recognized that we already enjoy mandatory network neutrality in the form of expansive wiretapping laws. The recognition of this idea will flip the status quo and reinvigorate a stagnant debate by introducing privacy and personal autonomy into a discussion that has only ever been about economics and innovation.

“Combatant Status and Computer Network Attack”

SEAN WATTS, Creighton University School of Law

The national security implications of computer network attacks (CNA) have become far-reaching and have prompted major adjustments to our nation’s defense structure and strategy. One of the current President’s early executive acts created a national Cyberczar to coordinate U.S. defenses against CNA. Meanwhile, the Department of Defense has recognized cyberspace as a realm of combat operations equivalent in importance to land, sea and space, creating a new Cyber Command believed to be capable of launching offensive CNA. This Article examines the critical question of combatant status in such CNA – specifically, who, under the existing law of war, may lawfully participate in CNA? Existing accounts evaluate combatant status in CNA under traditional criteria applicable to kinetic and line-of-sight warfare. This Article argues such approaches are outmoded and induce states to engage in practices that amount to no more than empty formalism. With historical, textual, and normative analysis, this Article argues that state sanction or imprimatur is an appropriate standard for evaluating combatant status in CNA. The analytical framework proposed not only aligns with existing law and emerging state practice, but may also resolve the question of status in other remote combat engagements.

The Guantanamo Countdown

Sarah Mendelson (CSIS)

Foreign Policy Magazine

[From the introduction] With eight months down and four to go, Washington has suddenly remembered to ask: How is the closing of Guantánamo going? The answer, according to conventional wisdom, is: not great; the one-year deadline was a mistake, and there never was consensus on closure to begin with. Some are on a witch hunt to lay blame. But reports of impending failure are premature, and the preoccupation with not making the deadline is at least somewhat misplaced. As of early October, in fact, the Barack Obama administration’s effort is actually in considerably better shape than it was in May, when it suffered a near-death experience in Congress. Mistakes and missteps have been made, but the rapidly developing conventional wisdom on what these were is simply wrong. Nor are the critics proving helpful in presenting ideas to make the next four months go more smoothly than the last eight.

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