1. Zahir v. Bush (D.D.C. Oct. 28, 2009) (discovery issues in GTMO habeas)
Judge Roberts has published a detailed, 15-page decisiongranting in part and denying in part Zahir’s motion for permission to propound various interrogatories in this habeas proceeding. The opinion contains extended discussion of what facts will be relevant to the ultimate merits determination, and is worth a read in that respect.
2. Forthcoming Scholarship
“Mexican Drug Violence and Adversarial Experiments”
Wake Forest Univ. Legal Studies Paper No. 1481263
RONALD F. WRIGHT, Wake Forest University – School of Law
Two remarkable developments mark this time in Mexican criminal justice as profoundly different. First, the country is suffering through wrenching violence connected with the drug trade. Second, Mexico has embarked on procedural changes both at the federal and state levels. Many characterize this procedural transformation as a shift from an inquisitorial to an adversarial model of criminal procedure. I suggest, however, that the reforms do not simply endorse the strengths of a particular adversarial fact-finding method. Rather, the codes create meaningful competition for the public prosecutors in Mexico during the investigation, trial, and punishment of alleged criminals.
This essay considers the connections between these two events, both in the past and the future. Did one development cause the other, or did they both flow from a single cause? First, I consider the “inevitability hypothesis.” According to this view, procedural reform would have happened with or without the drug violence, and the fact that they occurred at the same moment is simply a coincidence. I believe the stronger account, however, is the “violence-as-causation” hypothesis. According to this account, the extraordinary drug violence of 2007 made possible a sweeping set of procedural changes. The violence was necessary to motivate actors to embrace major institutional change.
“American Hegemony and the Foreign Affairs Constitution”
Arizona State Law Journal, Vol. 41, 2009
Chicago-Kent Intellectual Property, Science & Technology Research Paper No. 09-019
NYU School of Law, Public Law Research Paper No. 09-03
ROBERT KNOWLES, Chicago-Kent College of Law
This Article uses insights from international relations theory to challenge the received wisdom that U.S. courts are incompetent to decide foreign affairs issues. Since September 11 in particular, proponents of broad executive power have argued that the Judiciary lacks the Executive’s expertise, speed, flexibility, uniformity, and political savvy necessary in foreign affairs. For these reasons, legal doctrine has long called for especially strong foreign affairs deference to the Executive.
This Article argues that special deference is grounded in an outmoded version of the popular theory of international relations known as realism. Realism views the world as anarchic, nations as opaque to the outside world, and geopolitics as though a few great powers manage the international system through realpolitik and the balance of power. When incorporated into constitutional foreign affairs law, these realist tenets lead to a model that prioritizes executive branch competences over judicial ones, but offers little guidance on how to weigh foreign affairs effectiveness against other constitutional values such as liberty and accountability.
The author proposes a new, “hegemonic” model of desired institutional competences in foreign affairs law that takes account of the transformed post-Cold War world. America dominates the globe militarily, has a political system accessible to outsiders, provides public goods for the world, and plays a dominant role in defining enforceable international law. This American hegemonic order will persist for some time despite threats posed by terrorism and the rise of powers such as China and Russia. Under the hegemonic model, courts serve America’s foreign affairs interests by maintaining stable interpretation of the law and bestowing legitimacy on acts of the political branches. Special deference is now unwarranted. This Article concludes by explaining why Boumediene v. Bush and other recent enemy combatant cases are consistent with the hegemonic model.
“Offshoring the War on Terror”
Kal Raustiala, DOES THE CONSTITUTION FOLLOW THE FLAG?: THE EVOLUTION OF TERRITORIALITY IN AMERICAN LAW, Oxford University Press, 2009
UCLA School of Law Research Paper No. 09-07
KAL RAUSTIALA, University of California, Los Angeles – School of Law
Offshoring is usually thought of in the context of globalization and economic activity. Yet a signal feature of the Bush Administration’s “war on terror” was the offshoring of core security functions. The most famous example is the use of Guantanamo Bay as a detention center, but many other examples of extraterritorial activity exist, such as the practice of “extraordinary rendition.” This chapter, drawn from a forthcoming book on Oxford University Press titled Does the Constitution Follow the Flag?, charts and analyzes these developments, and associated judicial decisions such as Boumediene v. Bush, with reference to larger trends in American politics and jurisprudence.
“Congress’s Role in Cyber Warfare”
Journal of National Security Law & Policy, Forthcoming
Vermont Law School Research Paper No. 10-16
STEPHEN DYCUS, Vermont Law School
U.S. defense and intelligence communities are currently working feverishly to prepare for electronic warfare. The threat of a cyber attack on the United States is extremely serious. Many nations and individuals now possess the means to carry out such an attack, and it might be impossible to identify the attacker. If the United States launches a preemptive strike or counterattack, it could be difficult to predict the effects, raising significant law of armed conflict concerns.
The potential strategic and diplomatic consequences of cyber warfare are at least at great as those of a conflict using conventional kinetic weapons. The Framers intended that Congress play a significant role in deciding when and how the United States should engage in such a consequential conflict. Yet little effort has been made so far to describe an appropriate role for Congress.
Borrowing from our experience in planning for nuclear war, this article suggests that Congress immediately engage in collaborative planning with the executive branch for cyber warfare. Specifically, it urges Congress to organize itself better to conduct this planning, to adopt general guidelines for the use of cyber weapons, and to strengthen existing rules for oversight and accountability. It proposes a review of relevant privacy laws. And it argues for a prohibition on automated offensive responses to cyber attacks, as well as on the employment of contractors to operate cyber weapons.
“Special National Investigative Commissions: Essential Powers and Procedures (Some Lessons from the Pearl Harbor, Warren Commission, and 9/11 Commission Investigations)”
Penn State Legal Studies Research Paper No. 18-2009
LANCE COLE, The Pennsylvania State University Dickinson School of Law
This article analyzes the investigative powers and procedures of three extraordinarily high profile national investigative commissions: The Roberts Commission investigation of the Pearl Harbor Attack; the Warren Commission investigation of the John F. Kennedy assassination; and the 9/11 Commission investigation of the September 11, 2001 terrorist attacks. The article concludes with recommended practices and procedures for future high-profile national investigative commission.
“Beyond the Torture Memos: Perceptual Filters, Cultural Commitments and Partisan Identity”
Case Western Reserve Journal of International Law, Forthcoming
Case Legal Studies Research Paper No. 09-26
CASSANDRA BURKE ROBERTSON, Case Western Reserve University – School of Law
Who should face accountability for the mistreatment of prisoners in the war on terror? Five years ago, the scope of prisoner abuse at Abu Ghraib was first revealed; this year, the Justice Department admitted that a single suspect was waterboarded 183 times. Some at the bottom of the political hierarchy have already been convicted for their participation in prisoner abuse. Those closer to the top of the political hierarchy also find their actions subject to scrutiny, as the Department of Justice’s Office of Professional Responsibility is carrying out an investigation into the professional conduct of the lawyers who authored the memos permitting “enhanced interrogation.”
This article argues that efforts to hold the memo authors professionally accountable for their advice will face two difficulties. First, it will likely be difficult to prove that the memos were written in bad faith. While legal scholars and other lawyers agree nearly universally that the memos represent bad legal advice, bad advice does not necessarily equate to bad-faith advice. The existence of perceptual filters and deep partisan identification may have shaped the lawyers’ views of the situation in ways that appear unfathomable to outsiders. Second, even if the Office of Professional Responsibility finds evidence of professional misconduct, there is a risk that efforts to hold the memo authors accountable will lack political legitimacy. Onlookers will also view such efforts through their own perceptual frameworks and partisan commitments, and may therefore not agree that the memo authors’ conduct deserves to be punished. In particular, this article argues that between 2005 and 2009 there was a redefinition of cultural commitments associated with partisan identity. In 2004 there was still a broad anti-torture American identity, but that identity became fragmented by 2008, with support for torture breaking along partisan lines. In time, cultural commitments may again shift to allow a united American identity that condemns torture. Until that happens, however, it is likely that accountability efforts will further entrench partisan animosity.
“Governmental Practice and Presidential Direction: Lessons from the Antebellum Republic”
Williamette Law Review, Vol. 45, p. 659, 2009
JERRY LOUIS MASHAW, Yale Law School
In Association of Data Processing Service Organizations, Inc. v. Camp, Mr. Justice Douglas famously remarked, ‘Generalizations about standing to sue are largely worthless as such.’ My sense is that Justice Douglas’ skepticism about generalizations applies with even greater force when the question is the extent of the President’s power under the U.S. Constitution to direct other officers concerning the execution or implementation of federal law. But, one generalization might be hazarded: Almost anyone who addresses the topic argues from historical practice, not merely from the text of the Constitution or from judicial precedent.
The silence, vagueness or ambiguity of the constitutional text on most matters of operational consequence, and the paucity of judicial pronouncements, means that the issues of presidential directive power are addressed largely in Congress and within the Executive Branch. In these venues of lawmaking and implementation, grappling with issues of presidential authority and congressional power are a part of the ordinary routines of government.
However sensible our reliance on practice for guidance, we should pause to consider just how deeply problematic that reliance might be. The problems occur at two levels. First, what is the normative claim of practice as evidence of what the law is or should be. Practice, repeated prior actions, or, perhaps, particularly salient events, are just facts. What gives them the power to bind us even presumptively. Second, assuming the normative force of practice, how is it to be interpreted? If we recognize a practice as ours and as having a claim on the legal imagination, how are we to give it meaning. By seeking the meaning these actions had for the actors. By close attention to the contexts in which they occurred. In their interpretation by contemporaneous or later commentators.
I do not want to dwell on the deep questions involved in what gives practice normative force. I will focus instead on the second difficulty, the difficulty of understanding exactly what the normative claim or reach of a past practice might be. For, the practice of American government has proceeded through the multiple actions and claims of executive and congressional officials in multifarious contexts and over a significant period. It is revealed both by what people did and what they said. And its understanding is illuminated by the background presumptions of the legal literature of the times as well as contemporaneous public reaction.
In the end I want to argue that recognition of the difficulty of deriving constitutional meaning from governmental practice contains its own normative implications. The very opaqueness of the normative claims of the past demands a particular form of responsibility from lawyers operating in the present. When combined with the knowledge that most issues of executive power will themselves be decided by practice, not by judicial opinions, we who struggle to discern the meaning of past practice have a special ethical duty not to overstate our positions or to ignore contrary evidence. We must recognize that our institutional arrangements have always been more experimental and various than can be captured by a single narrative.