forthcoming scholarship

The Use of Force Against States that ‘Might’ Have Weapons of Mass Destruction

Matthew C. Waxman (Columbia)

Michigan Journal of International Law (forthcoming)

The Iraq war rekindled debate – a debate now further inflamed in discussions of Iran and North Korea – about the legal use of force to disarm an adversary state believed to pose a threat of catastrophic attack, including with weapons of mass destruction (WMD). Colliding with this debate is the stark fact that intelligence about hostile states’ WMD capabilities is and will remain limited and uncertain. This Article examines the following question: How should international legal rules on the use of force handle this intelligence gap? In answering that question, this Article advances two arguments. First, it argues that amid such intelligence uncertainty, a “reasonable necessity” approach to international self-defense doctrine, based on objective standards, is superior to the two main competing schools of thought: the “traditional view,” which holds strictly that only the U.N. Security Council may authorize legal force against WMD proliferates absent an imminent and specific threat of attack, and the “unilateralist” school, which holds that states retain a broader right of preemptive self-defense. Second, it argues that a reasonable necessity approach – and its reliance on objective standards – helps focus analysis on key evidentiary issues that have so far eluded serious study in scholarship on the legal use of force and that are relevant to ongoing debates about alleged WMD proliferation by Iran, North Korea and other states.

Guantánamo, Habeas Corpus, and Standards of Proof: Viewing the Law Through Multiple Lenses

Matthew C. Waxman (Columbia)

Case Western Reserve Journal of International Law (forthcoming)

The Supreme Court held in Boumediene v. Bush that Guantánamo detainees have a constitutional right to habeas corpus review of their detention, but it left to district courts in the first instance responsibility for working through the appropriate standard of proof and related evidentiary principles imposed on the government to justify continued detention. This article argues that embedded in seemingly straightforward judicial standard-setting with respect to proof and evidence are significant policy questions about competing risks and their distribution. How one approaches these questions depends on the lens through which one views the problem: Through that of a courtroom concerned with evidence or through that of a battlefield clouded by imperfect intelligence. All three branches of government should play significant roles in answering these questions, which are critical to establishing sound detention policy.

Mixing Apples and Hand Grenades: The Logical Limit of Applying Human Rights Norms to Armed Conflict

Geoffrey S. Corn (South Texas)

Journal of International Humanitarian Legal Studies (forthcoming)

One of the most complex contemporary debates related to the regulation of armed conflict is the relationship between international humanitarian law (or the law of armed conflict) and international human rights law. Since human rights experts first began advocating for the complimentary application of these two bodies of law, there has been a steady march of human rights application into an area formerly subject to the exclusive law of armed conflict regulation. While the legal aspects of this debate are both complex and fascinating, like all areas of conflict regulation the outcome must ultimately produce guidelines that can be translated into an effective operational framework for war-fighters. In an era of an already complex and often confused battle space, there can be little tolerance for adding complexity and confusion to the rules that war-fighters must apply in the execution of their missions. Instead, clarity is essential to aid them in navigating this complexity.
This article will explore this debate from a military operational perspective. It asserts the invalidity of extreme views in this complementarity debate, and that the inevitable invocation of human rights obligations in the context of armed conflict necessitates a careful assessment of where symmetry between these two sources of law is operationally logical and where that logic dissipates. While acknowledging a legitimate role for human rights norms in relation to the treatment of noncombatants and subdued opposition personnel, I argue that these norms cannot be permitted to influence the legal framework that regulates the application of combat power against operational opponents. Preventing this intrusion is essential to balance the interest of protecting human rights with the fundamental purpose of armed hostilities – securing the prompt and efficient submission of an opponent. Perhaps the most critical premise of this article is that failing to recognize the existence of this boundary will produce a distortion of this historic authority/restraint balance at the core of the law of armed conflict – a distortion that will inevitably be perceived as operationally illogical by armed forces thereby risking the credibility of both bodies of law.

Not “By All Means Necessary”: A Comparative Framework for Post-9/11 Approaches to Counterterrorism

Amos Guiora (Utah)

Case Western Reserve Journal of International Law

Counterterrorism significantly benefits from a comparativist approach. Precisely because no one country has the monopoly on effective operational measures, nation states significantly benefit from analyzing measures applied by other states confronting similar dilemmas and challenges subject to the role of law. To that end, this article examines the policies of targeted killing and administrative detention as applied in Israel and asks whether and how they are applicable to American counterterrorism. In asking this question, it is important to determine whether the two policies are relevant to the U.S. legal framework. An important consideration is how the differences between Israeli and American societies, geographies, constitutions, and strategies condition the counterterrorism policy of each country. As a result of such differences, what works in one country may not work in another. While I am an unequivocal advocate for comparative research and analysis and have sought to bring this approach to my scholarship, I am fully aware of its limitations. That said, I firmly believe that nation states can and must learn from each other. While judicial, constitutional, and societal paradigms are unique and distinct, like-minded civil, democratic states must undertake the critical effort to understand how similar countries address similar issues.

“Unlawful Killing with Combat Drones: A Case Study of Pakistan, 2004-2009”

SHOOTING TO KILL: THE LAW GOVERNING LETHAL FORCE IN CONTEXT, Simon Bronitt ed., Forthcoming
Notre Dame Legal Studies Paper No. 09-43

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

Within days of his inauguration as president, Barack Obama ordered the CIA to continue President Bush’s policy of attacks by unmanned aerial vehicles (UAVs) or drones in Western Pakistan. By October of 2009, the CIA had launched around 80 drone attacks. These attacks cannot be justified under international law for a number of reasons. First drones launch missiles or drop bombs, the kind of weapons that may only be used lawfully in an armed conflict. Until the spring of 2009, there was no armed conflict on the territory of Pakistan because there was no intense armed fighting between organized armed groups. International law does not recognize the right to kill without warning outside an actual armed conflict. Killing without warning is only tolerated during the hostilities of an armed conflict, and, then, only lawful combatants may lawfully carry out such killing. Members of the CIA are not lawful combatants and their participation in killing persons—even in an armed conflict—is a crime. Members of the United States armed forces could be lawful combatants in Pakistan if Pakistan expressly requested United States assistance in a civil war to end a challenge to Pakistan’s civilian government. No express request of this nature has been made. Even if it were made, drone attacks are the wrong tactic in the context of Western Pakistan. The CIA’s intention in using drones is to target and kill individual leaders of al-Qaeda or Taliban militant groups. Drones have rarely, if ever, killed just the intended target. By October 2009, the ratio has been about 20 leaders killed for 750-1000 unintended victims. Drones are having a counter-productive impact in Pakistan’s attempt to repress militancy and violence. The use of the drone is, therefore, violating the war-fighting principles of distinction, necessity, proportionality and humanity.

“The Rise and Fall of Material Witness Detention in Nineteenth Century New York”

NYU Journal of Law & Liberty, Vol. 1, No. 2, 2005
Widener Law School Legal Studies Research Paper No. 09-24

WES OLIVER, Widener University – School of Law
Email: wmoliver@widener.edu

With the Ninth Circuit’s opinion in al-Kidd v. Ashcroft holding that material witness detentions may not be used as a pretext to hold suspects, it is worth noting that as a practical matter the power has never been used any other way. The practice dates make to the 1840s as professional police departments were being created. In the mid-nineteenth century policing was becoming a career. For the first time, there were incentives to investigate crime; law enforcement provided opportunites for long-term retention and promotion. Officers employed by newly-established police departments began to aggressively investigate crime using powers unimagineable to their constable and night-watch precedecessors. Among these new powers was the ability to detain material witnesses. Officers began to detain suspects, whom they lacked adequate suspicion to charge, as witnesses. As the public became aware of the incarceration of those identified only as “witnesses,” officer found the public very unwilling to cooperate in investigations for fear of being held for the crime of possessing helpful information. In New York, the Police Department asked the legislature in the late nineteenth century to allow only the detention of witnesses suspected of being accomplices. The legislature’s acquiescence to the law enforcement request demonstrates not only the rising influence of law enforcement interests in the late-nineteenth century, it also demonstrates that the public was comfortable with material witness detentions only when they were used as a pretext to hold suspects.

Edited by Jonathan Hafetz & Mark Denbeaux

NYU Press

Following the terrorist attacks of 9/11, the United States imprisoned more than seven hundred and fifty men at its naval base at Guantánamo Bay, Cuba. These men, ranging from teenage boys to men in their eighties from over forty different countries, were detained for years without charges, trial, and a fair hearing. Without any legal status or protection, they were truly outside the law: imprisoned in secret, denied communication with their families, and subjected to extreme isolation, physical and mental abuse, and, in some instances, torture.

These are the detainees’ stories, told by their lawyers because the prisoners themselves were silenced. It took habeas counsel more than two years—and a ruling from the United States Supreme Court—to finally gain the right to visit and talk to their clients at Guantánamo. Even then, lawyers were forced to operate under severe restrictions designed to inhibit communication and envelop the prison in secrecy. In time, however, lawyers were able to meet with their clients and bring the truth about Guantánamo to the world.

The Guantánamo Lawyers contains over one hundred personal narratives from attorneys who have represented detainees held at Guantánamo as well as at other lawless detention centers such as Afghanistan’s Bagram Air Base. Mark Denbeaux and Jonathan Hafetz—themselves lawyers for detainees—collected stories that cover virtually every facet of Guantánamo, and the litigation it sparked. Together, these moving, powerful voices create a historical record of Guantánamo’s legal, human, and moral failings, and provide a window into America’s catastrophic effort to create a prison beyond the law.

International Extradition, the Rule of Non-Inquiry, and the Problem of Sovereignty


John T. Parry (Lewis & Clark)

The law of international extradition in the United States rests on a series of myths that have hardened into doctrine. Perhaps the most significant is the frequent claim that by its nature, extradition is “an executive function, rather than a judicial one.” This claim, in turn, supports additional rules, such as the “rule of non-inquiry,” under which courts hearing extradition cases may not inquire into the procedures or treatment, including possible physical abuse, that await the extraditee in the requesting state. In its 2008 decision in Munaf v. Geren, for example, the Supreme Court applied this rule to the transfer of two U.S. citizens from U.S. military custody to Iraqi custody for trial in Iraqi courts. In response to their claim that they were likely to be tortured in Iraqi custody, the Court stated that “it is for the political branches, not the judiciary, to assess practices in foreign countries and to determine national policy in light of those assessments.”

This article uses the rule of non-inquiry to assess the current state of extradition law and the theories that support it. I focus first on the doctrinal status of the rule, with the goal of demonstrating that it is more flexible than courts often purport to believe and that a more explicitly functional approach would better serve the issues that the non-inquiry doctrine encompasses and implicates. Throughout my doctrinal discussion, I also consider the proper scope of habeas corpus review of extradition decisions.

This article also has broader ambitions. First, my discussion of non-inquiry and the scope of habeas review seeks to historicize these doctrines. Second, I argue for unfreezing extradition law and putting it back into the overall structure of federal law and the current of legal change. Third, my suggestions for the rule of non-inquiry also work within and seek to incorporate some of the many changes in international law that have taken place since the rule was first announced. Fourth, I contest the notion that foreign affairs concerns require courts to refuse to inquire into constitutional or human rights claims.

Finally, I explore the rule of non-inquiry’s reliance on a traditional notion of national, territorial sovereignty. Some writers have pointed to the Supreme Court’s decision in Boumediene v. Bush as an example of changing conceptions of sovereignty. By contrast, the Munaf majority repeatedly stressed and relied upon Iraq’s “sovereign right” or “prerogative” to punish offenses “committed on its soil.” Thus, on the same day in June 2008, the Supreme Court declared both that sovereignty has changed, and that it remains the same. This article asks whether Munaf’s conception of sovereignty was already outdated or whether it gives the lie to claims that sovereignty has eroded. I also consider a third option, that both conceptions can exist and be consistent with each other in U.S. law, and the article ends by exploring what that coexistence might mean.

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