upcoming events; forthcoming scholarship

“War Bound by Law: Non-State Actors and the Law of Armed Conflict in the 21st Century” (Jan. 22 at Duke)

Duke Journal of International and Comparative Law Symposium

Details here.

Continental Breakfast / Attendee Check-In (8:30 – 8:55)

Welcome and Introduction (9:00 – 9:10)

I. Procedure, Detention, and Policy (9:10 – 10:35)

• Derek P. Jinks University of Texas

• Madeline Morris Duke

• Matthew Waxman Columbia

II. Targeting/Use of Force (10:50am – 12:15pm)

• John D. Bellinger III Former Legal Adviser to the Department of State

• Eyal Benvenisti Tel Aviv

• Michael A. Newton Vanderbilt

Lunch (12:20 – 1:30)

III. Comparative Perspectives (1:40 – 3:25)

• Leila Sadat Washington University, St. Louis

• Michael P. Scharf Case Western

• Elies van Sliedregt Vrije Universiteit, Amsterdam

• Jamie Williamson Intl. Committee of the Red Cross

Concluding Remarks (3:30 – 3:40)

Cocktail Reception (3:40 – 4:40)

“5th International Conference on the Ethics of National Security Intelligence” (March 11-12, at the Georgetown University Hotel and Conference Center)

International Intelligence Ethics Association

Details here.

Keynote Speakers

Jody Williams, Nobel Peace Prize Recipient – 1997
John Inglis, Deputy Director, National Security Agency [unconfirmed]

Thursday, March 11, 2010

0700 –                                    Registration

0715 – 0840                          Breakfast

0840 – 0900                          Introduction, General Announcements

James Stroble and Christopher Vallandingham

0900 – 0945                          Plenary Session

Jody Williams, [Topic to be determined]

0945 – 1000                          Break

1000 – 1050                          Concurrent Sessions

1.  George Lucas, “Military Anthropology and the Ethics of Espionage”

2.  Jill Hernandez, “A Case for Constraints: Deontic Moral Checks on the Unrestricted Right of Intelligence Gathering”

1100 – 1150                          Concurrent Sessions

1.  Angela Gorta, “Identifying and Managing Corruption and Other Misconduct Risks in Counter-terrorism Policing: Case Study of New South Wales Police Counter- Terrorist Coordination Command”

2.  Kevin Macnish, “The Ethics of Surveillance”

1200 – 1300         Lunch

1300 – 1350         Concurrent Sessions

1.  David Gray & Michelle Darnell.  “A Case Study: A Course of ‘Ethics and Intelligence’ with a Multi-Discipline Approach”

2.  Brian Auten, “Justum Speculatum: Evaluating the September 2008 Attorney General’s Guidelines for Domestic FBI Operations through the Lenses of Just War, Just Peacemaking, and Just Policing Theory”

1400 – 1450         Concurrent Sessions

1.  David Black, “The Ethics of Human Intelligence Collection: Ethical Problems and Issues Involved in the Recruitment and Use of Informants and other Kinds of Agents by Foreign Intelligence Services.”

2.  Kenneth Farrall, “Suspicious Activity Reporting and the Production of United States Domestic Intelligence”

1450 – 1500         Break

1500 – 1550         Concurrent Sessions

1. Gary T. Marx, “Surveillance Ethics: Context Untangles the Woven Web”

2. Ephraim Kahana and Daphna Sharfman.  “Intelligence and the War Against Terror: The Israeli Experience”

1600 – 1650         Concurrent Sessions

1.  Mark Silinsky, “Partners in COIN: Warfighters, Scholars, Analysts”

2.  Luis Moratinos-Munoz, “Challenges of the new Committee for the Oversight of the Kosovo Intelligence Agency (KIA)”

1700 –                                   Reception

Friday March 12, 2010

0700 –                                    Registration opens

0730 – 0845                          Breakfast

0845 – 0900                          Introduction, General Announcements

0900 – 0950                         Plenary Session

John C. (Chris) Inglis, “Ethics of Cyber Security & Cyber Warfare”

1000 – 1050                          Concurrent Sessions

1.  Gail Harris, “The Ethics of Intelligence Support to Military Operations”

2.  John Lango, “Intelligence about Noncombatants: Ethics of Iintelligence and the Just War Principle of Noncombatant Immunity”

1050 – 1100                          Break

1100 – 1145                          Concurrent Sessions

1.  George Selim, “Can a Threat Be Ethically Communicated?”

2. Sarah Conly, “Torture and Intelligence”

1200 – 1330                          Lunch

1330 -1430                          Concurrent Sessions

1.  Christopher Caldwell, “Privatized Information Gathering, Just War, and Morality”

2. Anna Roosevelt, “Human Rights and the CIA: The Case of the Assassination of Patrice Lumumba”

1430 – 1530                         Concurrent Sessions

1.  James Roper, “Using Private Corporations to Conduct Intelligence Activities for National Security Purposes”

2. Kelly Greenhill, “The Power of Pictures? Evidence from the Case of Abu Ghraib”

1530 – 1545                         Concluding Remarks

2. forthcoming scholarship

“Terrorist Trial Report Card” (2010 edition)

Center on Law and Security (NYU)

This is a very impressive document, the latest in a series by CLS grappling with the difficult question of how to quantify and assess terrorism-related prosecutions.  One could have an entire conference focused just on the question o From the introduction:

Studying the full eight years of post-9/11 federal terrorism prosecutions, the Center on Law and Security has assembled a massive relational database, a resource that exists nowhere else. Periodically we have reached into the growing data set and pulled out snapshots of the most illuminatingtrends. This year’s Terrorist Trial Report Cardreveals much about the government’s changing legal strategies, the varied biographies of the defendants, and the nature of the threat.

As the number of prosecutions approaches 1,000, federal prosecutors have shifted strategies and courts have honed their ability to try alleged terrorists. An early practice of making high-profile arrests while prosecuting few terrorism charges eroded public trust and muddied assessments of the nature and scale of the threat after 9/11. Our research shows that in recent years there has been a strong trend, little noticed in the public debate, towards a more effective use of the criminal justice system. Despite procedural and substantive challenges, the gap between public allegations of terrorism and the existence of charges of terrorism in court has narrowed considerably. An increasing percentage of convictions involve the more serious charges and a growing percentage of those accused of terrorism are convicted. Overall, the Justice Department has adopted a more disciplined approach, promising less in its public pronouncements and delivering more in the courtroom.

The Transnational Use of Torture Evidence

Kai Ambos (Georg-August-Universität Göttingen – Law)

Israel Law Review, Vol. 42, no. 2, p. 362, 2009

From an international criminal law perspective the question of torture has two aspects. The first is substantive: is the use of torture in all situations, even in the most extreme ones, where torture is applied to save the life of innocents (“preventive torture”), unlawful and must the torturer always be punished? I have tried to find a differentiated answer to this question elsewhere. The second aspect is a procedural one: can evidence obtained by means of torture (“torture evidence”) be used in criminal trials? In states governed by the rule of law and fair trial, the answer is a simple and clear “no” if torture was applied by national authorities and the torture evidence is meant to be used in a subsequent criminal trial. In this situation, of “direct use of torture evidence,” national procedural norms provide explicit prohibitions. These national prohibitions are based on human rights law, in particular Article 15 of the UN Convention Against Torture (CAT).

A more complex question also analyzed in this Article is whether such prohibitions also apply to the transnational use of torture evidence, i.e. situations in which torture evidence obtained in one country and is used in another. One may distinguish between two situations: in the first situation, state A, which has a clear prohibition against the use of torture evidence, sends a suspect to state B, known for its torture practices, to obtain such evidence. In the second situation, state A, in a joint investigation with and inside state B, obtains torture evidence and uses this evidence in a domestic criminal trial in its own territory. The difference between these cases is obvious: in the first case, state B’s torture practice is intentionally and consciously used to circumvent state A’s national torture prohibitions. In the second case, the prohibiting state A obtains torture evidence accidentally, without having intentionally used state B’s torture practices. Transnational use of torture evidence must also be distinguished from the supranational use of such evidence, i.e. its use before international criminal tribunals. After a short explanation of the theoretical point of departure with regard to the use of illegally obtained evidence, we will begin with the supranational level, since it may produce some important findings with a view to the transnational use of torture evidence before national tribunals.

The Foreign Commerce Clause

Anthony J. Colangelo (SMU)

This Article is the first major scholarly work to comprehensively address Congress’s powers under the Constitution’s Foreign Commerce Clause. Congress has increasingly used the Clause to pass laws of unprecedented and aggressive reach over both domestic and foreign activity. Yet despite the Clause’s mounting significance for modern U.S. regulatory regimes at home and abroad, it remains an incredibly under-analyzed source of constitutional power. Moreover, faced with an increasing number of challenges under the Clause lower courts have been unable to coherently articulate the contours of Congress’s power. When courts have tried, their efforts have largely been wrong. The Article explains why they have been wrong and offers a doctrinally and conceptually sound approach to the Clause based on the text, structure and history of the Constitution. It also engages broader legal and policy questions triggered by the Clause. As I show, the Clause is crucial to how Congress constitutionally may project U.S. law around the world.

The Article advances two key limits on Congress’s foreign commerce power and reformats the Supreme Court’s three-category commerce framework for the Clause in light of these limits. The first is the nexus requirement, which derives from the Constitution’s grant of power only to regulate commerce “with foreign Nations,” not a general, global power to regulate commerce “among foreign Nations.” Foreign commerce that is the subject of federal regulation therefore not only must be “with” foreign nations, but also “with” the United States. That is, there must be a U.S. nexus. The second limit I refer to as the foreign sovereignty concern. It holds that Congress has no more power and, in some contexts, has less power to regulate inside foreign nations under the Foreign Commerce Clause than it has inside the several U.S. states under the Interstate Commerce Clause.

“Suspending the Writ at Guantanamo: Take III?”

Yale Law Journal, Vol. 119, 2010

JOSEPH PACEaffiliation not provided to SSRN

Under recently enacted appropriations laws, whenever the President wishes to transfer a detainee from Guantanamo Bay to a third country, he must submit a classified report to Congress, which starts a 15 day clock. Only at the end of those 15 days may the Executive conduct the transfer. While the notification law might be unobjectionable as applied to discretionary releases, it raises serious questions under the Suspension Clause and separation of powers when applied to successful habeas petitioners. It effectively adds 15 days of mandatory and unreviewable detention beyond a judicial determination that the Executive lacks legal authority to hold a detainee. Furthermore, since the classified report must contain the final terms of the resettlement/repatriation agreement, the 15 day delay does not start until the Executive has already arranged the transfer. While the short duration of the delay makes the provision difficult to challenge, if a court were to hear such a challenge, it would almost certainly invoke the canons of constitutional avoidance and the clear statement rule to void the law as applied to successful habeas petitioners.

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