forthcoming scholarship

May 27, 2010

* forthcoming scholarship

Harvard National Security Journal Volume 1

· Dialogue, Discourse, and Debate: Introducing the Harvard National Security Journal – By Martha Minow

· The Interpretive Guidance on the Notion of Direct Participation in Hostilities: A Critical Analysis – By Michael Schmitt

· Teaching an Old Dog New Tricks: Operationalizing the Law of Armed Conflict in New Warfare – By Laurie Blank and Amos Guiora

· FISA’s Significant Purpose Requirement and the Government’s Ability to Protect National Security – By Scott Glick

· Cybersecurity and National Policy – By Dan Geer

Note: HNSJ is now accepting submissions for Volume 2. Details here.

A Note on the Law of Wars in Cyberspace

James Lewis, Center for Strategic and International Studies

There is some disagreement as to whether we can apply the existing legal framework for warfare to cyber conflict or whether a new legal framework is needed. This debate conflates two separate issues: can the existing legal framework be applied to cyber conflict and is the existing framework adequate. A review of the applicability of existing law of war suggests that if we approach cyber warfare as involving the use of a new technology to gain military advantage, the current body of international law can be applied to cyber conflict, but some issues involving sovereignty, combatants, "force" or "overflight" may need expanded or new definitions or rules.

"Terrorism Trials and the Article III Courts after Abu Ali"

Texas Law Review, Forthcoming
American University, WCL Research Paper No. 2010-09

STEPHEN I. VLADECK, American University – Washington College of Law
Email: svladeck

To say that it is difficult to divorce the debate over the suitability of trying terrorism suspects in the Article III courts from the politics of the moment would be an epic understatement. Especially in light of the Obama Administration’s decisions to (1) try the “9/11 defendants” in the civilian courts and (2) subject Umar Farouk Abdulmutallab to civilian – rather than military – jurisdiction, recent months have witnessed a renewed barrage of objections to subjecting such extraordinary cases to the ordinary processes of our criminal justice system. These critiques have included claims that such trials make the city in which they occur a target for future attacks; that they provide the defendants with a platform from which to spew anti-American propaganda; that they risk publicly revealing information about intelligence sources and methods; that they are enormously costly both with regard to the security measures they require and the judicial resources they consume; and, most substantively, that they put pressure on the courts to sanction exceptional departures from procedural or evidentiary norms that will eventually become settled as the rule – what we might characterize as either a “distortion effect” or a “seepage problem.”

Although these arguments are not new, they do raise fundamental questions about whether the civilian courts are able effectively to function in certain high-profile terrorism cases and to balance the rights of the defendants with the very real practical, logistical, and substantive difficulties that such prosecutions tend to raise. And while any number of groups have attempted to answer these questions at the macro level, there have been few concerted studies of individual trials. This symposium article attempts a different approach, focusing on the specific procedural and evidentiary issues confronted in one of the more legally significant of the post-September 11 criminal prosecutions completed as of this Article – the trial of Ahmed Omar Abu Ali.

As this article suggests, Abu Ali is a microcosm both of the unique difficulties these cases present and the ways in which such issues have generally been resolved by federal trial judges exercising creativity and flexibility. Moreover, Abu Ali provides particular proof of the extent to which advancements in courtroom technology may well mitigate at least some of the practical obstacles that courts face in transnational terrorism cases. Finally, whatever difficulties Abu Ali may have presented for the civilian criminal justice system, it is not at all clear why the same difficulties wouldn’t also be present had Abu Ali been tried in a military commission. The claimed errors at trial that were analyzed by the Fourth Circuit were all constitutionally grounded, and there is little in the way of precedent for the proposition that either the Fifth Amendment’s privilege against self-incrimination or the Sixth Amendment’s right to confrontation have less force before a military tribunal – especially where the defendant is a U.S. citizen.

To be sure, like this Article’s conclusions, its aim is modest. There are a host of reasons why it would be wrong to draw sweeping lessons from the story of one particular case, no matter how significant that one case may be. In addition, even an assessment just of the Abu Ali litigation is lacking for any appreciation of the myriad problems that government or defense counsel likely encountered behind the scenes; the story told here is one reconstructed entirely from the public record, a record that could also be read with a far more skeptical eye. Nevertheless, my hope is that a candid discussion of the Abu Ali litigation – including its triumphs and its shortcomings – will add meaningful substantive content to a conversation that, for the moment, seems awash in unsubstantiated (and largely partisan) rhetoric.

"The Application of IHL in the Goldstone Report: A Critical Commentary"

Yearbook of International Humanitarian Law, Vol. 12, 2009
Emory Public Law Research Paper No. 10-96

LAURIE R. BLANK, Emory University School of Law
Email: lblank

Operation Cast Lead, the Israeli military operation in Gaza that began on December 27, 2008, demonstrated anew the challenges international humanitarian law – otherwise known as the law of armed conflict or the law or war – faces in contemporary conflict. The Goldstone Report presented an opportunity to examine critically how the law applies in complicated modern warfare and how the law might be used to solve difficult problems such conflict poses.

This article analyzes the Goldstone Report’s application of the law to the conduct of both parties in the conflict so as to examine whether the report applies the correct legal standards and interprets them appropriately within the framework of the Gaza conflict. In particular, the article focuses on two main shortcomings in the Goldstone Report’s application of IHL: areas in which the report could have benefitted from a greater sensitivity to the complexities of modern warfare, and areas in which its approach is questionable as a matter of law.

First, I highlight the report’s flawed examination of the challenges posed by contemporary conflicts in two fundamental areas of IHL: distinction and military objectives. Both require that military commanders and soldiers understand who is a civilian and who is a fighter or combatant, and which targets are military targets and which are civilian objects. Without a thorough and sophisticated understanding of how to make these determinations, military commanders, soldiers and policy makers will face grave difficulty in planning and carrying out military operations within the bounds of the law. The challenges presented in Operation Cast Lead are emblematic of some of the most difficult dilemmas modern warfare poses.

Second, the article highlights several areas in which the Goldstone Report’s application of IHL is questionable, either because it uses the incorrect legal standard or because it applies the wrong law when more than one body of law applies. The report errs twice in its treatment of the principle of proportionality, first by approaching jus in bello proportionality retrospectively rather than prospectively, and second by conflating jus ad bellum proportionality with jus in bello proportionality. Additional problems arise in its analysis of the law governing precautions in attack and the treatment of prisoners of war, and its assessment of responsibility for specific crimes, including attacks on civilians, destruction of property and hostage taking.

"Aggression, Legitimacy and the International Criminal Court"

European Journal of International Law, Vol. 20, Issue 4, pp. 1147-1156, 2009

SEAN D. MURPHY, George Washington University – Law School
Email: smurphy

The late Thomas Franck postulated that the legitimacy of international norms and institutions rested in large part upon certain important factors, notably whether the norm or institutional process was validated through commonly accepted means, whether it was clearly understood by those upon whom it operated, whether it cohered with other norms and institutions, and whether it was well-grounded in secondary rules of international law concerning law formation. This article argues that the proposed draft amendment to the Rome Statute on the crime of aggression does not fare well under these criteria, casting into doubt the long-term prospects for the legitimacy of the definition of the crime and of the institutional structures charged with administering it. Choices made at the ICC Review Conference in 2010 to finalize an amendment to the Rome Statute may help alleviate or aggravate these concerns.

"Second Thoughts on the Crime of Aggression"

European Journal of International Law, Vol. 20, Issue 4, pp. 1117-1128, 2009

ANDREAS L. PAULUS, University of Goettingen
Email: apaulus

The article is a critique of the proposal for the codification of the crime of aggression by the Special Working Group on the Crime of Aggression. It concentrates on four main points – the inherent indeterminacy of the definition of aggression, its uncertain application to recent cases concerning the use of force, the involvement of the Security Council in the exercise of jurisdiction, and, finally, the danger of concentrating issues of jus in bello and jus contra bellum in one single court or tribunal. The contribution concludes that the time is not ripe for a codification of the crime of aggression at a time at which the Court is still struggling to establish itself.

"Typology of Conflict: Terrorism and the Ambiguation of the Laws of War"

GNLU Law Review, Vol. 2, No. 1, 2010

JACKSON NYAMUYA MAOGOTO, University of Manchester
Email: jacksonmaogoto
GYWNN MACCARRICK, affiliation not provided to SSRN

One of the reasons that terrorism is unconventional and viewed as beyond the pale is because it adopts an arbitrary stance. War is the predictable and directed waging of armed conflict against an enemy, where as terrorism can not be anticipated or calculated because it’s ominous and malevolent actions do not discriminate between the enemy and civilians. In deed the greater the number of civilian casualties the greater the prominence they bring to their political cause. The distinction here is that we can seek to place limits on war because both sides agree to the terms under which they fight and both stand to gain from the benefits of limitation. But acts of terror rely upon the absence of limitation (including the absence distinction, proportionality, military necessity) for psychological impact such that there is no mutual benefit of placing constraints or confines on actions taken. Thus terrorism has passed over the parameters of warfare and into the realm of criminal conduct or alternatively it is employing the methods of warfare with a criminal intent. It seems therefore that terrorists should either be thought of as criminal behavior, in which case they might be accused of violating criminal law, or they should be thought of as acting within the scope of war and peace, in which case they might be accused of violating either the law of war or the law of peace. However, they do not seem to fall clearly in either scenario thus despite being law violators, they have situated themselves in an impossible place, located somewhere outside of the law.

"Burdens of Proof and Evidentiary Standards in U.N. Weapons Inspections"

ROB BEJESKY, affiliation not provided to SSRN
Email: rb_775

The article analyzes the role of evidentiary standards under international law and how perceptions of evidence on weapons of mass destruction (WMD) allegations led to the 2003 invasion of Iraq. The evidentiary record is built by using the five-year Senate Select Committee on Intelligence investigation of the pre-invasion intelligence information (concluded in June 2008), the Iraqi Survey Group physical inspection findings during occupation, other government studies, and verified media releases over the past six years. Findings are juxtaposed with the domestic level issue formation, the UN Security Council interactions, and the four months of UN inspection reports. The chronological case study builds a structure of evidentiary standards, explains why Security Council interactions were logistically effective but ultimately unavailing, and is applied to a two-level domestic/international interactive game framework that distinguishes between established evidence and media assertions. Diplomatic and inspector evidentiary perceptions are analyzed as they progressed and are applied to resolution language that should have been the legal frame of reference for breach. Evidentiary standards of proof for breach were required in Security Council resolutions, all UN processes, UN inspection obligations, under good faith diplomacy principles, and even the language of Congress’s October 2002 Authorization for Use of Military Force Against Iraq. However, preconditions were bypassed. Since the UN Security Council does not possess a formal and dispassionate evidentiary fact-finding institution and diplomatically-produced information can commingle with potentially irreconcilable prerogatives of sovereign authority, an augmenting pressure dynamic can arise to supplant objectivity and relegate impartial, sober, and dispassionate legal processes to the realm of politics.