forthcoming scholarship

May 18, 2010

* forthcoming scholarship

"The Requirement of ‘Belonging’ Under International Humanitarian Law"

European Journal of International Law, Vol. 21, Issue 1, pp. 105-124, 2010

KATHERINE DEL MAR, affiliation not provided to SSRN

This article argues that the notion of ‘belonging to a Party’ to an international armed conflict under Article 4A(2) of the Third Geneva Convention is a necessarily low-threshold requirement. It is submitted that the requirement of ‘belonging’ demands no more than a de facto agreement between a state and an irregular armed group to the effect that the latter will fight on the state’s behalf against another state. The article critically examines how the ICTY Appeals Chamber in the Tadić case applied the requirement to ‘belong’ under Article 4A(2) not in order to classify persons, but rather to classify the conflict in the former Yugoslavia as ‘international’. The Appeals Chamber also considered that the same test should apply for the purpose of attributing state responsibility. It will be argued that there should be no underlying assumption that the same test applies for different purposes. Rather, it is to be expected that different tests developed for different purposes are different. This heterogeneous content of international law does not mean that international law is fragmented. Rather, an argument is made for the application of tests according to their respective purposes.

"Controlling the Executive in Times of Terrorism: Competing Perspectives on Effective Oversight Mechanisms"

Oxford Journal of Legal Studies, Vol. 30, Issue 1, pp. 19-47, 2010

FIONA DE LONDRAS, University College Dublin-School of Law
Email: fiona.delondras
FERGAL F. DAVIS, Lancaster University – Law School
Email: f.f.davis

The well-established pattern of Executive expansionism and limited oversight of Executive action in times of terrorism is problematic from the civil libertarian point of view. How to limit such action has been the subject of much scholarship, a large amount of which focuses on perceptions of institutional competence rather than effectiveness. For the authors, the effective control of security-focused state action is to be judged by the extent to which it consists only of action that is necessary and proportionate and thereby strikes an appropriate balance between security exigencies and individual rights. This article, written and structured in dialectic form, presents competing perspectives on effective oversight mechanisms: on the one hand, an extra-constitutionalism perspective, proposing a limited role for the Judiciary and emphasizing the need for legislative and democratic controls; and on the other, an argument for judicial muscularity.

"Putting Terrorists Out of Business: Using Sarbanes-Oxley to Prosecute Terror Financiers"

Engage: The Journal of the Federalist Society’s Practice Groups, Vol. 11, No. 1, pp. 91-96, March, 2010
George Washington University Legal Studies Research Paper
George Washington University Law School Public Law Research Paper

ADAM ROSS PEARLMAN, The George Washington University Law School
Email: arpearlman

This article examines the practicality and the utility of prosecuting terrorist financiers for anticipatory obstruction of justice under section 802 of the Sarbanes-Oxley Act of 2002, codified at 18 U.S.C. s. 1519. Section 1519 was written to be a broadly applicable law, designed to go after the "individual shredder" or destructor of evidence in a way that other obstruction statutes (e.g. ss. 1503 and 1512) could not. It has been applied to a variety of defendants, ranging from those charged with possession of child pornography, to those being investigated for health care fraud. The article examines the legislative history and the Supreme Court’s ruling in Arthur Anderson (reversing convictions on obstruction charges), and applies that background to the possibility of using this law against those who finance terrorists.

"The Second Largest Force: Private Military Contractors & State Responsibility"

University of Miami Legal Studies Research Paper No. 2010-10

MARKUS WAGNER, University of Miami School of Law
Email: mwagner

The paper is concerned with private military contractors, their expanding use and the challenges this poses to a system in which private actors – at least so far – have been considered to be acting outside of existing international accountability structures.

The paper proceeds from a brief historical overview of the use of non-state military forces to a delineation of what private military forces are (and what they are not), what distinguishes them from mercenaries (and what does not). This is followed by an analysis of how private military forces’ conduct can be attributed to the states employing them, thereby contributing to the debate over the advantages and disadvantages of their proliferating use in recent conflicts.

The article proposes a range of legal and policy rationales to reassess the arguments that are being advanced for the use of private military forces in today’s conflicts – with respect to their legal status, their political utility and their impact on democratic accountability mechanisms.

"The Inconvenience of a ‘Constitution [that] Follows the Flag … But Doesn’t Quite Catch Up with It’: From Downes v. Bidwell to Boumediene v. Bush"

PEDRO A. MALAVET, University of Florida – Fredric G. Levin College of Law
Email: malavet

Boumediene v. Bush, resolved by the U.S. Supreme Court in June of 2008, granted habeas corpus rights, at least for the time being, to the persons detained at Guantanamo Bay Naval Station. The majority partially based its ruling on the doctrine of the Insular Cases, first set forth in the 1901 decision in Downes v. Bidwell. Additionally, the four dissenting justices agreed with the five in the majority that the plurality opinion of Justice Edward Douglass White in Downes – as affirmed by a unanimous court in 1922 in Balzac v. People of Porto Rico – is still the dominant interpretation of the Constitution’s Territorial Clause, abandoning the rule set forth in 1856 in Dred Scott v. Sanford. The Boumediene majority labels this a “situational” standard that allows it to pick which provisions of the Constitution will be enforced in the U.S. Territorial Possessions and now extraterritorially as well.

This article provides historical context and analysis of the Insular Cases, that series of decisions on the power of the U.S. government over territory and people under the Territorial Clause, and criticizes the Boumediene majority’s use of it to justify the “situational” application of constitutional rights to subjects of United States law, especially to those who are most “inconvenienced”: the territorial U.S. citizens. The article also points out the fallacy that these legal situations are temporary and transitional given that most of the current territorial possessions have been continuously occupied since the end of the Spanish American War in 1898.

I began work on this article a few weeks after the Boumediene decision was issued in an attempt to greatly expand a short contribution to an anthology into an article, and to discuss the Supreme Court’s most recent citation of the Insular Cases. But unforeseen circumstances forced me to move on to other projects and delay its publication. Luckily, this delay has given me the opportunity to revise the draft and to review the literature produced in response to the case. A LEXIS search of published law review articles found 506 articles that referenced Boumediene in their text. When that search was refined to articles referencing Boumediene and the Insular Cases together, it produced 48 article results. The study of the published articles leaves me almost as disappointed as I was in the Fall of 2008 with the level of study of the Insular Cases by the U.S. legal mainstream.

"Holder v. Humanitarian Law Project: Material Support at the Supreme Court"

The Investigative Project on Terrorism, p. 11, 2010

STEPHEN I. LANDMAN, Catholic University of America (CUA) – Columbus School of Law
Email: Landman_Stephen

Since September 11, 2001, the majority of “national security” cases to make it to the Supreme Court have dealt with America’s military strategy in the War on Terrorism – namely our policies at Guantanamo Bay. Although these cases have focused on detention authority and due process rights in a time of war, they represent only one facet of what is at least a two-front war. Alongside our military efforts, the United States has been engaged in domestic law enforcement to target international terrorist groups long before September 11th.

At the forefront of that battle is the “material support” statute – 18 U.S.C. § 2339B. Although both maligned and lauded, subject to numerous amendments and frequent litigation, the constitutional challenges have never made their way to our nation’s highest court – until now.

This term, the United States Supreme Court will hear arguments in Humanitarian Law Project v. Holder (HLP) a case with significant national security implications. The case is already well underway, with briefs being submitted by both the government and a wide variety of interested amici on both sides. Oral arguments are scheduled for February 23, 2010, but there are a lot of materials and arguments to digest first.

This report will summarize and discuss the facts and arguments in HLP, attempting to put the challenge into context of everyday criminal prosecutions. Unlike most of the legal analysis sure to make it way into the press, this article will focus solely on the real-world, practical effects of the statute.

Part I will provide a brief overview of the litigation and background on the parties and issues involved. Tracing the procedural history of Humanitarian Law Project from its roots as an attempt to enjoin government counter-terrorism efforts in the 1990s to the Supreme Court 12 years later, the challenge serves as an excellent case-study for evaluating the constitutionality of a critical national security tool.

Part II will analyze the legal questions presented by the case from a policy standpoint. While briefly discussing the technical legal questions upon which the court will ultimately issue its ruling, this section will contextualize the case, explaining the possible implications of the court’s ruling.

Georgetown Federal Legislation and Administrative Clinic Seeking Fellows (note deadline: NEXT MONDAY)

May 18, 2010

* National Security / Foreign Affairs Graduate Clinical Teaching Fellow

Federal Legislation and Administrative Clinic

Georgetown University Law Center

The Federal Legislation and Administrative Clinic (FLAC) at the Georgetown University Law Center seeks two bar-admitted legislative lawyers to supervise law students during two-year graduate clinical teaching fellowships. One fellow starts this fall, no later than August 19, 2010, and receives an LL.M. The second starts Spring Term 2011, with tenure and LL.M negotiable. Each fellow receives an annual stipend of approximately $50,000 (taxable and pro-rated for periods of under one-year), health and dental benefits, and all tuition and fees for the LL.M. program, supervises five students, and works with the FLAC Director and national security / foreign affairs clients on important real-world policy and legislative initiatives. More information about the clinical fellowship may be found at (page 26) Candidates must have excellent analytical, writing, and interpersonal skills, and keen interest in clinical teaching and learning. Experience in legislation and/or the national security / foreign affairs field is preferred but not required.

Not later than Monday, May 24 submit a concise statement of interest, CV, law school transcript (if possible), and writing sample to Visiting Professor Dakota Rudesill, Incoming Director, Federal Legislation and Administrative Clinic, 111 F Street NW, Room 340, Washington, D.C. 2000-2095. Please send a contemporaneous email, and direct any questions, to Loretta Moss, FLAC Executive Assistant, at moss.

Al-Bihani v. Obama

May 14, 2010

* Al-Bihani v. Obama (D.C. Cir. May 13, 2010) (govt brief opposing en banc review)

The government has filed a brief opposing en banc review of the Circuit’s Al-Bihani opinion (which confirmed the detainability of the petitioner, confirmed that a preponderance standard of proof is permissible in the GTMO habeas context, and dealt with various other issues). Worth noting, the administration argues that the circuit panel’s opinion was correct except insofar as the panel concluded that international law has no bearing on the scope of the government’s detention authority under the AUMF.

The brief is posted here thanks to SCOTUSblog:

United States v. Ghailani (S.D.N.Y. May 10, 2010)

May 11, 2010

* United States v. Ghailani (S.D.N.Y. May 10, 2010) (denying motion to dismiss on grounds of outrageous government conduct)

In a ruling with some relevance to the current debate regarding interrogation of terrorism suspects who may ultimately be subject to criminal prosecution, Judge Kaplan has denied a motion to dismiss the indictment brought by Ahmed Ghailani, the former GTMO detainee now facing prosecution in New York for his alleged role in the 1998 East African embassy bombings. Ghailani had argued that he had been tortured while in CIA custody, and that this constituted “outrageous government conduct” warranting the remedy of dismissal of the indictment. Judge Kaplan disagreed, citing the Ker-Frisbie doctrine:

This case follows a fortiori from the rationale of the Ker-Frisbie rule. Ghailani is charged here with complicity in the murder of 224 people. The government here has stated that it will not use anything that Ghailani said while in CIA custody, or the fruits of any such statement, [FN20] in this prosecution. In consequence, any deprivation of liberty that Ghailani might suffer as a result of a conviction in this case would be entirely unconnected to the alleged due process violation. Even if Ghailani was mistreated while in CIA custody and even if that mistreatment violated the Due Process Clause, there would be no connection between such mistreatment and this prosecution. If, as Ker-Frisbie holds, the illegal arrest of a defendant is not sufficiently related to a prosecution to warrant its dismissal, it necessarily follows that mistreatment of a defendant is not sufficient to justify dismissal where, as here, the connection between the alleged misconduct and the prosecution is non-existent or, at least, even more remote. Certainly the government should not be deprived here “of the opportunity to prove his guilt through the introduction of evidence wholly untainted by [any
government] misconduct.” [FN21] Any remedy for any such violation must be found outside the confines of this criminal case. Read the rest of this entry »

recent scholarship re terrorism and the public safety exception to Miranda (including comparative perspective)

May 10, 2010

* Recent scholarship re terrorism and the public safety exception to Miranda (including comparative perspective)

Given the attention currently being paid to the issues associated with interrogation in the absence of counsel and without a Miranda warning, listmembers may be interested in Dan Stigall’s recent blog post and book on the topic, which offer a useful comparative law perspective:

forthcoming scholarship

May 7, 2010

“Habeas Corpus, Due Process and the Suspension Clause: A Study in the Foundations of American Constitutionalism”

Virginia Law Review, Vol. 96, No. 6, 2010
Northwestern Public Law Research Paper No. 10-11

MARTIN H. REDISH, Northwestern University – School of Law
Email: m-redish
COLLEEN MCNAMARA, Northwestern University – School of Law
Email: C-McNamara2011

Ever since the attacks of September 11, 2001, constitutional scholars have been exploring the controversial issues surrounding the so-called “Emergency Constitution.” One of the very few provisions of the Constitution that explicitly contemplates such emergency situations is Article I, section 9, concerning the writ of habeas corpus. That provision prohibits suspension of the “Great Writ,” except “when in cases of rebellion or invasion the public safety may require it.”

The writ of habeas corpus has long stood as the primary weapon against the development of tyranny. It enables a court to demand that the executive produce individuals it is detaining and explain the lawful basis for that detention, and to order the detainees’ release if it finds the confinement to be unlawful. Absent the availability of habeas corpus, there would exist no legal means of preventing those in power from arresting any individual they want, for as long as they want, regardless of the legitimacy of the arrest. Yet pursuant to the so-called Suspension Clause, in times of rebellion or invasion the government is authorized to suspend the writ.

Highly respected scholars have recently engaged in an intense debate over the meaning and implications of the Suspension Clause. All of them, however, have seriously missed the mark, because all have assumed the continuing validity of that Clause. In this Article, we argue that the Due Process Clause of the Fifth Amendment effectively repeals the Suspension Clause. We reach this conclusion for two reasons: first, the Suspension Clause indisputably authorizes summary detention without the availability of any form of hearing before a neutral adjudicator.

Whatever “due process” means at its outer fringes, there is no doubt that such a practice deprives an individual of liberty without due process of law. Yet the Due Process Clause, on its face, is unlimited in its application; it contemplates no exceptions, when an individual is to be deprived of life, liberty or property. Thus, purely as a matter of textual construction, the Due Process Clause, contained in an amendment, supersedes the Suspension Clause, which appears in the body of the Constitution. Moreover, it is important to recognize that the Suspension Clause authorizes tyrannical practices wholly inconsistent with and undermining of foundational precepts of American Constitutionalism. This concept dictates a governmental commitment to the rule of law and to limited governmental authority over its citizens. The Due Process Clause should be deemed to protect these core values. After establishing the supremacy of the Due Process Clause, the Article carefully explores the manner in which the Due Process Clause should be found to limit coercive governmental authority in times of national crisis. Read the rest of this entry »

a pair of recent UK rulings on the use of secret evidence

May 7, 2010

* Al Rawi v. Security Service, Tariq v. Home Office – Apr. 5, 2010

A pair of recent UK rulings on the use of secret evidence in various types of proceedings – see attached.