forthcoming scholarship

* Forthcoming Scholarship

"Searching for Terrorists: Why Public Safety is Not a Special Need"

Duke Law Journal, Vol. 59, No. 844, 2010

RIC SIMMONS, Ohio State University (OSU) – Michael E. Moritz College of Law
Email: simmons.239

This Article critically examines the courts’ application of the “special needs” exception to Fourth Amendment searches that are designed to prevent terrorist attacks. It concludes that the special needs doctrine cannot justify these search regimes, and offers a proposal to ensure that these searches comport with the Constitution.

In the wake of the terrorist attacks of September 11th, local police across the country instituted blanket searches devoid of individualized suspicion at various venues – political protests, sporting events, subway platforms, and public ferries – all in an attempt to prevent further terrorist attacks. When evaluating these searches, courts have relied upon the special needs doctrine, which allows the government to conduct a suspicionless search as long as the search serves a special need distinct from the goals of law enforcement. Over the past eight years, courts have struggled to determine whether and how the special needs doctrine applies to these anti-terrorism searches, and their struggles have produced inconsistent results.

The Article first reviews the history of anti-terrorism searches, which can be roughly divided into three different time periods. In the early 1970’s, in response to an epidemic of hijackings and bombings of public buildings, the government instituted a regime of suspicionless searches at airports and public buildings – earches which are still with us today. During the second period, as the imminent danger of these terrorist actions abated, courts continued to uphold the searches, and suspicionless searches spread to other contexts far removed from the terrorist threat. Finally, in the third era, which began in 2001 and continues to the present day, the government aggressively expanded its use of anti-terrorism searches, creating a new set of challenges for courts attempting to evaluate their constitutionality.

The Article then explains why anti-terrorism searches cannot be justified under the special needs doctrine, and indeed why – in their current form – these searches cannot be justified under any Fourth Amendment doctrine. It then proposes a solution: suspicionless searches to prevent terrorism should be permitted, but only if the fruits of the search cannot be used in a subsequent criminal prosecution. Although the solution at first seems controversial, it represents a reasonable balance between the need to protect the country from terrorist attacks and the need to draw a principled distinction between special needs searches and general searches.

Measure Twice, Shoot Once: Higher Care for CIA Targeted Killing

Afsheen John Radsan
William Mitchell College of Law
Richard W. Murphy
Texas Tech University – School of Law
William Mitchell Legal Studies Research Paper No. 2010-14

Killer drones are the future of warfare. Their use, viewed from one angle, generates few legal problems insofar as drones merely provide another tool for the longstanding military practice of killing enemies from the air. Yet, since the drone’s extraordinary capabilities have greatly expanded the government’s range for finding, tracking, and killing human targets in Afghanistan, Pakistan, and other places, commentators debate whether it is legal to kill suspected terrorists in self-defense or as part of an armed conflict – or whether America’s targeted killing is murder.

Assuming international humanitarian law (IHL) applies, we develop specific regulations for the CIA’s targeted killing of active members of al Qaeda and the Taliban. Our analysis complements a prior article that applied the enemy-combatant cases from the United States Supreme Court (Hamdi and Boumediene) as a parallel path toward internal due process. Whether through IHL or by American due process, we argue for heightened review from the CIA’s Inspector General.

To honor IHL’s principles of distinction and military necessity, we explain why the drone operator must be sure beyond a reasonable doubt that the trigger is being pulled on a functional enemy combatant. To honor IHL’s principle of precaution, we also explain why the CIA’s Inspector General must review every CIA drone strike, including the agency’s compliance with a checklist of standards and procedures for the drone program. To reach these conclusions, we adopt guidance from the International Committee of the Red Cross on who falls within the category of people “directly participating in hostilities,” subjecting them to targeting, and we apply techniques from American administrative law.

We also consider targeting American citizens. A program that establishes a very high certainty for targeting as well as a “hard-look” after each strike helps ensure fairness and accuracy regardless of the citizenship of the people in the cross-hairs. In today’s language of IHL, these are “feasible precautions” for the remote-control weapons of the new century.

The 2009 Naval War College Bluebook (aka International Law Studies Volume 85) “The War in Afghanistan: A Legal Analysis”

Michael N. Schmitt, ed. (Durham)

PART I: THEWAR IN AFGHANISTAN IN CONTEXT

I Afghanistan and International Security

Adam Roberts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

II Terrorism and Afghanistan

Yoram Dinstein . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

III International Legal Dynamics and the Design of Feasible Missions:

The Case of Afghanistan

W. Michael Reisman . . . . . . . . . . . . . . . . . . . . . . . . . 59

PART II: THE LEGAL BASIS FORMILITARY OPERATIONS

IV Afghanistan: Hard Choices and the Future of International Law

John F. Murphy . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

V The International Legality of US Military Cross-Border Operations

from Afghanistan into Pakistan

Sean D. Murphy . . . . . . . . . . . . . . . . . . . . . . . . . . . 109

VI Legal Issues in Forming the Coalition

Alan Cole . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141

PART III: THE CONDUCT OF HOSTILITIES

VII Afghanistan and the Nature of Conflict

Charles Garraway . . . . . . . . . . . . . . . . . . . . . . . . . . 157

VIII Making the Case for Conflict Bifurcation in Afghanistan:

Transnational Armed Conflict, al Qaida and the Limits of the

Associated Militia Concept

Geoffrey S. Corn . . . . . . . . . . . . . . . . . . . . . . . . . . . 181

IX Law ofWar Issues in Ground Hostilities in Afghanistan

Gary D. Solis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219

X Combatants

W. Hays Parks . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247

XI Targeting and International Humanitarian Law in Afghanistan

MichaelN. Schmitt. . . . . . . . . . . . . . . . . . . . . . . . . . 307

PART IV: DETENTION OPERATIONS

XII The Law of Armed Conflict and Detention Operations

in Afghanistan

Matthew C. Waxman . . . . . . . . . . . . . . . . . . . . . . . . 343

XIII US Detention of Taliban Fighters: Some Legal Considerations

Stephane Ojeda . . . . . . . . . . . . . . . . . . . . . . . . . . . 357

XIV Rationales for Detention: Security Threats and Intelligence Value

Ryan Goodman . . . . . . . . . . . . . . . . . . . . . . . . . . . 371

PART V: STABILITY OPERATIONS

XV Jus ad Pacem in Bello? Afghanistan, Stability Operations and the

International Laws Relating to Armed Conflict

David Turns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 387

XVI Stability Operations: A Guiding Framework for “Small Wars” and

Other Conflicts of the Twenty-First Century?

Kenneth Watkin . . . . . . . . . . . . . . . . . . . . . . . . . . . 411

viii

XVII The International Legal Framework for Stability Operations:

When May International Forces Attack or Detain Someone in

Afghanistan?

Marco Sassòli. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 431

XVIII Afghanistan Legal Lessons Learned: Army Rule of Law Operations

Eric Talbot Jensen and Amy M. Pomeroy . . . . . . . . . . . . . . 465

PART VI: HUMAN RIGHTS ISSUES

XIX Is Human Rights Law of Any Relevance to Military Operations in

Afghanistan?

Françoise J.Hampson . . . . . . . . . . . . . . . . . . . . . . . . 485

XX Human Rights Obligations, Armed Conflict and Afghanistan:

Looking Back Before Looking Ahead

Stephen Pomper . . . . . . . . . . . . . . . . . . . . . . . . . . . 525

Appendix—Contributors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 543

Index. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 553

"Privileging Asymmetric Warfare?: Defender Duties Under International Law"

NYU School of Law, Public Law Research Paper No. 10-28

SAMUEL ESTREICHER, New York University Law School
Email: samuel.estreicher

Scholarship and advocacy needs to bring defender duties to the forefront of any discussion and investigation of armed conflicts. The necessarily joint contribution of attackers and defenders alike to civilian harm must be recognized. Any investigation of an armed conflict must focus on the duties of both parties and evaluate the feasibility of attacker compliance with some of the more open-ended obligations of international humanitarian law (IHL), such as the so-called duty of proportionality, as a function in part of the extent of defender compliance with its duties.

There are open areas in IHL. States that have acceded to Additional Protocol (AP) I are not necessarily bound by ICRC interpretations and they and states that have declined to ratify AP I can play an active role in formulating and urging others to adopt rules of practice that strike the right balance between attacker and defender duties. Even if, for example, there is widespread international recognition that, at some abstract level, the duty of proportionality is grounded in customary law, the content of that duty is not necessarily identical to the wording contained in AP Article 57. The effectiveness of such a duty, including the ability of military commanders to implement it in the air and on the ground, may well depend on serious consideration, elaboration and implementation of defender duties, for defenders are often in the superior position to minimize civilian exposure to the dangers of military operations.

Defender duties in armed conflicts is a neglected area of IHL. This needs to change if the overall mission of this body of law – minimization of harm to civilians – is to have any reasonable prospect of being realized.

"Guantanamo by Some Other Name: Qualified Immunity, Constitutional Stagnation and the ‘War on Terror’"

Northwestern University Law Review, Forthcoming

SARAH LYNN LOCHNER, Northwestern University – School of Law
Email: s-lochner2011

In recent years, several people detained by the United States during the “war on terror” have brought Bivens actions seeking compensation from executive officials for alleged constitutional torts. These suits are “inevitable” and will become increasingly common. Opponents and victims of the “war on terror” view a Bivens right of action as an appropriate safeguard for human rights and the rule of law, and have focused on securing the availability such suits. While “war on terror” Bivens plaintiffs face challenges inherent in the “nearly dead” Bivens right of action, the Bivens obstacles to relief are not insurmountable.

The qualified immunity defense which the defendant officials in detainees’ Bivens have claimed nearly universally, on the other hand, has received less attention but likely presents the more formidable barrier to compensatory relief. In January 2009, in Pearson v. Callahan, the Supreme Court overturned the qualified immunity test that had been mandatory since 2001. The old test, from Saucier v. Katz, required courts to consider the constitutional merits of the plaintiff’s claim before determining whether the constitutional right involved was “clearly established” when the defendant official acted. The Pearson Court asserted that courts can decide most cases effectively based solely on the “clearly established” question. It recognized, however, that the Saucier test served important notice-giving and rights-development functions. Therefore, for claims that are unlikely to arise in other law-developing suits where qualified immunity is unavailable, the Saucier sequence remains “especially valuable”.

The Bivens claims brought by “war on terror” detainees fit this “especially valuable” category, but the lower courts already have begun to show disagreement as to whether they should apply Saucier sequencing to these claims. This Comment shows that, indeed, “war on terror” detainees’ constitutional rights and the constitutionality of executive detention policies will not develop through alternative legal procedures. The lower courts therefore should address the constitutional merits of these claims before proceeding to the question of whether any constitutional rights that may have been violated were “clearly established” when the defendant official acted. Additionally, the Supreme Court should make explicit the continued value of the Saucier sequence for assessing qualified immunity in “war on terror” Bivens claims.

Part II of this Comment introduces Bivens actions and the defense of qualified immunity, and reviews the recent Pearson decision recasting the Saucier sequence as discretionary. Part III explains why “war on terror” detainees are precisely the type of plaintiffs in whose suits qualified immunity determinations should continue to require a merits-first test. By analyzing “war on terror” cases seeking injunctive and declaratory relief, habeas corpus petitions, and motions to suppress evidence. Part III shows that detainee rights are unlikely to develop through alternative rights of action. Part IV examines discrepant decisions in the D.C. Circuit and the Ninth Circuit and shows that the lower courts have begun to apply Saucier sequencing inconsistently to the qualified immunity defense in detainees’ Bivens actions. Part IV then predicts the effects of this lower court confusion on the judiciary’s notice-giving and rights-development functions in the U.S. anti-terrorism efforts. Part V.A. addresses common criticisms leveled against Saucier sequencing and demonstrates why they are misconceived in the context of “war on terror” detainee Bivens actions. Finally, Part V.B explains why the judiciary should assume any role at all, rather than defer to the executive and legislative branches, in shaping war-time detainee rights and parameters for future executive war-time action. It argues that judicial involvement is important because of the infrequency of opportunities to clarify and update constitutional laws related to war-time activities and the judiciary’s quintessential task of protecting the rights of unpopular minorities.

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