upcoming event: “Understanding Contemporary Warfare” (Texas Tech & Army War College Strategic Studies Institute, September 15-16 at Texas Tech)

August 31, 2010

* upcoming event: "Understanding Contemporary Warfare" (Texas Tech & Army War College Strategic Studies Institute, September 15-16 at Texas Tech)

Information about this event is attached, and reprinted below:

United States National Security Policy and Military Strategy: Understanding the Environment for Contemporary Warfare

A Colloquium sponsored by the Vietnam Center and Archive and Department of Political Science

Texas Tech University

And

The Strategic Studies Institute, US Army War College

September 15-16, 2010

The Overton Hotel and Convention Center

Lubbock, Texas

This event is free for the first 150 registrants. To register to attend, please visit http://www.vietnam.ttu.edu/events/counterterrorism/

Tuesday, September 14, 2010

All Day: Participants Arrive

(Speaker transportation coordinated with Overton Hotel)

12:00 PM: Conference Registration Open

5:00 PM: Conference Registration Closed

6:00 PM: Reception at Overton Hotel

(Cash Bar; Light Hors d’oeuvres)

Wednesday September 15, 2010

7:30 AM: Coffee and Tea Service in Conference Registration Area

Conference Registration Open

8:15 AM: Welcoming Remarks

Chancellor Kent Hance and/or President Guy Bailey

8:30 AM: Discussion Panel 1: An Assessment of Contemporary Warfare and US National Security and Military Policy

Moderator: TBD

United States National Security Policy and Military Strategy: Understanding the Environment for Contemporary Warfare

A Colloquium sponsored by the Vietnam Center and Archive and Department of Political Science

Texas Tech University

And

The Strategic Studies Institute, US Army War College

September 15-16, 2010

The Overton Hotel and Convention Center

Lubbock, Texas

This event is free for the first 150 registrants. To register to attend, please visit http://www.vietnam.ttu.edu/events/counterterrorism/

Tuesday, September 14, 2010

All Day: Participants Arrive

(Speaker transportation coordinated with Overton Hotel)

12:00 PM: Conference Registration Open

5:00 PM: Conference Registration Closed

6:00 PM: Reception at Overton Hotel

(Cash Bar; Light Hors d’oeuvres)

Wednesday September 15, 2010

7:30 AM: Coffee and Tea Service in Conference Registration Area

Conference Registration Open

8:15 AM: Welcoming Remarks

Chancellor Kent Hance and/or President Guy Bailey

8:30 AM: Discussion Panel 1: An Assessment of Contemporary Warfare and US National Security and Military Policy

Moderator: TBD

3:00 PM: Coffee Break

3:30 PM: Discussion Panel 4: Bridging the Gap between Quantitative and Qualitative Approaches to understanding Contemporary Warfare

Moderator: To be provided by Department of History, TTU

• Dr. Thomas Lynch, Col (Ret), USA. Institute for National Strategic Studies, National Defense University, former Special Assistant and Deputy Director of the Advisory Group for the Chairman of the Joint Chiefs of Staff.

• Curtis Johnson, Asia Pacific Center for Security Studies, Advanced Concepts Group at Sandia National Laboratories with a focus on the future of national and international security, global terrorism and counterterrorism, homeland security, and utilizing science and engineering approaches to complex systems and problems.

• Michael Mihalka, Ph.D., Professor of Political Science, School of Advanced Military Studies. “Picking your fights: Towards a Strategic/Operational Approach to Cope with Transnational Terrorism.”

5:00 PM End of first day

6:00 PM Reception

(Cash Bar; Light Hors d’oeuvres)

6:30 PM Banquet

7:30 PM Keynote Speaker: Lieutenant General David W. Barno, Center for a New American Security

8:30 PM End of banquet

Thursday September 16, 2010

8:30 AM Understanding the Environment for Contemporary Warfare: Looking through New Lenses

Moderator: To be provided by Department of History, TTU

• Dave Lewis, Colonel, USAF (Ret), Texas Tech University. Developing New Lenses:

• Dr. Nori Katagiri, Assistant Professor of International Security Studies, Air War College. “Understanding How Non-State Actors Fight and Defeat Foreign States in War.”

• Dr. Larry A. Valero, Associate Professor of Security Studies, University of Texas at El Paso. “Understanding Strategic Communication as a Counterterrorist Tool.”

10:00 AM Coffee Break

10:30 AM International Law and Contemporary Warfare: Challenges and Precedents (Organized by the Center of Military Law, Texas Tech University Law School)

Moderated by Walt Huffman, Dean Emeritus, Texas Tech University Law School

• Professor W. Hays Parks, Law of War Chair, Office of the General Counsel, Department of Defense; former Special Assistant for Law of War Matters to the Judge Advocate General of the Army

• Professor Laurie Blank, Director, International Humanitarian Law Clinic, Emory University Law School

• Professor Richard Rosen, Director, Military Law Center, Texas Tech University Law School

12:00 PM Lunch

1:30 PM: Roundtable Discussion: Developing New Ideas and Strategies for Contemporary Warfare

To be comprised of select speakers from previous panels

3:00 PM Concluding Remarks

agenda.pdf

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correction al bihani v. Obama (D.C. Cir. Aug. 31, 2010) (en banc rehearing denied)

August 31, 2010

Actually, I’m not sure there any dissenting opinions in this. My apologies for the confusion.

From: Robert Chesney
Sent: Tuesday, August 31, 2010 10:01 AM
To: nationalsecuritylaw@utlists.utexas.edu
Subject: al bihani v. Obama (D.C. Cir. Aug. 31, 2010) (en banc rehearing denied)

* al-Bihani v. Obama (D.C. Cir. Aug. 31, 2010) (en banc rehearing denied)

Al –Bihani was the first DC Circuit panel opinion in the post-Boumediene GTMO habeas litigation, which among other things concluded that international law has no bearing on the question of the government’s detention authority under the AUMF, that the power to detain extends to both members and supporters of AUMF-covered groups, that hearsay is admissible in these proceedings, and quite a bit more. The Circuit has now decided not to rehear the case en banc, with 113 pages of concurring and dissenting opinions.

I’m off to teach right now but will post a summary when I return later today. In the meantime, the set of opinions is attached.

al-bihani-rhg-en-banc-denial.pdf


al bihani v. Obama (D.C. Cir. Aug. 31, 2010) (en banc rehearing denied)

August 31, 2010

* al-Bihani v. Obama (D.C. Cir. Aug. 31, 2010) (en banc rehearing denied)

Al –Bihani was the first DC Circuit panel opinion in the post-Boumediene GTMO habeas litigation, which among other things concluded that international law has no bearing on the question of the government’s detention authority under the AUMF, that the power to detain extends to both members and supporters of AUMF-covered groups, that hearsay is admissible in these proceedings, and quite a bit more. The Circuit has now decided not to rehear the case en banc, with 113 pages of concurring and dissenting opinions.

I’m off to teach right now but will post a summary when I return later today. In the meantime, the set of opinions is attached.

al-bihani-rhg-en-banc-denial.pdf


al-Aulaki v. Obama (D.D.C. Aug. 30, 2010)

August 31, 2010

* al-Aulaki v. Obama (D.D.C. Aug. 30, 2010) (complaint in civil suit challenging use of lethal force outside theater of conventional combat operations)

The ACLU has filed a complaint on behalf of Nasser al-Aulaki, father of Anwar al-Aulaki—an American citizen living in Yemen said to be involved with al Qaeda and linked to, among other things, the failed Christmas Day airline bomb plot. The suit is, in brief, a challenge to the government’s assertion of authority to use lethal force outside of conventional war zones, except in limited circumstances involving imminent harm.

The suit alleges the following causes of action:

First Claim for Relief

Fourth Amendment: Right to be Free from Unreasonable Seizure

27. Defendants’ policy of targeted killings violates the Fourth Amendment by authorizing, outside of armed conflict, the seizure, in the form of targeted killing, of U.S. citizens, including Plaintiff’s son, in circumstances in which they do not present concrete, specific, and imminent threats to life or physical safety, and where there are means other than lethal force that could reasonably be employed to neutralize any such threat. Plaintiff brings this claim as next friend for his son.

Second Claim for Relief

Fifth Amendment: Right Not to be Deprived of Life Without Due Process

28. Defendants’ policy of targeted killings violates the Fifth Amendment by authorizing, outside of armed conflict, the killing of U.S. citizens, including Plaintiff’s son, without due process of law in circumstances in which they do not present concrete, specific, and imminent threats to life or physical safety, and where there are means other than lethal force that could reasonably be employed to neutralize any such threat. Plaintiff brings this claim as next friend for his son.

Third Claim for Relief

Alien Tort Statute: Extrajudicial Killing

29. Defendants’ policy of targeted killings violates treaty and customary international law by authorizing, outside of armed conflict, the killing of individuals, including Plaintiff’s son, without judicial process in circumstances in which they do not present concrete, specific, and imminent threats to life or physical safety, and where there are means other than lethal force that could reasonably be employed to neutralize any such threat. Plaintiff brings this claim in his own right to prevent the injury he would suffer if Defendants were to kill his son.

Fourth Claim for Relief

Fifth Amendment: Due Process Notice Requirements

30. Defendants’ policy of targeted killings outside of armed conflict violates the Fifth Amendment by authorizing the killing of U.S. citizens, including Plaintiff’s son, on the basis of criteria that are secret. Plaintiff brings this claim as next friend for his son.

As for the relief sought:

For the foregoing reasons, Plaintiff Nasser Al-Aulaqi requests that the Court:

a. Declare that, outside of armed conflict, the Constitution prohibits Defendants from carrying out the targeted killing of U.S. citizens, including Plaintiff’s son, except in circumstances in which they present concrete, specific, and imminent threats to life or physical safety, and there are no means other than lethal force that could reasonably be employed to neutralize the threats.

b. Declare that, outside of armed conflict, treaty and customary international law prohibit Defendants from carrying out the targeted killing of individuals, including Plaintiff’s son, except in circumstances in which they present concrete, specific, and imminent threats to life or physical safety, and there are no means other than lethal force that could reasonably be employed to neutralize the threats.

c. Enjoin Defendants from intentionally killing U.S. citizen Anwar Al-Aulaqi unless he presents a concrete, specific, and imminent threat to life or physical safety, and there are no means other than lethal force that could reasonably be employed to neutralize the threat.

d. Order Defendants to disclose the criteria that are used in determining whether the government will carry out the targeted killing of a U.S. citizen.

e. Grant any other and further relief as is appropriate and necessary.


forthcoming scholarship

August 30, 2010

* forthcoming scholarship

Controlling the Recourse to War by Modifying Jus in Bello

Ryan Goodman
New York University – School of Law

2009 YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW, Forthcoming

According to a bedrock principle of international law, the rules regulating the recourse to war and the rules regulating conduct during war must be kept conceptually and legally distinct. The purported independence of the two domains – the ‘separation principle’ – remains unstable despite its historic pedigree. This essay explores recent developments that threaten to erode the separation. The author analyzes, in particular, doctrinal innovations that result in the regulation of the recourse to war through alterations of jus in bello. International and national institutions have incentivized states to pursue particular paths to war by tailoring the rules that regulate conduct in armed conflict. Some warpaths are accordingly rewarded, and others are penalized. The article then explores potential consequences, first, on state behavior involving the use of force and, second, on state behavior involving the conduct of warfare. One significant conclusion is that these recent developments channel state behavior and justifications for using force toward security-based and strategic rationales. These efforts – whether intended or not – risk suppressing ‘desirable wars’ and inspiring ‘undesirable wars.’ These recent developments also undercut humanitarian protections by undermining the mechanisms for compliance with legal norms on the battlefield.

“Intelligence Interviewing: Teaching Papers and Case Studies: A Report from the Study on Educing Information”

Intelligence Science Board

April 2009

Steve Aftergood’s Secrecy News Blog provides an overview and link to this 211-page document here.

"Presidential War Power in the Deliberative Moment – An Empirical Study of Congressional Constitutional Deliberation and Balance of War Power"

CHI-TING TSAI, Cornell University – School of Law
Email: ct257

This paper examines how congressional deliberation over the constitutionality of a use of force affects the war power relationship between the president and Congress. In particular, it presents empirical data on whether and how Congress exerts its attempts to control presidential war power through deliberation, on the limits of congressional ability to regulate a war, on historical patterns of the presidential unilateral use of force, and on the institutional conditions for good congressional deliberation. My main argument is that congressional deliberation over the constitutionality of a use of force is a primary influence on Congress’s ability to exert its will through the passage of legislation to check the president’s use of force.

I focus on congressional floor debates recorded in the Congressional Record (1989-2009) over different use of force events occurring from 1989 to 2003. These incidents are collected from the Correlates of War Project Dataset. I cluster 229 congressional deliberations on the constitutionality of the use of force and bills thereof into 14 military events according to the war timeline depicted by the Correlates of War Project Dataset.

In response to the main research question, I present three empirical models. The first empirical model demonstrates that a higher level of congressional deliberation over a use of force influences Congress to impose a higher level of control over presidential war power. The second model demonstrates that as long as Congress imposes control over a military deployment, the president systematically resists that control.

Although the second model demonstrates that congressional attempts to check presidential war power cannot prevent the president from taking unilateral military action, I argue that this result suggests that it is even more important for Congress to have better deliberation and to try to impose a check on the president, which can create an unequivocal legal and political accountability for the president. Therefore, I present the third empirical model to demonstrate that congressional rule-setting, including referral of a bill to committee, an adoption of open-rule floor debate, and deliberation over a non-annual budget bill, is the primary factor determining the quality of congressional deliberation.

Bagram, Boumediene, and Limited Government

Robert Knowles
Chicago-Kent College of Law
Marc D. Falkoff
Northern Illinois University College of Law

DePaul Law Review, Vol. 59, 2010

The United States’ prison at Bagram Airbase in Afghanistan is the latest front in the battle over the extraterritorial reach of the Constitution. Habeas litigation on behalf of Bagram detainees has begun establishing how the writ of habeas corpus extends beyond U.S. territory to active war zones, and it has begun to refine the limits of presidential power in the war on terror. This Article explains why, as the courts wrestle with these issues, their foremost task should be to determine whether the Constitution authorizes the U.S. government to suspend the protections of the writ, rather than to discover whether detainees abroad possess a “right” to judicial review of the legality of their detentions. More broadly, we suggest that the U.S. Supreme Court’s new multifactor balancing test for determining the extraterritorial reach of the writ (announced in June 2008 in Boumediene v. Bush1) must be understood as embodying a limited government approach, rather than a rights-based approach, to defining the global reach of the Constitution.


ASIL Lieber Society 2011 Call for Papers

August 30, 2010

* Call for Papers: American Society of International Law, Lieber Society

Details attached, and also summarized below:

CALL FOR PAPERS

FOR THE 2011 LIEBER SOCIETY MILITARY PRIZE.

Since 2007, the Lieber Society, an Interest Group of the American Society of International Law, has, through its Lieber Society Military Prize, annuallyrecognized a paper that significantly enhances the understanding and implementation of the law of war. The prize is given for exceptional writing in English by an active duty or retired member of the regular or reserve armed forces, regardless of nationality.

The Prize. The winner will receive a certificate confirming that he or she has won the 2011 Lieber Society Military Prize, $500.00, and a one-year membership to the American Society of International Law (ASIL). The judges may also select additional persons to receive Lieber Military Prize Certificates of Merit and ASIL annual memberships for their papers.

Request for Assistance. Any person receiving this Call for Papers who is aware of exceptional writing that meets the qualifications of this competition is requested to nominate the paper directly to the Lieber Society and forward this Call to the author of that paper.

Definition of the Law of War. For this competition, the Law of War is that part of international law that regulates the conduct of armed hostilities. Papers may address any aspect of the law of war, including, but not limited to the use of force in international law; the conduct of hostilities during international and non-international armed conflicts; protected persons and protected objects; the law of weapons; rules of engagement; treatment of detainees, to include interrogation procedures; and occupation law. Papers addressing practical problems confronting members of armed forces are preferred.

Qualifications for entering the competition. Persons submitting papers do not have to be ASIL members. They may be citizens of any nation, but they must be a member of his or her nation’s regular or reserve armed forces.

Papers that may be entered. Papers submitted in this competition must be in English (or translated into English if written in another language) and not more than 35 pages long if printed with single line spacing or 70 pages if written with double line spacing, including footnotes. Both papers that have been published and papers that have not been published will be considered for the Prize.

Required Contact Data. All submissions must contain the following data on the author of the paper: full name and military rank or rating, current postal and e-mail addresses, current telephone and fax numbers. If a person other than the author is making the submission, it must also contain the above data for the person submitting the paper.

Deadline for submitting papers. Papers for the 2011 competition must be received no later than Friday, December 31, 2010.

Use of email to submit papers. Electronic submissions in Adobe format (.pdf) or Microsoft Word (.doc) are preferred. They should be sent to Lieber Military Prize Coordinator Eric Talbot Jensen at

Use of the postal system to submit papers. Submissions by postal mail should be sent to:

Eric Talbot Jensen

6322 Hillsborough Drive

Falls Church, VA 22044

Acknowledgement of submissions. All submissions will be acknowledged by e-mail.

Announcement of winner. The winner and any persons receiving Certificates of Merit will be announced at the 2010 Annual Meeting of the American Society of International Law in Washington, DC, March 2011.

2011 Call for Papers – final.doc


call for papers: National Security and Defense Review (ABA Int’l Law Section) (8/31/10 deadline)

August 26, 2010

* Call for Submissions: National Security and Defense Review (ABA Int’l Law Section) (DEADLINE AUGUST 31, 2010)

From the ABA Section on International Law (Aerospace & Defense Industries Committee & National Security Committee):

The National Security and Defense Review, a new peer-reviewed journal

published jointly by the Aerospace & Defense Industries Committee and

National Security Committee of the ABA Section of International Law, is

currently accepting submissions for its inaugural issue. The journal will

seek to inform, and to initiate discussion among, lawyers practicing in the

areas of aerospace, defense, and national security. This journal will also

seek to leverage the complimentary interests among members of the several

ABA committees that either practice or maintain an interest in

security-related developments in the law, and compile bodies of work, to be

published semi-annually, that will provide special insight to practitioners,

academics, and others working in these constantly evolving areas of law.

The NSDR is especially interested in receiving articles of fewer than 8,000

words, and shorter 500-2,000 word practice notes and legislative or policy

updates regarding developments in U.S., foreign nation, or international law

that could impact national, regional, or global security or defense. Those

interested in contributing should send their topic ideas or pre-written

submissions (along with their resume or c.v.) to ABA.NSDR by

Tuesday, August 31, 2010. The NSDR Editorial Board will make every effort

to expedite review of proposals, and expects to request authors to be able

to submit completed drafts approximately four weeks after receiving notice

that their papers have been approved, for publication expected in early

November.

Thank you very much for your interest. We’re looking forward to reviewing

your proposals.

Sincerely,

/s/

Adam Pearlman

Editor-in-Chief

Adam R. Pearlman

Associate Deputy General Counsel (Legal Counsel)

United States Department of Defense

NIPR: Adam.Pearlman

SIPR: Adam.Pearlman

Phone: (703) 601-6201

CAUTION: Information contained in this message may be protected by the

attorney/client, attorney work product, deliberative process or other

privileges. Do not disseminate further without approval from the Office of

the DoD General Counsel.