forthcoming scholarship

August 9, 2010

* Forthcoming scholarship

The Goldstone Report and International Law: The March of Politics Under the Banner of Law

Peter Berkowitz (Stanford – Hoover Institution)

The controversy over the “Report of the United Nations Fact Finding Mission on the Gaza Conflict”1 (September 15, 2009), more commonly known as the Goldstone Report, seems to have died down. But its larger significance has yet to be appreciated. For the most part, the controversy has swirled around the reliability of the Goldstone Report’s factual findings and the validity of its legal findings concerning Operation Cast Lead, which Israel launched on December 27, 2008, and concluded on January 18, 2009. But another and more far-reaching issue, which should be of great significance to those who take seriously the claims of international law to govern the conduct of war, has scarcely been noticed. And that pertains to the disregarding of fundamental norms and principles of international law by the United Nations Human Rights Council (hrc), which authorized the Goldstone Mission; by the Mission members, who produced the Goldstone Report; and by the hrc and the United Nations General Assembly (of which the hrc is a subsidiary organ), which endorsed the report’s recommendations. Their conduct combines an exaltation of, and disrespect for, international law. It is driven by an ambition to shift authority over critical judgments about the conduct of war from states to international institutions. Among the most serious political consequences of this shift is the impairment of the ability of liberal democracies to deal lawfully and effectively with the complex and multifarious threats presented by transnational terrorists.

"A New National Security Court? The Case for a Provisional Approach to the Guantanamo Habeas Suits"

SOPHIA M. BRILL, Yale University
Email: sophia.brill

This Article argues that because the habeas jurisprudence from the Guantánamo Bay cases has come about as an accident of both politics and policy, it should be afforded only the most provisional status as legal precedent. Though the recent case law hinges on an interpretation of the AUMF – that the word “force” includes the power to detain – that interpretation has been a product of judicial crisis-management born of necessity. The D.C. judges have been handed a docket from what President Obama himself has called “the mess at Guantánamo.” They have improvised a system for separating out those who truly ought to be released from those who might pose some sort of threat, but in the context of assurances from the government that it is seeking to shut down the facility and develop some alternative detention policy. Absent any interventions by Congress, the rulings so far should serve as no more than provisional means for dealing with a political and policy crisis. A provisional approach to the rulings’ interpretation of the AUMF is appropriate because Congress did not discuss any issues related to detention at the time of its passage and never has voted upon the matter since; higher courts have left trial courts with almost no guidance on the matter; and the executive branch under the Obama Administration has shown no desire to make preventive detention the law of the land.

My argument proceeds in five Parts. Part I discusses the “democracy gap” in our current detention policy, arguing that the AUMF was never understood as an authorization for long-term detention at the time of its passage and was never discussed as such. It also argues that subsequent legislation, including the 2006 and 2009 Military Commissions Acts and the 2005 Detainee Treatment Act, should not be seen as congressional ratifications of detention policy. Part II briefly describes the substance of the habeas rulings, their broad areas of consensus, and the disconnect that this emerging consensus has produced when compared to public discourse over detention in Guantánamo. Part III explores the gaps that the dynamic between the Supreme Court and Congress has produced, the Court having insisted on some level of legal process but refusing to set any concrete guidelines, and Congress failing to pass any serious policy resolutions. Within Congress, Part III argues that the issue has become so politically radioactive that the only potential outcomes are extremist proposals and gridlock.

Part IV turns to examine the executive branch, arguing that the Obama Administration has delegated detention law to the courts as its least bad option for “unwinding” the situation it inherited. It examines the Administration’s legal position with regard to detention and argues that this position, while similar on the surface to that of the Bush Administration, should also be viewed as provisional and backward looking. Part V stakes out the case for a provisional approach, given the default of all three branches and the extraordinary circumstances that have framed the courts’ decision making. It argues that an expansive reading of the habeas cases could lead to a number of alarming outcomes in some future time or administration and discusses the merits of narrow rulings and narrow readings in this line of cases. It then describes the contours that such a provisional approach would take, including how and to whom this line of cases should be limited.

"Boumediene v. Bush: Would Justice Story Concur?"

New York University Law Review, Forthcoming
MSU Legal Studies Research Paper No. 07-11

LUMEN N. MULLIGAN, University of Kansas Law School
Email: lumen

In this essay, I take up the Court’s less heralded second holding in Boumediene v. Bush – that a federal habeas court must have the institutional capacity to find facts, which in Boumediene itself meant that a federal district court must be available to the petitioners. Although this has gone largely unnoticed, I contend that this holding is inconsistent with the Madisonian Compromise – the standard view that the Constitution does not require jurisdiction in any federal court, except the Supreme Court. In fact, it appears that the Court adopted Justice Story’s position that the Constitution requires vesting of jurisdiction in the lower federal courts to hear executive-detention habeas corpus cases sub silentio. In considering alternatives to this bold conclusion, I deploy newly uncovered opinions from Supreme Court justices to consider whether justices acting in chambers remain a viable habeas forum of last resort post-Boumediene, why the Boumediene Court failed to address these issues directly, and, finally, whether the need for an independent finder of fact is well grounded in constitutional doctrine. I conclude with the prediction that Boumediene’s rejection of the Madisonian Compromise in the factfinding holding, not its scope of the habeas writ decision, will come to be Boumediene’s longest lived legacy for federal-courts law.

"The Unique Challenges of Terrorism Prosecutions: Towards a Workable Relation between Intelligence and Evidence"


KENT ROACH, University of Toronto – Faculty of Law
Email: kent.roach

The focus in this study isle on the unique challenges presented by terrorism prosecutions especially those relating to the disclosure of otherwise secret intelligence.. The first part of this paper will provide an historical outline of thinking about the distinction between security intelligence and evidence. The second part of this paper will outline some of the competing goals that should inform the relationship between security intelligence and evidence. The third part of this paper will examine issues related to the use of information collected by the Canadian Security Intelligence Service (CSIS) as evidence while intelligence is generally collected under less demanding standards than evidence. The fourth part of this paper will examine disclosure requirements as they may be applied to intelligence. The fifth part of this paper will examine possible legislative restrictions on disclosure and through the expansion or creation of evidentiary privileges that shield information from disclosure. The sixth part of this paper will examine existing means to secure nondisclosure orders to protect the secrecy of intelligence in particular prosecutions. The seventh part of this paper will examine the procedures used in the United States, the United Kingdom and Australia to resolve claims of national security confidentiality, with a view to understanding how the approaches used in those countries differ from those used in Canada and whether they provide a sounder basis for maintaining a workable and reliable relationship between security intelligence and evidence. The conclusion of this paper will assess strategies for making the relationship between intelligence and evidence workable. The strategies include both front-end strategies that will affect the collection of intelligence and back-end strategies relating to partial non-disclosure of intelligence that is not used as evidence. All of these issues are united by the need to establish a reliable, workable and fair relationship between intelligence and evidence. They raise fundamental questions about the viability of criminal prosecutions as a response to the threats of, and to acts of, international terrorism such as that which resulted in the bombing of Air India Flight 182.

Beyond the Court of Public Opinion: Military Commissions and the Reputational Pull of Compliance Theory"

Keith A. Petty
U.S. Army Judge Advocate General’s Corps
Georgetown Journal of International Law, Forthcoming

The decision to prosecute the suspected co-conspirators of the 9/11 terrorist attacks in either federal court or by military tribunal has reached a critical juncture. Central to this debate is whether the military commissions are consistent with domestic and international standards of justice. Utilizing the analytical framework of compliance theory, this article discusses the U.S. reputation for compliance in the context of the revised military commissions.

A decidedly negative reputation of the military commissions contributed to policies to amend the tribunal process, culminating in the Military Commissions Act of 2009. This supports empirical findings that States are pulled toward compliance with legal norms in part out of concern for reputation among transnational actors, such as governments, multi-national institutions, non-governmental organizations, and legal commentators. This article argues for policy-makers to engage in the interpretive, discursive process of normative compliance theory when formalizing national security strategy. Applying this process will minimize the need to engage in post hoc reputation shaping and, more importantly, will facilitate internalization of applicable legal norms in counter-terrorism policy.

"Travesty in Progress: Omar Khadr and the US Military Commissions"

Lisa Hajjar (UC-Santa Barbara)

Middle East Report Online

[no abstract available]

The Guantanamo Paradox

Morris Davis (Crimes of War Project)

[no abstract available]