* Forthcoming Scholarship
Samuel J. Rascoff (NYU Law)
Southern California Law Review
In the best of circumstances, governing domestic intelligence is challenging. Intelligence sits in an uncomfortable relationship with law’s commitment to transparency and accountability. History amply demonstrates that intelligence—including domestic intelligence—frequently begins where the rule of law gives out.
The inherent difficulty of governing intelligence has been unnecessarily exacerbated by a deep-seated and longstanding confusion about what domestic intelligence is. For over a century, policymakers and academic commentators have assumed that it is essentially a form of criminal investigation and that criminal law supplies the logical starting place for its effective governance. Over the years, this faulty premise has fostered a boom-and-bust cycle in intelligence governance; domestic intelligence has been, at different times, effectively out of business or unchecked by law.
This Article introduces a new way to think about domestic intelligence and its governance. Domestic intelligence is a kind of risk assessment, a regulatory activity familiar across the administrative state. Similar to risk assessments in environmental or health and safety law, domestic intelligence seeks to quantify a risk before it materializes, based on the careful analysis of aggregative data.
Domestic intelligence as risk assessment in turn necessitates a regulatory approach to intelligence governance. This Article shows how some of the mainstays of administrative law—especially an expansive conception of cost-benefit analysis, judicial review, and pluralism—can and must play a key role in intelligence governance. It contends that intelligence governance must concern itself not merely with producing intelligence that is obtained without illegality or abuse, but also with generating accurate and useful intelligence. This Article makes concrete recommendations for situating these theoretical claims within the institutional landscape of contemporary intelligence practice.
For the foreseeable future, domestic intelligence is here to stay. The need for domesticating‖ intelligence is therefore urgent. This Article shows how to do so in a way that reflects an accurate understanding of intelligence and its proper governance.
Gary J. Schmitt (Resident Scholar & Director of Advanced Strategic Studies, American Enterprise Institute)
Rowman & Littlefield
The terrorist attacks of September 11, 2001, produced a revolution in domestic security in the United States. The Bush administration responded quickly by aggressively enforcing existing laws, sponsoring new legislation, overhauling domestic intelligence, and employing the president’s executive power in ways that drew criticism from civil libertarians on both the left and right. Many hoped that the succeeding administration would adopt a more "European" approach to domestic security–an approach typically understood to be more compatible with the rule of law and friendlier to civil liberties.
But Europe has suffered major terrorist attacks as well–in Madrid in 2004 and London in 2005–and terrorist plots continue to plague America’s European allies. Has this shared experience engendered a common approach to domestic security, or, as many believe, is there a transatlantic divide in counterterrorism strategy? In Safety, Liberty, and Islamist Terrorism: American and European Approaches to Domestic Counterterrorism, Gary J. Schmitt leads a group of security and intelligence experts in analyzing the domestic counterterrorism regimes of the United Kingdom, France, Spain, Germany, and the United States. The authors’ in-depth analysis provides a unique window into the similarities and differences among the counterterrorism efforts of these major democracies and explores the possibilities (and limitations) of applying one country’s lessons to another.
Safety, Liberty, and Islamist Terrorism concludes with a broad assessment of the changes made to U.S. counterterrorism strategy since 9/11 in comparison with current European laws, institutions, and practices, and with policies instituted during past American domestic security crises. The analysis uncovers evidence of a shared strategic imperative: preemption. For the United States, preemption occurs both at home and on battlefields abroad, while for Europe, preemption is primarily a domestic affair, often resulting in laws that allow more aggressive policing of terrorist activity than occurs in the United States. The comparison also yields insights about how the transatlantic community has balanced the need to address the jihadist threat with maintaining civic order at home.
Although no country has a perfect record, Schmitt contends that changes made to domestic security policy in response to the terrorist threat have not undermined the United States and Europe’s shared commitment to democracy and liberty. "Certainly, tradeoffs have been made between individual liberties and domestic security," Schmitt writes. "But if we take the broad view, we are struck by how minimal those intrusions on our liberties have been, given the threat we face."
Gary J. Schmitt
· Chapter 1: United Kingdom: Once More Unto the Breach
· Chapter 2: France: In a League of Its Own
Gary J. Schmitt
· Chapter 3: Spain: From 9/11 to 3/11 and Beyond
Rafael L. Bardají
· Chapter 4: Germany: The Long and Winding Road
· Chapter 5: United States: Facing the Threat at Home
Gary J. Schmitt
· Chapter 6: U.S. Counterterrorism in Perspective
Gary J. Schmitt
CHRIS JENKS, Government of the United States of America – Judge Advocate General’s Corps
The Status of Forces Agreement (SOFA) between the U.S. and Iraq entered force on January 1, 2009 and established the legal framework by which U.S. personnel continue to operate in Iraq. The SOFA followed lengthy and contentious negotiations, which many commentators claim that Iraq “won,” extracting significant concessions from the U.S. in the process. While that may true in some areas, the opposite seems to be the case in one of the most contentious areas of this or any SOFA criminal jurisdiction over service members. This article examines the criminal jurisdiction article of the Iraq SOFA and posits that the purported grant to Iraq of primary jurisdiction over U.S. service members is illusory if not an outright nullity.
Lost amidst politically charged issues like troop withdrawal dates and contractor impunity, the SOFA departs from long standing U.S. practice of a jurisdictional framework based on whether there is a nexus between a service member’s acts or omissions and their official duties. Instead, the Iraq SOFA utilizes a jurisdictional construct predicated on U.S. service member duty status. Thus, while the SOFA purports to grant Iraq the primary right of jurisdiction over U.S. service members in certain circumstances, the grant is limited to crimes committed outside duty status. But U.S. service members, even those committing crimes, always have a duty status so the required predicate for Iraq to exercise jurisdiction will never be met. In the years following the U.S invasion of Iraq, U.S. service members have committed a number of serious and high profile crimes against Iraqis, including rape and murder. Prior to the SOFA, Iraq did not have primary jurisdiction over the U.S. service members who committed such crimes. After the SOFA, and seemingly in direct contradiction to lofty SOFA language about Iraq’s sovereign right to enforce its own criminal law, Iraq still lacks primary jurisdiction over U.S. service members, even for rape and murder of Iraqis.
The article concludes that with U.S. troops scheduled to be in Iraq until at least the end of 2011, the likelihood of a U.S. service member committing a violent crime against Iraqis, and bringing much attention to the duty status jurisdictional construct in the process, is high. In the short term, this will almost inevitably create difficulties for the U.S. in its relationship with Iraq. In the long term, the U.S. may have protected its service members from an Iraqi judicial system perceived as not capable of providing due process and a fair trial but the linguistic mechanism for accomplishing that will make future security agreement negotiations with other countries that much more difficult.
ASHER FREDMAN, affiliation not provided to SSRN
This article analyzes NGO reporting on compliance with the Laws of Armed Conflict (LOAC) by parties to hostilities. Although such reporting increasingly influences the policies of states and international actors, factual and legal claims made by international human rights NGOs have been subject to relatively little critical evaluation in the academic literature. The case selected for analysis is the 2008-2009 conflict in Gaza and Southern Israel, with a focus on reporting by Amnesty International (AI) and Human Rights Watch (HRW). The author argues that on the factual level, AI and HRW’s depictions of the means and methods of warfare contain numerous unwarranted or unsubstantiated assertions, often contradicted by military sources. From the legal perspective, the author argues that AI and HRW’s presentation of LOAC is in some cases inaccurate or incomplete; in others, the NGOs present controversial interpretations of LOAC treaties as widely accepted customary law. This therefore suggests that NGOs should carefully evaluate their areas of competency, take steps to ensure that ideological predispositions do not color their analyses, and avoid conflating lex lata with lex ferenda. Policy-makers, diplomats and others who rely on NGO-generated information should not allow the positive values associated with the promotion of human rights to preclude critical evaluation of the substantive claims made by the NGOs.