more forthcoming scholarship

* more forthcoming scholarship

Changing of the Guard: The Obama Administration, National Security, and the Ethics of Legal Transitions

Peter Margulies
Roger Williams University School of Law

Roger Williams Univ. Legal Studies Paper No. 95

Expressions of disappointment in the Obama administration’s national security policies have become a familiar trope in progressive legal discourse. This article argues that both the administration and its critics underestimate the difficulty of transitions from periods of overreaching such as the immediate aftermath of 9/11, which I have analyzed in a new book, LAW’S DETOUR: JUSTICE DISPLACED IN THE BUSH ADMINISTRATION (NYU Press 2010). Efforts at transition confront powerful narratives of foreign threats, the pull of patronage for national security consultants and facilities, and a legitimate fear that today’s transition from overreaching will subject former officials to the armchair inquisitions of hindsight bias.

Transitions from overreaching in the American context succeed with the same virtues as transitions abroad: inclusion, institutional repertoire, and redress. Inclusion requires consultation with stakeholders, both inside and outside the executive branch, as well as the provision of notice that ensures continuity and fairness. Institutional repertoire allows the lawyer to consult a range of sources of legal authority. For example, a government lawyer providing advice after September 11 should read customary international law in light of United Nations resolutions passed after the attacks. The lawyer may also cite customary national security law’s canon of presidential actions ratified by Congress, including the World War II destroyer deal with Britain authorized by then Attorney General Robert Jackson. Redress contemplates a remedial pragmatism that blends formal and informal sanctions, as in the South African truth and reconciliation commissions.

To illustrate the transitional legal ethics paradigm, the article analyzes the enduring presence of Guantanamo, the refusal to seek professional discipline for lawyers like John Yoo who supplied advice to the previous administration, and the proliferation of Predator drone attacks in Pakistan. By a narrow margin, the new administration has avoided emulating Yoo’s negative example. However, its management of the transition from overreaching is very much a work in progress.

An e-SOS for Cyberspace

Duncan B. Hollis
Temple University – James E. Beasley School of Law
September 1, 2010

Individuals, shadowy criminal organizations, and nation states all now have the capacity to harm modern societies through computer attacks. These new and severe cyberthreats put critical information, infrastructure, and lives at risk. And the threat is growing in scale and intensity with every passing day.

The conventional response to such cyberthreats is self-reliance. When self-reliance comes up short, states have turned to law for a solution. Cybercrime laws proscribe individuals from engaging in unwanted cyberactivities. Other international laws proscribe what states can (and cannot) do in terms of cyberwarfare. Both sets of rules work by attribution, targeting bad actors – whether criminals or states – to deter cyberthreats.

This Article challenges the sufficiency of existing cyber-law and security. Law cannot regulate the authors of cyberthreats because anonymity is built into the very structure of the Internet. As a result, existing rules on cybercrime and cyberwar do little to deter. They may even create new problems, when attackers and victims assume different rules apply to the same conduct.

Instead of regulating bad actors, this Article proposes states adopt a duty to assist victims of the most severe cyberthreats. A duty to assist works by giving victims assistance to avoid or mitigate serious harms. At sea, anyone who hears a victim’s SOS must offer whatever assistance they reasonably can. An e-SOS would work in a similar way. It would require assistance for cyberthreat victims without requiring them to know who, if anyone, was threatening them. An e-SOS system could help avoid harms from existing cyberthreats and deter others. Even when cyberthreats succeed, an e-SOS could make computer systems and networks more resilient to any harm they impose. At the same time, an e-SOS would compliment, rather than compete with, self-reliant measures and the existing legal proscriptions against cyberthreats.

Decisions Detained: The Courts’ Embrace of Complexity in Guantánamo-Related Litigation

Joshua Alexander Geltzer
Yale University – Law School

Berkeley Journal of International Law (BJIL), Vol. 29, No. 1, 2010

This Article explores the judicial embrace of complexity in the context of Guantánamo-related litigation. First, the Article sets out the conception of war as defined by the three factors identified above, and the conceptual challenge to each that a war against terrorism has posed. Second, the Article examines a number of key judicial decisions implicating post-9/11 detention at Guantánamo to reveal how courts have shied away from delving too deeply into the first two factors while concentrating on the third. Next, the Article suggests institutional reasons for that emphasis: in particular, the avoidance of issues potentially considered political questions, and the evasion of clear and potentially unwinnable conflict with other branches. Fourth, the Article explores the benefits of that choice to a handful of detainees by demonstrating how the choice has allowed the courts to intervene in case-specific ways and, in so doing, to secure the release of a few detainees. Finally, the Article reveals the costs of that choice by showing how uncertainty has repeatedly traveled up and down the judicial hierarchy, delaying resolution of central issues that, indeed, remain unsettled today, all the while potentially endangering the judiciary’s institutional standing in war-time. Throughout, the Article argues that courts have refused to define time or space as limiting factors in the war against terrorism, instead focusing on the means employed. Emphasizing that distinctly difficult defining factor has made the courts’ task easier, enabling them to issue narrow rulings through reinterpretable opinions. Institutional reasons explain this judicial approach: in particular, the courts have sought to avoid clear intrusion into the sphere of political questions as well as to evade clear and potentially unenforceable conflict with the political branches. While the benefits of this approach have included particularized judicial intervention, the costs have loomed far larger, including persistent uncertainty and potential institutional diminution for the judiciary.

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